UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

C.R. and J.R., individually and as

Next Friends of JOE R., a minor,

Plaintiffs, No. 14-14531

v. District Judge Patrick J. Duggan

Magistrate Judge R. Steven Whalen

NOVI COMMUNITY SCHOOL

DISTRICT, ET AL.,

Defendants.

 /

ORDER

For the reasons and under the terms stated on the record on August 6, 2015,

Plaintiffs’ Motion to Overrule Objections to Requests for Production and to Compel

production of Discovery [Doc. #41] is GRANTED to the extent that the discovery at issue

will be produced subject to the protections set forth below and stated on the record, but

DENIED as to Plaintiffs’ request for sanctions.

Both the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §

1232g(b)(2)(B), and the Health Insurance Portability and Accountability Act (“HIPAA”), 

42 U.S.C. § 1320d; 45 C.F.R. § 164.512(e), provide for disclosure of otherwise

confidential information “in compliance with a judicial order,” for use in a judicial

proceeding. This litigation exception to disclosure applies here. See Edmonds v. Detroit

Pub. Sch. Sys., 2012 WL 5844655, *3 (E.D. Mich.2012). Statutory confidentiality

provisions such as those under FERPA and HIPAA do not create evidentiary privileges.

See Seales v. Macomb County, 226 F.R.D. 572, 577 (E.D. Mich. 2005).

Production of documents that fall within FERPA and HIPAA will be subject to the

-1-

4:14-cv-14531-TGB-RSW Doc # 49 Filed 08/06/15 Pg 1 of 2 Pg ID 598
stipulated protective order entered in this case [Doc. #33]. In addition, documents that fall

within FERPA will be subject to the condition that Defendant Novi Community School

District make a reasonable effort to notify student JJ and his parents of this Order “in

advance of the compliance therewith.” 20 U.S.C. § 1232g(b)(2); Edmonds at *4.1

All discovery covered by this Order shall be produced within 21 days of the date

of this Order.

IT IS SO ORDERED.

/s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: August 6, 2015

Certificate of Service

I certify that a copy of this order was served upon parties of record on August 7,

2015 via electronic or postal mail.

/s/A. Chubb 

CASE MANAGER

1

 In 20 U.S.C. § 1232g(b)(2), Congress did not provide students or parents a right

or mechanism to object to a judicial order compelling production. 34 C.F.R. § 99.31(9)(ii)

states that when production is ordered by a court, the agency or institution must “make[] a

reasonable effort to notify the parent or eligible student of the order or subpoena in

advance of compliance, so that the parent or eligible student may seek protective action.”

But in Whittaker v. Morgan State University, 842 F.Supp.2d 845, 846 -847 (D.Md.

2012), the Court, finding that “it is unlikely that a federal agency can confer jurisdiction

upon a court where Congress has refrained from doing so,” held that the students had no

standing to object to the judicial disclosure order. But see Rios v. Read, 73 F.R.D. 589,

601 (E.D.N.Y.1977), where the Court found it “pointless” to require notification if

students have no opportunity to object. However, while Defendant School District is

statutorily required to notify, the issue or standing to object is not ripe for decision here.

-2-

4:14-cv-14531-TGB-RSW Doc # 49 Filed 08/06/15 Pg 2 of 2 Pg ID 599