Garrett v. University of South Florida Board of Trustees

Filing 45

ORDER granting in part and denying in part 40 motion to compel. Signed by Magistrate Judge Amanda Arnold Sansone on 8/23/2018. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SAMANTHA L. GARRETT,
Plaintiff,
v.

Case No. 8:17-cv-2874-T-23AAS

UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
Defendant.
_______________________________________/
ORDER
Samantha Garrett moves to compel five requests for production and two
depositions. (Doc. 40). After the USF Board of Trustees (USF Board) submitted its
response in opposition (Doc. 42), the undersigned held a hearing on Ms. Garrett’s
motion. (Doc. 44). For the reasons stated at the hearing, Ms. Garrett’s motion to
compel (Doc. 40) is GRANTED-IN-PART and DENIED-IN-PART.1
Request for Production No. 13
All correspondence authored by any USF departmental administrator
or faculty member of the USF Psychology Department, which references
or relates to Samantha Garrett’s complaint against Andrew Thurston at
issue in this litigation, including without necessary limitation:
a.
b.
c.

Dr. Tammy Allen
Dr. Michael Braun
Dr. Toru Shimizu

At the conclusion of the hearing, counsel for both parties stated that an extension
of the discovery deadline is unnecessary. Therefore, all deadlines in the Case
Management and Scheduling Order (Doc. 27) remain in effect.
1
1

(Doc. 40, p. 2).
Based on the parties’ representations at the hearing, the USF Board now has
provided all correspondence responsive to this request as narrowed by Ms. Garrett’s
counsel’s agreed temporal limitation and representation that only correspondence
from these three individuals is sought. Therefore, Ms. Garret’s motion to compel this
request for production is denied as moot.
Request for Production No. 14
All documentation of any meetings held by any members of the USF
departmental administrator or faculty member of the USF Psychology
Department at which the complaint by Samantha Garrett against
Andrew Thurston at issue in this litigation was discussed, including any
discussion regarding whether the sanctions or disciplinary measures
taken against Mr. Thurston were sufficient.
(Doc. 40, p. 4).
Based on the parties’ representations at the hearing, the USF Board provided
documents dated before November 30, 2017, responsive to this request. Therefore,
the motion to compel this request for production is denied as moot with respect
documents dated before November 30, 2017.
However, this request for production is granted with respect to documentation
of any post-November 30, 2017, formal meetings of the USF departmental
administrators or faculty members of the USF Psychology Department at which Ms.
Garrett’s complaint against Thurston at issue in this litigation was discussed.

2

Request for Production No. 27
To the extent not otherwise requested above, all correspondence, notes,
memoranda or any other written document that references or relates to
Plaintiff’s complaints against Andrew Thurston at issue in this
litigation, authored by the following persons:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.

Joanne M. Adamchak
Dr. Tammy Allen
Dr. Michael Braun
Crystal Coombes
Joshua Cutchens
Margaret Denney
Megan Deremiah
Lorna Dwyer
Joanna Ellwood
Dr. Jose Hernandez, or such other person serving as Chief
Diversity Officer
Winston G. Jones, or such other serving as Director of the
Office of Student Rights and Responsibilities
Danielle McDonald
Dr. Allison Cleveland-Roberts
Dr. Toru Shimizu
Maria Zale
Any Director of the USF Center for Victim Advocacy and
Violence Prevention

(Doc. 40, p. 6).
Based on the parties’ representations, the USF Board now has provided
documents, dated before November 30, 2017, responsive to this request for
production, except for documents authored by Joanne M. Adamchak. Ms. Garrett’s
counsel clarified at the hearing that this request seeks only documents dated before
November 30, 2017. Therefore, except for the request for production for documents
from Ms. Adamchak, the motion to compel is denied as moot as to this request.
With respect to documents from Ms. Adamchak, the USF Board asserts these
3

documents are privileged, but have not included them on a privilege log. The USF
Board also informed the court Ms. Adamchak has few documents responsive to this
request. The USF Board must submit these documents to the court for in camera
review so the court can determine which documents, if any, are protected under
attorney-client privilege. Contemporaneous with submitting the documents, the USF
Board also must submit a privilege log for these documents to Ms. Garrett’s counsel
and the court. The privilege log must comply with this court’s Handbook on Civil
Discovery Practice, which is available on the court’s website. The USF Board must
submit Ms. Adamchak’s documents and the privilege log to the undersigned’s
chambers, via email or hand delivery, by 1:00 p.m. on August 24, 2018.
Request for Production No. 28
Any correspondence received after the filing of this lawsuit from any
current or former student which comments on the lawsuit.
(Doc. 40, p. 8).
This request, in its current wording, is not proportional to the needs of this
case because it broadly seeks any correspondence without regard to the recipient. By
way of example, as drafted, this request would reach casual email correspondence
among students maintained on the USF email server. After discussion with counsel,
the court narrows this request and grants the motion to the extent that the USF
Board must produce (with student names redacted) the following:
Any formal complaint or correspondence by, or on behalf of, a current or
former student to the USF Title IX Coordinator (Office of Diversity,
Inclusion & Equal Opportunity and/or the Office of Student Rights and
4

Responsibilities (OSRR))2
that substantively comments on Ms.
Garrett’s lawsuit against Thurston and any publicly available
correspondence (i.e., public record documents) to the USF Center for
Victim Advocacy that substantively comments on Ms. Garrett’s lawsuit
against Thurston.
Ms. Garrett’s motion to compel a broader set of documents responsive to this
request for production is otherwise denied.
Request for Production No. 29
On November 20, 2017, USF System President Judy Genshaft sent an
electronic mail message to, “Students, Faculty, Staff, Alumni and
Friends,” bearing subject line “Message from the USF System
President.” With respect to that message, please produce:
a.

Documentation of the “…several educational programs to
prevent sexual violence and raise awareness about this
important issue” referenced in the second paragraph of the
message.

b.

All documentation that reflects “the rights of the accused”
referenced in the third paragraph of the message.”

c.

All documentation of the training received by the “highly
trained response teams” referenced in the second
paragraph of the message.

d.

All written responses received to the message.

(Doc. 40, p. 9).
Based on the USF Board’s representations, and confirmed by Ms. Garrett’s
counsel, documents responsive to subsections a, b, and c now have been produced.

During the August 22nd hearing, this office was referred to as the Title IX Office.
In reformulating the request, the court included official names, pulled from
documents in this case. (See Doc. 22-2) (December 6, 2016 correspondence to Ms.
Garrett from USF’s Lead Title IX Investigator).
5
2

Therefore, Ms. Garrett’s motion to compel with respect to those subsections of the
request is denied as moot.
With respect to “all written responses received to the message,” consistent with
the court’s ruling on request 28, the court reformulates this request for production
and grants Ms. Garrett’s motion to the extent that the USF Board must produce the
following:
Any formal complaint or correspondence by, or on behalf of, a current or
former student to the USF Title IX Coordinator (Office of Diversity,
Inclusion & Equal Opportunity and/or the Office of Student Rights and
Responsibilities (OSRR)) that substantively comments on President
Judy Genshaft’s November 20, 2017 email, and publicly available
correspondence (i.e., public record documents) to the USF Center for
Victim Advocacy that substantively comments on President Judy
Genshaft’s November 20, 2017 email.
Request to Depose Joanne Adamchak
The USF Board objects to Ms. Garrett’s request to depose Ms. Adamchack on
two grounds. The USF Board claims Ms. Adamchak is an apex witness and Ms.
Garrett failed to establish that Ms. Adamchak has direct, first-hand knowledge about
facts in this case. (Doc. 42, pp. 4–8). The USF Board also claims any knowledge Ms.
Adamchak has about this case is protected by attorney-client privilege. (Id. at 8–11).
The apex rule, which protects high-ranking officials from unnecessary and
harassing depositions, applies to high-ranking university officials. Mansourian v.
Bd. of Regents of Univ. of Cal. at Davis, No. CIV S-03-2591 FCD EFB, 2007 WL
4557104 (E.D. Cal. Dec. 21, 2007); Raml v. Creighton Univ., No. 8:08CV419, 2009 WL
3335929 (D. Neb. Oct. 15, 2009). The party seeking to depose an apex witness must
6

show extraordinary circumstances or special need for the deposition. In re U.S., 985
F.2d 510, 512 (11th Cir. 1993).
The USF Board failed to show Ms. Adamchak qualifies as an apex witness.
When asked at the hearing about the organizational structure at USF of which Ms.
Adamchack is a part, the USF Board failed to show Ms. Adamchak is a high-ranking
official who could not perform her duties if deposed. Further, the USF Board included
Ms. Adamchack as an individual likely to have discoverable information in its
disclosures under Federal Rule of Civil Procedure 26(a)(1). (Doc. 42-1, p. 10).
Although Ms. Adamchack is not an apex witness, the court reserves ruling on
the USF Board’s alternative argument for precluding the deposition until it reviews
the in camera documents the USF Board must produce by August 24, 2018.
Request to Depose President Judy Genshaft
The USF Board objects to Ms. Garrett’s request to depose President Genshaft
because she is the highest-ranking executive at the university. (Doc. 42, pp. 11–12).
The apex deposition rule protects high-level executives who lack unique or personal
knowledge of the facts of a case. Raml, 2009 WL 3335929, at *2 (quotations and
citation omitted). President Genshaft is an apex witness because she is the President
of USF and nothing in the record before the court suggests President Genshaft
possesses unique, firsthand knowledge of the facts in this case to warrant deposition.
Further, at this time, Ms. Garrett failed to exhaust other less intrusive discovery
methods (e.g., a Rule 30(b)(6) deposition) before seeking this deposition. Therefore,
7

this deposition request is denied.
ORDERED in Tampa, Florida, on August 23, 2018.

8