Free Motion for Order - District Court of California - California

Case 3:07-cv-02343-DMS-WMC

Document 15

Filed 04/07/2008

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TOSDAL, SMITH, STEINER & WAX 401 West A Street, Suite 320 San Diego, CA 92101-7911 Telephone: (619) 239-7200 Facsimile: (619) 239-6048

THOMAS TOSDAL, STATE BAR NO. 067834 ANGELA JAE, STATE BAR NO. 248571 TOSDAL, SMITH, STEINER & WAX 401 West A Street, Suite 320 San Diego, CA 92101-7911 Telephone: (619) 239-7200 Fax: (619) 239-6048 Attorneys for Plaintiff DEENA DEARDURFF SCHMIDT

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) BOARD OF TRUSTEES OF THE ) CALIFORNIA STATE UNIVERSITY, ) SAN DIEGO STATE UNIVERSITY, ) JEFF SCHEMMEL, DOES 1-15, ) ) Defendants. ) _____________________________ ) I, THOMAS TOSDAL, declare: 1. I am an attorney licensed to practice in the State of DEENA DEARDURFF SCHMIDT, CASE NO. 07-CV-2343DMS(WMC) DECLARATION OF PLAINTIFF'S COUNSEL IN SUPPORT OF HER EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO PRODUCE UNREDACTED COPIES OF ALL DOCUMENTS CONTAINED IN INITIAL DISCLOSURES

California and a partner of Tosdal, Smith, Steiner & Wax, attorneys of record for Plaintiff DEENA DEARDURFF SCHMIDT. As such I have personal knowledge of the facts referenced below. 2. Plaintiff applies to the Court ex parte for an order

compelling Defendants BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, to SAN DIEGO STATE UNIVERSITY, of all and JEFF

SCHEMMEL

produce

unredacted

copies

documents

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produced with their Federal Rules of Civil Procedure Rule 26(a) initial disclosures by April 16, 2008, before the early

CASE NO. 07-CV-2343DMS(WMC)

Case 3:07-cv-02343-DMS-WMC

Document 15

Filed 04/07/2008

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TOSDAL, SMITH, STEINER & WAX 401 West A Street, Suite 320 San Diego, CA 92101-7911 Telephone: (619) 239-7200 Facsimile: (619) 239-6048

neutral evaluation settlement conference scheduled to be held on April 21, 2008. 3. Counsel for Defendants received notice of this ex parte application on Friday, April 4, 2008, and has indicated that he does not oppose this application. 4. This action was filed in the San Diego Superior Court and removed by Defendants to District Court. 5. On February 25, 2008, both parties timely exchanged witnesses, documents and other information pursuant to the FRCP 26(a) initial disclosure requirements. 6. A review of Defendants' initial disclosures revealed that certain documents from produced, students specifically and parents, emails and

correspondence redactions.

contained

The substance of the communications was not

redacted but Defendants redacted the names of the persons who authored them. 7. Counsel subsequently met and conferred with counsel for

Defendants by telephone requesting they produce un-redacted copies of certain documents produced in Defendants' initial disclosures. 8. By letter dated March 10, 2008, Defendants' counsel indicated that they would provide "unredacted copies of those documents as soon as the University has complied with its FERPA

obligations." //// //// //// ////

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CASE NO. 07-CV-2343DMS(WMC)

Case 3:07-cv-02343-DMS-WMC

Document 15

Filed 04/07/2008

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TOSDAL, SMITH, STEINER & WAX 401 West A Street, Suite 320 San Diego, CA 92101-7911 Telephone: (619) 239-7200 Facsimile: (619) 239-6048

9.

By letter dated March 25, 2008, counsel again requested they produce "unredacted copies of all documents contained in the initial disclosures in advance of the settlement conference" and that if no agreement could be reached, the issue would be raised with Magistrate Judge William McCurine.

10.

The issue of the redacted copies of documents produced by Defendants in their initial disclosures was raised with

Magistrate Judge McCurine during the April 4, 2008, conference call. 11. Counsel for Defendants indicated that FERPA's confidentiality requirements, a federal privacy law protecting the disclosure of educational records, may apply to the documents which would require either parental/student consent or a court order before they produced the unredacted documents. 12. Counsel indicated that he would seek an order from the Court ex parte compelling the disclosure of the unredacted documents so that Plaintiff will be fully prepared for her participation in the settlement conference scheduled to be held on April 21, 2008. 13. Counsel for Defendants indicated that he would not oppose the ex parte application. 14. Counsel have met and conferred with Defendants' counsel and unredacted copies of the documents cannot be produced in time for the settlement conference unless a court order is issued by this Court ex parte. 15. Plaintiff will be prejudiced if the ex parte motion is heard according to the regular noticed motion procedures because Plaintiff will not be able to properly prepare for and fully

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CASE NO. 07-CV-2343DMS(WMC)

Case 3:07-cv-02343-DMS-WMC

Document 15

Filed 04/07/2008

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TOSDAL, SMITH, STEINER & WAX 401 West A Street, Suite 320 San Diego, CA 92101-7911 Telephone: (619) 239-7200 Facsimile: (619) 239-6048

participate conference

in

the

early for

neutral April

evaluation 21, 2008,

settlement without the

scheduled

unredacted documents.

I declare under penalty of perjury that the foregoing is true and correct. California. S/Thomas Tosdal Thomas Tosdal [email protected] Executed on this 7th day of April 2008 at San Diego,

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CASE NO. 07-CV-2343DMS(WMC)