Nkemakolam et al v. St. John's Military School et al

Filing 123

MEMORANDUM AND ORDER granting in part and denying in part 95 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 12/18/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
YOLANDA NKEMAKOLAM, as Parent
and Next Friend of minor K.N., et al.

)
)
)
Plaintiff,
)
)
vs.
) Case No. 12-cv-2132-JWL-KGG
)
ST. JOHN’S MILITARY SCHOOL, et al., )
)
Defendants.
)
___________________________________ )
MEMORANDUM ON PLAINTIFFS’
MOTION TO COMPEL AND FOR SANCTIONS
This case is before the Court on Plaintiff’s motion requesting an Order
compelling Defendant to produce certain documents and respond to interrogatories.
(Doc. 95.) After reviewing the submissions of the parties, the Court GRANTS in
part and DENIES in part Plaintiff’s motion as more fully set forth below.
BACKGROUND
Defendant St. John’s Military School is a private boarding school for
minors. In this action, a number of former students claim damages for personal
injuries suffered as a result of alleged physical and mental abuse by other students.
The alleged physical abuse includes the infliction of brands being burned into the
skin of certain students, students being stricken or swatted with sabers, and

“blanket parties” (placing blankets over students who are then beaten). (Doc. 96,
at 2.) Plaintiffs claim that in some instances the acts were performed at the
direction or under the observation of school employees. Plaintiffs allege negligent
supervision, intentional failure to supervise, intentional infliction of emotional
distress or outrage, negligent infliction of emotional distress, breach of fiduciary
duty (alleging failure to discharge loco parentis responsibilities), and civil
conspiracy of assault and battery. The allegations of abuse are generally and
specifically denied by Defendants.
Plaintiff brings the present Motion to Compel (Doc. 95), challenging
objections Defendant raised in response to Plaintiff’s Interrogatories Nos. 2, 4, 12,
and 17, and Requests for Production Nos. 3, 7, 8, 10, 12-14, 26-29, 32-34, and 41.
The requests have been grouped into three categories by Plaintiff’s counsel for
analytical purposes: 1) Prior Similar Incidents; 2) Internal Documents; and 3)
Financial Information.
DISCUSSION
A.

Standards on Motions to Compel.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
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reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.
“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University,
932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “Relevance is
broadly construed at the discovery stage of the litigation and a request for
discovery should be considered relevant if there is any possibility the information
sought may be relevant to the subject matter of the action.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
“discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
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v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the proponent has
failed to specify how the information is relevant, the Court will not require the
respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649
(D.Kan.1995).
B.

General Relevance.
Defendant argues that the “relevancy of the discovery sought by Plaintiff is

not readily apparent.” (Doc. 99, at 2.) Defendant contends that Plaintiffs’ requests
for educational and medical records of current or former students “unrelated to the
alleged abuse” and who “are not parties to this action” seek information “unrelated
to the abuse at issue and are therefore irrelevant.” (Doc. 99, at 3, 6.)
Plaintiff argues that Defendant “has a legal duty to supervise, protect, and
ensure the safety of cadets accepted to attend the school.” (Doc. 96, at 8.) Thus,
according to Plaintiff, the information sought is “directly relevant to prove that St.
John’s was on notice that a pattern of abuse was taking place, and regardless of
such notice, failed to implement sufficient measures to protect students, including
Plaintiffs.” (Id.) Plaintiff continues that the information requested (other than
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Defendant’s financial information sought) “get[s] to the heart of Plaintiffs’ claim
that St. John’s has a culture and patterned history of abuse of which it is aware.”
(Id., at 11.) The Court agrees that, in general, the information requested is relevant
to Plaintiffs’ allegations.
Defendant relies on the case of C.T. v. Liberal School Dist., et al., Nos. 062093-JWL, 06-2360-JWL, 06-2359-JWL, 2008 WL 394217 (D. Kan. Feb. 11,
2008) to argue that Plaintiffs’ requests are improper. C.T. involved allegations of
sexual harassment and abuse against students. Although this case is applicable to
the facts currently at issue, the Court finds Defendant’s reliance on the case to be
misplaced.
The language upon which Defendant relies is that
[a]n individual’s personnel file is relevant and/or
reasonably calculated to lead to the discovery of
admissible evidence, and therefore discoverable, if the
individual is alleged to have engaged in the retaliation or
discrimination at issue or to have played an important
role in the decision or incident that gives rise to the
lawsuit.
Id., at *3. Unfortunately for Defendant, this language is from a civil rights
employment law case cited by the C.T. court. While somewhat analogous, the
Court does not find this language to be dispositive of, nor particularly helpful to,
the facts at hand.
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In C.T., the plaintiffs were minor students attending public school in Liberal,
Kansas. They allege to have been the victims of sexual harassment and abuse. Id.,
at *1. The plaintiffs requested the files of 24 particular former students as well as
the personnel file of a non-defendant employee of the school district. Defendants
objected on the grounds of relevancy, privacy, and because the students involved
were not parties to the lawsuit. Id., at 3. The C.T. court stated that “[t]he fact that
a person is not a party in litigation is not dispositive of whether documents are
relevant to the controversy at hand or likely to lead to the discovery of admissible
evidence.” Id. The court found that plaintiffs had failed to indicate how the
students at issue may have been involved in the events at issue in that lawsuit. Id.,
at 4.
The Court finds that the situation in C.T. is distinguishable. Plaintiffs in the
present action have not requested information on specifically named, particular
students who may or may not have been involved in the events at issue. In other
words, the evidence sought in C.T. related to specific people plaintiffs claimed, but
could not show, were potential witnesses. In many of the discovery requests at
issue in the present matter, Plaintiffs have sought information regarding other, as
yet unnamed, students who have lodged similar complaints against the school or
about whom records of abuse exist.
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The Court generally finds that such requests are relevant on their face as to
the issue of Defendant’s notice of the general environment, and tradition of
allowing upper-classmen to mete out punishment, about which Plaintiff’s
complain. Thus, information regarding the school’s knowledge of similar acts
which occurred before any of the alleged injuries to the Plaintiffs is particularly
relevant.
C.

Educational and Medical Records.
One of the ways Defendant attempts to support its “burdensomeness”

objection is by relying on the Family Educational Rights and Privacy Act
(“FERPA”). FERPA contains certain non-disclosure provisions that prohibit
federal funding of educational institutions which, through policy or practice,
release educational records to unauthorized persons. Gonzaga Univ. v. Doe, 536
U.S. 273, 276-77, 122 S. Ct. 2268, 153 L.ED.2d 309 (2002). Defendant argues
that the discovery requests at issue “are unduly burdensome in that providing
responsive information or documents . . . would put [Defendant] in jeopardy of
losing the federal funding it receives because of the conditions placed on the
receipt of such federal funding” by FERPA. (Doc. 99, at 16.)
The Court finds Defendant’s argument to be somewhat misplaced. FERPA
does not create a privilege that allows an educational institution to refuse to
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disclose student information; rather, it “recognizes an important privacy interest for
students.” Brown v. University of Kansas, 10-2606-EFM-KGG, 2012 WL
612512, at *1 (D. Kan. Feb. 27, 2012). Even the case cited by Defendant rejects
this argument. In C.T. v. Liberal School Dist., supra, the stated that “educational
records may be disclosed without running afoul of FERPA so long as the school
district notifies the parent or student of the disclosure and a protective order
restricts the use of such information to this litigation only.” 2008 WL 394217, at
*4. Further, C.T. stated that such information can be provided without the written
authorization from the student or a parent required by § 99.30 “if the disclosure is
to comply with a judicial order or lawfully issued subpoena.” Id.
The Court notes Plaintiffs’ offer to alleviate Defendant’s “concerns . . . by
simply providing notice to the individuals and revision of language in the
protective order, which Plaintiffs are willing to include, if deemed necessary.”
(Doc. 104, at 3.) The Court finds this to be sufficient and appropriate.
In regard to those categories of information where FERPA is implicated, the
Court will delay compliance with this order for a period sixty (60) days to allow
Defendant to both locate such information and provide the proper notice to the
effected students/parents. To the extent Defendant would like additional language
to be contained in the current Protective Order restricting the use of these
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documents to this litigation only, Defendant is instructed to provide such proposed
language to Plaintiffs within 14 days of this Order.
Defendant raises similar concerns regarding the production of medical
records. (See Doc. 99, at 10-12.) Defendant cites both the Kansas PhysicianPatient Privilege, K.S.A. § 60-427 and the Health Insurance Portability and
Accountability Act (“HIPAA”), 45 C.F.R. §§ 160, 162, 164. The Court finds these
arguments to be disingenuous as such documents may be produced in compliance
with a court order.
D.

Discovery Requests at Issue.
With these general parameters in place, the Court will address the various

discovery requests at issue. Each will be discussed in turn.
1.

Interrogatory 2.

Plaintiff has requested information regarding all civil actions in which
Defendant St. John’s was named as a defendant in the last 10 years. Defendant
contends the request its overbroad and burdensome because its not limited as to
topic and asks for documents that are public. The Court holds that the request
seeks relevant information to the extent such information is limited to lawsuits
claiming injuries to students inflicted by other students.
2.

Interrogatory 4.
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This interrogatory asks Defendant to identify every individual in the last 5
years who was branded while attending St. John’s. Defendant objects that the
request is overly broad and unduly burdensome. Defendant contends that it must
search over a thousand student records to respond. The Court finds Defendant’s
position borders on the absurd. The Court cannot fathom that Defendant does not
have information readily available regarding which students have been branded
during the past 5 years. Regardless, the information is relevant and discoverable.
Defendant’s objections are overruled. The Court will delay compliance for a
period sixty (60) days to allow Defendant to both locate such information and
provide the proper notice to the effected students/parents.
3.

Interrogatory 12.

This interrogatory asks Defendant to identify every individual who
complained either orally or in writing to St. John’s that “he or his/her child was
beaten . . . by any faculty or student at St. John’s . . . .” A review of Plaintiffs’
Amended Complaint (Doc. 14) reveals no allegations of abuse or harassment by
faculty. As such, this portion of Plaintiffs’ Interrogatory No. 12 is irrelevant.
Defendant’s response shall be limited to complaints of student-on-student abuse.
Plaintiff has also failed to limit this interrogatory temporally. The Court will limit
the relevant time period for Defendant’s response to the period of 5 years before
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the first alleged abuse and 2 years after last alleged abuse. Compliance will be
delayed for a period sixty (60) days to allow Defendant to both locate such
information and provide the proper notice to the effected students/parents.
4.

Interrogatory number 17.

The dispute regarding this particular interrogatory goes to whether
Defendant’s answer was sufficiently responsive. (Doc. 96, at 5.) The interrogatory
asks, in part, for “how many times a student has been expelled for such abuse or a
faculty member has been reprimanded or relieved of their duty.” Defendant
responds that “since the 2001-2002 school year it has dismissed 96 students for
various infractions which may include hazing or inappropriate conduct between
students.” The Court agrees that this is nonresponsive. This is a simple request
that asks for a basic number. Defendant is capable of reviewing information
regarding those 96 students and providing a specific response. To the extent this
interrogatory seeks information about faculty abuse, such information is irrelevant
to the allegations contained in Plaintiff’s Amended Complaint.
5.

Request for Production No. 3.

This document request seeks information “related to any prior lawsuits filed
on behalf of students or representatives” against Defendant. Defendant raises
objections including that the request is overly broad, unduly burdensome, and not
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temporally limited. The Court sustains these objections and limits Defendant’s
response to such lawsuits filed during the past 10 years involving allegations of
student-on-student abuse, hazing, or similar matters.
Defendant also objects that responding would require Defendant “to violate
prior confidential settlement agreements.” Courts in this District have chosen not
to recognize a federal settlement privilege. Heartland Surgical Specialty Hosp.
LLC v. Midwest Div., Inc., No. 06-2164-MLB-DWB, 2007 WL 1246216, at *3-5
(D. Kan. April 27, 2007). Further, Defendant “can retain a certain degree of
confidentiality over such agreements through the protective order in this case.” Id.,
at 4. Defendant’s objection is overruled. Defendant’s response shall be limited to
such actions as are responsive to Interrogatory No. 2. Further, Defendant need not
provide information that constitutes settlement communications or discussions as
there is a distinction between “negotiations, as compared to an actual settlement
agreement . . . .” Id, at 5. Because Defendant’s objections, although overruled, are
substantive and not boilerplate, and my have included the appropriateness of even
identifying documents in a privilege log, the Court will not find waiver for lack of
a privilege log. To the extent that certain documents implicate the attorney-client
privilege or work product doctrine, Defendant is instructed to provide an
appropriate privilege log to Plaintiff within thirty (30) days of the date of this
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Order.
6.

Requests for Production Nos. 7, 8.

In Request No. 7, Plaintiff seeks complaints or statements made by former or
current students regarding abuse, harassment or hazing over the past five years.
Request No. 8 seeks information documenting “incidences of abuse, hazing or
harassment of any students enrolled at St. John’s over the last five (5) years.”
Defendant raises standard, boilerplate objections including that the requests are
overly broad, unduly burdensome, and vague. The Court does not agree. The
request is straightforward and appropriately limited to five years. Plaintiff’s
motion is GRANTED in regard to this request. Defendant also objects as to the
attorney-client privilege and work product doctrine. To the extent any such
documents were properly and adequately identified in a timely-provided privilege
log, the Court will not require their production. Otherwise, any such objections
have been waived by Defendant. The Court will delay compliance for a period
sixty (60) days to allow Defendant to both locate such information and provide the
proper notice to the effected students/parents.
7.

Request for Production No. 10.

This request seeks documents “identifying, supporting or evidencing St.
John’s faculty or staff performing bruise checks over past 5 years.” Defendant
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again raises standard objections, including those based on overbreadth and
relevance as well as the privacy of students not parties to this action. The Court
agrees that the request is overly broad on its face in the sense that it would
potentially encompass all sorts of private and irrelevant information relating to any
number of students whose bruises had nothing to do with student-on-student abuse.
Defendants objections are, therefore, sustained, and Plaintiff’s motion is
DENIED, as to Request No. 10.
8.

Request for Production No. 12.

Document request No. 12 seeks police reports “related to student abuse or
hazing or any other criminal actions” that occurred at St. Johns over the past 5
years. Defendant’s objections include overbreadth, burdensomeness, and
relevance. Defendant also objects that the request implicates information that
would “infringe on the privacy and confidentiality rights” of non-parties while also
seeking public information equally available to Plaintiffs. The Court is at a loss to
see how production of matters of public record could also infringe on students’
privacy rights. The Court finds that police records in Defendant’s possession
regarding complaints of student-on-student abuse or hazing are neither irrelevant,
overly broad, nor unduly burdensome. Plaintiff’s motion is GRANTED in regard.
The Court is not convinced that the production of this information would implicate
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FERPA. Out of an abundance of caution, however, compliance will be delayed for
a period sixty (60) days to allow Defendant to both locate such information and
provide the proper notice to the effected students/parents. Information requested
regarding “other criminal actions” that have nothing to do with student-on-student
abuse is not relevant. Defendant’s objections are sustained regarding such
documents.
9.

Request for Production No. 13.

This request applies to documents “regarding, identifying, pertinent to or
suggesting” complaints of physical abuse by any student over the past 5 years.
Included in Defendant’s objections is that the request is vague and ambiguous.
The Court agrees that Plaintiffs’ use of the term “suggesting” complaints is vague.
This portion of Defendant’s objections is sustained. Further, because Plaintiffs’
Amended Complaint is limited to allegations of student-student activity,
Defendant’s response will be limited to complaints of student-on-student physical
abuse only. The Court will delay compliance for a period sixty (60) days to allow
Defendant to both locate such information and provide the proper notice to the
effected students/parents.
10.

Request for Production No. 14.

The next request at issue seeks “[a]ll photographs or videos, including
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surveillance videos, identifying student abuse, hazing or harassment.” Defendant
again objects regarding breadth, burdensomeness, vagueness and relevance, while
stating it “would inherently infringe on the privacy and confidentiality rights of
individuals who are not a party to this litigation.” The Court finds that the
document request is straightforward and implicates information directly at issue in
this lawsuit. Plaintiff’s motion is therefore GRANTED to the extent the request is
limited to student-on-student abuse, hazing or harassment that has occurred during
the past five years. Further, the Court is satisfied that the protective order in place
provides adequate protection to non-parties. Even so, the Court will delay
compliance for a period sixty (60) days to allow Defendant to both locate such
information and provide the proper notice to the effected students/parents.
11.

Request For Production No. 26.

Request No. 26 seeks “[a]ll duty log books” from the past five years.
Defendant’s objections include that the request is overly broad. The Court agrees
that the request is overly broad on its face. Plaintiffs have not adequately rebutted
the objection in their motion or reply. Defendant’s objection is sustained and
Plaintiffs’ motion is DENIED in regard to Request No. 26.
12.

Request for Production No. 27.

This request asks for “[a]ll bruise inspection logs” maintained over the past
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five years. Defendant raises numerous objections, including that the request is
over broad. The Court agrees and sustains this objection. The request, as worded,
would implicate information far beyond the bounds of what is relevant to this
lawsuit. On balance, considering the tenuous relevance of the information
requested, production of these documents would also equate to an unreasonable
infringement on the privacy rights of the nonparties implicated. Plaintiffs’ motion
is DENIED in regard to Request No. 27.
13.

Request for Production No. 28.

The next request at issue seeks “internal reports or memorandum regarding
complaints of abuse over the past 5 years.” The Court finds that Defendant has not
adequately supported its objections regarding overbreadth, burdensomeness,
timeliness, and relevance. To the contrary, the request is straightforward and
relevant on its face. Defendant also objects as to the attorney-client privilege and
work product doctrine. To the extent any such documents were properly and
adequately identified in a timely-provided privilege log, the Court will not require
their production. Otherwise, any such objections have been waived by Defendant.
Plaintiffs’ motion is GRANTED in regard to Request No. 28 insofar as the request
relates to student-on-student abuse. The Court will delay compliance for a period
sixty (60) days to allow Defendant to both locate such information and provide the
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proper notice to the effected students/parents.
14.

Request for Production No. 29.

Next, Plaintiff requested “[n]urse assessment reports related to student
injuries over the last 5 years.” Defendant again objects as to overbreadth,
burdensomeness, timeliness, and relevance, while raising the privacy and
confidentiality rights of nonparty students. Defendant previously produced the
relevant records regarding each Plaintiff. The Court finds that the request, as
written, is overly broad on its face. Even if the Court shifted the costs of this
production onto Plaintiffs and allowed them to hire someone to examine these
records for incidents of abuse (which Plaintiffs have not proposed), such a search
process would unreasonably invade the privacy of nonparty students and implicate
information unrelated to student-on-student abuse. Plaintiffs’ motion is DENIED
in regard to Request No. 29.
15.

Requests for Production Nos. 32, 33, and 34.

This grouping of document requests concern the timing of discovery of
financial information relating to Plaintiffs’ claim for punitive damages. Defendant
contends that the production of such information, if discoverable, is premature.
The Court agrees that the approach taken in Heartland Surgical Specialty Hosp. v.
Midwest Div., Inc., cited in Defendant’s brief (Doc. 99, at 20-23), is sensible. No.
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05-2164, 2007 WL 950282 (D.Kan. March 26, 2007). The Court therefore
GRANTS Plaintiff’s motion regarding Requests Nos. 32, 33, and 34, but defers
production by Defendant until 15 days after rulings on dispositive motions (if the
rulings do not eliminate the punitive damages cause of action) or 15 days after the
deadline to file dispositive motions has passed, if no such motions are filed.
E.

Sanctions.
Finally, Plaintiff argues that sanctions are in order “in light of the continued

spurious objections and delay tactics used by Defendant.” (Doc. 96, at 16.)
Fed.R.Civ.P. 37(a)(5) states that if a motion to compel is granted, “the court must .
. . require the party or deponent whose conduct necessitated the motion, the party
or attorney advising that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.” Further, “the court must
not order payment” when the nonmovant’s conduct was “substantially justified . . .
.” The Court finds that the issues between the parties were, for the most part,
reasonable, thus substantially justified. Because the Court has granted portions of
Plaintiff’s motion while denying others, sanctions will not be appropriate. This
portion of Plaintiff’s motion is DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel and for
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Sanctions (Doc. 95) is GRANTED in part and DENIED in part as more fully set
forth above. Supplemental responses shall be provided by Defendant on or before
January 18, 2013, expect for those instances in which the Court has specifically
allowed Defendant 60 (sixty) days to provide the supplemental responses in order
to comply with the notice requirements of FERPA; such responses shall be do on
or before February 19, 2013.
Dated at Wichita, Kansas, on this 18th day of December, 2012.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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