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OAH
Docket No. 3-1005-21268-2 |
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STATE
OF
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE DEPARTMENT OF COMMERCE
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In the
Matter of the Real Estate Salesperson’s License of Sean Patrick Rosensteel |
PROTECTIVE
ORDER |
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This
matter is pending before Administrative Law Judge Kathleen D. Sheehy pursuant
to a Notice and Order for Prehearing
Conference from the Minnesota Department of Commerce. To expedite the discovery process, the
parties have stipulated to the issuance of this Protective Order, which governs
discovery of data classified as private, confidential, nonpublic or protected
nonpublic (collectively “not public”) under the Minnesota Government Data
Practices Act. See Minn. Stat. Ch. 13
(2008).
Michael
J. Tostengard, Assistant Attorney General,
Pursuant
to Minn. Stat. § 13.03, subd. 6 (2008), and the files and proceedings herein,
the Administrative Law Judge finds that data that is classified as “not public”
may be discoverable in this regulatory action and that the benefit to
Respondent generally outweighs any harm to the confidentiality interests of the
Department in maintaining the data, or of any person who has provided the data
or who is the subject of the data, or to the privacy interest of an individual
identified in the data. Therefore, in
order to assure the proper handling of the data by the parties,
IT IS HEREBY
ORDERED:
1.
Data that is
classified as “not public” under Minn. Stat. Ch. 13, or other applicable law,
contained in the Department’s investigative/complaint files produced in the
course of discovery shall not be disclosed to any persons except as follows:
a. To the parties in this matter or
attorneys representing the parties or their employees assisting counsel in the
preparation of the case; and
b. To
witnesses subpoenaed or otherwise called to testify at the hearing.
2.
“Not public” data may
be used only for purposes of this litigation, including discussion with
investigators, employees and witnesses as necessary to prepare for or conduct
the hearing, and shall not be disclosed to individuals or for purposes not set
forth herein.
3.
All persons having
access to “not public” data herein shall be informed of the Protective Order
and are bound by its terms. Each party
bears full responsibility for compliance with this Order by persons to whom
they have disclosed “not public” information.
4.
The Department shall
clearly designate “not public” information to avoid inadvertent
disclosure. “Not public” documents shall
be kept in a separate file or envelope so marked. The originals and copies of deposition or hearing
transcripts, or portions thereof, containing “not public” data shall bear the
legend “CONFIDENTIAL - CONTAINS NOT PUBLIC DATA” and shall be maintained in a
separate file or envelope. In lieu of
segregating documents that contain not public data, the Department may redact
the not public data, but it must clearly mark any redacted documents with the
legend “NOT PUBLIC DATA REDACTED,” and it must identify the nature of the
redacted data.
5.
Should any party seek
to use the information subject to this Order in a manner inconsistent with this
Order, that party shall bring a motion before the Administrative Law Judge,
with notice to the other party, requesting permission to use the information in
the manner proposed.
6.
This Protective Order
is general in its application and is designed to expedite the discovery of the
Department’s investigative/complaint file to Respondent. By stipulating to this Protective Order, the
Department does not waive its right to object to disclosing privileged or other
non-discoverable data, or to disclosing data where the benefit to Respondent
does not outweigh the harm to the confidentiality interests of the Department
in maintaining the data, or of any person who has provided the data or who is
the subject of the data, or to the privacy interest of an individual identified
in the data. Production of not public
data under this paragraph shall be adjudicated upon appropriate motion by any
party.
7.
Notwithstanding this
Protective Order, “[a]ny civil investigative data presented as evidence in
court or made part of a court record shall be made public.” Minn. Stat. § 13.39, subd. 3 (2008). In cases involving licensing data, “[t]he
entire record concerning a disciplinary proceeding is public data pursuant to
section 13.02, subdivision 15, in those instances where there is a public
hearing concerning the disciplinary action.”
Minn. Stat. § 13.41, subd. 5 (2008).
Upon appropriate motion by any party, portions of the hearing in this
matter may be closed or the hearing record may be sealed or redacted to the
extent needed to permit free discussion of data that is otherwise private or
confidential.
8.
This Protective Order
may be modified or amended by agreement of the parties and notice to the
Administrative Law Judge, or upon application to the Administrative Law Judge
for good cause shown.
9.
Nothing in the Order
is intended to limit the availability of judicial review of the final order as
provided by Minn. Stat. §§ 14.63-.69 (2008).
Dated:
June 22, 2010 s/Kathleen
D. Sheehy
Kathleen D. Sheehy
Administrative
Law Judge