From the Twin Falls Times-News
by Alex Riggins
DIETRICH — An attorney for the Dietrich School District filed a motion Tuesday in a civil lawsuit seeking to seal documents related to student conduct that were made publicly available Monday.
An affidavit supporting the motion cited a story published Tuesday in the Times-News that detailed the school district’s investigation last year that found it was “more likely than not” that a black, mentally disabled football player was sexually assaulted with a hanger by several teammates following an Oct. 22 football practice.
The investigation included 30 interviews with football players, coaches, and parents, according to district officials, and found “evidence of misconduct among students that (included) sexual harassment, bullying behavior, and sexual assault.”
The alleged victim of that assault sued the district for $10 millionclaiming school administrators and football coaches “were aware of or should have been aware of” months of harassment, discrimination and abuse that culminated in the locker room assault. The school district denies the claims.
In the affidavit supporting the motion to seal the school investigation and other documents detailing student conduct, attorney Brian Julian of Anderson, Julian & Hull said the need to seal documents in this case “is especially acute given the fact that the local news outlets repeatedly and routinely report on issues related to this litigation.”
Julian also insinuated the victim’s attorney tipped off the Times-News, saying the documents should be sealed because of “Plaintiff’s counsel’s propensity to speak with local news media and to share with them information obtained in the course of discovery.”
The Times-News routinely checks the status of the case and on Monday discovered the documents relating to the district’s investigation. The plaintiff’s counsel did not share with the paper any documents or “information obtained in the course of discovery.”
A reporter sought comment and spoke with Lee Schlender, an attorney who represents the alleged sexual assault victim in the civil case, after finding the publicly available documents in the federal court repository.
Julian argued that sealed documents should include all that fall under the Family Educational Right to Privacy Act, known as FERPA, and the American Health Insurance Portability and Accountability Act of 1996, known as HIPAA.
“This order shall apply to all documents, regardless of form, including portions of deposition transcripts, which contain information related to confidential student educational records,” Julian wrote in his motion for protective order.
He said the protected materials should be marked “confidential” and only be made available to the attorneys and others involved in the case.
Schlender included the school district’s heavily-redacted investigation findings in his own motion last week in which he argued he should be granted access to the pure, unredacted reports. All student names, except the victim’s, were blacked out in the version Schlender received from the school district’s attorneys.
“We were given copies of the investigation’s findings, but all the important info — who made the statements, who was there — it’s all been wiped out,” Schlender told the Times-News on Monday. “We told the court, ‘no, no. We’re entitled to get that material because it’s evidence.’ The school district’s attorneys have the entire file in its pure form … We’re just as entitled to those as anyone.”
Julian included in his motion a string of emails between the two attorneys in which Julian tried to seal the documents through a stipulated agreement rather than a motion to the judge. But Schlender rejected the agreement, thus the documents were made public Monday on the federal repository.
Also included in the motion as an exhibit was a copy of the Times-News‘ story from Tuesday. Julian argued that “had the names of the students been supplied in the Initial Disclosures, all of the information would likely had been published by the Times-News in a subsequent article.”
But the heavily-redacted investigation findings were made public only because they were part of a motion asking for the unredacted version. Schlender would have had no reason to make his publicly accessible motion seeking the unredacted documents if he would have initially received the unredacted version.
As of 7:30 p.m. Wednesday, the documents were still available publicly on the federal repository. It’s unclear if or when a judge will issue an order sealing certain documents, though Julian said in an email to Schlender he believes a protective order for the documents “will be well received by the federal court.”
From the Twin Falls Times-News