Brown v. University of Kansas, The et al

Filing 85

MEMORANDUM AND ORDER granting 66 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 2/27/2012. (aw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT M. BROWN,

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Plaintiff,
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vs.
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THE UNIVERSITY OF KANSAS, et al., )
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Defendants.
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___________________________________ )

Case No. 10-2606-EFM-KGG

ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
Plaintiff’s Motion to Compel (Dkt. 66) challenges the propriety of defense
counsel’s instruction to the Dean of the Kansas University School of Law not to
answer a question during a deposition. Because instruction was not necessary to
protect a privilege, to enforce a court limitation, or to present a motion for
protective order, counsel’s instruction was improper under Federal Rule of Civil
Procedure 30(c)(2) and the Motion to Compel should be granted. However,
because the line of inquiry may lead to questions which could result in the
disclosure of confidential student information, the Court will impose some
protective structure for proceeding.
Plaintiff’s action against the University of Kansas arises from his dismissal
from the law school following an amendment of his admissions application which

revealed criminal history information. Plaintiff challenges his dismissal on
numerous grounds, including claims that the University failed to follow proper
procedures.
Plaintiff, who appears pro se in this action, deposed the law school Dean.
He asked whether the Dean had been involved in other disciplinary matters
involving students who had amended their applications. Defense counsel objected
on two grounds. First, she objected that such incidents which occurred after
Plaintiff’s dismissal were irrelevant. Second, she objected that the questioning
could lead to the disclosure of identifying student information in contravention of
the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(a)(4).
After considerable discussion between defense counsel and Plaintiff, defense
counsel instructed the witness not to answer the question. She also instructed the
witness to limit any response to the period before Plaintiff’s dismissal. After this
instruction, Plaintiff asked the witness to answer the question within that
limitation, to which the witness responded that he did not “recall being involved in
any disciplinary proceedings involving applicants who amended their
applications.” Plaintiff challenges the propriety of defense counsel’s instruction.
Defense counsel’s instruction to the witness was improper. Under Fed. R.
Civ. Proc. 30(c)(2) “a person may instruct a deponent not to answer only when
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necessary to protect a privilege, to enforce a limitation ordered by the court, or to
present a motion under Fed. R. Civ. Proc. 30(d)(3).” Even if FERPA created a
privilege allowing an educational institution not to disclose student identifying
information, the question, answerable by a simple “yes” or “no,” would not run
afoul of that privilege. The likelihood that defense counsel understood this is
demonstrated by her allowance of the same question within the earlier time frame,
which would have the same FERPA consequences. It is clear that defense counsel
was asserting a simple relevance objection, which is improper.1
Defendant contends in its memorandum that Plaintiff abandoned his original
inquiry because, after defense counsel’s witness instruction and Plaintiff’s failure
to dissuade defense counsel of her position, Plaintiff finally relented and asked the
question limited to the time-period defense counsel allowed. The Court disagrees.

Defendant does not claim that FERPA creates a privilege. However, the
Court agrees that the law recognizes an important privacy interest for students.
Plaintiff states in his memorandum that he is not “concerned” with the identities of
any students. (Dkt. 66 at page 8). Therefore, the Court will order some limitations

1

Defendant does not contend that the instruction was intended to enforce a court
limitation or to file a Rule 30(d)(3) motion.
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to protect the privacy of students in any follow up questions.
The Plaintiff’s Motion to Compel is GRANTED. The Plaintiff shall be
permitted to re-open the deposition of the witness for the purpose of obtaining an
answer to the question. If the answer is in the negative, the deposition shall end.2 If
the answer is in the affirmative, Plaintiff may inquire about such details of the
student disciplinary matters as do not require the disclosure of student identifying
information.3
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 27th day of February, 2012.

S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

2

The parties are encouraged to confer to discuss whether, if the answer is in the negative,
a simpler procedure, such as an affidavit from the witness, might suffice.
3

This Order is without prejudice to the Plaintiff’s ability to contend that more detailed
follow-up discovery, might be necessary after this deposition, or to the Defendant’s resistence to
that discovery.
4