Court-approved protocol for releasing and securing data
Morgan Hill Concerned Parents Association v. CaliforniaDepartment of Education (Case Number: 2:2011cv03471)
Content
Morgan Hill Concerned Parents Association v. California Department of Education
Doc. 127 Att. 1
Morgan Hill Concerned Parents Association v. California
Department of Education (Case Number: 2:2011cv03471)
Proposed E-Discovery Protocol
I.
Databases
Format for Production of Databases
Each database referenced below will be produced in the stipulated format(s).
Subject to any specific provisions set out below for a particular database, at the time any
database is produced, CDE will also produce all existing instructional materials, descriptions of
schema, and non-public tools, scripts or code (“Documentation”) that is reasonably necessary
for the correct implementation and searching of the databases. If CDE is aware of any specific
issues regarding searching the produced databases (e.g. necessary exclusions, exceptions or
other special circumstances that are required to properly search the databases), CDE shall notify
the Plaintiffs of such issues at the time of producing the database, and describe the issues in
sufficient detail so that, to the extent possible, the Plaintiffs can avoid such issues.
The Special Master is concerned that for several of the databases, CDE personnel possess
institutional knowledge that is crucial for the successful implementation or searching of such
databases. Therefore, Plaintiffs should notify the Special Master immediately upon determining
that they are having difficulties implementing and/ or searching such databases. If the Special
Master determines that the Plaintiffs are likely to require knowledge or assistance that is only
available from CDE, Plaintiffs may, within 14 days of the Special Master’s determination,
request that the CDE meet with the Plaintiffs in person or by conference call to provide any
assistance that is not publically available or is not set out in the accompanying documentation.
In advance of such meetings, the Plaintiffs shall meet with the Special Master to explain any
difficulties they are experiencing with the implementation or searching of specific databases.
The Special Master shall liaise with Plaintiffs and CDE to provide an agenda for the meeting, and
to allow CDE sufficient time to determine what, if any, assistance they can provide to the
Plaintiffs.
Time for Production of Databases
To the extent that the databases referenced below do not contain identifiable student data,
such production to be within 14 days of the judge’s final order on discovery.
1
Dockets.Justia.com
To the extent that the above databases contain identifiable student data, such production to
occur within the period determined by the court after completion of the notification and
objection process (below).
The Special Master notes that the CDE has represented that all of the database subject to
production contain identifiable student data.
1. CASEMIS
CDE will produce a copy of the California Special Education Management Information System
(“CASEMIS”) database either as DBF files as they currently exist, or in an extended structure
(concatenated form). Before production occurs, CDE will provide a sample of both DBF files and
the extended structure format so that Plaintiffs can decide which format to receive. Once
Plaintiffs receive the database in their chosen format, production of CASEMIS will be complete.
To the extent that a backup of the database exists, CDE will produce the most recent full backup
of the CASEMIS database made before December 29, 2011. If no such backup exists, CDE will
produce the first full backup made after December 29, 2011.
CDE has explained to the Special Master that no backup of the CASEMIS database exists due to
the structure of the database, and provided an explanation in writing. Within 30 days of this
protocol become final, CDE (including its relevant technical staff) shall meet with the Special
Master to confirm CDE’s explanation.
The DBF files for a given year should include all tables within a CASEMIS database for a given
year, all educational bodies reporting with CASEMIS, and part year and full year DBF file
variations.
To the extent that such documentation exists, CDE will produce a copy of all Documentation
necessary for Plaintiffs to restore a functioning copy of the CASEMIS databases, including, but
not limited to CASEMIS Technical Assistance Guide (“TAG”). It is noted that CDE has stated it
does not track year-to-year changes to fields/data. The Special Master notes that TAG
documentation references that new CASEMIS software is released at the beginning of each
school-calendar year that incorporates changes for a given school year. Therefore, to the extent
necessary for Plaintiffs to implement and/ or search the database, CDE shall produce the
relevant CASEMIS software for that year.
2. SESR/VR
CDE will produce either a copy of the SESR/VR as a SQL server database, or an extracted
summary file of the SESR/VR. Before production occurs, CDE will provide a sample of both the
SQL format and the extracted summary format so that Plaintiffs can decide which format to
receive. Once Plaintiffs receive the database in their chosen format, production of CASEMIS will
be complete.
To the extent it exists, CDE will produce the most recent full backup of the SESR/VR database
made before December 29, 2011. If no such backup exists, CDE will produce the first full backup
made after December 29, 2011.
2
CDE has stated that no backups of SESR/VR data exist.
CDE will produce a copy of all existing relevant Documentation (including coding) necessary for
Plaintiffs to restore a functioning copy of the SESR/VR database.
It is noted that CDE has stated it does not track year-to-year changes to fields/data and that it
does not possess any instructional materials regarding the SER/VR database.
3. Complaints
CDE will produce a copy of the Complaints database in FileMaker Pro1 as it currently exists and,
if such a backup exists, the most recent full backup of the Complaints database made before
December 29, 2011. If no such backup exists, CDE will produce the first full backup made after
December 29, 2011.
CDE has stated that no backups of the Complaints data exists.
To the extent that the FileMaker Pro database stores any objects outside of the database (e.g.,
photos), then the folders related to the FileMaker Pro database will also be produced. The
version of FileMaker Pro will be identified.
CDE has stated that it does not have any electronic folders related to the FileMaker Pro
database that store objects outside FileMaker Pro.
CDE will identify the version of FileMaker Pro and will produce a copy of all relevant
Documentation necessary for Plaintiffs to restore a functioning copy of the COMPLAINTS
database, including but not limited to TAG for this database. It is noted that CDE has stated it
does not track year-to-year changes to fields/data.
4. SEEDS
CDE will produce a copy of the SEEDS database in Access 2000 as it currently exists and, if such a
backup exists, the most recent full backup of the SEEDS database made before December 29,
2011. If no such backup exists, CDE will produce the first full backup made after December 29,
2011.
CDE has stated that no backups of the SEEDS data exists.
CDE will produce a copy of all existing Documentation necessary for Plaintiffs to restore a
functioning copy of the SEEDS database. It is noted that the Sacramento County Office of
Education does not track year-to-year changes to fields/data.
1
FileMakerPro is a relational database product used for storing data, distributed by Apple subsidiary FileMaker.
3
To the extent such files exist, and to the extent such files are not included in the Email/ Network
data referenced below, CDE will produce any relevant files that are referenced in the SEEDS
database that exist outside the SEEDS database.
5. STAR Assessments
It is understood that the total historical Standardized Testing and Reporting (“STAR”) data
consists of:
(1)
(2)
(3)
(4)
Raw reports collected by the vendor, Educational Testing Service (“ETS”);
Flat data sets2 compiled by ETS from the raw reports and submitted to CDE;
Data that was extracted by CDE from the flat data sets and incorporated into CALPADS;
Data that was extracted by CDE from the flat data sets and submitted in the form of reports
(e.g. to the Federal government);
(5) Data sent by ETS to Local Education Authorities (“LEAs”).
CDE clarified that the references to “the Star database” in its responses was shorthand for all of
the data sets.
Of these data sets:
(1) Raw reports are in the possession of ETS. To the extent that the reports are under the
control of the CDE, CDE will have ETS produce copies of the STAR reports from 2008 –
2015 (inclusive) to Plaintiffs. CDE will provide the Plaintiffs with an explanation of the
format of the copy set to be provided. CDE has stated that, because release of the raw
reports would reveal proprietary information about the test, and because all responsive
data will be produced in the flat data sets (#2 below), CDE will object to the production
of the raw reports.
(2) Flat data sets compiled by ETS from the raw reports and submitted to the State. CDE
will produce to the Plaintiffs copies of all the flat data sets from 2008 – 2015 (inclusive).
(3) Data that was extracted by CDE from the flat data sets and incorporated into CALPADS
(“Extracted Data”). To avoid duplication, CDE will only produce such Extracted Data for
period 2008 – 2015 to the extent that:
a. such data includes analysis, re-coding of data, or some other alteration to the
relevant flat data set; and
b. such data was not incorporated into the CALPADS database (i.e. is not
duplicative of the data found in CALPADS and made available to the Plaintiffs
through access to the CALPADS database below)
CDE has objected to the production of any Extracted Data on the grounds that it is
duplicative and not altered in any way from the data found in CALPADS.
(4) Data that was extracted by CDE from the flat data sets and submitted in the form of
reports (e.g. to the Federal government). CDE will provide to the Plaintiffs a sample of
2
A flat data set refers to a file that contains data fields that are delimited by the field’s length.
4
these reports which include the data within the flat data sets. Plaintiffs, with the
assistance as necessary of the Special Master, will determine whether they require the
reports the period 2008 – 2015.
(5) Data sent by ETS to the LEAs. To the extent that this data is under the control of the
CDE, CDE will have ETS produce copies of such data. To the extent that CDE was
provided by ETS with copies of this data, CDE will produce copies of such data.
6. Administrative Hearings
CDE denies that it is the custodian of, nor possesses special access to, the administrative
hearings database (http://www.dgs.ca.gov/oah/SpecialEducation/searchDO.aspx). To the extent
that the Plaintiffs disagree with this assessment, the parties will seek resolution on this legal
matter from the court.
7. California Longitudinal Pupil Achievement Data System (“CALPADS”)
Parties originally explored two different options for allowing Plaintiffs access to CALPADS
sufficient for their experts’ needs. Option 1 would be for Plaintiffs to be provided with a copy of
CALPADS and then Plaintiffs would run their own searches (with assistance of CDE). Option 2
would be for CDE to keep possession of the CALPADS database and for Plaintiffs to work with
CDE to run searches across that database.
The two options are set out below:
Option 1 - Searches would be run by Plaintiffs, with assistance of CDE, across a copy of the
CALPADS Operational Data Store (“ODS”) (and the Snapshot databases) maintained by Plaintiffs.
1. Within 14 days of the Public Notification process having been completed (including the
public hearing), CDE shall produce an entire backup3 of the CALPADS ODS data as of current
date (or most recent full backup) plus backup of the entire Snapshot database(s). The
Special Master will review the methods used by CDE to copy the databases to ensure that
the data base been preserved and was not altered. CDE will also provide any non-public
documentation that allows for correct restoration and implementation of the backups – e.g.
any internal documentation that has been created, used to map data tables and columns for
both ODS and snapshot databases. Specific permissions and configuration settings that are
associated with restoration of the entire databases will also be provided. To the extent such
backup exists, CDE will produce the most recent full backup of the CALPADS database made
before December 29, 2011. If no such backup exists, CDE will produce the first full backup
made after December 29, 2011.
2. Within 60 days of production of the backup CALPADS databases, CDE and Plaintiffs shall
meet in-person or by telephone. The purpose of the meeting will be for CDE to assist
Plaintiffs in correctly implementing the CALPADS databases (both the ODS and Snapshot
databases) and carrying out searches across the dataset. Five (5) days in advance of the
3
The ODS database is a Microsoft SQL Server database. An entire database within Microsoft SQL Server is referred
to as a “full” backup.
5
meeting, Plaintiffs will provide to CDE specific questions/ issues regarding correct
implementation/ searching of the database. The purpose of the meeting will be for CDE to
assist Plaintiffs in carrying out searches across the dataset.
3. Following the initial meeting, the parties may voluntarily agree to a follow-up meeting. In
the absence of agreement, parties to seek an order from the magistrate as to whether
Defendants shall provide further assistance and, if so, the format and schedule for such
assistance.
4. It is understood that CDE’s assistance shall be to provide non-public and/ or historical
knowledge about the way the CALPADS databases are structured and relationships are
defined to allow Plaintiffs to successfully implement and search the CALPADS database.
Subject to this assistance, Plaintiff shall take all reasonable steps (including providing
sufficient resources) to implement and carry out searches against the ODS and Snapshot
databases without input from Defendants.
Option 2 - Plaintiffs liaise with CDE to develop specific queries/ reports - searches to be run by
CDE across a copy of data sets maintained exclusively by CDE.
1. Within 14 days of the Public Notification process having been completed (including the
public hearing), CDE shall create an entire backup of the CALPADS ODS data as of current
date (or most recent full backup) plus backup of the entire Snapshot database(s). The
Special Master will review the methods used by CDE to copy the databases to ensure that
the data base been preserved and was not altered. CDE will not provide a copy of the ODS
or Snapshot databases to the Plaintiffs.
2. Defendants and Plaintiffs work within a developed protocol allowing for Defendants to
assist Plaintiffs in carrying out searches against the copies of the ODS or Snapshots made in
stage #1 above. The proposed protocol shall be:
a. Immediately upon the Public Notification requirements (below) having been
completed, CDE shall provide the Plaintiffs a copy of all Documentation necessary
for Plaintiffs to understand the scope of data maintained within the CALPADS ODS
and Snapshot databases.
b. Within 14 days of completion, the parties shall meet in person or by telephone in
order for CDE to explain the scope of possible searches of CALPADS (including types
of data to be searched, date ranges, and output).
c. Following the meeting, Plaintiffs will provide an explanation in writing of the types
of data that they will be requesting, and CDE will develop and propose a table (or
file) format layout for the production of these types of data. Plaintiffs’ request for
types of data may be sufficiently broad to avoid revealing Plaintiffs’ trial strategy. If
the parties are unable to agree to a table format layout for production, or if the
Plaintiffs need clarification of the scope of possible searches of CALPADS (including
types of data to be searched, date ranges, and output), the parties will meet and
confer, and use the services of the Special Master as necessary to resolve disputes
as to the table format. CDE can provide samples of the table format layout and is
willing to continue to work with Plaintiffs within a reasonable time frame until they
are satisfied with the table format layout.
6
d. CDE to produce search reports in agreed format within 30 days.
e. Within 21 days of the production of reports, Plaintiffs may request a new round of
searches.
f. Plaintiff may request additional searches to be carried out, no more than one set of
searches in any 30 day period.
g. To the extent that CDE consider such requested searches over-burdensome or an
abuse of process, CDE shall meet with the Special Master to seek a voluntary
resolution between the parties. If not resolution is possible, CDE may seek an order
terminating the discovery process as it involves the CALPADS database.
Given the technical challenges of Option 1, the parties have agreed the following:
1. CDE will carry out the first stage of Option 1 (i.e. make a full backup of CALPADS and collect
necessary documentation). CDE will also collect a copy of the earliest full backup of the
CALPADS database made before December 29, 2011 (to the extent one exists). If no such
backup exists, CDE will produce the first full backup made after December 29, 2011.
2. CDE will provide the back-ups to the Special Master who will keep them in an encrypted, offline format in Kivu’s secure computer lab.
3. The parties will proceed with searches using Option 2.
4. Should Plaintiffs not be able to carry out searches or generate reports sufficient to their
experts’ needs under Option 2, Plaintiffs will notify CDE and the parties shall meet with the
Special Master to seek a voluntary resolution of the problems experienced by the Plaintiffs.
If no agreement is reached, Plaintiffs shall request that Option 1 be immediately
commenced and that copies of the CALPADS ODS and Snapshots be provided to them,
subject to any security requirements outlined below.
7
II.
Email/ Network Files
CDE has stated it has made a complete collection of all data from the CDE Special Education
Division:
•
•
All custodian email mailboxes
Entire file servers/ network share s
The collection was completed in January 2014.
CDE is experiencing severe delays in uploading all collected data into their chosen eDiscovery
review platform Relativity. CDE estimates it will require an additional 5 months to complete the
upload into Relativity. Once uploaded, the data is available to be searched.
On September 14, 2015, Plaintiffs provided a list of CDE employees that it considers being
“Priority” for searching.
Given the ongoing delay in completing the upload, the Special Master proposed:
(1) CDE will report on which of the Priority custodians’ email have already been processed (i.e.
are available immediately for searching).
(2) CDE will report on which of the Priority custodians’ network shares (i.e. network locations
exclusively under the control of the Priority custodians) have already been processed (i.e.
are available for searching).
(3) CDE will identify the email mail boxes and home network shares of those Priority custodians
who have not yet been processed. CDE will process that data first, such data to be
processed within 45 days of the finalization of the discovery protocol.
(4) In response to the Special Master’s proposed prioritized searching, CDE has stated that
because of the way that they collected the data, CDE is not able to identify individual
custodians so as to prioritize processing/ searching. CDE therefore proposes that it must
complete processing all data, an estimated process of 5 months, before beginning searching
of any custodians. Within 30 days of the finalizing of the protocol, CDE (and its relevant
technical staff) shall meet with the Special Master in order to determine if there is a
reasonable method of identifying the email/ data of Priority custodians (and thus
commencing searching those custodians immediately) short of loading the entire collected
data set into Relativity.
(5) Immediately upon completion of agreed search terms, CDE will commence searching the
data already collected for Priority employees. As additional Priority employees’ data is
processed, that data will be searched. The searching of Priority employees already
processed will be completed within 30 days of completion of search terms. For those
Priority employees who have not yet been processed, the searching will be completed
within 30 days of processing their data. If CDE is unable to prioritize the searching of
8
specific Priority employees, the above time limits shall apply from the time that processing
of all the data is complete.
(6) Once search terms are agreed, CDE will commence a rolling delivery of searched data. CDE
has stated that it intends to review files and emails responsive to search terms for potential
privilege (see proposed protocol below).
(7) Upon completion of the searching of any particular data set, CDE shall have 45 days to
review all search results and, if appropriate, claim that certain data is privileged or
otherwise should not be produced to Plaintiffs. Following the completion of the 45 day
review process, CDE shall produce to Plaintiffs all data deemed non-privileged (or otherwise
not to be withheld data) on a reasonable rolling basis. CDE’s request that such production
will depend on the availability of suitable media to store and transfer the production is not
reasonable given the delays to date in the case and the relatively low cost of storage media.
(8) After receiving CDE’s production and privilege log, Plaintiffs may request the opportunity to
meet and confer regarding any assertions of privilege. If the parties disagree about the
propriety of CDE’s privilege designations, they may seek a ruling from the Court on the
issue. All responsive data determined to be non-privileged will be timely provided to
Plaintiffs.
Developing Search Terms
Parties will apply the following protocol for developing search terms:
1. Within 30 days of finalizing this protocol, Plaintiffs shall provide Special Master with an
initial set of search terms. Plaintiffs will also provide any date ranges that could be
excluded from searching. To avoid unnecessary delay, the Special Master proposes that
all date ranges used in production and searching should be agreed in advance by the
court during the determination of the scope of production.
2. Within 7 days, the Special Master shall comment on the technical advisability of terms
(i.e. likelihood of producing significant false positives). Plaintiffs shall have 7 days to
revise the initial terms.
3. Special Master to liaise with Defendants regarding proposed search terms and, within
14 days of the Plaintiffs providing their list of terms, develop an agreed detailed search
term list.
4. The parties shall meet with the Special Master to determine a reasonable timeline and
time limits for CDE to carry out the searches. This timeline shall be based upon a review
of the amount of data and number of search terms, among other factors.
5. In accordance with the agreed timelines, Defendants to run initial search against sample
data set (to be agreed with Special Master) to determine numbers of unique responsive
files for each term (to identify terms generating clear false positives). Special Master,
with input from Plaintiffs and Defendants, to propose changes to list of search terms as
9
appropriate. Once any changes to the list of terms are finalized, the protocol for
developing search terms shall be deemed to be complete.
Optional Sampling:
Plaintiffs have raised the possibility that further search terms may only be discovered after they
have had the chance to commence reviewing the produced potentially responsive data. Case
law stresses that the use of search terms to identify potentially responsive documents should be
collaborative between the parties in order to avoid additional rounds of searching and reviewing
for privilege.
It is therefore proposed that the parties consider a sampling process whereby CDE uses the
agreed search terms to search a limited sample of the data (e.g. the mail of a limited number of
“Priority” employees). The CDE shall review the responsive documents for privilege and
produce the non-withheld documents to the Plaintiffs. The Plaintiffs shall then review this
sample set and upon completion of their review, have the chance to amend the list of search
terms, to incorporate any new or revised terms discovered during the Plaintiffs review of this
sample set. The amendment of the list of search terms will be agreed between the parties with
the assistance, as necessary, of the Special Master.
When this revised list of search terms, the product of a sampled review, has been finalized, the
search term development process will be deemed to be “complete” for the purpose of the time
limits set out above.
Should Plaintiffs seek to run additional search terms (e.g. due to facts uncovered in discovery),
parties shall meet with the Special Master to determine (i) whether further searches are
appropriate; and (ii) if so, the procedure and time limits for running the new search terms.
While CDE has voiced concern about the burden of running new terms, it is understood that
much of the delay in processing data to date has been CDE’s decision to collect and process all
existing data at the Special Education Division of CDE. Having processed all data and put it in the
Relativity platform, it is believed that running additional search terms against the collected data
set would not be over burdensome (assuming that it requires no additional collection or
processing). CDE has also expressed concern about duplicative review for privilege. It is
believed that most if not all potential duplication of privilege review (i.e. reviewing the same
documents for privilege in both the first and second round of searches) could be prevented by
established e-discovery de-duplication procedures (e.g. comparing emails and files through the
analysis of metadata and hash comparisons).
DeNIST Process
Prior to running searches, CDE will filter out DeNIST files (such as executable files, Windows
system files, help files, font files, and other programming files with no relevant information)
based on the standards set forth by the National Institute of Standards in Technology. In
advance of such filtering, CDE will provide the Plaintiffs with a list of the file types that they
intend to exclude and provide the Plaintiffs with a reasonable opportunity to challenge any of
the file types being excluded.
10
Searching for Privileged Documents by CDE
CDE intends to review all responsive emails for privilege. To avoid further delay in discovery, the
Special Master proposes the following protocol as regards privilege review:
1. CDE will limit its review of responsive email/ documents to those communications/ files
that were sent to/ from CDE’s in-house counsel, or sent to/ from or copied to external
counsel or the California Attorney General’s office.
2. For all other emails/ documents (including emails that were only copied to CDE’s inhouse counsel), CDE shall run a set of search terms to be developed in conjunction with
the Special Master. Such terms will be designed to identify potentially privileged
emails/ documents. CDE shall then only review those emails/ documents that
responsive to this second set of search terms.
3. All other emails/ files shall not be reviewed for privilege. Instead, they shall be
immediately provided to Plaintiffs with a claw-back provision to be agreed within the
parties to cover inadvertent disclosure of privileged files.
4. CDE shall liaise with the Special Master to determine if predictive coding tools can be
utilized to accelerate the review for privileged documents (subject to suitable FRE 502
claw-back provisions to prevent inadvertent waiver of privilege).
5. CDE will maintain a privilege log, the format to be determined at the meet and confer
immediately prior to commencement of the privilege review process. The privilege log
will be made available to Plaintiffs within a reasonable time after relevant production.
The Special Master notes that, while CDE has reviewed the above protocol, CDE has raised
objections including that there is no FRE 502(d) agreement/ order in place preventing the
inadvertent waiver of privilege. The Special Master therefore proposes that within 30 days of
the date of this protocol, the parties meet to agree suitable safeguards which balance CDE’s
concern about inadvertent disclosure of privileged documents with the Plaintiffs’ concerns
about the continued delays in commencing ediscovery production.
Format of Deliverables
The parties have discussed the format of deliverables (e.g. the format of files and metadata
fields to be produced). However, the Special Master has advised that discussion on the exact
format of deliverables be delayed until after the searches have been carried out and the parties
have a better understanding of the number of responsive files and the types of such files.
Because all documents will be produced in the format agreed to by the parties, the initial
production (July 12, 2013) of 939 documents will also be provided in that format– i.e. as a
searchable set within the format to be agreed for the other deliverables.
III.
Notification
The parties acknowledge that production of the requested data for students with disabilities will
require a notification process of those students. It is also the parties’ understanding that
regardless of which option is used for reviewing the CALPADS database, there will need to be a
11
notification of ALL students whose data is contained in the relevant produced or searched
CALPADS database.
1. Parties have tentatively agreed the wording of the FERPA Notice. Using the Special
Master as necessary, the parties shall agree a final wording of the FERPA Notice within
14 days of finalizing the protocol.
2. Parties have tentatively agreed the wording for an Objection to Disclosure of Student
Information and Records. While the Objection form provides an opportunity to state a
reason for the objection, the wording of the Objection form must be clear that providing
a reason is entirely optional. Using the Special Master as necessary, the parties shall
agree a final wording of the Objection to Disclosure of Student Information and Records
within 14 days of finalizing the protocol.
3. The FERPA Notice and template Objection shall be translated into Spanish. Depending
on the scope of production, it is possible that the Notice would need to be translated
into other languages depending on specific demographics. The parties note that notice
will be provided consistent with the requirements in California Education Code section
48985.
4. Within 30 days of the making of the order, the Parties shall meet and confer in order to
identify newspapers/ publications which will run the notification. In the absence of
agreement, the parties shall seek the court’s involvement in identifying sources.
5. The court shall decide how the cost of the notice shall be apportioned.
12
IV.
Safeguarding the Security of the Produced Data
The Special Master has significant concern about the storage and use of the highly sensitive
student data that will be produced by CDE to the Plaintiffs. Loss or compromise of the produced
data could result in the notification of literally millions of persons under state and Federal
breach notification requirements, at a cost of millions of dollars. Such notification could also
affect persons who are now resident in other states, and trigger breach notification laws in
those states.
As a pre-condition of receiving the data:
1. Plaintiffs’ counsel will carry out a third party risk assessment of their IT infrastructure
and protocol for storing, transmitting and using the data in question. Specific areas of
concern include the security of Plaintiff’s counsel computer network and devices; the
sharing of data between counsel and retained experts; the storage of sensitive data at
the business premises of Plaintiffs’ counsel; the transmission and sharing of data among
Plaintiffs’ counsel via email, network shares, or other applications.
2. Plaintiffs’ counsel shall meet and confer with the Special Master, and the Special Master
shall review and approve the scope of the third party risk assessment, its proposed
safeguards, and its implementation (#2 below). Such safeguards may include full disk
encryption of all devices used to store or transit sensitive data; logging of access to the
sensitive data; and restrictions of access to the data among Plaintiffs’ counsel and
contractors.
3. Following the risk assessment, Plaintiffs’ counsel will implement the safeguards
identified in the risk assessment, and the Special Master shall review the correct
implementation.
4. Irrespective of the risk assessment and its safeguards:
a) Plaintiffs are to maintain a record of all computer devices used to store or access the
sensitive data;
b) A record of all persons granted access to some or all of the sensitive data, the extent of
such access and the date period of such access;
c) One person at Plaintiffs’ counsel must assume responsibility for ensuring the
confidentiality of any personally identifiable information provided in discovery, and for
ensuring that all undertakings regarding security are implemented and enforced;
d) Plaintiffs must maintain a current listing of the names and positions of those persons
who may have access to personally identifiable information provided in discovery;
e) All sensitive data transmitted by CDE to Plaintiffs shall be on fully encrypted external
hard drives of at least 128-bit or 256-bit Advanced Encryption Standard (AES), key with
the key stored and transmitted separately from the hard disk;
13
f)
Plaintiffs are to confirm deletion of any extraneous copies of sensitive data (e.g. once
data is uploaded from external devices to a fully secure server or computer device). At
the conclusion of the litigation, Plaintiffs are to undertake to delete all sensitive data
(subject to any legal requirements) or to place such data into secure storage with a third
party.
Winston Krone, Esq., Kivu Consulting, Inc.
44 Montgomery Street, Suite 700, San Francisco, CA 94104
Tel: (415) 524-7322
[email protected]
14
Doc. 127 Att. 1
Morgan Hill Concerned Parents Association v. California
Department of Education (Case Number: 2:2011cv03471)
Proposed E-Discovery Protocol
I.
Databases
Format for Production of Databases
Each database referenced below will be produced in the stipulated format(s).
Subject to any specific provisions set out below for a particular database, at the time any
database is produced, CDE will also produce all existing instructional materials, descriptions of
schema, and non-public tools, scripts or code (“Documentation”) that is reasonably necessary
for the correct implementation and searching of the databases. If CDE is aware of any specific
issues regarding searching the produced databases (e.g. necessary exclusions, exceptions or
other special circumstances that are required to properly search the databases), CDE shall notify
the Plaintiffs of such issues at the time of producing the database, and describe the issues in
sufficient detail so that, to the extent possible, the Plaintiffs can avoid such issues.
The Special Master is concerned that for several of the databases, CDE personnel possess
institutional knowledge that is crucial for the successful implementation or searching of such
databases. Therefore, Plaintiffs should notify the Special Master immediately upon determining
that they are having difficulties implementing and/ or searching such databases. If the Special
Master determines that the Plaintiffs are likely to require knowledge or assistance that is only
available from CDE, Plaintiffs may, within 14 days of the Special Master’s determination,
request that the CDE meet with the Plaintiffs in person or by conference call to provide any
assistance that is not publically available or is not set out in the accompanying documentation.
In advance of such meetings, the Plaintiffs shall meet with the Special Master to explain any
difficulties they are experiencing with the implementation or searching of specific databases.
The Special Master shall liaise with Plaintiffs and CDE to provide an agenda for the meeting, and
to allow CDE sufficient time to determine what, if any, assistance they can provide to the
Plaintiffs.
Time for Production of Databases
To the extent that the databases referenced below do not contain identifiable student data,
such production to be within 14 days of the judge’s final order on discovery.
1
Dockets.Justia.com
To the extent that the above databases contain identifiable student data, such production to
occur within the period determined by the court after completion of the notification and
objection process (below).
The Special Master notes that the CDE has represented that all of the database subject to
production contain identifiable student data.
1. CASEMIS
CDE will produce a copy of the California Special Education Management Information System
(“CASEMIS”) database either as DBF files as they currently exist, or in an extended structure
(concatenated form). Before production occurs, CDE will provide a sample of both DBF files and
the extended structure format so that Plaintiffs can decide which format to receive. Once
Plaintiffs receive the database in their chosen format, production of CASEMIS will be complete.
To the extent that a backup of the database exists, CDE will produce the most recent full backup
of the CASEMIS database made before December 29, 2011. If no such backup exists, CDE will
produce the first full backup made after December 29, 2011.
CDE has explained to the Special Master that no backup of the CASEMIS database exists due to
the structure of the database, and provided an explanation in writing. Within 30 days of this
protocol become final, CDE (including its relevant technical staff) shall meet with the Special
Master to confirm CDE’s explanation.
The DBF files for a given year should include all tables within a CASEMIS database for a given
year, all educational bodies reporting with CASEMIS, and part year and full year DBF file
variations.
To the extent that such documentation exists, CDE will produce a copy of all Documentation
necessary for Plaintiffs to restore a functioning copy of the CASEMIS databases, including, but
not limited to CASEMIS Technical Assistance Guide (“TAG”). It is noted that CDE has stated it
does not track year-to-year changes to fields/data. The Special Master notes that TAG
documentation references that new CASEMIS software is released at the beginning of each
school-calendar year that incorporates changes for a given school year. Therefore, to the extent
necessary for Plaintiffs to implement and/ or search the database, CDE shall produce the
relevant CASEMIS software for that year.
2. SESR/VR
CDE will produce either a copy of the SESR/VR as a SQL server database, or an extracted
summary file of the SESR/VR. Before production occurs, CDE will provide a sample of both the
SQL format and the extracted summary format so that Plaintiffs can decide which format to
receive. Once Plaintiffs receive the database in their chosen format, production of CASEMIS will
be complete.
To the extent it exists, CDE will produce the most recent full backup of the SESR/VR database
made before December 29, 2011. If no such backup exists, CDE will produce the first full backup
made after December 29, 2011.
2
CDE has stated that no backups of SESR/VR data exist.
CDE will produce a copy of all existing relevant Documentation (including coding) necessary for
Plaintiffs to restore a functioning copy of the SESR/VR database.
It is noted that CDE has stated it does not track year-to-year changes to fields/data and that it
does not possess any instructional materials regarding the SER/VR database.
3. Complaints
CDE will produce a copy of the Complaints database in FileMaker Pro1 as it currently exists and,
if such a backup exists, the most recent full backup of the Complaints database made before
December 29, 2011. If no such backup exists, CDE will produce the first full backup made after
December 29, 2011.
CDE has stated that no backups of the Complaints data exists.
To the extent that the FileMaker Pro database stores any objects outside of the database (e.g.,
photos), then the folders related to the FileMaker Pro database will also be produced. The
version of FileMaker Pro will be identified.
CDE has stated that it does not have any electronic folders related to the FileMaker Pro
database that store objects outside FileMaker Pro.
CDE will identify the version of FileMaker Pro and will produce a copy of all relevant
Documentation necessary for Plaintiffs to restore a functioning copy of the COMPLAINTS
database, including but not limited to TAG for this database. It is noted that CDE has stated it
does not track year-to-year changes to fields/data.
4. SEEDS
CDE will produce a copy of the SEEDS database in Access 2000 as it currently exists and, if such a
backup exists, the most recent full backup of the SEEDS database made before December 29,
2011. If no such backup exists, CDE will produce the first full backup made after December 29,
2011.
CDE has stated that no backups of the SEEDS data exists.
CDE will produce a copy of all existing Documentation necessary for Plaintiffs to restore a
functioning copy of the SEEDS database. It is noted that the Sacramento County Office of
Education does not track year-to-year changes to fields/data.
1
FileMakerPro is a relational database product used for storing data, distributed by Apple subsidiary FileMaker.
3
To the extent such files exist, and to the extent such files are not included in the Email/ Network
data referenced below, CDE will produce any relevant files that are referenced in the SEEDS
database that exist outside the SEEDS database.
5. STAR Assessments
It is understood that the total historical Standardized Testing and Reporting (“STAR”) data
consists of:
(1)
(2)
(3)
(4)
Raw reports collected by the vendor, Educational Testing Service (“ETS”);
Flat data sets2 compiled by ETS from the raw reports and submitted to CDE;
Data that was extracted by CDE from the flat data sets and incorporated into CALPADS;
Data that was extracted by CDE from the flat data sets and submitted in the form of reports
(e.g. to the Federal government);
(5) Data sent by ETS to Local Education Authorities (“LEAs”).
CDE clarified that the references to “the Star database” in its responses was shorthand for all of
the data sets.
Of these data sets:
(1) Raw reports are in the possession of ETS. To the extent that the reports are under the
control of the CDE, CDE will have ETS produce copies of the STAR reports from 2008 –
2015 (inclusive) to Plaintiffs. CDE will provide the Plaintiffs with an explanation of the
format of the copy set to be provided. CDE has stated that, because release of the raw
reports would reveal proprietary information about the test, and because all responsive
data will be produced in the flat data sets (#2 below), CDE will object to the production
of the raw reports.
(2) Flat data sets compiled by ETS from the raw reports and submitted to the State. CDE
will produce to the Plaintiffs copies of all the flat data sets from 2008 – 2015 (inclusive).
(3) Data that was extracted by CDE from the flat data sets and incorporated into CALPADS
(“Extracted Data”). To avoid duplication, CDE will only produce such Extracted Data for
period 2008 – 2015 to the extent that:
a. such data includes analysis, re-coding of data, or some other alteration to the
relevant flat data set; and
b. such data was not incorporated into the CALPADS database (i.e. is not
duplicative of the data found in CALPADS and made available to the Plaintiffs
through access to the CALPADS database below)
CDE has objected to the production of any Extracted Data on the grounds that it is
duplicative and not altered in any way from the data found in CALPADS.
(4) Data that was extracted by CDE from the flat data sets and submitted in the form of
reports (e.g. to the Federal government). CDE will provide to the Plaintiffs a sample of
2
A flat data set refers to a file that contains data fields that are delimited by the field’s length.
4
these reports which include the data within the flat data sets. Plaintiffs, with the
assistance as necessary of the Special Master, will determine whether they require the
reports the period 2008 – 2015.
(5) Data sent by ETS to the LEAs. To the extent that this data is under the control of the
CDE, CDE will have ETS produce copies of such data. To the extent that CDE was
provided by ETS with copies of this data, CDE will produce copies of such data.
6. Administrative Hearings
CDE denies that it is the custodian of, nor possesses special access to, the administrative
hearings database (http://www.dgs.ca.gov/oah/SpecialEducation/searchDO.aspx). To the extent
that the Plaintiffs disagree with this assessment, the parties will seek resolution on this legal
matter from the court.
7. California Longitudinal Pupil Achievement Data System (“CALPADS”)
Parties originally explored two different options for allowing Plaintiffs access to CALPADS
sufficient for their experts’ needs. Option 1 would be for Plaintiffs to be provided with a copy of
CALPADS and then Plaintiffs would run their own searches (with assistance of CDE). Option 2
would be for CDE to keep possession of the CALPADS database and for Plaintiffs to work with
CDE to run searches across that database.
The two options are set out below:
Option 1 - Searches would be run by Plaintiffs, with assistance of CDE, across a copy of the
CALPADS Operational Data Store (“ODS”) (and the Snapshot databases) maintained by Plaintiffs.
1. Within 14 days of the Public Notification process having been completed (including the
public hearing), CDE shall produce an entire backup3 of the CALPADS ODS data as of current
date (or most recent full backup) plus backup of the entire Snapshot database(s). The
Special Master will review the methods used by CDE to copy the databases to ensure that
the data base been preserved and was not altered. CDE will also provide any non-public
documentation that allows for correct restoration and implementation of the backups – e.g.
any internal documentation that has been created, used to map data tables and columns for
both ODS and snapshot databases. Specific permissions and configuration settings that are
associated with restoration of the entire databases will also be provided. To the extent such
backup exists, CDE will produce the most recent full backup of the CALPADS database made
before December 29, 2011. If no such backup exists, CDE will produce the first full backup
made after December 29, 2011.
2. Within 60 days of production of the backup CALPADS databases, CDE and Plaintiffs shall
meet in-person or by telephone. The purpose of the meeting will be for CDE to assist
Plaintiffs in correctly implementing the CALPADS databases (both the ODS and Snapshot
databases) and carrying out searches across the dataset. Five (5) days in advance of the
3
The ODS database is a Microsoft SQL Server database. An entire database within Microsoft SQL Server is referred
to as a “full” backup.
5
meeting, Plaintiffs will provide to CDE specific questions/ issues regarding correct
implementation/ searching of the database. The purpose of the meeting will be for CDE to
assist Plaintiffs in carrying out searches across the dataset.
3. Following the initial meeting, the parties may voluntarily agree to a follow-up meeting. In
the absence of agreement, parties to seek an order from the magistrate as to whether
Defendants shall provide further assistance and, if so, the format and schedule for such
assistance.
4. It is understood that CDE’s assistance shall be to provide non-public and/ or historical
knowledge about the way the CALPADS databases are structured and relationships are
defined to allow Plaintiffs to successfully implement and search the CALPADS database.
Subject to this assistance, Plaintiff shall take all reasonable steps (including providing
sufficient resources) to implement and carry out searches against the ODS and Snapshot
databases without input from Defendants.
Option 2 - Plaintiffs liaise with CDE to develop specific queries/ reports - searches to be run by
CDE across a copy of data sets maintained exclusively by CDE.
1. Within 14 days of the Public Notification process having been completed (including the
public hearing), CDE shall create an entire backup of the CALPADS ODS data as of current
date (or most recent full backup) plus backup of the entire Snapshot database(s). The
Special Master will review the methods used by CDE to copy the databases to ensure that
the data base been preserved and was not altered. CDE will not provide a copy of the ODS
or Snapshot databases to the Plaintiffs.
2. Defendants and Plaintiffs work within a developed protocol allowing for Defendants to
assist Plaintiffs in carrying out searches against the copies of the ODS or Snapshots made in
stage #1 above. The proposed protocol shall be:
a. Immediately upon the Public Notification requirements (below) having been
completed, CDE shall provide the Plaintiffs a copy of all Documentation necessary
for Plaintiffs to understand the scope of data maintained within the CALPADS ODS
and Snapshot databases.
b. Within 14 days of completion, the parties shall meet in person or by telephone in
order for CDE to explain the scope of possible searches of CALPADS (including types
of data to be searched, date ranges, and output).
c. Following the meeting, Plaintiffs will provide an explanation in writing of the types
of data that they will be requesting, and CDE will develop and propose a table (or
file) format layout for the production of these types of data. Plaintiffs’ request for
types of data may be sufficiently broad to avoid revealing Plaintiffs’ trial strategy. If
the parties are unable to agree to a table format layout for production, or if the
Plaintiffs need clarification of the scope of possible searches of CALPADS (including
types of data to be searched, date ranges, and output), the parties will meet and
confer, and use the services of the Special Master as necessary to resolve disputes
as to the table format. CDE can provide samples of the table format layout and is
willing to continue to work with Plaintiffs within a reasonable time frame until they
are satisfied with the table format layout.
6
d. CDE to produce search reports in agreed format within 30 days.
e. Within 21 days of the production of reports, Plaintiffs may request a new round of
searches.
f. Plaintiff may request additional searches to be carried out, no more than one set of
searches in any 30 day period.
g. To the extent that CDE consider such requested searches over-burdensome or an
abuse of process, CDE shall meet with the Special Master to seek a voluntary
resolution between the parties. If not resolution is possible, CDE may seek an order
terminating the discovery process as it involves the CALPADS database.
Given the technical challenges of Option 1, the parties have agreed the following:
1. CDE will carry out the first stage of Option 1 (i.e. make a full backup of CALPADS and collect
necessary documentation). CDE will also collect a copy of the earliest full backup of the
CALPADS database made before December 29, 2011 (to the extent one exists). If no such
backup exists, CDE will produce the first full backup made after December 29, 2011.
2. CDE will provide the back-ups to the Special Master who will keep them in an encrypted, offline format in Kivu’s secure computer lab.
3. The parties will proceed with searches using Option 2.
4. Should Plaintiffs not be able to carry out searches or generate reports sufficient to their
experts’ needs under Option 2, Plaintiffs will notify CDE and the parties shall meet with the
Special Master to seek a voluntary resolution of the problems experienced by the Plaintiffs.
If no agreement is reached, Plaintiffs shall request that Option 1 be immediately
commenced and that copies of the CALPADS ODS and Snapshots be provided to them,
subject to any security requirements outlined below.
7
II.
Email/ Network Files
CDE has stated it has made a complete collection of all data from the CDE Special Education
Division:
•
•
All custodian email mailboxes
Entire file servers/ network share s
The collection was completed in January 2014.
CDE is experiencing severe delays in uploading all collected data into their chosen eDiscovery
review platform Relativity. CDE estimates it will require an additional 5 months to complete the
upload into Relativity. Once uploaded, the data is available to be searched.
On September 14, 2015, Plaintiffs provided a list of CDE employees that it considers being
“Priority” for searching.
Given the ongoing delay in completing the upload, the Special Master proposed:
(1) CDE will report on which of the Priority custodians’ email have already been processed (i.e.
are available immediately for searching).
(2) CDE will report on which of the Priority custodians’ network shares (i.e. network locations
exclusively under the control of the Priority custodians) have already been processed (i.e.
are available for searching).
(3) CDE will identify the email mail boxes and home network shares of those Priority custodians
who have not yet been processed. CDE will process that data first, such data to be
processed within 45 days of the finalization of the discovery protocol.
(4) In response to the Special Master’s proposed prioritized searching, CDE has stated that
because of the way that they collected the data, CDE is not able to identify individual
custodians so as to prioritize processing/ searching. CDE therefore proposes that it must
complete processing all data, an estimated process of 5 months, before beginning searching
of any custodians. Within 30 days of the finalizing of the protocol, CDE (and its relevant
technical staff) shall meet with the Special Master in order to determine if there is a
reasonable method of identifying the email/ data of Priority custodians (and thus
commencing searching those custodians immediately) short of loading the entire collected
data set into Relativity.
(5) Immediately upon completion of agreed search terms, CDE will commence searching the
data already collected for Priority employees. As additional Priority employees’ data is
processed, that data will be searched. The searching of Priority employees already
processed will be completed within 30 days of completion of search terms. For those
Priority employees who have not yet been processed, the searching will be completed
within 30 days of processing their data. If CDE is unable to prioritize the searching of
8
specific Priority employees, the above time limits shall apply from the time that processing
of all the data is complete.
(6) Once search terms are agreed, CDE will commence a rolling delivery of searched data. CDE
has stated that it intends to review files and emails responsive to search terms for potential
privilege (see proposed protocol below).
(7) Upon completion of the searching of any particular data set, CDE shall have 45 days to
review all search results and, if appropriate, claim that certain data is privileged or
otherwise should not be produced to Plaintiffs. Following the completion of the 45 day
review process, CDE shall produce to Plaintiffs all data deemed non-privileged (or otherwise
not to be withheld data) on a reasonable rolling basis. CDE’s request that such production
will depend on the availability of suitable media to store and transfer the production is not
reasonable given the delays to date in the case and the relatively low cost of storage media.
(8) After receiving CDE’s production and privilege log, Plaintiffs may request the opportunity to
meet and confer regarding any assertions of privilege. If the parties disagree about the
propriety of CDE’s privilege designations, they may seek a ruling from the Court on the
issue. All responsive data determined to be non-privileged will be timely provided to
Plaintiffs.
Developing Search Terms
Parties will apply the following protocol for developing search terms:
1. Within 30 days of finalizing this protocol, Plaintiffs shall provide Special Master with an
initial set of search terms. Plaintiffs will also provide any date ranges that could be
excluded from searching. To avoid unnecessary delay, the Special Master proposes that
all date ranges used in production and searching should be agreed in advance by the
court during the determination of the scope of production.
2. Within 7 days, the Special Master shall comment on the technical advisability of terms
(i.e. likelihood of producing significant false positives). Plaintiffs shall have 7 days to
revise the initial terms.
3. Special Master to liaise with Defendants regarding proposed search terms and, within
14 days of the Plaintiffs providing their list of terms, develop an agreed detailed search
term list.
4. The parties shall meet with the Special Master to determine a reasonable timeline and
time limits for CDE to carry out the searches. This timeline shall be based upon a review
of the amount of data and number of search terms, among other factors.
5. In accordance with the agreed timelines, Defendants to run initial search against sample
data set (to be agreed with Special Master) to determine numbers of unique responsive
files for each term (to identify terms generating clear false positives). Special Master,
with input from Plaintiffs and Defendants, to propose changes to list of search terms as
9
appropriate. Once any changes to the list of terms are finalized, the protocol for
developing search terms shall be deemed to be complete.
Optional Sampling:
Plaintiffs have raised the possibility that further search terms may only be discovered after they
have had the chance to commence reviewing the produced potentially responsive data. Case
law stresses that the use of search terms to identify potentially responsive documents should be
collaborative between the parties in order to avoid additional rounds of searching and reviewing
for privilege.
It is therefore proposed that the parties consider a sampling process whereby CDE uses the
agreed search terms to search a limited sample of the data (e.g. the mail of a limited number of
“Priority” employees). The CDE shall review the responsive documents for privilege and
produce the non-withheld documents to the Plaintiffs. The Plaintiffs shall then review this
sample set and upon completion of their review, have the chance to amend the list of search
terms, to incorporate any new or revised terms discovered during the Plaintiffs review of this
sample set. The amendment of the list of search terms will be agreed between the parties with
the assistance, as necessary, of the Special Master.
When this revised list of search terms, the product of a sampled review, has been finalized, the
search term development process will be deemed to be “complete” for the purpose of the time
limits set out above.
Should Plaintiffs seek to run additional search terms (e.g. due to facts uncovered in discovery),
parties shall meet with the Special Master to determine (i) whether further searches are
appropriate; and (ii) if so, the procedure and time limits for running the new search terms.
While CDE has voiced concern about the burden of running new terms, it is understood that
much of the delay in processing data to date has been CDE’s decision to collect and process all
existing data at the Special Education Division of CDE. Having processed all data and put it in the
Relativity platform, it is believed that running additional search terms against the collected data
set would not be over burdensome (assuming that it requires no additional collection or
processing). CDE has also expressed concern about duplicative review for privilege. It is
believed that most if not all potential duplication of privilege review (i.e. reviewing the same
documents for privilege in both the first and second round of searches) could be prevented by
established e-discovery de-duplication procedures (e.g. comparing emails and files through the
analysis of metadata and hash comparisons).
DeNIST Process
Prior to running searches, CDE will filter out DeNIST files (such as executable files, Windows
system files, help files, font files, and other programming files with no relevant information)
based on the standards set forth by the National Institute of Standards in Technology. In
advance of such filtering, CDE will provide the Plaintiffs with a list of the file types that they
intend to exclude and provide the Plaintiffs with a reasonable opportunity to challenge any of
the file types being excluded.
10
Searching for Privileged Documents by CDE
CDE intends to review all responsive emails for privilege. To avoid further delay in discovery, the
Special Master proposes the following protocol as regards privilege review:
1. CDE will limit its review of responsive email/ documents to those communications/ files
that were sent to/ from CDE’s in-house counsel, or sent to/ from or copied to external
counsel or the California Attorney General’s office.
2. For all other emails/ documents (including emails that were only copied to CDE’s inhouse counsel), CDE shall run a set of search terms to be developed in conjunction with
the Special Master. Such terms will be designed to identify potentially privileged
emails/ documents. CDE shall then only review those emails/ documents that
responsive to this second set of search terms.
3. All other emails/ files shall not be reviewed for privilege. Instead, they shall be
immediately provided to Plaintiffs with a claw-back provision to be agreed within the
parties to cover inadvertent disclosure of privileged files.
4. CDE shall liaise with the Special Master to determine if predictive coding tools can be
utilized to accelerate the review for privileged documents (subject to suitable FRE 502
claw-back provisions to prevent inadvertent waiver of privilege).
5. CDE will maintain a privilege log, the format to be determined at the meet and confer
immediately prior to commencement of the privilege review process. The privilege log
will be made available to Plaintiffs within a reasonable time after relevant production.
The Special Master notes that, while CDE has reviewed the above protocol, CDE has raised
objections including that there is no FRE 502(d) agreement/ order in place preventing the
inadvertent waiver of privilege. The Special Master therefore proposes that within 30 days of
the date of this protocol, the parties meet to agree suitable safeguards which balance CDE’s
concern about inadvertent disclosure of privileged documents with the Plaintiffs’ concerns
about the continued delays in commencing ediscovery production.
Format of Deliverables
The parties have discussed the format of deliverables (e.g. the format of files and metadata
fields to be produced). However, the Special Master has advised that discussion on the exact
format of deliverables be delayed until after the searches have been carried out and the parties
have a better understanding of the number of responsive files and the types of such files.
Because all documents will be produced in the format agreed to by the parties, the initial
production (July 12, 2013) of 939 documents will also be provided in that format– i.e. as a
searchable set within the format to be agreed for the other deliverables.
III.
Notification
The parties acknowledge that production of the requested data for students with disabilities will
require a notification process of those students. It is also the parties’ understanding that
regardless of which option is used for reviewing the CALPADS database, there will need to be a
11
notification of ALL students whose data is contained in the relevant produced or searched
CALPADS database.
1. Parties have tentatively agreed the wording of the FERPA Notice. Using the Special
Master as necessary, the parties shall agree a final wording of the FERPA Notice within
14 days of finalizing the protocol.
2. Parties have tentatively agreed the wording for an Objection to Disclosure of Student
Information and Records. While the Objection form provides an opportunity to state a
reason for the objection, the wording of the Objection form must be clear that providing
a reason is entirely optional. Using the Special Master as necessary, the parties shall
agree a final wording of the Objection to Disclosure of Student Information and Records
within 14 days of finalizing the protocol.
3. The FERPA Notice and template Objection shall be translated into Spanish. Depending
on the scope of production, it is possible that the Notice would need to be translated
into other languages depending on specific demographics. The parties note that notice
will be provided consistent with the requirements in California Education Code section
48985.
4. Within 30 days of the making of the order, the Parties shall meet and confer in order to
identify newspapers/ publications which will run the notification. In the absence of
agreement, the parties shall seek the court’s involvement in identifying sources.
5. The court shall decide how the cost of the notice shall be apportioned.
12
IV.
Safeguarding the Security of the Produced Data
The Special Master has significant concern about the storage and use of the highly sensitive
student data that will be produced by CDE to the Plaintiffs. Loss or compromise of the produced
data could result in the notification of literally millions of persons under state and Federal
breach notification requirements, at a cost of millions of dollars. Such notification could also
affect persons who are now resident in other states, and trigger breach notification laws in
those states.
As a pre-condition of receiving the data:
1. Plaintiffs’ counsel will carry out a third party risk assessment of their IT infrastructure
and protocol for storing, transmitting and using the data in question. Specific areas of
concern include the security of Plaintiff’s counsel computer network and devices; the
sharing of data between counsel and retained experts; the storage of sensitive data at
the business premises of Plaintiffs’ counsel; the transmission and sharing of data among
Plaintiffs’ counsel via email, network shares, or other applications.
2. Plaintiffs’ counsel shall meet and confer with the Special Master, and the Special Master
shall review and approve the scope of the third party risk assessment, its proposed
safeguards, and its implementation (#2 below). Such safeguards may include full disk
encryption of all devices used to store or transit sensitive data; logging of access to the
sensitive data; and restrictions of access to the data among Plaintiffs’ counsel and
contractors.
3. Following the risk assessment, Plaintiffs’ counsel will implement the safeguards
identified in the risk assessment, and the Special Master shall review the correct
implementation.
4. Irrespective of the risk assessment and its safeguards:
a) Plaintiffs are to maintain a record of all computer devices used to store or access the
sensitive data;
b) A record of all persons granted access to some or all of the sensitive data, the extent of
such access and the date period of such access;
c) One person at Plaintiffs’ counsel must assume responsibility for ensuring the
confidentiality of any personally identifiable information provided in discovery, and for
ensuring that all undertakings regarding security are implemented and enforced;
d) Plaintiffs must maintain a current listing of the names and positions of those persons
who may have access to personally identifiable information provided in discovery;
e) All sensitive data transmitted by CDE to Plaintiffs shall be on fully encrypted external
hard drives of at least 128-bit or 256-bit Advanced Encryption Standard (AES), key with
the key stored and transmitted separately from the hard disk;
13
f)
Plaintiffs are to confirm deletion of any extraneous copies of sensitive data (e.g. once
data is uploaded from external devices to a fully secure server or computer device). At
the conclusion of the litigation, Plaintiffs are to undertake to delete all sensitive data
(subject to any legal requirements) or to place such data into secure storage with a third
party.
Winston Krone, Esq., Kivu Consulting, Inc.
44 Montgomery Street, Suite 700, San Francisco, CA 94104
Tel: (415) 524-7322
[email protected]
14
