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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

GESINA SEILER CARSON

Assistant Attorney General of Wisconsin

State Bar No. 1055162

Post Office Box 7857

Madison, Wisconsin 53707-7857

Telephone: (608) 266-1672

Fax: (608) 267-8906

E-mail: carsongs@doj.state.wi.us

MIGUEL A. NERI

Deputy Attorney General of California

State Bar No. 132875

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

Telephone: (510) 879-0755

Fax: (510) 622-2270

E-mail: Miguel.Neri@doj.ca.gov

Attorneys for Third Party Jonathan Kenoyer

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA PARENTS FOR THE 

EQUALIZATION OF EDUCATIONAL 

MATERIALS, et al.,

Plaintiffs, Case No. 17-CV-0635-CRB

v. BRIEF IN SUPPORT OF MOTION TO 

MAINTAIN CONFIDENTIAL 

DESIGNATION

TOM TORLAKSON, et al.,

Defendants.

Judge: Charles R. Breyer

Action Filed: June 14, 2018

BRIEF IN SUPPORT OF JONATHAN KENOYER’S MOTION TO RETAIN

CONFIDENTIAL DESIGNATION OF RECORDS PURSUANT TO STIPULATED 

PROTECTIVE ORDER (DKT. 130)

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

INTRODUCTION

Plaintiffs served Third Party Jonathan Mark Kenoyer with a subpoena for documents. 

Kenoyer is a Professor of Anthropology at the University of Wisconsin (“UW”) who focuses on 

the Indus Civilization (Pakistan and India). The documents requested were for all communications 

among the South Asia Faculty Group (SAFG) relating to “Framework” and the California State 

Education Agency and Professor Kenoyer’s 2005 research paper entitled “Cultures and Traditions 

of the Indus Traditions.” UW ultimately produced 800+ documents in response and designated a 

portion of those documents “Confidential” pursuant to the Protective Order entered in this case 

(Dkt. 130.) Plaintiffs have challenged to the confidential designation of 67 of these documents, 

which have been filed “Under Seal.” 

The Confidential documents are communications among faculty. They are confidential and 

protected by academic freedom. The consequence of lifting the confidential designation of the 

records will result in the inability of faculty and their collaborators to communicate freely and 

make advancements in their respective fields. Kenoyer respectfully requests this Court grant his 

Motion and retain the “Confidential” designation of these records. 

STATEMENT OF FACTS

On September 19, 2017, Plaintiffs served Professor Kenoyer with a subpoena for 

documents. (Dalle Molle Decl. Ex. 1.) The documents requested were for all communications 

among the South Asia Faculty Group (SAFG) relating to “Framework” and the California State 

Education Agency and Professor Kenoyer’s 2005 research paper entitled “Cultures and Traditions 

of the Indus Traditions. (Id.) 

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

Kenoyer is the George F. Dales and Barbara A. Dales Professor of Anthropology at UW 

with a primary focus on the Indus Civilizations--India and Pakistan. Professor Kenoyer has been 

excavating and carrying out research on the Indus Civilization since 1975 and has excavated at the 

site of Harappa, Pakistan since 1986. He has also worked at sites and ethnoarchaeological projects 

in India, China and Oman. He has a special interest in ancient technologies and crafts, socioeconomic and political organization as well as religion. These interests have led him to study a 

broad range of cultural periods in South Asia as well as other regions of the world. His publications 

include monographs on the Indus civilization as well as numerous articles, a grade school book on 

ancient South Asia and even a coloring book on the Indus cities for children. (Id. at ¶ 2.)

UW’s general counsel reviewed the subpoena and gathered responsive records. She 

determined that some of those records were confidential academic communications between 

scholars on their area of scholarship. (Id. at ¶ 4.) After communications with Glenn Katon, counsel 

for Plaintiffs, UW and Plaintiffs entered into a Stipulated Protective Order on January 23, 2018. 

The purpose was to protect the confidential communications between Kenoyer and other scholars 

discussing their areas of scholarship and ensure they were not made public. (Id. at ¶ 5.) Kenoyer 

produced 513 pages of documents on October 19, 2017, 153 pages of documents on October 12, 

2017 and 141 pages of documents on February 05, 2018. The final 141 documents were designated 

as “Confidential,” pursuant to the Stipulated Protective Order. (Id. at ¶ 6.)

UW-Madison’s decision in this case is consistent with the State of Wisconsin public 

records law. (Id. at 11, Exs. 3-4.) Some arguments made in each of these responses are relevant to 

the records designated by Kenoyer as confidential academic records of scholars in this case. (Id.

at ¶ 11.) In designating the Kenoyer emails as “Confidential,” UW-Madison employed a public 

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

records-type balancing test, attempting to balance need in this litigation with the confidential 

nature of these records, and their potential for harm if released. Even though the relevance of these 

records to the issues remaining in the current litigation seemed limited at best, UW-Madison opted 

to produce the records only for this litigation, with the “Confidential” designation. (Id. at ¶ 12.)

By email dated May 24, 2018, Plaintiff, pursuant to ¶ 6.2 of the Protective Order, 

challenged the confidential designation to the following pages of the document production: 1-2, 5, 

16, 22-24, 29-30, 36, 46-48, 51, 53, 56-58, 60-62, 66-67, 72-95, 105-123, 128. (Id. at 7.) On May 

30, 2018, counsel for Kenoyer had a conference call with counsel for Plaintiff, as required by ¶ 

6.2 of the Protective Order. (Dalle Molle Decl. at ¶ 9; Carson Decl. ¶ 3.) The parties conferred in 

good faith, but could not reach an agreement regarding the “Confidential” designation on the 

above-identified documents. (Dalle Molle Decl. at ¶ 10; Carson Decl. ¶ 4.)

Kenoyer timely filed (within 21 days of the May 24, 2018 e-mail notice challenging 

confidentiality of records) this Motion to retain confidentiality. (Dkt. 130 at ¶ 6.3).

ARGUMENT

Intellectual communications among UW scholars is imperative for the development of their 

respective fields. Faculty members often use e-mail to develop and share their thoughts with one 

another. The confidentiality of such discussions is vital to scholarship and to the mission of UW. 

Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and 

develop lines of argument without fear of reprisal for controversial findings and without the 

premature disclosure of those ideas. Additionally, the contentious nature of this litigation, and 

positions taken by Plaintiffs regarding Professor Kenoyer’s prior publications weighed into UW’s 

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

analysis. (Compl. ¶ 52-53.) For these reasons, UW has concluded in this case that Professor 

Kenoyer’s e-mails must be kept confidential and not used or disclosed outside of this litigation. 

A. Overview of the Law.

Courts have recognized a strong Constitutional interest in the right of scholars to conduct 

research without interference, an aspect of academic freedom recognized as a “special concern of 

the First Amendment.” The Regents of the University of California v. Bakke, 438 U.S. 265, 312 

(1978). They have applied these principles in articulating a Constitutionally-based privilege that 

protects scholars from divulging information that may lead to interference with their research 

activities. See Dow Chemical v. Allen, 672 F.2d 1262 (7th Cir. 1982); Richards of Rockford, Inc. 

v. Pacific Gas & Elec. Co., 71 F.R.D. 388 (N.D. Cal. 1976). 

In Dow Chemical, Dow had subpoenaed all the notes, reports, working papers and raw data 

relating to ongoing, but incomplete, animal-toxicity studies at the University of Wisconsin. The 

court protected the university’s research information from production, finding that compelled 

disclosure would “threaten substantial intrusion into the enterprise of university research.” Dow 

Chemical, 672 F.2d at 1276. The court found that such an intrusion could result in a chilling effect 

on academic research, noting the possibility for misappropriation of research results by a biased 

third party, the fear of additional disclosure in the future, and of potentially severe harm to the 

integrity of the research and to the investigators’ careers. The court concluded that such an 

intrusion into university research was not outweighed by the alleged need for the information. 

Violations of the principles of academic freedom are not the only concerns courts have 

expressed about the chilling effect of requiring a researcher to turn over confidential source 

materials. In Cusumano v. Microsoft Corp., 162 F.3d 708, 710 (1st Cir. 1998), the court held that 

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

Microsoft was not entitled to production of academic research materials, to defend against an 

antitrust suit. Reasoning that academics are like journalists, the court observed that if academic 

research materials were freely subject to subpoena, researchers’ sources likely would refuse to 

confide in them. See id. at 714. The court further noted, “[j]ust as a journalist, stripped of sources, 

would write fewer, less incisive articles, an academician, stripped of sources, would be able to 

provide fewer, less cogent analyses.” Id.

While it is true no absolute privilege protects academic emails from disclosure, the 

expectation of confidentiality is extremely important to Kenoyer and all of the faculty who 

participated in the textbook review. Zaustinsky v. University of California, 96 F.R.D. 622 (D.C. 

Cal. 1983) is instructive to this Court’s analysis. In Zautinsky, the plaintiff, a tenured faculty 

member, sought peer evaluations from her personnel file. These evaluations were prepared with 

the expectation of confidentiality. Id. at 623. The court held the documents were entitled to 

treatment as privileged/confidential communications and a balancing test was required to 

determine whether materials were protected from disclosure.

The court looked to Rule 501 of the Federal Rules of Evidence, which leaves questions of 

privilege to case-by-case adjudication “in the light of reason and experience.” Id. at 624 (quoting 

Trammel v. United States, 445 U.S. 40, 47–48, (1980)). The court stated criteria of eligibility for 

this protection as follows:

(1) The communications must originate in a confidence that they would not be 

disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory 

maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to 

be sedulously fostered.

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

Id. at 625 (citing 8 Wigmore, Evidence § 2285 at 527 (McNaughton rev. 1961)). The court found 

the criteria satisfied. The court then turned to the final factor. 

To say that the material may qualify for treatment as privileged does not dispose of 

the matter, however. The decision whether to protect material against disclosure 

because of its confidential character turns on a fourth criterion, stated by Wigmore 

as follows:

The injury that would inure to the relation by the disclosure of the 

communication must be greater than the benefit thereby gained for 

the correct disposal of the litigation.

Id. 

The court further commented that this final issue cannot be resolved in the abstract but only 

in the particular litigation context in which it arises and “relevance must be closely scrutinized to 

ensure that the substantial interest in confidentiality is weighed carefully in striking the proper 

balance.” Id.

B. The Kenoyer emails at issue are entitled to retain their 

“Confidential” designation.

Pursuant to Rule 501, the documents contained in Exhibit 2 are entitled to protection under 

the test articulated above. See id.

First, the communications were conducted in a format where they expected that they would 

not be disclosed. See id. at 625. Email is the preferred method for scholars spread out over the 

world to communicate. The emails are sent only to the SAFG and they are relating to text book 

review undertaken for the State of California. Second, the e-mail discourse freely exercised by 

SAFG cannot occur without protection. See id. If their communications are placed on the Internet 

for the world to see forever, this group (and other similar groups) will cease to exist as they can 

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

no longer communicate without fear of reprisal or without sanitizing their comments. The 

consequence of lifting the confidential designation of the records will result in the inability of 

faculty and their collaborators to communicate freely and make advancements in their respective 

fields. Third, the community at large benefits tremendously from collaboration among faculty 

throughout the world. See id. Some of our greatest discoveries and achievements have resulted 

from collaboration. And they should feel free to collaborate utilizing the latest technology, which 

is currently e-mail. If these e-mails do not retain their “Confidential” designation, they will 

undoubtedly be widely distributed. Not only will such distribution have a devastating impact on 

SAFG’s ability to collaborate, it will have a chilling effect on all academic collaboration going 

forward.

The final consideration, that damage done by the disclosure of the communication must be 

greater than the benefit gained for the correct disposal of the litigation clearly weighs in favor of 

retaining the “Confidential” designation. See id. UW-Madison employed a public records-type 

balancing test, attempting to balance need in this litigation with the confidential nature of these 

records, and their potential for harm if released. The relevance of these records to the issues in this 

litigation seemed marginal. 0F

1However, UW-Madison, after conducting its own balancing test, 

opted to produce the records only for this litigation, with the “Confidential” designation. There is 

no possible prejudice to Plaintiffs because they can use the emails for this litigation, if they are 

needed. Kenoyer is not aware of any possible benefit to the Plaintiffs in this litigation through the 

 

1 The only issue remaining in the case pertains to the establishment clause and whether on objective 

person would believe the curriculum favors or disfavors any religion. Therefore, private 

communications have no relevance to that issue because an objective person would not have access 

to those emails.

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Brief in Support of Motion to Maintain Confidential Designation (17-cv0635-CRB)

removal of the “Confidential” designation. The sole reason appears that Plaintiffs simply do not 

agree with the designation and want this Court’s permission to widely disseminate them. The 

potential for harm to SAFG and the chilling of scholarly collaboration significantly outweighs any 

possible benefit to this litigation from removal of the “Confidential” designation.

CONCLUSION

For the foregoing reasons, Third Party Jonathan Mark Kenoyer respectfully requests the 

Court grant his Motion and retain the “Confidential” Designation of the records contained in 

Exhibit 2.

Dated: June 14, 2018.

Respectfully submitted,

/s/Gesina S. Carson

GESINA SEILER CARSON

Assistant Attorney General

State Bar #1055162

Attorney for Third Party Jonathan Kenoyer

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