Doe v. Northern Kentucky University et al
Filing
108
MEMORANDUM OPINION AND ORDER: 1. The Motion to intervene 72 & 90 be, and are hereby GRANTED, for the purposes described above; 2. The Motions for a gag order and to seal 53 & 54 be, and are hereby, DENIED As to the motion to sea l, this denial is without prejudice; 3. On or before Monday, October 24, 2016, the parties shall tender to the Court a proposed order regarding the production of student records, as discussed above. If the parties fail to do so, or if the Or der is insufficient, the Court will enter its own order; 4. Plaintiff's motion to compel 71 and motion for sanctions 70 be, and are hereby, GRANTED. Within thirty (30) days, plaintiffs counsel shall submit a motion for fees and costs , accompanied by an appropriate affidavit and documentation; 5. Defendants motion for partial summary judgment 26 be, and is hereby, GRANTED, and Count II of the Amended Complaint be, and is hereby, DISMISSED; and 6. Plaintiff's motion to modify subpoena 98 be, and is hereby, GRANTED. Signed by Judge William O. Bertelsman on 10/24/2016.(KRB)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:16-CV-28 (WOB-JGW)
JANE DOE
VS.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
NORTHERN KENTUCKY
UNIVERSITY, ET AL.
DEFENDANTS
This matter is before the Court on various motions (Docs. 26,
53, 54, 70, 71, 72, 90, 98).
The Court heard oral argument on these motions on Tuesday,
October 18, 2016.
(Doc. 106).
The Court now enters its Order
explaining the reasons for the rulings that the Court made from
the bench, and it further rules on several motions that were taken
under submission.
A. Motions to Intervene
The motions to intervene by two news organizations (Docs. 72,
90) will be granted since the parties do not oppose the motions.
Such intervention, however, is limited in scope to allow these
entities only to oppose the motion for a gag order and any motions
to seal (Doc. 53).
B. Motion for Gag Order and to Seal
Next, defendants move for a gag order to prevent counsel or
the parties from communicating with the press regarding this case,
and to seal deposition transcripts and student records filed in
this case.
(Docs. 53, 54).
The speech of counsel participating in litigation before the
courts
may
“substantial
rights.
be
regulated
likelihood
of
only
where
material
their
speech
prejudice”
to
poses
fair
a
trial
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075
(1991).
Defendants argue that plaintiff’s counsel’s statements to the
press “threatens Defendants’ ability to obtain a fair trial by a
panel of impartial jurors.”
(Doc. 53 at 1).
However, “[o]nly the occasional case presents a danger of
prejudice from pretrial publicity.
that
in
the
few
instances
when
Empirical research suggests
jurors
have
been
exposed
to
extensive and prejudicial publicity, they are able to disregard it
and base their verdict upon the evidence presented in court.”
Gentile, 501 U.S. at 1054-55 (citation omitted).
This has been the experience of this Court in recent cases,
including those that garnered more publicity than the matter at
hand. First, many citizens do not regularly read the news, whether
national or local.
Second, there are numerous ways to guard
against the potential effect of any such publicity.
This Court
has successfully utilized juror questionnaires to ascertain in
advance of trial whether jurors have read news accounts of the
case and, if so, whether they have formed any opinions about the
2
matter.
And, of course, “voir dire can play an important role in
reminding jurors to set side out-of-court information and to decide
the case upon the evidence presented at trial.”
Id. at 1055.
The Court draws its jurors from twenty counties having a
collective population of over 300,000.
If a panel of forty jurors
is called, in the Court’s experience, fewer than ten would have
encountered any publicity concerning this case.
For
all
these
reasons,
the
Court
concludes
that
the
extraordinary measure of a gag order is not warranted.
As to the motion to seal, it presents issues involving the
application of the Federal Educational Rights and Privacy Act of
1974,
as
amended
(“FERPA”).
That
statute,
however,
clearly
delineates how the parties may proceed to obtain/produce student
educational records without violating the Act.
1232(b)(2).
Action
No.
See 20 U.S.C. §
See also Edmonds v. Detroit Public Sch. Sys., Civil
12-CV-10023,
at
*3-4
(E.D.
Mich.
Nov.
19,
2012)
(discussing mechanics of record production in accord with FERPA);
Doe v. Galster, No. 09-C-1089, 2011 WL 2784159, at *9-11 (E.D.
Wisc. July 14, 2011 (same); Ragusa v. Malverne Union Free Sch.
Dist.,
549
F.
Supp.2d
288,
291-93
(E.D.N.Y.
2008)
(same);
Santamaria v. Dallas Ind. Sch. Dist., Civil Action No. 3:06-CV692-L, 2006 WL 1343604, at * (N.D. Tex. May 16, 2006) (same); Ellis
v. Cleveland Mun. Sch. Dist., 309 F. Supp.2d 1019, 1024 (N.D. Ohio
2004) (same).
3
As the above cases indicate, records may be redacted to remove
student’s names and other identifying information, and the parties
here have already entered into an Agreed Protective Order to
protect the use of such records.
(Doc. 18).
The Court has ordered the parties to submit an agreed order
outlining appropriate procedures for dealing with FERPA records,
failing which the Court will draft one.
Finally, given that compliance with these FERPA provisions
should make sealing the student records unnecessary, the Court
will deny the current motion to seal without prejudice.
However,
the Court will entertain future motions to seal on a “document by
document” basis should privacy or other interests so warrant.
See
Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., — F.3d
—, No. 16-5055, 2016 WL 4410575, at *3 (6th Cir. July 27, 2016)
(noting that shielding materials in court records should only be
done if there is a “compelling” reason; that any seal must be
narrowly tailored; and the court must analyze in detail, document
by document, the propriety of secrecy, “providing reasons and legal
citations”).
C. Motion for Sanctions and Motion to Compel
Plaintiff
moves
for
sanctions
against
defendants
in
connection with the deposition of Ken Bothof, NKU’s Athletic
Director.
Specifically, plaintiff argues that defense counsel
impeded, delayed, and frustrated the deposition of Bothof by
4
instructing him not to answer certain questions on the basis that
the answers might reveal student information protected by FERPA.
Plaintiff also moves to compel another deposition of Bothof so
that plaintiff can get responses to these unanswered questions.
Some background is in order.1
When plaintiff first requested
dates for Bothof’s deposition, defendants refused on the grounds
of relevancy.
Plaintiff then noticed Bothof’s deposition for July
13, 2016. Defense counsel told plaintiff’s counsel that defendants
objected on the grounds of relevancy and would not be attending;
however, they did not move for a protective order.
Neither Bothof
nor defense counsel appeared for the deposition, and plaintiff
then filed a motion to compel.
The magistrate judge held a conference, found that Bothof’s
testimony was indeed relevant, and ordered that the deposition be
taken.
The magistrate judge also acknowledged the possibility of
FERPA objections but noted that “the civil rules provide for
limited circumstances under which a deponent should be instructed
not to answer.”
(Doc. 39 at 3).
Plaintiff took Bothof’s deposition on August 25, 2016. During
the deposition, defense counsel instructed Bothof not to answer
twelve times in response to questions about an alleged rape by
members of NKU’s basketball team.
(Doc. 70-2, Bothof Depo.).
1
These facts are taken from an Order issued by the then-assigned
United States Magistrate Judge. See Doc. 39.
5
Under the Federal Rules of Civil Procedure, counsel may
instruct
a
situations:
deponent
not
(1)
preserve
to
to
answer
a
a
question
privilege;
(2)
in
to
only
three
enforce
a
limitation ordered by the court; or (3) to present a motion to
terminate or limit under Rule 30(d)(3).
Fed. R. Civ. P. 30(c)(2).
“If privilege is asserted as a reason for instructing a
witness not to answer, it must be a recognized privilege.” 7 James
Wm. Moore et al., Moore’s Federal Practice §30.43[2] (3d ed. 2002)
(2016 Supp.).
“By its plain terms, FERPA does not create an evidentiary
privilege.”
Garza v. Scott and White Mem. Hosp., 234 F.R.D. 617,
624 (W.D. Tex. 2005).
See also C.R. v. Novi Cmty. Sch. Dist.,
Case No. 14-14531, 2016 WL 126250, *6 (E.D. Mich. Jan. 1, 2016)
(“Statutory confidentiality provisions such as those under FERPA
and HIPAA do not create evidentiary privileges.”); Edmonds v.
Detroit Pub. Sch. Sys., Civil Action No. 12-CV-10023, at *3 (E.D.
Mich. Nov. 19, 2012) (FERPA does not create a privilege); Doe v.
Galster, No. 09-C-1089, 2011 WL 2784159, at *9 (E.D. Wisc. July
14, 2011) (same); Ragusa v. Malverne Union Free Sch. Dist., 549 F.
Supp.2d 288, 291 (E.D.N.Y. 2008) (same); Rios v. Read, 73 F.R.D.
589, 598 (E.D.N.Y. 1977) ([FERPA] says nothing about the existence
of a school-student privilege analogous to a doctor-patient or
attorney-client privilege.”).
6
Here,
plaintiff’s
counsel’s
questions
concerned
whether
Bothof was aware of allegations of rape against NKU basketball
players; whether he asked the students if the allegations were
true; whether the students were disciplined and not allowed to
continue playing basketball; whether he knew what dorm the RA who
reported the alleged rape lived in; and what the outcome of the
investigation into the alleged rape was and whether it included
any sanctions against the students.
None of these questions asked for the names of the students
or other identifying information; indeed, several of the questions
called for merely a “yes” or “no” answer.
How the university
handled other alleged sexual misconduct on campus is clearly
relevant to plaintiff’s claim of deliberate indifference under
Title IX, and these questions broadly inquired into that issue.
Further, defense counsel allowed Bothof to answer other questions
which were on par substantively with the ones she instructed him
not to answer.
A very similar situation arose in Brown v. The Univ. of
Kansas, No. 10-2606-EFM-KGG, 2012 WL 612512 (D. Kan. Feb. 27,
2012).
There, the plaintiff sued the University of Kansas when it
expelled him from its law school after learning of his criminal
history.
law
The plaintiff, who was pro se, deposed the dean of the
school
disciplinary
and
asked
matters
him
with
about
students
7
his
in
involvement
comparable
in
other
situations.
Defense counsel instructed the dean not to answer relying, in part,
on FERPA.
Plaintiff moved to compel answers to his questions, and the
Court held:
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 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 an 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.
Id. at *1 (emphasis added).
The court then granted the motion to compel to re-open the
deposition to allow the plaintiff to “inquire about such details
of
the
student
disciplinary
matters
as
do
not
disclosure of student identifying information.”
require
the
Id. at *2.
See
also Lei Ke v. Drexel Univ., Civil Action No. 11-6708, at *7 (E.D.
Penn. Mar. 20, 2014) (holding that defense counsel could instruct
deponents not to answer only if answers would release personally
identifiable information about any student).
Further,
plaintiff
correctly
points
out
that
Bothof’s
deposition testimony as a whole indicated that his knowledge of
the alleged rape by NKU basketball players came, not from any
8
protected student records, but from other school officials, likely
before any protected student records regarding the incident were
even created.
See
“FERPA General Guidance for Students” at
http://www2.ed.gov/policy/gen/guid/frco/ferpa/students.html
(stating
that
information
an
official
obtains
from
personal
knowledge or has heard orally from others is not protected under
FERPA).
Thus, the Court concludes that defense counsel improperly
instructed Bothof not to answer these questions, and plaintiff is
entitled to re-depose him to get answers, without seeking students’
personally identifiable information.
If defense counsel believes
any question seeks such information, they may seek the Court’s
ruling on the question.
Plaintiff also seeks sanctions for defendants’ conduct.
R. Civ. P. 37(a)(5)(A) states:
If the Motion [to Compel] is Granted (or Disclosure or
Discovery is Provided After Filing). If the motion is
granted — or if the disclosure or requested discovery is
provided after the motion was filed — the court must,
after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to
pay the reasonable expenses incurred in making the
motion, including attorney’s fees.
Such sanctions shall not be awarded if the opposing party’s
objection was “substantially justified.”
37(a)(5)(A)(ii).
9
Fed. R. Civ. P.
Fed.
The
Court
concludes
that
defendants’
conduct
in
instructing Bothof not to answer the questions at issue was
not “substantially justified,” given the above authority and
the nature of the questions posed to him.
The Court will
thus grant the motion for sanctions, and defendants shall pay
plaintiff’s reasonable costs and attorney fees incurred in
litigating the motion to compel and appearing at the two
depositions.
D. Defendants’ Motion for Partial Summary Judgment
Defendants
argue
that
plaintiff’s
claim
for
Title
IX
retaliation — Count Three of the Amended Complaint (Doc. 62) —
fails as a matter of law because the document on which it is
premised is inadmissible under Federal Rule of Evidence 408.
This rule provides that evidence of conduct or a statement
made during compromise negotiations is inadmissible in civil cases
to prove or disprove the validity or amount of a disputed claim.
Fed. R. Evid. 408(a)(2).
“for another purpose.”
Such evidence may be admitted, however,
Fed. R. Evid. 408(b).
The document in question is a November 12, 2015, letter from
defendants’ outside counsel to plaintiff’s counsel, written on the
heels of negotiations between plaintiff’s counsel and NKU’s inhouse legal department.
(Doc. 35).
The letter addresses various
matters, but the statement which forms the basis of plaintiff’s
retaliation claims is:
10
The University is not in a position to respond to such false
accusations as it takes its own obligation to protect
[plaintiff’s] educational records pursuant to the Family
Educational Rights and Privacy Act seriously.
I am sure,
however, you have advised [plaintiff] that, in the event she
should file a legal action against NKU, she will have
effectively waived such rights and the University will be
permitted by law to rely on all records related to this
incident in support of its defense.
(Doc.
35)
(emphasis
added).
Plaintiff
characterizes
this
statement as threat made in retaliation for plaintiff’s exercise
of her rights under Title IX.
At
the
end
of
the
letter,
defense
alternative means of settling the dispute.
counsel
proposes
an
Id. (“I encourage you
to discuss this possible resolution with your client.”).
Thus, the letter clearly constitutes “conduct or a statement
made during compromise negotiations” about plaintiff’s claims
premised on NKU’s handling of the events following plaintiff’s
rape.
Plaintiff argues that Rule 408(b) states that the court may
admit such evidence “for another purpose.”
The Sixth Circuit and
other courts have held that one such purpose is where the plaintiff
relies on the compromise communications not to support the claims
that were the subject of those discussions, but rather to provide
a basis for a new claim premised on an entirely separate wrong
committed in the course of those discussions.
See Uforma/Shelby
Business Forms, Inc. v. NLRB, 111 F.3d 1284, 1293 (6th Cir. 1997);
11
Carney v. The American Univ., 151 F.3d 1090, 1095-96 (D.C.
Cir. 1998).
Here, however, the above statement in defense counsel’s
letter is merely an accurate statement of the FERPA regulation
that
concerns
the
use
of
student
records
litigation against an educational institution.
§ 99.31(a)(9)(iii)(B).
in
Title
IX
See 34 C.F.R.
It did not constitute a separate
“wrong,” but stated what would happen as a mater of course if
the action continued.
Therefore, it does not constitute an
“adverse action” against her as required for a prima facie
case of Title IX retaliation.
See Varlesi v. Wayne State
Univ., 642 F. App’x 507, 518 (6th Cir. 2016).
Therefore, the letter in question is inadmissible under
Rule 408, and the motion to dismiss the retaliation count
must be granted.
Therefore, having heard the parties, and the Court being
sufficiently advised,
IT IS ORDERED that:
(1)
The motions to intervene (Docs. 72, 90) be, and are
hereby, GRANTED, for the purposes described above;
(2)
The motions for a gag order and to seal (Docs. 53, 54)
be, and are hereby, DENIED.
As to the motion to seal,
this denial is without prejudice;
12
(3)
On or before Monday, October 24, 2016, the parties shall
tender to the Court a proposed order regarding the
production of student records, as discussed above.
If
the
is
parties
fail
to
do
so,
or
if
the
Order
insufficient, the Court will enter its own order;
(4)
Plaintiff’s motion to compel (Doc. 71) and motion for
sanctions (70) be, and are hereby, GRANTED.
Within
thirty (30) days, plaintiff’s counsel shall submit a
motion for fees and costs, accompanied by an appropriate
affidavit and documentation;
(5)
Defendants’ motion for partial summary judgment (Doc.
26) be, and is hereby, GRANTED, and Count II of the
Amended Complaint be, and is hereby, DISMISSED; and
(6)
Plaintiff’s motion to modify subpoena (Doc. 98) be, and
is hereby, GRANTED.
This 24th day of October, 2016.
13
14
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