Lee v. Kansas State University et al

Filing 55

MEMORANDUM AND ORDER granting in part and denying in part 34 Motion for Protective Order. See Order for further details. Signed by Magistrate Judge Teresa J. James on 3/14/2014. (do)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GRACE LEE,
Plaintiff,
v.
DR. CAROL W. SHANKLIN, et al.
Defendants.

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Case No. 12-CV-2638-JAR-TJJ

MEMORANDUM AND ORDER
The Court has before it the Motion for Protective Order (ECF No. 34). Defendants Dr.
James W. Neill and Dr. James A. Guikema move for entry of their proposed protective order
(ECF No. 34-1) governing initial disclosures and discovery as to them in this action pursuant to
Fed. R. Civ. P. 26(c). Plaintiff Grace Lee requests that the motion be denied, based upon her
objections to some, but not all, aspects of the proposed protective order. For the reasons set forth
below, the Court concludes that the Motion for Protective Order should be granted as unopposed
in part and denied in part.
I.

Nature of the Matter Before the Court
On September 28, 2012, Plaintiff filed her ten-count Complaint against all Defendants
based on alleged violations related to her dismissal from the Graduate School of Kansas State
University. On June 7, 2013, upon all Defendants’ motion to dismiss, District Judge Julie A.
Robinson dismissed all claims in the Complaint except for Count I, alleging violation of
procedural due process pursuant to 42 U.S.C. § 1983 against Defendants in their individual

capacities.1 On December 9, 2013, Defendants Neill and Guikema filed the instant motion for
protective order. On December 20, 2013, Neill and Guikema served their Initial Fed. R. Civ. P.
26(a)(1) Disclosures.2 On January 17, 2014, Neill and Guikema served their First
Interrogatories, First Request for Production, and First Requests for Admission to Plaintiff.3 On
January 20, 2013, Plaintiff served her First Requests for Production of Documents and First
Interrogatories on all Defendants, including Neill and Guikema.4 Neill and Guikema’s responses
to Plaintiff’s discovery are due ten days after the Court rules on the instant motion.5
Neill and Guikema seek an order governing and limiting the scope of initial disclosures
and discovery as to them in this action. They first assert that the scope of discovery should be
limited solely to Count I against them in their individual capacities, the only remaining claim,
arguing that discovery as to all ten Counts in the original complaint would be wasteful and
unduly burdensome. They further argue that discovery should also be limited to the issue of
their asserted affirmative defense of qualified immunity. In their proposed protective order,
Neill and Guikema seek specifically to limit the scope of discovery to the following issues:
(1) whether Lee’s dismissal was proposed on May 9, 2012 for any reason other
than her failure to have a major professor to supervise her Ph.D. research as
stated; and (2) whether there was any reason other than the May 9, 2012
recommendation of the Statistics Department why Dr. Guikema issued the May
31, 2012 letter dismissing Lee from the graduate school.6

1

Mem. and Order at 25 (ECF No. 21).
Notice of Service (ECF No. 40).
3
Notice of Service of Disc. (ECF No. 45).
4
Certificate of Service (ECF No. 46) (Plaintiff’s discovery requests were resent to all Defendants on Jan. 22, 2014
per the Am. Certificate of Service (ECF No. 48)).
5
See Order Feb. 25, 2014 (ECF No. 53).
6
Proposed Protective Order at *4 (ECF No. 34-1).
2

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They also request that the time frame for initial disclosures and discovery be limited to a time
frame from March 1, 2012 to July 31, 2012. In addition, Neill and Guikema request an order to
protect as confidential certain information produced in discovery. Specifically, they propose the
order should limit the use and disclosure of certain confidential documents that may be produced
in discovery, including medical and psychiatric records, personnel records, educational records,
financial information, materials subject to copyright protection, non-public information
regarding disciplinary and grievance proceedings, and other records of which disclosure is
restricted or prohibited by statute.
Plaintiff does not oppose the confidentiality provisions proposed by Neill and Guikema.
Plaintiff also states that she only seeks discovery relevant to Count I against Defendants in their
individual capacities and does not intend to seek discovery on the dismissed Counts. Plaintiff
does, however, object to the specific limitations on the scope of discovery as to subject matter
and time frame proposed by Neill and Guikema.
II.

Legal Standard for a Protective Order
Pursuant to Fed. R. Civ. P. 26(c)(1), a “court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.” The party seeking a protective order has the burden to show good cause.7 To
establish good cause, that party must make "a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements."8 The decision to enter a protective

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Aikens v. Deluxe Fin. Servs., 217 F.R.D. 533, 534 (D. Kan. 2003).
Id. (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981)).

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order is within the court's discretion.9
III.

Application of the Standard to this Case
Neill and Guikema argue that Judge Robinson’s June 7, 2013 Order limited the issue on

Count I to “whether the reasons for the dismissal were academic as stated (failure to have a
major advisor to supervise Lee’s Ph.D. research) or disciplinary/retaliatory.”10 They assert that
Plaintiff’s theory is that she was dismissed from school in retaliation for her March 18, 2012
grievance letter. Thus, they argue that the only relevant time frame for discovery is from March
18, 2012, the date of her grievance letter, to May 31, 2012, the date of her dismissal. They
propose a slightly broader time frame, from March 1, 2012 to July 31, 2012, which includes the
time period after the dismissal within which Plaintiff could have applied for reinstatement. Neill
and Guikema further argue that apart from their proposed limitations as to discovery on Count I,
the only additional discovery that should be allowed is in regard to their asserted defense of
qualified immunity.
Plaintiff responds that the time frame proposed by Neill and Guikema is too narrow. She
alleges that she first attempted to file a grievance against her major professor in October of 2011.
This initial grievance, she alleges, was not investigated by Defendants. According to Plaintiff
the Defendants instead attempted a “compromise” by adding a co-major professor (Neill) to
supervise Plaintiff. She further alleges that the “compromise” resulted in retaliation against her
and did not resolve her grievance, which ultimately led to her filing her second grievance in

9

Thomas v. Int’l Bus. Machs., 48 F.3d 478, 482 (10th Cir. 1995).
Mem. in Supp. at *5 (ECF No. 35).

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March of 2012. As such, she asserts that she is entitled to discovery dating from October 1,
2011, the date of her first grievance, through August 31, 2012, which is one month after her
efforts to be readmitted were denied.
Plaintiff also argues that the limitation on subject matter proposed by Neill and Guikema
misconstrues both Plaintiff’s theory in this action and Judge Robinson’s Order. Plaintiff asserts
that her theory is that her dismissal is based on retaliation and punishment for a series of events
that began in October 2011, when she made her first grievance to Defendants. As such, she
asserts that discovery regarding the handling of her initial grievance, specifically Neill and
Guikema’s involvement, their decisions, the “compromise,” and the effect of the initial grievance
on her dismissal are all relevant to her theory. She also asserts that Judge Robinson’s Order did
not define the sole issue remaining in this case as whether the dismissal was rooted in only the
March 18, 2012 grievance.
Plaintiff further argues that the time frame and subject matter limitations proposed by
Neill and Guikema would not allow her to investigate their alleged qualified immunity defense.
Specifically, Plaintiff argues that she should be allowed to investigate Neill and Guikema’s work
experience, experience in higher education, experiences with other graduate student dismissals,
their knowledge of the school’s policies regarding student due process rights, and their
knowledge of and participation in Plaintiff’s dismissal.
Upon review, the Court agrees with Plaintiff’s assertion that the limitations as to the
scope of discovery requested by Neill and Guikema are drawn too narrowly. First, as to the
proposed time frame for discovery, Neill and Guikema assert that the only relevant time frame

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for discovery is from March 18, 2012, the date of her grievance letter, to May 31, 2012, the date
of her dismissal. This argument disregards Plaintiff’s allegations that her dismissal is based on
retaliation and punishment for a series of events that began in October 2011, when she made her
first grievance to Defendants.11 She further alleges that her initial grievance was not
investigated, but rather a “compromise” solution was imposed. According to Plaintiff, this
“compromise” was unsuccessful in resolving her initial grievance, and allegedly worsened her
situation, all leading to her second grievance in March 2012.
Further, Judge Robinson’s Order does not appear to limit the time frame relevant to
Count I. Instead, the Order addressed the issue of whether Plaintiff’s complaint alleges
sufficiently that she was not afforded an appropriate level of due process before she was
deprived of her protected property interest in her ongoing education.12 Judge Robinson
concluded that this analysis involved a fact issue that could not be resolved by a motion to
dismiss, and therefore denied the motion to dismiss Count I as to the Defendants in their
individual capacities. Judge Robinson’s Order does not appear to limit the scope of Count I
beyond the holding that the motion to dismiss Count I was denied as to the Defendants in their
individual capacities, nor does it specifically address or limit the scope of future discovery
efforts by the parties. As a result, the time frame proposed by Neill and Guikema would limit
Plaintiff’s right to seek discovery that appears to be relevant to Count I. Therefore, the Court

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12

Complaint at *6-8 (ECF No. 1).
Mem. and Order at *15 (ECF No. 21).

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does not find that Neill and Guikema have met their burden of showing that such discovery
would be wasteful and burdensome.
Regarding the proposed limitations as to the subject matter of discovery, Neill and
Guikema request that the scope be limited to the following issues:
(1) whether Lee’s dismissal was proposed on May 9, 2012 for any reason other
than her failure to have a major professor to supervise her Ph.D. research as
stated; and (2) whether there was any reason other than the May 9, 2012
recommendation of the Statistics Department why Dr. Guikema issued the May
31, 2012 letter dismissing Lee from the graduate school.13
To succeed on a procedural due process claim, an individual must prove two elements: first, that
she possessed a constitutionally protected liberty or property interest such that the due process
protections were applicable, and second, that she was not “afforded an appropriate level of
process.”14 Neill and Guikema appear to be attempting to limit the scope of discovery to the sole
question of whether Plaintiff’s dismissal was for academic reasons or for disciplinary reasons.
While this question might provide information as to the appropriate level of due process under
the circumstances, it would not address the issue of whether Plaintiff was in fact afforded the
appropriate level of due process. And as discussed previously, while this fact issue may have
resolved the motion to dismiss as to Count I, Judge Robinson’s Order did not appear to make any
holding or impose any limitations beyond the ruling on the motion to dismiss. As such, the
Court finds that Neill and Guikema have not shown good cause for their proposed limitation as
to the subject matter of discovery regarding Count I.

13
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Proposed Protective Order at *4 (ECF No. 34-1).
Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1254 (10th Cir. 2005) (quotation omitted).

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Neill and Guikema propose the same limitation as to subject matter in light of their
qualified immunity defense, arguing that discovery should be narrowly tailored to the issue of
whether Neill or Guikema violated Plaintiff’s constitutional rights. Judge Robinson’s Order set
forth the two-part burden when a defendant claims qualified immunity. The plaintiff must show
(1) the defendant’s violation of a constitutional right, and (2) that the “infringed right at issue
was clearly established at the time of the allegedly unlawful activity such that a reasonable
official would have known that his or her challenged conduct was illegal.”15 Judge Robinson
found that Plaintiff’s Complaint alleges sufficient facts in support of her contention that
Defendants violated her constitutional right to due process before she could be deprived of her
property interest in continued enrollment and graduate education. The limiting language
proposed by Neill and Guikema, however, focuses only on the issue of whether Plaintiff’s
dismissal was for academic reasons or for disciplinary reasons. Again, this issue only resolves
the appropriate level of due process under the circumstances. As such, the limited scope as
proposed would not allow Plaintiff to obtain discovery as to the issue of whether Neill or
Guikema violated Plaintiff’s rights by not affording her the appropriate level of due process,
whatever that may be. As a result, the Court does not find good cause for the proposed limitation
as to the scope of discovery based on Neill and Guikema’s asserted defense of qualified
immunity.
IT IS THEREFORE ORDERED that the Motion for Protective Order (ECF No. 34) of
Defendants Dr. James W. Neill and Dr. James A. Guikema is granted as unopposed in part and

15

Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007).

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denied in part.
First, the request for a protective order governing initial disclosures and discovery as to
certain confidential information, including medical and psychiatric records, personnel records,
educational records, financial information, materials subject to copyright protection, non-public
information regarding disciplinary and grievance proceedings, and other records for which
disclosure is restricted or prohibited by statute, is granted as unopposed and for good cause
shown. Defendants Neill and Guikema shall submit a revised copy of their revised proposed
protective order which limits the use and disclosure of the proposed confidential information
only, in Word format to [e-mail] on or before March 21, 2014.
Defendant Neill and Guikema’s remaining requests for relief, including their requests for
a protective order limiting the scope of discovery as to subject matter and as to time frame as
proposed, however, are hereby denied.
IT IS SO ORDERED.
Dated this 14th day of March, 2014 at Kansas City, Kansas.
s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

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