Court filings concerning LRSD motion for protective order and for preliminary hearing, and PCSDD Baker recruitment plan

District Court, plaintiff's motion for protective order and for preliminary hearing; District Court, memorandum brief in support of plaintiff's motion for protective order and for emergency hearing; District Court, order; District Court, consolidated response to motion for preliminary injunction and corrected motion for relief from orders entered on April 27, 2000, and May 9, 2001; District Court, plaintiff's motion for comtempt; District Court, memorandum brief in support of plaintiff's motion for contempt; District Court, order; District Court, supplement to the Pulaski County Special School District (PCSDD) Baker recruitment plan; District Court, plaintiff's motion for contempt; District Court, motion for extension of time; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, response to Joshua's motion for extension of time; District Court, three orders; District Court, motion for enlargement of time The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors. RECEIVED AUG 1 7 2001 OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL PLAINTIFF MRS. LORENE JOSHUA, ET AL ,.. .. ._!!\THERINE KNIGHT, ET AL DEFENDANTS INTERVENORS INTERVENORS PLAINTIFF'S MOTION FOR PROTECTNE ORDER AND FOR EMERGENCY HEARING Plaintiff Little Rock School District ("LRSD") for its Motion for Protective Order and for Emergency Hearing states: 1. LRSD seeks a protective order to prevent unduly burdensome and harassing - discovery being conducted by the Joshua Intervenors ("Joshua") via the Arkansas Freedom of Information Act ("FOIA"), Ark. Code Ann. 25-19-101 through 25-19-110. 2. On August 13, 2001, Joshua submitted the FOIA request attached hereto as Exhibit 1. Items one and two of the request seek all correspondence and e-mail between each LRSD principal and other District personnel for over three years. LRSD seeks a protective order pursuant to Fed. R. Civ. P. 26(c) requiring Joshua to more narrowly tailor the request and/or .. granting LRSD 60 days to respond to the request and requiring Joshua to conduct future discovery pursuant to the Federal Rules of Civil Procedure. 3. Joshua's use of the FOIA to conduct discovery is intended to annoy, oppress and unduly burden LRSD. First, the request is over broad. Joshua made no effort to limit its request to the issues currently before this Court. Second, the request is unreasonably cumulative. See Fed. R. Civ. P. 26(b)(2)(i). This request is one in a long-line ofFOIA requests by Joshua. In response to a prior request, LRSD provided Joshua access to all of the e-mails of each associate superintendent. These would have included any e-mails with principals. Finally, the burden and expense of complying with Joshua's request outweighs any likely benefit. See Fed. R. Civ. P. i6(b )(2)(iii). The documents sought by Joshua may contain personal information about students. The FOIA requires LRSD to redact this information. See 2001 Ark. Acts 1653. It will take a substantial amount oftime and resources to review over three years worth of correspondence and e-mails and make the necessary redactions. Principals need to be preparing for the start of school on August 20, 2001. It will be impossible for them to comply with Joshua's FOIA request and also adequately prepare for the start of school. 4. LRSD has attempted to confer with Joshua, but Joshua refused to narrow the ~ -.r-eqnest or allow LRSD the time needed to respond. 5. LRSD's memorandum brief in support of this Motion is hereby incorporated by reference. As discussed therein, this Court has discretion to enjoin Joshua's use of the FOIA to conduct discovery. WHEREFORE, Plaintiff prays for a protective order requiring Joshua to more narrowly tailor its August 13, 2001, FOIA request and/or granting LRSD 60 days to respond to the request; for an order requiring Joshua to conduct future discovery pursuant to the Federal Rules of Civil Procedure; for an emergency hearing on this Motion; and for all other just and proper relief to which it may be entitled. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE & CLARK First Commercial Bldg., Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501) 37. 1 B: John C. Fendley, Jr. (#92182) 2 CERTIFICATE OF SERVICE I certify ~ copy of the foregoing has been served on the following people by fax and mail on August~ 2001: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol . Little Rock, AR 72201 ~ -Mr:steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-73 88 - Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Sammye Taylor Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 ~ John C. Fendley, Jr. 3 08/ 13/2001 15:59 501-324-2213 SQ-IDOL SERVICES PAGE 03 - JOHll W. W.Al.XU SH.AWN OJIILl)S JoHN W. WALJaR, P.A. moJQmArL4w l72S~AT Lrrn-l Rocm, A8JwGAs 722()6 TILZ:fflon (SOl) &7+8758 FAX (!501) 874-4l87 August 13, 2001 r Dur Principal: -- Please provide punu~t to the Arkansas Freedom oflnfurmation A.a: i. I 1) ali errcspond~ that yo-1.1 have .na~ in \\'if.ti other Little Rock S~l ~ strict P6onn.l fot 0\4 ~riC)d baitfflll'la Math l. 1~8 ano en(!in~ J,.m" 30, 2<j(l1 ; , t I fol' th pen~ bta,nnin; M~c:h 1, 1998 .na .adina Jw,o )0, :2001; f 2) Qll ._~, that yo~ ha.Vt .r,;agci in wiih ocbr Li"W llock Sclaool Di~J- '10,mel. 3) copies of all plAni that your &chool dC!Veloped reaarding the following r.~bj i: a) discipline ;- b) gradea e) transportation d) flXtneurricular acti"vjtie., j e) remediation of achievemanl activities ;: 1 f) participation in gifted and talented~ honors and advanced placc:inent i g} participation in spoc:ial education : , . . I 4) ail wrltina, which rdlect the followin&: . ! ) evaluario,u of pro,rama. policie, and proccdur11 that you imp .. ~ ! duriA& each of the last tbr" yoan ,. b) appraiaaJa ofpro,rama, policies and.procedures that you impl~t. duri.q *b of the last three years = .. c) assessments of pr~. policies ap4.:p;OGedures that you im.r,jem. j d during each oftbe last three years; and . ::_ . i . 5) al.I rcporta resardina the success or fiilure : ~ propm. policy aodf ir . ire that you nave under1aken in your ;school during eaeh of the past three rear whij e you h&ve rec;ommsodod changes (regarding the proaram. Policy or prooedllf to !bl admi.Disu1tion io writin1, ' : .. I ~ l ~ PLAINTIFF'S t axrmn 08/13/2001 15:59 501-324-221:3 SCHOOL SERVICES rt !i r- y 011 may gpw witJl M~. ~Pfl!10!f HI my offica f'lRA!'dmJ tt\A 4AM W tiftt review and inspect the requested information. JWW:j& I I I I ! ; . j ' PAGE 04 11/17/95 14:52 WRIGHT, LINDSEY, & JENN I NGS NO. 1.54 Hal6~/l:l1Qb ALio-:30-84 TUE 15:45 US DISTRICT CLERK FAX NO, 15019724812 P. 02 IN THB tiam A'l'BS DISTRICT cou.:'dr.JJrlC~~ DSTDN STRICT 01 AJlKAN .RNDlffllCf AAIWIIU JONISBOI.O DIVISION AUG 3 O 1994 ~~ DR .JOHN KANGIDI, PLAIMTI1? ARKANSAS ITA'l'B UNlVIRSITY, B'l' AL, , DIJ'DDANTS MIM9BAttRPI MP 9BPIB In this action bro~9ht puruant to ,3 u.s.c. I 1913, th Defendant have aouqht a protactivo order (docket entry 3) which would _prohibit discovery ot attorney-clian~ communicationa batvean the Defendant and their lavyera and would protect attorney worlc product from dJ.acloure. Th latter would include lawyer to lawyer co1111unioat1ona aad tor th pupoae of preparin9 and detendinq the 1ntant l1t19ation. Plaintiff taadtaetly re1ita th entry ot ucb a protect! va order, pointing to th Arkanaa Freedom ot Intonation Aot, Ark. Code Ann. S as-19-101 at sag. (Supp. 1993), th Defendant' tatu aa ~c of public 1ftat1tution, and the tact that th Detanclanta have baan auecl in their official aa well individual capaoitiaa, and a body of Arkansas c law addra11inq the POIA and the aubjeot ot Defendant' propoaed order. 1 = PLAINTIFF'S l 9i'Bl1 t l/l?/95 14:52 WRIGHT, LINDSEY, & JENN I NGS I N0.134 P003/006 AUG-30-94 TUE 15:46 us TSTRJCT CLERK I FAX NO, 15019724612 P.03 e Initially, it auat be detarttlna4 which rul of law the court ahould apply. Thi caae, brol.!4ht in Federal Ditriot Co~ by a former State univer itr ~reaident over his treatment by the Board of Truateea ot ,.id intitution, i tor rdr ot righta protected ~Y the law and eontitution ot th united stat In a auit ~roupt in federal court purauant to 42 u.s.c. I 1913, federal law control CZUNtion ,,--- ot priv1le9e. 1SglHn1 Ye Powtll, 773 ,.2c1 191, 1.1, (8th C:iJ:. 1911), cart. denied, 475 u.s. 1119 (1ta6); Youn!Jblood y. Qataa. 112 7.R.D. 342 (C.D. c.1. 1915). 'l'hia 1 true even where a pendnt or auppl ... ntal jurisdiction claim 11 joined with a federal claia. BIDIID Ye Alln IMPEial Hpapi\al. 141 P.R..D. 115 (S.D. Iowa 1193). Work product protection - cautiona are detanined by looking to federal law, even in d1vrity ca Attbert; v, Cbis1aA i u,w, Tranap, Ce,, 121 P.R.D. 569 (D.s.o. 1989); Harpar Ye Auto oVDVI +DI, Co,, 138 r.R.D. ,ss (S.D. Ind. 1991), Tli attorney-oUent privilaqa i an indipnble tool of juatioa, and i 919011nded in th tederal 00111110n law. It ori9in8 ;o baclc_well before .th 1700' 8t4ient aurnr, Inc. Y, yarican A A11eei1tisn, 320 r.ad 314 (1th cir. 11,l). '?he benefit ot the privila,e, l:)otb to t.ha aainiat.rat1on o.t juatic and to the attorner.;client relationahip, are o &oW\da-nt a to need no recitation hare. It 1 tharatora held that tha aotion 1 GRAN'l'ID ~ tho 001111\Ulioationa between attorney and gliant that oomo under tho attornerclient a l ,l / lt::35 14:~ Wl-<:lrl, LlNu:x.T, ll. Jt::NN!~ fG-30-94 TUE 15:48 US DISTRICT CLERK . FAX J"'IU ,, .L~ 15019724612 wv11e9e, See ,a&11,.-i.._..-._..,_,_....,.~.....,.,...._..._......_,.......,'-llilll,-" r.~.D. ,st (D,C, Ill, 1975), Th motion 1 aleo GaAMTID to into;-ation, letter, o~anda, and th lika .ganez-ated lt.or~Y work product. HiglQaln y. Taylor, l2t U,S, 495, '7 +ct. 385 (1147) I bG E1atn1u1ar Tit;l c;e, v, 2111.. 101cb ~otxi 132 P,R.D. 301 (S,D. Pl&, 1990), Th real ditticulty, ot course, co in determining whether a 9iven item tall within or without on ot th ~vo protected ~te9or1 Counl are called upon to u their sound jud;mant, and to conault the ColU't when and if bQno tide diput arbe in th cour ot cUsoovery abo~t 1tea that ara po ai~ly protected. A wo~d ut be qivn to th Arkansas authorit.ie that have touched on the iaeuea of privilege and work product in the context ot FOL\ requeta. In Mc;C:ombJ:idga Yr Cit A( Little Jgck, 298 Ark. 21,, 766 s.w.ad 109 (1989), the Arkan suprue court hald that the Arkan rule of the attorneyclient privilet did not create an exemption to the Arkan rreedoa ot In(~raation Act. 'rhe ca heavily rlied on by Plaintiff, city q( f111ttayillt Yr Nmark, 304 A~k. 179, 801 s.w.ad 275 (ltta), held, ipt9r alia, that legal aemoranda prepared for tbe City tor li ti9ation purpo war not axeapt from tbe Arkan rraedoa ot Intomation Act. ~ttornay work product va thu dbcloaed .. 3 P. 04 : l 11/17/95 14:53 WRI(JiT, LlNU~~Y, ~ Jt::.NN!Nl"l~ AUG-30-94 TUE 15:47 1u S D[STRICT CLERK NU .L~ FAX NO, 15019724612 P.05 e Th court tinda 1aarJc and Mgcambri0;1 " not bindin9 on thi Court and even 1~ the court aawnaa that they ara, the daoiaiona ~o not foracloaa thia _Court troa 1uinJ an order protecting attorney-oliant coDllllunicationa or attorney wor>c product. (See Ark. Coda AM. I 25-ltlOS(b)(I), Which xempte tro th FOll dOOWNftta . which ar protaotecl fro dialoaure by order or rule ot court.) It i intueatinq to note that . ,.- Louiaiana' Public Raoorda Law apeai.riaally expt attorney work product rroa it tena, but not aaterial protected by the attorney-client privilege. sea 'tlllQP y. Lgui1iana Land 1 1Xpl;ratign. aos ,.supp. Ja5 cx.o. 1,a. ie9a). In axaminin; tha Arkan autboriti it i readily apparent that the tocu and concern of the Arkana Stata 9 oourt11 1a with the whole body or Arkan law, ancl the function of Arkan law in the attair ot Arkan oitiaen Thi Padaral cour~, while aituated within Arkan, must navarthel have 1 t prilaary concern th atf 1c1ent adaini tration ot juatio and the tair resolution ot federal olaiaa radreaaable by the parties liti;ant in federal oourt. Thu , taderal law and prooedura auat ba applied. I'l' IS, 'lHD.ll'OU, ORDDID that all papera, 111atarial, and other thing colleotad or praparact by th parti or their raprntativea in anticipation for trial, or otharwi1 within the cope ot the taderal work product: doctrine, and all private couunicationa of any kind between th defendant an4 their counl v1thin the 1 rec09ni1ad boundaries ot the 4 11/17/95 14:54 WRl.GHTf LlNJ.kit.Y; & . Jl:NNl~t:o NU .1.~ . , -~.!JG-30-94 TUE 15:48 u~DISTRICT CLERK . FAX HO, 15018724812 . P. 06 91:ornayoliant privilege, an hereby ~rot,~tcad t~oa dicovery . . by tb oppoainq party or ralaa to any third pa~y, except by order ot thi court. 5 i : I e IN THE CIRCUIT COURT OF DALLAS COUNTY, ARKANSAS STATE OF ARKANSAS PLAINTIFF vs. CIVIL NO. 92-100 HABILITATION CENTER, INC. an Arkansas Corporation d/b/a MILLCREEK OF ARKANSAS; MILLCREEK MANAGEMENT, INC., a Mississippi Corporation; DR. JAMES O. STEPHENS, M.D., {in his individual capacity, and in his official capacities as President and Chairman of the Board of Habilitation Center, Inc., and Rehabilitation Centers, Inc. , and as Chairman of the Board of Millcreek Management, Inc.); JOSEPH L. STEPHENS, ( in his individual capacity, and in his official cap~6ities as Vice President of Habilitation Center, Inc., Rehabilitation Centers, Inc., and Millcreek Management, Inc.); BILL SIMMONS, (in his individual capacity, and in his official capacity as President of Millcreek Management, Inc.); and WANDA MILES-BELL, (in her individual capacity and in her official capacities as Executive Director and General Manager of Millcreek of Arkansas and Vice President of Millcreek Management, Inc.); DEFENDANTS ORDER On this 31st day of January, 1995, there is presented to the Court the Motions for Protective Order filed on behalf of defendant Habilitation, Millcreek Schools of Arkansas, Inc. and William Sutton. The Attorney General ht:lving f;;lly :responded and the Court being sufficiently -advised, having heard arguments of counsel and having fully considered this matter IT IS NOW, THEREFORE, CONSIDERED ORDERED AND ADJUDGED: The office of the Attorney General served a request for records under the Arkansas Freedom of Information Act, Ark. Code Ann 25-19-101, et seq., (hereinafter FOIA) upon Mr. William Sutton, custodian of records at the law firm of Friday, Eldredge & hob'l.onl PLAINTIFPS EXHIBIT 3 Clark, attorneys for the defendant Habilitation Center, Inc. d/b/a Millcreek of Arkansas, seeking the law firm's files relating to Millcreek Schools of Arkansas, Inc. (hereinafter Millcreek Schools) and Habili tation Center, Inc. (hereinafter Habili tat ion) . The requests specifically seek "documents, notes, pleadings, memorandum [sic] _, work papers, attorney work papers including work product ,p_~epared, genarat~d or relai:ed -to any '.lark done by your finn for Habilitation centers, Inc. (sic] or Millcreek Schools of Arkansas, . ~- ;,. .. -=_:Inc. in State of Arkansas v. Habilitation Centers, Inc., [sic] CIV- 92-100 in Dallas County, Arkansas." The Attorney General served similar FOIA requests on Habilitation and Millcreek Schools of Arkansas, Inc. Jurisdiction and Venue The threshold issue for this Court's determination is whether the Court has jurisdiction to enter the protective orders sought. The plaintiff selected the Dallas County Circuit Court in which to bring the pending case pursuant to Ark. Code Ann. 16-13-201 and venue was established in accordance with Ark. Code Ann. 16-106- . !.01 (d) . Juri.::;dicticn-in .this Court was t~en proper, ,and this CoU::r:t retains that jurisdiction and control over the case pursuant to the aforesaid statutes. Although the Freedom of Information Act establishes a separate authority under which information may be obtained under certain circumstances, there is no question but that a FOIA request to a law firm representing a defendant in a pending case within the jurisdiction of this Court is so intertwined with that pending case as to fall within the jurisdiction of the Court. 2 If the Attorney General makes a FOIA request of a totally separate ~ntity, that .separate entity would not be subject to the jurisdiction of this Court, and the Attorney General would be free to pursue its FOIA request in whatever jurisdiction may be permitted by law. The Attorney General has not named Millcreek Schools of Arkansas, Inc. as a party defendant. The Attorney General has made reference to "Millcreek School of Fordyce, Arkansas, a -'separate entity owned by defendant, Habilitation" in .,_its first amended complaint. The Court is convinced that Millcreek Schools of Arkansas and Millcreek School of Fordyce, Arkansas, both allegedly owned by Habilitation, should be considered to be the same entity as Habilitation d/b/a Millcreek of Arkansas, and accordingly Millcreek Schools of Arkansas is not truly a separate entity but rather it is an integral part of Habilitation. Therefore it, too, comes within the jurisdiction of this Court. In holding that this Court has jurisdiction and is the proper venue to resolve the issues relating to the FOIA, the Court acknowledges -that i-c is iriappr0pric:1.te for -che threat of pot:.ential enforcement in another forum to hang over the defendants as they prepare for trial, and it is in the interest of judicial economy to have this Court handle all issues relating to the matters at hand. Venue is proper only in the circuit court of the judicial district in which the entity is located when the defendant is an entity which is a private organization even though supported by public funds. Here, all the FOIA targets are such private --- 3 organizations resisting the turn over of information pursuant to the FOIA. The mere fact that the Attorney General itself is located in Pulaski County and is a state agency does not create venue in that county in these circumstances. Standing The defendants' attorneys seek a protective order in order to protect the attorney/client privilege being asserted on behalf of their clients which include the defendant Habilitation. . J ;. "' .. =_.Habili tat ion has standing by virtue of being a party litigant in the case brought by the Attorney General . The law firm of Friday, Eldredge & Clark has standing to seek a protective order since it represents Habilitation. Habilitation is Not Subject to the FOIA. The major issue is whether Habilitation Center, Inc. is an entity subject to the FOIA. If it is, its attorney's files may be discoverable under FOIA. It is settled under Arkansas law that attorney work product and records are not per se exempt from FOIA disclosure under Ark. Code Ann. 25-19-105. See Scott v. Smith, 2-92 Ark. 174, 728 s. W. 2d 515 (1.987), Arkansas. Highway Department v. Hope Brick Works~ Inc., 294 Ark. 490, 744 S.W.2d 711 (1988) and City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Although a court hearing a FOIA enforcement action may not issue a protective order under that section to protect information otherwise subject to disclosure, 1 nevertheless, the trial court is 1Ark. Newspaper, Inc. v. Patterson, 281 Ark. 213, 262 S.W.2d 826 (1994), City of Fayetteville v. Edmark, supra, at page 193. 4 able to create an exemption from the FOIA as authorized by Ark . . code Ann. 25-19-105 (b) (8) since the limitations on protective orders do not apply to trial courts. The threshold issue, however, is whether FOIA even applies in the situation before the Court. In order to make that determination, the Court must decide whether the materials sought by the Attorney General are public records within the meaning of the FOIA. 2 Habilitation is a privately owned for-profit entity receiving Medicaid funds; it is ;.. ___ not a government agency. Given the facts of this situation, it may be an "other agency" subject to the FOIA. because it is "wholly or partially supported by public funds or expending public funds." Courts have enforced FOIA requests to particular private entities when they are wholly or partially supported by public funds or expending public funds. 3 This Court has also considered a number 2Ark. Code Ann. 25-19-103 (1) provides in pertinent part, "Public records means writings, recorded sounds, films, tapes or data, compilations in any form required by law to be kept or otherwise kept and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a "public official or an employee or government QJ;: any other agency wholly or partially supported by public funds or expending . public funds . . n [emphasis supplied] 3See North Central Association of Colleges and Schools v. Trout Brothers, Inc., 261 Ark. 378, 548 S.W.2d 285 (1977); Arkansas Gazette Company v. Southern State College, 273 Ark. 248, 620 S.W.2d 258 (1981}, app. dismissed 455 U.S. 931 (1982}; and Rehab Hospital Services Corp. v. Delta Hills Health Systems Agency, Inc., 285 Ark. 397 687 S.W.2d 840 {1985). The first two of the cited cases indicate the factors that must be present before a private entity will be subject to the FOIA. First, there must be direct public funding. Secondly, there must be indirect public support. Third, there must be public concern with respect to the organization's activities. The primary source of funding being governmental and the serving of a public purpose may subject the private organization to the FOIA. Rehab Hospital Services Corp. supra. Recently the Arkansas Supreme Court has declared that public funds bohl- 5 ! . I i I ' I of Attorney General's opinions which are not binding as precedent, ,- but which are instructive. The Attorney General has opined that "when the activities of a private organization and the government become so intertwined, the private organization may well render itself part of the state for [FOIA] purposes." Ark. Op. No. 83- 163. In that opinion, the AG opined that the mere receipt of Medicare and Medicaid funds by a private nonprofit hospital or a for-profit investor owned facility would not trigger the FOIA. , -.-_More recently, the Attorney General has opined that the mere receipt of public funds is not in itself sufficient to bring a private organization within the FOIA; rather, the question is whether the private entity carries on public business or is otherwise intertwined with the activities of the government . Ark. Op. AG No. 94-131 (May 13, 1994), citing City of Fayetteville v. Edmark, supra, (1990) and Op. AG Nos. 91-131, 94-154 and 83-163. Here both Habilitation and Millcreek Schools do not conduct their activities with or for the benefit of or in the place of any public agency. Neither is established by law. Neither is any more . regulated -0r supervised than hospitals or nursing homes or schools. No governmenta1 authority is ~t Habili tat ion nor is any Habili tat ion employee located in any government office. Habilitation determines the programs for the children, not the State . include only direct public funding, not indirect support. Sebastian city Chapter of the A11lerican Red Cross v. Weatherford, 311 Ark. 656 (845) S.W.2d 641 (1993). 6 Habilitation and Millcreek are engaged in the private r endering of Medicaid and other Medicaid eligible services to private individuals. People performing these services are not public officials. Habilitation is providing Medicaid and other services pursuant to a standard form contract, not making public policy. Even though all or a substantial part of its income is derived from the government, it is being paid only for services and is not being subsidized as an extension of government. These facts do not lead to the conclusion that Habiliation and Millcreek are so connected or intertwined as to bring them within the purview of FOIA disclosure. After evaluating the facts and in light of precedent, the Court finds that Habilitation and Millcreek are not private entities subject to the FOIA. While the line limiting the reach of FOIA is not bright and while the FOIA is to be liberally construed for disclosure of records in the public domain, Ragland v. Yeargen, 288 Ark. 81, 702 S.W.2d 23 (1986), the facts in this case cannot justify a conclusion that "public business" was or is being conducted by Habili tation. The intent of the legislature was to expose the performance of public officials and of the decis1ons that are reached in public activity and in making public policy. While the public at large as electors do have an interest in how the Medicaid program is being conducted and should have access to all agency records relating thereto, including those supplied by Habilitation under its contract, they have no overriding interest in how a private service provider renders its services to private 7 individuals. There simply is no legal precedent or suggestion that it was the intent of the legislature to subject the private activities and all licensed entities and individuals to public scrutiny under the FOIA. Thus it is the decision of this Court that Habilitation is not subject to the FOIA. Friday, Eldredge & Clark is Not Subject to the FOIA Additionally, the Court also finds that Friday, Eldredge & Clark is not' subject to FOIA. It is an obviously private entity .--Eeceiving no obvious public funds, and its clients are not a public entity. The Court believes that the Attorney General's FOIA request to Habilitation and Friday, Eldredge & Clark is discovery abuse. Defendants and their counsel are entitled to protection to maintain the integrity of the discovery process set out in the Arkansas Rules of Civil Procedure. Unauthorized access to attorney/client or attorney/work product privileged material can deprive defendants of due process. Accordingly, the Court finds that the Motion for Protective Order to protect the FOIA requested material from Habili tat ion .should be and hereby is granted. Additionally~ the protective order is extended to Millcreek of Arkansas, to Millcreek Schools of Arkansas, Inc., to Millcreek School of Fordyce, Arkansas, and to Friday, Eldredge & Clark as attorney to the extent of any mater~als in any way related to this litigation. The Attorney General may, if it so chooses, amend its complaint with respect to Millcreek Schools of Arkansas, Inc. if it determines that amendment of the name of the defendant is appropriate. 8 Ark. Code Ann. 25-19-l0S(b) (8) Exemption The Court further finds that even were the defendant subject to the FOIA, the exemption provided in Ark. Code Ann. 25-19- 105 (b) (8) which expressly exempts "documents which are protected from disclosure by orders or rules of court" would apply in this case. As the Supreme Court stated in . City of Fayetteville v. Edmark, supra at 191: A triar' court has the inherent authority to protect the integrity of _the Court in actions pending before it and . ...- may issue appropriate protective orders that would provide FOIA exemption under 25-19-l0S(b) (8). This Court having underlying jurisdiction over the underlying litigation finds that a protective order should be issued to restrict disclosure of documents being sought pursuant to FOIA. If there is any subsequent review by any other circuit court considering related FOIA requests, this protective order is issued specifically within the provisions of Ark. Code Ann. 25-19- 105 (b) (8) to protect from the FOIA materials which otherwise might be disclosable. Id. Other Motions The defendants' Motion to Quash Notice of Depositions is governed by the Written Agreement of the Parties provided to the Court in their joint Motion for Continuance. Accordingly, depositions of parties may begin again only as set out in the Agreement. The Attorney General's Motion to Strike Affidavits will be considered by the Court when it receives the plaintiff's Response to the Motion for Summary Judgment. The defendants' Reply to the 9 - Attorney General's Response to the Motion for Summary Judgment, if .any, will be due within ten business days thereafter. The Attorney General has filed a Motion for Default on Attorney General's Motion to Strike. That Motion is denied. Conclusion IT IS THEREFORE ORDERED that the defendants' Motion be and it hereby is granted. It is further ordered that a protective order be and hereby is issued over all materials sought by the Attorney ~--General under the FOIA unless they are otherwise discoverable or admissible into evidence. The Motion to Quash Notice of Depositions is hereby granted until otherwise provided in the agreement of the parties. The Motion for Default on the Attorney General's Motion to Strike is hereby denied. IT IS SO ORDERED this 1995. hobJ- ~ day of deJn ~ CAROL C Circuit/ DATE: ,)/t4/ f (" 10 IN Tiffi UNITED STATES DISTRICT COURJ.4 IN TIIB EASTERN DISTRICT OF AR.KANs~M PINE BLUFF DIVISION ROGER HEATHSCOTT vs. NO. 5:00-CV-00333-WRW UNION PACIFIC RAILROAD CO. ORDER DEFENDANT For the reasons stated in a telephone conference yesterday, the plaintiff's motion (Doc.5) for a protective order is GRANTED. Accordingly, defendant must not compel the plaintiff to attend the physical examination scheduled for February 14, 2001 , with Dr. Baskin, M.D., and it must not compel the attendance of the plaintiff at the functional capacity examination scheduled for February I 9, 2001. Further, plaintiff must not be disciplined for failing to attend these examinations. I rely primarily upon Smith v. Union Pacific Railroad Co., 878 F.Supp. 171 (D.Co. 1995) and Vicary v. Consolidated Rail Corp., 942 F.Supp. 1146 (N.D. Ohio 1996) which seem to be well reasoned. Unlike the plaintiffs in Calvert v. Trans World Airlines, 959 F.2d 698 (8th Cir. 1992), the plaintiff here unquestionably has a separate, independent cause of action under the Federal Employers Liability Act ("FELA'') 45 U.S.C. 51 et seq. I believe discovery in the FELA action should proceed under the standard Federal Rules of Civil Procedure, and that these rules are not trumped by the defendant's medical examination rules (via the Railway Labor Act 45 U. S.C. 151 et seq.) In fact, under the theory urged by defendant, a railroad could severally hamstring a FELA plaintiff with company regulations. Defendant contends that this order is in the nature of an order "granting, continuing, modifying or dissolving [an] injunction" which would be subject to an interlocutory appeal under l... PLAINTIFF'S EXHIBIT. I it ' . i 287 U.S.C. 1992. I do not know what authority I have to enhance defendant's right to an interlocutory appeal, but to the extent that I have such authority, I grant it in full. IT IS SO ORDERED this l!:!!4 of February, 2001 . UNITED STATES DISTRICT COURT THIS OOCUMENT ENTERED ON DOCK!T SHEET IN .COMPLIANCE WITH RULE 58 ANO/OR 79(1) FACP oN 11/a, lo I av &.bN I RECEIVED AUG 1 7 2001 "_ -- OFFICE OF DESEGREG.4TION MOMTORIN& IN TIIE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL ,,,..p~ PLAINTIFF ,,. . . KA-THERINE KNIGHT, ET AL DEFENDANTS INTERVENORS INTER VEN ORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR PROTECTIVE ORDER AND FOR EMERGENCY HEARING LRSD s.eeks a protective order pursuant to Fed. R. Civ. P. 26(c) to prevent unduly burdensome and harassing discovery being conducted by the Joshua Intervenors ("Joshua") via - the Arkansas Freedom oflnformation Act ("FOIA"), Ark. Code Ann. 25-19-101 through 25- 19-110. Rule 26(c) provides: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or