Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA FREEDOM FROM RELIGION FOUNDATION, INC., DOE 1, BY DOE 1S NEXT OF FRIEND AND PARENT, MARIE SCHAUB, WHO ALSO SUES ON HER OWN BEHALF, DOE 2, BY DOE 2S NEXT OF FRIEND AND PARENT DOE 3, WHO ALSO SUES ON DOES OWN BEHALF, vs. Plaintiffs, : : : : : : : : : : : : : : : :

C.A. No. 12-01319

JURY TRIAL DEMANDED

NEW KENSINGTON-ARNOLD SCHOOL DISTRICT, Defendant.

BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Defendant, the New Kensington-Arnold School District, by and through its attorneys, Anthony G. Sanchez, Esquire, Amie A. Thompson, Esquire and the law firm of Andrews & Price, file the following Brief in Support of Motion for Protective Order. I. Background Plaintiffs Freedom from Religion Foundation, Inc. (FFR), Doe 1, by Doe 1s next friend and parent, Marie Schaub, who also sues on her own behalf, Doe 2, by Doe 2s next friend and parent Doe 3, who also sues on Doe 3s own behalf, have brought the underlying First Amendment lawsuit against the Defendant New Kensington-Arnold School District (the District). While the District was amenable to the individually named Plaintiffs proceeding with pseudonyms and the use of a protective order, 1 the District is unable to agree with the unjustifiably restrictive language contained in the Plaintiffs proposed protective order. By way
1

In fact, it was the Districts counsel that informed Plaintiffs counsel that he needed to obtain court permission to proceed with pseudonyms. This occurred before the undersigned counsel even entered an appearance in this matter.

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 2 of 8

of their motion, Plaintiffs seek to limit the Districts ability to gather information before discovery even ensues. II. Plaintiffs proposed protective order Plaintiffs proposed protective order is presented below for this Courts review. 2 The District has italicized the language to which they will not agree. Revised language proposed by the District is provided in bold underneath the contested language. PROTECTIVE ORDER AND NOW this day of September, 2012, upon consideration of the Plaintiffs Motion for Protective Order, it is hereby ORDERED, ADJUDGED, and DECREED that Plaintiffs production of any and all forms of identifying information, as defined herein, shall proceed in accordance with the following Order: 1. This Order governs the use of all produced identifying information that Plaintiffs may produce to Defendant in response to informal inquiry or formal discovery requests made by Defendant. This Order does not address what identifying information must be produced by Plaintiffs and deals only with the handling of any identifying information that is produced at any point by Plaintiffs. 2. For purposes of this Order, Identifying Information shall refer to any information from which the identity of Plaintiffs Doe 1, Marie Schaub, Doe 2, and Doe 3 (the moving Plaintiffs) may be determined and shall include but not be limited to current or prior names of the moving Plaintiffs or family members of the moving Plaintiffs, current or former addresses of the moving Plaintiffs or family members of the moving Plaintiffs, current or former telephone number(s) of the moving Plaintiffs or family members of the moving Plaintiffs, current or former email addresses of the moving Plaintiffs or family members of the moving Plaintiffs, and social security numbers of the moving Plaintiffs or family members of the moving Plaintiffs. 3. Any and all Identifying Information to be provided to Defendant by Plaintiffs shall be provided and protected as follows:
2

This proposed protective order was sent by Plaintiff to undersigned counsel on October 29, 2012. As both parties are filing motions simultaneously, the District assumes that the contested language will remain the same.

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 3 of 8

a. Undersigned counsel for Plaintiffs shall provide any Identifying Information directly to the solicitor for Defendant New KensingtonArnold School District (the Solicitor). 3 b. Plaintiffs counsel shall provide such Identifying Information via mail or email directed to the Solicitor and such communication shall be clearly marked "Identifying Information." c. Upon receipt of any and all Identifying Information, Solicitor shall maintain the secrecy and confidentiality of such Identifying Information. d. The Solicitor shall only disclose any and all Identifying Information to the following individuals, under the following circumstances: i. To the extent necessary to allow counsel to fully and fairly represent Defendant, the Solicitor may disclose Identifying Information to other attorneys, paralegals, assistants, and other support staff persons who work with the Solicitor; and ii. To the extent necessary to allow counsel to fully and fairly represent Defendant, defense counsel may disclose identifying information to current and former District personnel and board members. e. Prior to providing any and all Identifying Information to any of the individuals identified in Paragraphs 3(c)(i) and 3(c)(ii) above, the solicitor shall provide any such individuals with a copy of this Protective Order and confirm that (1) the individual is aware of this Protective Order and (2) he or she is subject to the terms of the Protective Order, including the requirement that Identifying Information be kept strictly confidential. 4. Defendant agrees that it shall not publicly file any pleadings or documents with this Honorable Court that disclose any Identifying Information in Defendants possession. In the event that Defendant deems it necessary to file any pleadings or documents with this Honorable Court which contain or may contain Identifying Information, Defendant agrees that it shall file such pleadings or documents as UNDER SEAL PURSUANT TO ORDER OF COURT. 5. Defendant agrees that it shall not present any Identifying Information in open court. In the event that Defendant deems it necessary to present such Identifying Information to the Court, Defendant agrees that it shall file request that the Court review such information in camera.
The use of the term solicitor was inadvertent. The undersigned counsel believes that the parties have agreed to change this to litigation counsel and/or defense counsel.
3

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 4 of 8

6. This Protective Order shall remain in full force and effect for the duration of this matter, including any appeals. 7. All Court personnel (including court reporters and their staff or agents) who learn of any Identifying Information are hereby prohibited from taking any action that discloses to any person such Identifying Information. 8. Upon the final conclusion of this matter, the Solicitor and any recipient of any Identifying Information shall provide counsel for moving Plaintiffs with an affidavit stating that the Solicitor or any recipient of Identifying Information destroyed all copies (paper or electronic) of the communications (documents or emails) containing Identifying Information in a manner which would make it impossible for any other person to access the data. 9. It is the intent of this order to preserve the anonymity of the individual moving Plaintiffs to the greatest extent possible prior to Plaintiffs filing of a Motion for Leave to Proceed Pseudonymously, while affording the Defendant the opportunity to review information necessary to effectively address this matter. 10. Failure by any person to comply with the terms of this Protective Order shall subject the violator to a finding of contempt of court. III. Standard of review "Upon a finding of good cause, this Court may issue a protective order pursuant to Rule 26(c) to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ...." Robotic Parking Sys., Inc. v. City of Hoboken, CIV.A 063419(SRC)(M, 2010 WL 324524 (D.N.J. Jan. 19, 2010) aff'd sub nom. Robotic Parking Sys. Inc. v. City of Hoboken, CIVA 06-3419 (SRC), 2010 WL 1077286 (D.N.J. Mar. 23, 2010). The party requesting entry of such an order must demonstrate that there is a particular need for protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir.1994). The party seeking a protective order bears the burden to establish good cause, which requires more than mere allegations of unspecified, theoretical or generalized harm. See Fed.R.Civ.P. 26(c); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986) (The party seeking the protective order must show good cause by demonstrating a particular need for protection.

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 5 of 8

Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Furey v. Wolfe, CIV.A. 10-1820, 2011 WL 597038 (E.D. Pa. Feb. 18, 2011). Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Pa. 2001)(quoting Pansy v., 23 F.3d at 786). IV. Argument The individually-named Plaintiffs are adequately protected and unable to demonstrate good cause for seeking to limit the District from fully defending themselves. It is important from the onset to recognize that the District previously agreed to not oppose the individually-named Plaintiffs proceeding with pseudonyms. This is an extraordinary protection requiring exceptional circumstances and is rarely allowed by our Courts. As the United States District Court for the Eastern District of Pennsylvania explained in Malibu Media, LLC v. John Does 1-15, CIV.A. 12-2077, 2012 WL 3517374 (E.D. Pa. Aug. 13, 2012), In light of the general preference for public litigation, courts rarely grant such requests. Doe v. Provident Life and Accident Insur. Co., 176 F.R.D. 464, 466 (E.D.Pa.1997) (recognizing the strong public interest militating against pseudonymthe public right of access to civil judicial records and proceedings.); Doe v. Morrisville, 130 F.R.D. 612, 614 (E.D.Pa.1990). Rather, maintaining the anonymity of a party is reserved for exceptional cases. Id.; see also Provident Life, 176 F.R.D. at 467 (mental illness was proper grounds for plaintiff to use a pseudonym). In order to qualify as an exceptional case, a movant must demonstrate both: (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable. Doe v. Megless, 654 F.3d 404, 408 (3d Cir.2011) (citing Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th Cir.2010)). The risk of suffering humiliation or embarrassment is not enough to place the action within the rare and exceptional situation warranting anonymity. Morrisville, 130 F.R.D. at 614. 2012 WL 3517374 (E.D. Pa. Aug. 13, 2012)(footnote omitted).

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 6 of 8

This Court has permitted the individually-named Plaintiffs to proceed under pseudonyms to protect them from conjectural harassment and/or harm. In their motion for a protective order, however, Plaintiffs rely on unfair and unwarranted speculation as they seek to inhibit the Districts ability to conduct a defense. It goes without saying that a public school district, like other corporations, is a legal fiction. Plaintiffs are suing the District and the Districts

administrators, employees and board members are the District. Nevertheless, Plaintiffs seek to bar the very entity that they sue from knowing their identities. Under Plaintiffs proposed order, no one but the Districts counsel is permitted to know the identities of the individually-named Plaintiffs. This makes no sense and is contrary to the law. Despite extensive research, the undersigned counsel was unable to find a single case where a protective order was entered under similar circumstances. As noted above, the party seeking a protective order bears the burden to establish good cause, which requires more than mere allegations of unspecified, theoretical or generalized harm. See Fed.R.Civ.P. 26(c); Cipollone, 785 F.2d at 1121. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.). Furey, 2011 WL 597038. Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Doe, 202 F.R.D. at 176 (E.D. Pa. 2001)(quoting Pansy v., 23 F.3d at 786). Plaintiffs are unable to demonstrate good cause for the imposition of their proposed protective order. In attempting to do so, counsel for Plaintiffs indicated that that the

individually-named Plaintiffs fear possible retaliation from district personnel. He speculates that [t]his is particular[ly] worrisome for them given the authority that various district personnel would have over their children teachers when it comes their childrens grades and

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 7 of 8

school/district administration when it comes to any student discipline issues that may arise going forward. Similar aspersions are cast toward the current superintendent and a board member who is the superintendents brother. (E-mail correspondence from Plaintiffs counsel to defense counsel, dated January 10, 2013 is attached as Exhibit 1). The contemptible questioning of the morals and character of an entire educational community (painting the Districts teachers, administrators, superintendent and others as likely retaliators) does not demonstrate good cause. While certainly insulting and offensive, Plaintiffs' concerns constitute generalized harm at best, which is insufficient to establish good cause. See Fed.R.Civ.P. 26(c); Cipollone, 785 F.2d at 1121. No particular injury that is actually reasonably forseeable has been identified by Plaintiffs. Instead, Plaintiffs are asking this Court to assume that an entire educational community will ignore this Courts order regarding the pseudonyms, the confidentiality provisions of the Districts proposed protective order, their own counsels and their solicitors instructions, common decency and their own moral compasses and provide community members with the identities of the individually-named Plaintiffs. Plaintiff is adequately protected by the Districts proposed protective order. To the extent necessary to allow counsel to fully and fairly represent the District, defense counsel may disclose identifying information to current and former District personnel. Such individuals will be

provided a copy of the protective order and instructed that he or she is subject to the terms of the protective order, including the requirement that identifying information be kept strictly confidential. Failure by any person to comply with the terms of this Protective Order shall subject the violator to a finding of contempt of court. The combination of this Courts order permitting the individually-named Plaintiffs to proceed under pseudonyms and the Districts proposed protective order provides the

Case 2:12-cv-01319-TFM Document 23 Filed 03/22/13 Page 8 of 8

individually-named Plaintiffs with sufficient protection. Moreover, as noted more fully above, Plaintiffs have failed to demonstrate good cause for an order barring the District from speaking with its employees about the individual-named Plaintiffs identities. 4 Mean spirited

assumptions about the character of an entire education community should not lead to the imposition of a draconian protective order. V. Conclusion For the reasons outlined more fully above, the New Kensington Arnold School District respectfully asks this Court to adopt the Districts proposed protective order. Respectfully submitted, ANDREWS & PRICE By: /s/ Anthony G. Sanchez Anthony G. Sanchez, Esquire PA I.D. #55945 /s/ Amie A. Thompson Amie A. Thompson, Esquire P.A. I.D. #309345 Firm #549 1500 Ardmore Boulevard Suite 506 Pittsburgh, PA 15221 (412) 243-9700 Attorneys for the Defendant

The District also wishes to engage in some factual discovery relative to the individually-named Plaintiffs. Under Plaintiffs proposed protective order, defense counsel would be unable to talk to current and former District employees about the same underlying facts. This would make propounding discovery basically impossible. Defense counsel would be glad to provide the Court with specific examples in camera if necessary.