Doe v. Lynn University, INC.

Filing 124

ORDER DENYING 91 NON-PARTYS APPEAL AND GRANTING IN PART AND DENYING IN PART 92 PLAINTIFFS APPEAL OF PROTECTIVE ORDERS. Signed by Judge Robin L. Rosenberg on 1/19/2017. (as00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 9:16-CV-80850-ROSENBERG/BRANNON
JOHN DOE,
Plaintiff,
v.
LYNN UNIVERSITY, INC.,
A Florida not for profit corporation
d/b/a Lynn University,
Defendant.
________________________________/
ORDER DENYING NON-PARTY’S APPEAL AND GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S APPEAL OF PROTECTIVE ORDERS
The Magistrate Judge has, for months, carefully curated discovery in this sensitive, hotlycontested case. Indeed, in the last two months alone, three hearings have been held on discovery
matters. Two motions for protective orders have been made. DE 70, 69. One motion—made by
Mary Roe’s parents and requesting that their depositions be precluded or, alternatively, stayed—
was denied. DE 76 (ruling on DE 70). The other—a motion by Mary Roe requesting the same
relief—was granted in part and denied in part. DE 85 (ruling on DE 69). Mary Roe’s deposition
was allowed to go forward, but certain conditions were imposed. Id. These orders are now being
appealed by Plaintiff, John Doe, and by the non-parties whose depositions they concern, Mary
Roe and her parents. 1 DE 91, 92. Mary Roe and her parents have filed a Response to Plaintiff’s
Appeal; Plaintiff has not done likewise. DE 109. The expedited briefing schedule did not permit
the filing of a Reply. DE 88. For the reasons discussed below, the appeal by Mary Roe and her
parents is DENIED. John Doe’s appeal is GRANTED IN PART AND DENIED IN PART.

1

John Doe and Mary Roe are pseudonyms.

I.

STANDARD OF REVIEW
The orders at issue are not dispositive of any party’s claim or defense; rather, they are

nondispositive discovery orders. See Malibu Media, LLC v. Doe, 923 F. Supp. 2d 1339, 1346
(M.D. Fla. 2013). The appealing parties, therefore, bear the heavy burden of showing that the
orders are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). It is “extremely
difficult to justify alteration of the magistrate judge’s nondispositive actions,” 12 Wright, Miller
& Marcus, Federal Practice and Procedure Civ. 2d § 3069, because “[c]lear error is [a] highly
deferential standard of review.” Holton v. City of Thomasville School Dist., 425 F.3d 1325, 1350
(11th Cir. 2005).
An order is clearly erroneous where, “although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Holton, 425 F.3d at 1350 (internal citations and quotation marks omitted).
An order is contrary to law where “it fails to apply or misapplies relevant statutes, case law or
rules of procedure.” Tolz v. Geico General Ins. Co., No. 08-cv-80663, 2010 WL 384745, at *2
(S.D. Fla. Jan. 27, 2010).
II.

ANALYSIS
Under Federal Rule of Civil Procedure 26(c)(1) a court may “issue an order to protect a

party or person from annoyance, embarrassment, oppression or undue burden or expense” upon a
showing of “good cause.” The good cause standard “calls for a sound basis or legitimate need to
limit discovery of the subject information.” Sierra Equity Group v. White Oak Equity Partners,
LLC, 672 F. Supp. 2d 1369, 1370 (S.D. Fla. 2009). “In addition to requiring good cause, [the
Eleventh Circuit] has also required the district court to balance the interests of those requesting
the order.” McCarthy v. Bennett Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989).

2

Mary Roe and her parents both argue that the Magistrate Judge erred in permitting their
depositions to go forward at all. DE 91. Alternatively, Mary Roe and her parents both contend
that the Magistrate Judge erred by failing to stay their depositions until after a ruling on the
pending motion to dismiss. Id. Plaintiff argues that the Magistrate Judge erred by disallowing
audiovisual recording of Mary Roe’s deposition, by not allowing Plaintiff to appear in person at
Mary Roe’s deposition, by prohibiting Plaintiff from asking relevant deposition questions of
Mary Roe, by ordering the Plaintiff to hand over his proposed depositions questions for Mary
Roe to all parties, and by limiting Mary Roe’s deposition to three hours. DE 92 at 17. The Court
now addresses each of these arguments in turn, starting with those advanced by Mary Roe and
her parents.
A. Whether The Magistrate Judge Erred By Declining To Prohibit Mary Roe’s
Deposition And That Of Her Parents.
Mary Roe argues that it was clearly erroneous and contrary to law for the Magistrate
Judge to permit her deposition. The Court disagrees. The Magistrate Judge did not err by
concluding that Mary Roe failed to demonstrate good cause for precluding her deposition. And,
even if the Magistrate Judge had erred by so concluding, it would not have been error for the
Magistrate Judge to conclude that Mary Roe’s interest in not being deposed was outweighed by
Plaintiff’s interest in obtaining the relevant information in her possession.
“The burden of showing good cause to preclude a deposition altogether is a heavy one.”
Dunford v. Rolly Marine Service Co., 233 F.R.D. 635, 637 (S.D. Fla. 2005) (collecting cases).
Here, Mary Roe is a non-party and two treating physicians attested that sitting for a deposition
would exacerbate Mary Roe’s Juvenile Myoclonic Epilepsy, threatening her well-being. DE 691, 69-2. But it was not reversible error for the Magistrate Judge to conclude that these attestations
did not provide good cause for precluding her deposition altogether, even in light of her non3

party status. Indeed, the incredible severity of the circumstances in both of the cases cited by
Mary Roe only reinforces the absence of clear error here. See, e.g., id. (finding the sort of “rare
circumstance[] that may preclude the taking of a deposition altogether” where deponent was
presently hospitalized as a result of a “serious acute brain condition that is life threatening”); In
re McCorhill Pub., Inc., 91 B.R. 223, 225 (S.D.N.Y. 1998) (precluding deposition in light of
“unequivocal testimony” that deponent may have been “catapulted into heart failure” during his
deposition).
Moreover, Mary Roe possesses certain information about her interactions with Defendant
that is both unique and relevant to Plaintiff’s Title IX claim. Even had Mary Roe presented good
cause for precluding her deposition, it would not have been error for the Magistrate Judge to
conclude that her showing of good cause was outweighed by Plaintiff’s interest in obtaining this
relevant testimony. The Court, therefore, affirms the Magistrate Judge’s decision to permit Mary
Roe’s deposition. 2
The appeal further states that “Roe and her Parents object to the Magistrate’s Orders to
the extent that they permit the taking of Roe and her Parents’ depositions.” DE 91 at 3
(emphasis added). However, the only arguments presented as to why it was clearly erroneous to
permit the depositions of Mary Roe’s parents is that they are not parties to the litigation and that
their testimony is of minimal relevance. DE 91 at 4-5. The Court cannot find that these reasons
alone provide good cause for precluding the depositions of Mary Roe’s parents. As the Court
noted above, the burden is a heavy one. The Court, therefore, affirms the Magistrate Judge’s
decision to permit the depositions of Mary Roe’s parents.

2

The conditions that the Magistrate Judge imposed on that deposition for Mary Roe’s protection
are discussed in the sections that follow.
4

B. Whether The Magistrate Judge Erred By Failing To Continue Mary Roe’s Deposition
And That Of Her Parents Until After An Order On The Pending Motion To Dismiss.
Mary Roe and her parents also object to “[t]he Magistrate’s implicit finding that there is
no need to defer the depositions until after the decision on the pending motion to dismiss.” DE
91 at 6. This argument is moot. On January 10, 2017, the Court issued an Order clarifying that a
decision on the pending motion to dismiss will issue in advance of the depositions. See DE 95.
C. Whether The Magistrate Judge Erred By Disallowing Audiovisual Recording.
Federal Rule of Civil Procedure 30(b)(3) states that “testimony may be recorded by
audio, audiovisual, or stenographic means.” But there is a caveat: “[u]nless the court orders
otherwise.” Fed. R. Civ. P. 30(b)(3). Here, the Magistrate Judge ordered otherwise. See DE 85
(“The deposition shall not be videotaped.”). Plaintiff argues that this order was clearly erroneous
and contrary to law. Not so.
Defendant first argues that “Mary Roe has not shown good cause justifying her request
that her deposition not be videotaped.” DE 92 at 15. Mary Roe’s Motion for Protective Order
included supporting letters from her physicians stating that being subpoenaed had increased
Mary Roe’s anxiety level, which posed a threat to her health because “emotional . . . stressors are
known to exacerbate [] generalized tonic clonic seizures.” DE 69-1. Her counsel argued that the
“obvious intimidation” that would result from videotaping her deposition would “only further
raise Roe’s level of anxiety and create a greater risk of seizures further jeopardizing Roe’s
mental and physical health.” DE 82 at 2. It was not error for the Magistrate Judge to conclude, in
light of that evidence and counsel’s common-sense argument, that good cause existed for
requiring Plaintiff to take Mary Roe’s deposition by other available means.
Defendant also argues that, on balance, Plaintiff’s interest in a videotaped deposition
outweighs Mary Roe’s interest in not being videotaped. Plaintiff’s focus is the litigation value of
5

a taped deposition. The Court acknowledges the support for the proposition that an audiovisual
deposition is a valuable tool. However, there is nothing clearly erroneous or contrary to law
about the Magistrate Judge’s decision that this litigation value is outweighed by the potential cost
to Mary Roe’s health. In the absence of clear error or legal authority to the contrary, the Court
affirms the Magistrate Judge’s decision that “[t]he deposition shall not be videotaped.” DE 85.
D. Whether The Magistrate Judge Erred By Not Allowing Plaintiff To Attend In Person.
Plaintiff argues that it was clear error to prohibit Plaintiff from attending Mary Roe’s
deposition in person. It was not. The Federal Rules of Civil Procedure specify that a protective
order may “designate[] the persons who may be present while discovery is conducted.” Fed. R.
Civ. P. 26(c)(1)(E). And, upon a showing of good cause, Rule 26(c)(1)(E) permits the exclusion
of a party. Before the 1970 revision of the Rules of Discovery, courts could exclude all “except
the parties to the action and their officers or counsel . . .” Fed. R. Civ. P. 30(b) (emphasis
added). The 1970 revision expanded courts’ authority, permitting the exclusion of anyone not
designated by the court. See Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973).
It was not reversible error for the Magistrate Judge to conclude that such good cause was
shown here. 3 Mary Roe suffers from Juvenile Myoclonic Epilepsy. DE 69. As a result, she is
subject to grand mal seizures. Id. The primary factors in causing these seizures: anxiety and
stress. According to one of her treating physicians: “[Mary Roe] has experienced severe
depression and anxiety as a result of the assault.” DE 69-1. And there has been a corresponding
spike in her seizure rate. Between 2011 and 2014 Mary Roe experienced four seizures; in the

3

The cases cited by Plaintiff are each distinguishable. For example, in Ferrigno v. Yoder, 495
So. 2d 886, 888 (Fla. 1st DCA 1986), the court held that the trial court abused its discretion by
granting a protective order requiring a husband and wife to be deposed separately. It found that
the need to “elicit candid responses” did not constitute good cause. Here, the asserted good cause
is the need to protect a non-party’s health, which is hardly analogous.
6

nine months following the alleged rape she experienced eight seizures. Id. Mary Roe’s treating
psychiatrist attested that “[s]ince receiving the subpoena, [Mary Roe’s] level of anxiety has
increased and she has been experiencing nightmares, flashbacks at night and also some
flashbacks during the day.” DE 69-2. That evidence demonstrates that the anxiety caused by her
deposition may well worsen Mary Roe’s condition. In light of that good cause, it was neither
clearly erroneous nor contrary to law for the Magistrate Judge to spare Mary Roe the prospect of
sitting face to face with her alleged rapist in an attempt to mitigate some of her anxiety.
The balance of interests does not require a different result. The Magistrate Judge has
taken corresponding measures to protect John Doe’s rights as a party. John Doe “may appear by
Skype or other electronic means so long as Mary Roe cannot see him.” DE 85. He will,
therefore, be able to hear the questions asked as well as the responses given. And the Order does
not preclude real-time communication between John Doe and his counsel. On the contrary, the
two will be able to communicate by real-time electronic means, such as text or instant
messaging, during the deposition. John Doe will also be able to consult with his counsel during
breaks. Any breaks taken to facilitate discussion between John Doe and his counsel will not be
counted against the time permitted for the deposition. The Magistrate Judge’s order that John
Doe may not appear in person is affirmed.
E. Whether The Magistrate Judge Erred By Prohibiting Plaintiff’s Counsel From Asking
Relevant Deposition Questions Of Mary Roe.
During a discovery hearing, the Magistrate Judge ordered Plaintiff to submit for review
any and all questions that Plaintiff planned to ask Mary Roe during her deposition. Plaintiff
submitted approximately one hundred and twenty such questions. Fifteen deposition questions
were approved by the Magistrate Judge. Plaintiff does not argue on appeal that he should not
have been required to present the Magistrate Judge with his deposition questions for screening
7

and approval. Rather, Plaintiff argues that the Magistrate Judge erred by excluding relevant
questions. 4 For the reasons below, the Court affirms in part and reverses in part.
To provide context for the Court’s review of the Magistrate Judge’s ruling on Plaintiff’s
proposed deposition questions, the Court finds it necessary to clarify what this case is about, and
what it is not. The nature of a number of the proposed questions suggests confusion as to exactly
what the issues are being litigated in this case. Title IX “bars the imposition of university
discipline where gender is a motivating factor in the decision to discipline.” Yusuf v. Vassar
College, 35 F.3d 709, 715 (2d Cir. 1994). Title IX challenges to university disciplinary
proceedings can, as the Second Circuit has observed, be lumped into two categories: erroneous
outcome and selective enforcement. Students bringing a selective enforcement challenge allege
that, guilt or innocence aside, the student’s gender affected the penalty imposed, the decision to
initiate the proceeding, or both. DE 45 at 4. Students bringing an erroneous outcome challenge
allege that gender bias played a role in the wrongful conviction of an innocent student. Id.
Plaintiff, who has brought an erroneous outcome challenge, characterizes as “a critical
issue in this case” whether “in truth and in fact [Mary Roe] consented to engaging in sexual
intercourse with Plaintiff on September 18, 2015.” DE 92 at 5. That position misconceives the
erroneous outcome challenge. Whereas the focus in a selective enforcement challenge is on
whether gender affected the initiation of the proceedings or the penalty imposed, the focus in an
erroneous outcome challenge is on whether gender affected the process. It is true that “the claim
is that the plaintiff was innocent and wrongly found to have committed an offense.” Yusuf, 35
F.3d at 715. But the central question is not whether Plaintiff is “innocent” in the sense that he did
not commit the act of which he stood accused. Rather, it is whether Plaintiff is “innocent” in the

4

The complete list of questions is contained in sealed docket entry 106.
8

sense that he was found to have committed that act following a proceeding that could not support
that result. Plaintiff must then show the required connection between that erroneous outcome and
Plaintiff’s gender.
Plaintiff further argues that “if [Mary Roe] consented to having sex with Plaintiff . . .
[the] penalties imposed upon Plaintiff will be shown to have been a sham, a travesty of justice,
and a violation of his due process rights under Title IX.” DE 92 at 10. But, again, that position
misconceives the erroneous outcome challenge. Consider this hypothetical. Imagine a student
that is, indeed, innocent—“in truth and in fact,” to borrow Plaintiff’s phrase. DE 92 at 5.
Defendant fails to uncover evidence of the student’s innocence through no fault of its own. The
physical evidence is in equipoise and a witness with exculpatory testimony simply does not come
forward. The decision makers are left to assess the credibility of the parties’ testimony. After a
procedurally flawless hearing, the decision makers credit the testimony of the accused. The result
would be “wrong” as a matter of fact. But Plaintiff very well may not succeed on an erroneous
outcome challenge. The outcome must be accurate in the sense that it was not the result of a
“procedurally or otherwise flawed proceeding.” Yusuf, 35 F.3d at 715. It need not be accurate as
a matter of truth. This distinction is pivotal—it separates the relevant areas of inquiry from the
merely tangential ones.
With that clarification in mind, the Court now turns to the matter at hand. Rule
26(c)(1)(D) empowers courts issuing protective orders to “forbid[] inquiry into certain matters,
or limit[] the scope of disclosure or discovery to certain matters.” The standard is “good cause,
which calls for a sound basis or legitimate need to limit discovery of the subject information.”
Sierra Equity Group v. White Oak Equity Partners, LLC, 672 F. Supp. 2d 1369, 1370 (S.D. Fla.
2009). “In addition to requiring good cause, [the Eleventh Circuit] has also required the district

9

court to balance the interests of those requesting the order.” McCarthy v. Bennett Bank of Polk
County, 876 F.2d 89, 91 (11th Cir. 1989).
Mary Roe has shown that her alleged assault and the ensuing investigation caused her
anxiety which, in turn, led to an increase in her seizure rate. DE 69 She has also shown that the
looming deposition in this case has further increased her anxiety, making another spike in her
seizure rate likely. Id. Indeed, two physicians attested to the threat to Mary Roe’s well-being. DE
69-1, 69-2. The Magistrate Judge, in light of that evidence, concluded that the demonstrated
threat to Mary Roe’s health was good cause to limit the scope of her deposition, which concerns
the same alleged assault and investigation that precipitated the worsening of her health problems.
That conclusion is neither clearly erroneous nor contrary to law. Plaintiff, however, asserts that
his countervailing interest in exploring areas of inquiry relevant to his case outweighs Mary
Roe’s stated interest with regard to each of the questions submitted to the Magistrate Judge for
review and approval. Whether the Magistrate Judge erred in reaching the opposite conclusion
with regard to many of those questions is the inquiry that remains. 5
Plaintiff’s proposed questions are grouped into several general topics designated by
headings. For the sake of clarity, the Court draws on Plaintiff’s organization and begins with a
summary of its ruling. The first section of Plaintiff’s proposed questions, labeled “Background,”
contains questions one through thirty-three. The second section, labeled “Lynn University,”
contains questions thirty-four through forty-four. The Court affirms the Magistrate’s ruling with
regard to the questions in both of these sections (i.e. questions one through forty-four). Plaintiff
may, therefore, only ask those previously approved—specifically, questions one, two, and thirty-

5

The Court emphasizes that it has only evaluated whether the questions listed ought to be
excluded under the protective order. This evaluation is not to be taken as any indication that
other objections (as to compound questions, privilege, etc.) are not warranted.
10

four and “any reasonable follow-up questions pertaining [] to these permitted questions.” The
third section, labeled “[John Doe],” contains questions forty-five through eighty-eight. The Court
affirms the Magistrate’s ruling with regard to the questions in that section. Plaintiff may,
therefore, not ask any of questions forty-five through eighty-eight. The fourth section, labeled
“The Lynn University Disciplinary Process Against [John Doe] And The Conduct Hearing Of
December 11, 2015,” contains questions eighty-nine through one hundred and fifteen. The Court
reverses the Magistrate Judge’s decision to permit only some of these questions. Plaintiff may
ask all of the questions in this section. Finally, the Court affirms the Magistrate Judge’s decision
regarding the as-of-yet-unknown questions about the five documents contained in the fifth
section, labeled “Witness’ Prior Statements.”
a. Questions 1-44: Labeled “Background” and “Lynn University.”
With regard to the first forty-four questions, the Court affirms the Magistrate Judge’s
decision to exclude all but questions one, two, four, and thirty-four As noted above, the
Magistrate Judge did not err in concluding that Mary Roe had shown good cause for restricting
the scope of her deposition. The question, therefore, is whether Plaintiff’s stated interest in
exploring areas of inquiry relevant to his case outweighs Mary Roe’s interest. The first forty-four
questions all go to generalized background. None strike at the issues at the heart of this case. In
light of that limited relevancy, it was not clear error or contrary to law for the Magistrate Judge
to conclude that Mary Roe’s interest in their exclusion (i.e. protecting her health, particularly in
light of her non-party status) won the day. 6

6

This same analysis applies to questions forty-five, eighty-seven and eighty-eight contained in
the group of questions labeled “[John Doe].”
11

b. Questions 45-88: Labeled “[John Doe].”
The Court reverses the Magistrate Judge’s decision to exclude questions seventy-nine,
eighty and eighty-one in their entirety, but affirms the Magistrate Judge’s decision to exclude the
remainder of questions forty-five through eighty-eight. Again, the good cause asserted—namely,
the protection of Mary Roe’s health—is sufficient. Therefore, the Court turns to the balancing of
interests. But unlike the first forty-four questions, which all go to generalized background,
questions forty-five through eighty-eight address different subjects. The Court will, accordingly,
address them in sub-groups.
Questions 46-49: As written, questions forty-six 7 through forty-nine go to the events of
September 18, 2015 that preceded the meeting between Mary Roe and Plaintiff. What actually
occurred before the pair met, however, is not at issue in this case. What is at issue is how the
Defendant went about investigating the events of September 18, 2015, what information
Defendant ultimately possessed, and how Defendant acted on that information in the disciplinary
proceeding against Plaintiff. Those directly relevant areas of inquiry are not addressed by
Plaintiff’s questions, as written. There is a clear distinction, as far as relevancy is concerned,
between questioning Mary Roe about the actual events of September 18, 2015, and asking Mary
Roe what she told representatives of Defendant about those events during the investigation and
the ensuing proceedings. So, once again, the Magistrate Judge did not err by contrasting the
limited relevancy of the actual events of September 18, 2015 against the threat to Mary Roe’s
health as well as her non-party status and concluding that the questions ought to be excluded.
Questions 50-62 and 64-67: As written, questions fifty through sixty-two and questions
sixty-four through sixty-seven all go to what actually occurred between Mary Roe and Plaintiff

7

Question forty-five is addressed below.
12

on the night of September 18, 2015. But, as discussed above, what actually occurred between
Mary Roe and Plaintiff on the night of September 18, 2015 is not at issue. So, once again, the
Magistrate Judge did not err by contrasting the limited relevancy of the actual events of
September 18, 2015 against the threat to Mary Roe’s health as well as her non-party status and
concluding that the questions ought to be excluded.
Questions 63 and 74-77: As written, question sixty-three and questions seventy-four
through seventy-seven go to the events immediately following Plaintiff’s alleged assault (i.e. the
events of September 18, 2015 and of the early hours of September 19, 2015). But, what actually
occurred immediately following Plaintiff’s alleged assault is not at issue. TheMagistrate Judge
did not err by contrasting the limited relevancy of the events immediately following Plaintiff’s
alleged assault against the threat to Mary Roe’s health as well as her non-party status and
concluding that the questions ought to be excluded.
Questions 68-73: As written, questions sixty-eight through seventy-three go to what
actually occurred during the investigation of the alleged assault conducted by the Boca Raton
Police Department. What actually occurred during the investigation conducted by the Boca
Raton Police Department is not at issue. So, the Magistrate Judge did not err by contrasting the
limited relevancy of what actually occurred during the investigation of the alleged assault
conducted by the Boca Raton Police Department against the threat to Mary Roe’s health as well
as her non-party status and concluding that the questions ought to be excluded.
Questions 78-81: However, questions seventy-eight through eighty-one are directly
aimed at the issue in this case. For this reason, it was clear error for the Magistrate Judge to
exclude these questions.. Plaintiff ought to be permitted to inquire as to the identity of the
University officials with whom Mary Roe discussed the events of September 18, 2015, as well as

13

where and when those discussions took place. Plaintiff also ought to be able to ask what Mary
Roe told University officials about the events of September 18, 2015. Plaintiff also ought to be
able to ask whether any University official tested Mary Roe’s blood alcohol level between
September 17 and 21, 2015 and, if so, where and what the results were. These questions go
directly to how the Defendant went about investigating the events of and surrounding September
18, 2015, and what information Defendant ultimately possessed. Finally, Plaintiff ought to be
able to ask Mary Roe whether any University official encouraged her to institute proceedings
against him with either the University or the Boca Raton Police Department. This question goes
directly to the issue of bias (assuming, of course, that the encouragement bore some connection
to Plaintiff’s gender). Because the information discussed above is directly relevant to what
Plaintiff must establish in his case and is possessed (in all likelihood) only by Defendant and
Mary Roe, the balance of interests as to questions seventy-eight through eighty-one favors
Plaintiff. Therefore, the Court reverses the Magistrate Judge’s decision to exclude questions
seventy-eight through eighty-one.
Questions 82-85: Questions eighty-two through eighty-five all go to the content of Mary
Roe’s discussions with her parents and her Lynn University roommates and friends about the
events of and surrounding September 18, 2015. But, as discussed above, what Mary Roe’s
parents or Mary Roe’s friends did or knew is not at issue. Thus, the Magistrate Judge did not err
by contrasting the limited relevancy of Mary Roe’s discussions with her parents and her Lynn
University roommates and friends about the events of and surrounding September 18, 2015
against the threat to Mary Roe’s health as well as her non-party status and concluding that the
questions ought to be excluded.

14

Questions 45, 86-88: Question forty-five goes to what communication, if any, occurred
between Mary Roe and John Doe before and/or after the day at issue and questions eighty-six
through eighty-eight concern Mary Roe’s future plans vis-à-vis Defendant. The portion of
question forty-five discussing the existence of any communication with John Doe preceding the
day at issue in this case is generalized background and the analysis conducted in sub-section (a)
applies. The forward-looking questions in eighty-six through eighty-eight do not bear on how the
Defendant went about investigating the events of and surrounding September 18, 2015, what
information Defendant ultimately possessed, and how Defendant acted on that information in the
disciplinary proceeding against Plaintiff. Because those directly relevant areas of inquiry are not
addressed by Plaintiff’s questions as written, the Magistrate Judge did not err by contrasting the
limited relevancy of those forward looking questions against the threat to Mary Roe’s health as
well as her non-party status and concluding that the questions ought to be excluded.
c. Questions 89-115: Labeled “The Lynn University Disciplinary Process
Against [John Doe] And The Conduct Hearing Of December 11, 2015.”
The Court reverses the Magistrate Judge’s decision to exclude some of questions eightynine through one hundred and fifteen. All questions contained in this section ought to be
permitted. These questions are all directly relevant to the issues in this case: how the Defendant
went about investigating the events of and surrounding September 18, 2015, what information
Defendant ultimately possessed, and how Defendant acted on that information in the disciplinary
proceeding against Plaintiff. Given that these issues are directly relevant to Plaintiff’s claim, the
Court finds that the Magistrate Judge erred by finding that, on balance, these questions ought to
be excluded. Mary Roe’s account of the process is unique and important. Without it, Plaintiff
would be left to rely largely on accounts given by the party this lawsuit has been brought against,
raising the usual concerns about bias and motive.
15

d. Topics 1-5: Labeled “Witness’ Prior Statements.”
Finally, the Court affirms the Magistrate Judge’s decision to exclude discussion of the
five topics contained in the final section labeled “Witness’ Prior Statements.” The Magistrate
Judge requested questions for assessment. But, in this final Section, Plaintiff provided only a list
of prior recorded statements asserting broadly that he desired to question Mary Roe about aspects
of them, including their accuracy. The Magistrate Judge could not have been expected to
meaningfully assess that list. Nor will this Court attempt to do so.
e. Questions Not Addressed By The Magistrate Judge.
As previously noted, the proposed questions, coupled with the briefing, make clear that
considerable confusion persists with regard to what is (and is not) relevant to Plaintiff’s Title IX
claim. The Court has now clarified. In view of that clarification, it is only fair that Plaintiff be
given the opportunity to ask Mary Roe questions that were not previously submitted to the
Magistrate Judge but nevertheless are directly relevant to these three areas of inquiry—how the
Defendant went about investigating the events of and surrounding September 18, 2015, what
information Defendant ultimately possessed, and how Defendant acted on that information in the
disciplinary proceeding against Plaintiff. As Mary Roe’s account of the process is both unique
and important, Plaintiff should be permitted to explore it. The Plaintiff may also, as was noted by
the Magistrate Judge, ask reasonable follow-up questions. Plaintiff is cautioned, however, to
adhere narrowly to the specific relevant areas of inquiry that the Court has clearly articulated and
reiterated throughout this Order. Mary Roe is a non-party who will, according to her physicians,
be strained by sitting for a deposition in this case. The Court takes very seriously the measures
that have been put in place to protect her pursuant to Federal Rule of Civil Procedure 26(c).

16

F. Whether The Magistrate Judge Erred By Requiring Plaintiff To Turn Over Proposed
Deposition Questions For May Roe To All Parties.
Plaintiff’s final argument is that the Magistrate Judge erred as a matter of law by ordering
that the list of proposed deposition questions be turned over to all parties. The Court agrees.
Opinion work product encompasses all materials that reflect an attorney’s mental impressions,
conclusions, opinions, or legal theories. Hickman v. Taylor, 329 U.S. 495 (1967). Proposed
deposition questions fall under that umbrella, providing important insight into an attorney’s
approach to the case. It was, therefore, error to require that Plaintiff provide his proposed
questions to all parties involved in this litigation.
Mary Roe argues that if the questions are sealed her counsel will not be able to determine
whether Plaintiff is abiding by the limits imposed on discovery. It is true that the precise
questions excluded have not been made known to Mary Roe. However, the Court will know.
Should the Court find upon a motion before the Court and a review of the deposition transcript
that Plaintiff violated the restrictions imposed on Mary Roe’s deposition, appropriate sanctions
may be imposed. Furthermore, where questions apart from those submitted to the Magistrate
Judge are concerned, Mary Roe’s counsel will be able to identify whether or not those questions
are limited to the topic of how the Defendant went about investigating the events of and
surrounding September 18, 2015, what information Defendant ultimately possessed, and how
Defendant acted on that information in the disciplinary proceeding against Plaintiff. Discovery
into that investigation necessarily includes communications that took place between the
Defendant and Mary Roe.
G. Whether The Magistrate Judge Erred By Limiting Deposition To Three Hours.
Plaintiff objects to the Magistrate Judge’s decision to limit Mary Roe’s deposition to
three hours. However, Plaintiff provides no argument in support of his objection apart from the
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blanket statement (applicable to all of his objections) that “these restrictions violate[] Plaintiff’s
due process rights to discover facts relevant to this case so as to be able to prepare for trial.” DE
92 at 4. The Court declines to find that the Magistrate Judge committed reversible error in light
of this sentence. However, after the deposition, should Plaintiff be of the view that he was not
able to exhaust the permissible areas of inquiry discussed in this Order, he may move for
additional time to depose Mary Roe. Any such motion shall outline with specificity the matters
that remain unaddressed and why such matters could not be covered in the allotted time for the
deposition. The Court also re-emphasizes that any breaks will not count toward the three hours
permitted by the Magistrate Judge.
III.

CONCLUSION
The appeal by Mary Roe and her parents is DENIED and John Doe’s appeal is

GRANTED IN PART AND DENIED IN PART. John Doe shall be allowed to ask the portions
of questions seventy-nine through eighty-one discussed above. John Doe shall be permitted to
ask questions eighty-nine through one hundred and fifteen. John Doe may also ask other
questions regarding how the Defendant went about investigating the events of and surrounding
September 18, 2015, what information Defendant ultimately possessed, and how Defendant
acted on that information in the disciplinary proceeding against Plaintiff, together with
reasonable follow-up questions.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this 19th day of January,
2017.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record
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