Settlement Agreement

This Settlement (“Agreement”) is made and entered into by and between Plaintiff Alan Berry (“the plaintiff” or “Mr. Berry”) and Defendant Indiana Superintendent of Public Instruction (“the defendant” or “the DOE”).  Mr. Berry and the DOE are collectively referenced herein as “the Parties.”

Introduction 

1. On March 18, 2019, the plaintiff commenced a lawsuit against the defendant in the United States District Court for the Southern District of Indiana under case number 1:19-cv-01066-RLY-MJD (“the Lawsuit”).  In general, the Lawsuit alleges that the defendant has prohibited the plaintiff from possessing, distributing, or publishing several videos that were filmed and/or produced while the plaintiff was an employee of the Indiana Department of Education, and that this prohibition violates the First Amendment to the United States Constitution.   
2. The defendant generally denies all claims asserted against her in the Lawsuit, but the parties desire to settle and compromise any and all claims asserted in the Lawsuit and the parties are entering into this Agreement for that purpose.
3. The following definitions shall apply throughout this Agreement:
4. 1. The term “Previously Released Videos” shall refer to the videos that were produced and released by the DOE that were manually filed in the Lawsuit as Exhibits 2 through 15 to the plaintiff’s summary judgment motion (Dkt. 39).

1. 1. The term “Migrant Education Documentary” shall refer to the documentary film, previously released by the plaintiff under the title “Where Education Grows,” that was not finalized or released by the DOE and that was manually filed in the Lawsuit as Exhibit 16 to the plaintiff’s summary judgment motion (Dkt. 39).

1. 1. The term “raw footage to the Migrant Education Documentary” shall refer to the Migrant Education Documentary and all video or audio recordings that were created during the production of the Migrant Education Documentary, whether or not those recordings became part of the Migrant Education Documentary and whether or not those recordings were created by Mr. Berry or by the DOE.

Agreement

NOW THEREFORE, in consideration of the releases and consideration set forth below, the parties agree as follows:

1. The defendant agrees that the plaintiff shall be permitted to possess, distribute, and/or publish, publicly or privately, the Previously Released Videos. The defendant shall not assert any copyright or other property interest over the Previously Released Videos, nor shall she make any complaint or claim that the plaintiff’s possession, distribution, or publication of the Previously Released Videos violates state ethics laws.
2. The plaintiff shall make the following edits to the Migrant Education Documentary:
3. At approximately 00:44, the plaintiff shall remove the translation indicating that the documentary is for the Indiana State Government.
4. At approximately 22:27, the plaintiff shall remove the written label indicating that Rachel Davidson is the migrant education coordinator for the Indiana Department of Education and shall remove all written references to the Indiana Department of Education, although the plaintiff may still identify Ms. Davidson by name.
5. At approximately 22:48, the plaintiff shall remove the written label indicating that Charlie Geier is the migrant education director for the Indiana Department of Education and shall remove all written references to the Indiana Department of Education, although the plaintiff may still identify Mr. Geier by name.
6. At approximately 23:25 through 23:33, the plaintiff shall delete all images of the Indiana Department of Education’s former centralized hub.
7. At approximately 41:49, the plaintiff shall remove the written label indicating that Rachel Davidson is the migrant education coordinator for the Indiana Department of Education and shall remove all written references to the Indiana Department of Education, although the plaintiff may still identify Ms. Davidson by name.
8. At approximately 44:15, the plaintiff shall remove Don Gilroy’s name from the credits.
9. At approximately 45:05, the plaintiff shall remove the disclaimer indicating that the film is released and protected under Indiana’s Access to Public Records Act.

The time stamps specified in this paragraph are approximate and refer to the time stamps of the Migrant Education Documentary prior to the edits described above. 

3. In a conspicuous location at or near the beginning of the Migrant Education Documentary, the plaintiff shall display the following written disclaimer for at least twenty (20) seconds:

The information contained in this documentary does not represent the views and opinions of the Indiana Department of Education.  This documentary is not the product of the Indiana Department of Education, nor was it produced in conjunction with the Indiana Department of Education.  The appearance of current or former Indiana Department of Education employees does not constitute an endorsement by the Indiana Department of Education or the State of Indiana.  For more information on Indiana’s Migrant Education Program, please visit the Indiana Department of Education’s website at https://www.doe.in.gov/elme/
migrant-education-program or contact the Indiana Department of Education at 317-232-6610.

In conjunction with the display of this written disclaimer, the plaintiff may display the following language: “The Indiana Department of Education has required that this disclaimer be displayed for 20 seconds.”  The numeral in this text (“20”) may change in order to count down the time that remains for the disclaimer to be displayed (i.e., 19, 18, 17, etc.).

4. Once the Migrant Education Documentary is edited as described in paragraphs 2 and 3 above, the DOE shall be permitted to review the finalized film to ensure compliance with this Agreement. The DOE shall complete any such review within fourteen (14) days of the date that it was provided the finalized version of the Migrant Education Documentary.  The plaintiff shall correct any failure to comply with this Agreement that the DOE brings to the plaintiff’s attention during the review described in this paragraph.

5. Once the Migrant Education Documentary is edited as described in paragraphs 2 and 3 of this Agreement, and reviewed by the DOE pursuant to paragraph 4 of this Agreement, the plaintiff shall be permitted to possess, distribute, and/or publish, publicly or privately, the film. The defendant shall not assert any copyright or other property interest over the Migrant Education Documentary, nor shall she make any complaint or claim that the plaintiff’s possession, distribution, or publication of the Migrant Education Documentary, as edited, violates state ethics laws.

6. Within ninety (90) days of the execution of this Agreement, the plaintiff shall take all reasonable measures to identify and delete all raw footage to the Migrant Education Documentary in his possession other than the Migrant Education Documentary itself, as edited pursuant to paragraphs 2 and 3 above. The plaintiff shall also take all reasonable measures to identify and delete all versions of the Migrant Education Documentary itself in his possession except for the version permitted to be shared pursuant to paragraphs 2 through 5 of this Agreement. The plaintiff shall notify the DOE, or its undersigned counsel, in writing when he has complied with this paragraph within fourteen (14) days of said completion.  In the event that the plaintiff subsequently discovers additional raw footage to the Migrant Education Documentary or other versions of the Migrant Education Documentary in his possession other than the Migrant Education Documentary as edited pursuant to paragraphs 2 and 3 above, the plaintiff shall delete this additional footage at the time that it is discovered.  The plaintiff shall notify the DOE, or its undersigned counsel, in writing of the discovery and subsequent deletion of any newly-discovered raw footage to the Migrant Education Documentary or previous versions of the Migrant Education Documentary pursuant to the preceding sentence within fourteen (14) days of deletion.

7. This Agreement applies not only to the parties, but to the parties’ agents, employees, attorneys, representatives, assigns, and successors in interest, and to any persons acting in concert with the parties or with any of these persons.

8. Promptly upon the execution of this Agreement, the parties shall file a Stipulation of Dismissal of the Lawsuit, with prejudice and with each party to bear its own costs.

9. The parties acknowledge that this Agreement is entered into by the parties solely for the purpose of settlement and to avoid the cost and uncertainties of litigation, and shall not be construed as an admission of any sort by either of them.

10. The parties acknowledge that, insofar as the defendant is a state official, this Agreement must be approved by the Indiana Attorney General and the Governor of Indiana, or their respective designees. This Agreement is made expressly contingent on these approvals and, if these approvals are not secured, this Agreement shall be deemed null and void in its entirety.

11. This Agreement may be executed in counterparts, each of which will be deemed an original, and a photocopy, facsimile, or PDF image of this fully executed Agreement is as valid and enforceable as the original.

The parties acknowledge that each is legally competent and has read and fully understands the terms of this agreement, and that each enters into this agreement freely and voluntarily.