Brown v. University of Kansas, The et al

Filing 105

MEMORANDUM AND ORDER granting in part and denying in part 94 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 5/14/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT M. BROWN,

)
)
Plaintiff,
)
)
v.
)
)
UNIVERSITY OF KANSAS, et al., )
)
Defendants. )
)

Case No. 10-2606-EFM-KGG

MEMORANDUM AND ORDER
Now pending is Defendant’s “Motion for a Protective Order,” requesting
that the Court enter an Order preventing the deposition of University of Kansas
Chancellor Dr. Bernadette Gray-Little. (Doc. 94.) For the reasons set forth below,
Defendant’s motion is GRANTED in part and DENIED in part with stated
conditions.
The facts of this case have been summarized in the Court’s previous Orders
of May 4, 2011 (Doc. 23) and February 3, 2012 (Doc. 80). Those facts are
incorporated herein by reference, although certain facts will be repeated here for
the sake of clarity.
Plaintiff filed his Complaint on November 9, 2010, against numerous

Defendants, alleging various claims relating to his dismissal from Defendant Law
School, including deprivation of due process and disparate treatment as well as
claims for certain injunctive relief. (Doc. 1.) Plaintiff served various sets of
discovery to all of the Defendants in this case, encompassing Interrogatories,
Requests for Admissions, and Requests for Production of Documents. (See Docs.
45, 46; see also Doc. 65-1 through Doc. 65-18.) Included therein were separate
sets of discovery requests served on certain Defendants who have been sued solely
in their official capacities.1 (See id.) Defendants responded to the discovery
requests, typically providing no substantive discovery responses beyond the
general “official capacity” objection. (Doc. 51, at 7.) This resulted in a motion to
compel from Plaintiff.
In ruling on that motion, this Court held that individually-named Defendants
who were sued in their official capacities only still had a duty to respond to
discovery requests.
The Court finds this objection to be improper under the
present circumstances. Discovery requests made to the
Official Capacity Defendants must, at a minimum, be
considered requests made of the entity the individual

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These individuals sued in their official capacities will be collectively referred to
as the “Official Capacity Defendants”: Andy Tompkins, Gary Sherrer, Ed McKechnie,
Jarold Boettcher, Christine Downey-Schmidt, Mildred Edwards, Tim Emert, Richard
Hedges, Dan Lykins, Janie Perkins, and Bernadette Gray-Little. (See Doc. 51, at 7.)
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Defendants represent in their official capacities – in this
case the Kansas Board of Regents (as to Defendants
Andy Tompkins, Gary Sherrer, Ed McKechnie, Jarold
Boettcher, Christine Downey-Schmidt, Mildred Edwards,
Tim Emert, Richard Hedges, Dan Lykins, and Janie
Perkins) and the University of Kansas (as to Defendant
Bernadette Gray-Little, Chancellor of the University of
Kansas). Defendant has cited, and the Court has found,
no authority supporting the claim that official-capacity
defendants cannot be served with separate discovery
requests. To the extent Defendants have objected to the
discovery requests on this basis, this objection is
overruled.
(Doc. 80, at 6-7 (emphasis in original).)
The present motion involves an analogous discovery issue. Plaintiff has
noticed the deposition of Defendant Chancellor Gray-Little. (Doc. 83.) In
bringing the motion for protective order, Chancellor Gray-Little contends that as an
official-capacity Defendant, she has no personal knowledge of the issues relating to
Plaintiff’s claims or Defendants’ defenses. (See generally Doc. 95.) Rather, she
argues that the information sought from her “can be readily obtained from a Rule
30(b)(6) witness.” (Id., at 2.) Further, she argues that the burden to her imposed
by the deposition outweighs any potential benefit to Plaintiff. (Id., at 4-5.)

Defendant responds that the Chancellor would be a proper witness even if
she was not named as a Defendant because of her role in “reshaping” admissions
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initiatives at KU. (Doc. 98, at 2.) Further, Plaintiff contends the Chancellor was
also the “direct recipient” of Plaintiff’s notice of pending litigation and that her
opinions regarding the University’s policies and procedures “are not only relevant,
but authoritative.” (Id., at 3.) The Court finds that Defendant has sufficiently
established the relevancy of the Chancellor’s potential testimony and alleged
personal knowledge.
Defendant has offered to schedule the deposition around the Chancellor’s
“more important appointments” and to conduct it at her location “rather than
requiring her to travel.” (Id., at 4.) The Court agrees that Plaintiff is “entitled” to
depose Chancellor Gray-Little and finds these to be valid attempts at compromise.
Given the importance of the Chancellor’s position – as well as the limitations of
her involvement in the issues presented in Plaintiff’s claims – the Court will,
however, limit her deposition to a maximum of ninety (90) minutes. Further, the
deposition will occur at a building of the Chancellor’s choosing on the Lawrence,
Kansas campus of the University of Kansas.

IT IS THEREFORE ORDERED that Defendant’s Motion for a Protective
Order (Doc. 94) is GRANTED in part and DENIED in part as more fully set
forth above.
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IT IS SO ORDERED.
Dated at Wichita, Kansas on this 14th day of May, 2012.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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