Innes et al v. The Board of Regents of the University System of Maryland et al

Filing 56

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 5/29/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPH INNES, et al.
:
v.

:

Civil Action No. DKC 13-2800

:
THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF MARYLAND,
et al.

:
:

MEMORANDUM OPINION
Presently
disability

pending

and

discrimination

ready

case

is

for
a

resolution

motion

order filed by Defendant Wallace D. Loh.

for

a

in

this

protective

(ECF No. 45).

The

issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, the motion for a protective order filed by
Defendant Wallace D. Loh will be granted.
A.

Background

Plaintiffs

Dr.

Joseph

Innes

(“Dr.

Innes”),

Daniel

Rinas

(“Mr. Rinas”) and Sean Markel (“Mr. Markel”), who are deaf, sued
the University of Maryland, the Board of Regents, and Wallace D.
Loh (“President Loh”), in his official capacity as the President
of the University of Maryland, for alleged violations of Title
II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12131, and the Rehabilitation Act, 29 U.S.C. § 504.

(ECF No.

33, at 8-10).

Plaintiffs regularly attend sporting events at

the Comcast Center and Byrd Stadium, located on the University
of Maryland’s main campus in College Park, and attempt to watch
videos on the University’s athletic website.

Plaintiffs allege

that Defendants failed to provide effective communication for
deaf fans both at the games at Byrd Stadium and the Comcast
Center and on the University’s athletic website.
On

April

28,

2014,

President

Loh

filed

a

motion

for

a

protective order under Fed.R.Civ.P. 26(c), seeking to bar the
taking of his deposition.

(ECF No. 45).

scheduled to be deposed on May 7, 2014.

President Loh was
(See ECF No. 45-1).

The parties jointly moved to stay President Loh’s deposition
pending

the

resolution

undersigned granted.
President

Loh’s

of

the

instant

motion,

(ECF Nos. 47 & 48).

motion

on

May

7,

2014

which

the

Plaintiffs opposed
(ECF

No.

53),

and

Defendant replied on May 19, 2014 (ECF No. 55).
II. Analysis
Although he may be dismissed as a party to this lawsuit,
Plaintiffs

indicate

“[President]

Loh

is

in
an

their

opposition

appropriate

to

witness

the
for

whether or not he remains as a party defendant.”

motion

that

deposition,
(ECF No. 53,

at 4).
On January 29, 2014, Plaintiffs noted three depositions:
(1) the Fed.R.Civ.P. 30(b)(6) deposition of the University of
2

Maryland;

(2)

the

Fed.R.Civ.P.

30(b)(6)

deposition

of

the

Maryland Stadium Authority, which oversaw the construction of
the Comcast Center and the renovation of Byrd Stadium; and (3)
the deposition of President Loh.

(ECF No. 45-3, at 2).

The

University of Maryland produced three different witnesses for
deposition: Kevin Anderson, the University Athletic Director;
Gabriel

Unterman,

the

University

Director

of

Multimedia

Production; and Joshua Kaplan, the University Assistant Athletic
Director of Facilities and Events.

President Loh argues that

requiring his deposition would be fruitless because, unlike the
University of Maryland’s three 30(b)(6) deponents, he has no
knowledge of the subjects related to Plaintiffs’ second amended
complaint and even if he did, his testimony would be duplicative
of information that the other deponents have already provided.
Fed.R.Civ.P.

26(c)

states,

in

pertinent

part,

that

the

court “may, for good cause, issue an order to protect a party or
person

from

annoyance,

burden or expense[.]”

embarrassment,

oppression,

or

undue

The general standard for discovery under

Fed.R.Civ.P. 26 is relatively broad:
Rule 26 governs discovery entitlement and
provides
that
“[p]arties
may
obtain
discovery
regarding
any
matter,
not
privileged, that is relevant to the claim or
defense of any part . . . .”
Fed.R.Civ.P.
26(b)(1).
While the Federal Rules of Civil
Procedure do not define relevance, the
Federal Rules of Evidence do, as “evidence
having any tendency to make the existence of
3

any fact that is of consequence to the
determination of the action more probable or
less probable than it would be without the
evidence.”
Fed.R.Evid. 401.
Or, as
rephrased in the commentary, “[d]oes the
item of evidence tend to prove the matter
sought to be proved?”
United Oil Co., Inc. v. Parts Assoc., Inc., 227 F.R.D. 404, 409
(D.Md.

2005)

(footnote

omitted).

The

Fourth

Circuit

has

explained that discovery requests may be limited in appropriate
cases:
On its own initiative or in response to a
motion for protective order under Rule
26(c), a district court may limit “the
frequency or extent of use of the discovery
methods
otherwise
permitted”
under
the
Federal Rules of Civil Procedure if it
concludes that “(i) the discovery sought is
unreasonably cumulative or duplicative, or
is obtainable from some other source that is
more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery
has had ample opportunity by discovery in
the action to obtain the information sought;
or (iii) the burden or expense of the
proposed discovery outweighs its likely
benefit.”
Fed.R.Civ.P. 26(b)(2).
Further,
upon motion of a party and “for good cause
shown,” the court in the district in which a
deposition is to be taken may “make any
order which justice requires to protect a
party
or
person
from
annoyance,
embarrassment, oppression, or undue burden
or expense,” including an order that the
discovery not be had. Fed.R.Civ.P. 26(c).
Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir.
2004).

“District

courts

have

4

broad

discretion

in

[their]

resolution of discovery problems.”

Mylan Labs, Inc. v. Akzo,

N.V., 2 F.3d 56, 62 (4th Cir. 1993).
Plaintiffs argue that deposing President Loh would yield
relevant information related to this action.

First, Plaintiffs

believe that President Loh has personal knowledge of matters
relevant to this case.

They point to excerpts from Gabriel

Unterman’s deposition, in which he testified that the Office of
the President – Defendant Loh’s office – established a committee
to deal with making all of the University of Maryland’s websites
accessible
Athletic

to

individuals

Department

with

website.

disabilities,

(ECF

No.

53-1,

including
at

4,

the

dep.

of

Gabriel Unterman (“I’m a part of an IT accessibility committee,
which is a committee that was formed by the president’s office
to tackle the issue of . . . website accessibility universitywide.”).
president’s

Mr.

Unterman

office

university-wide

and

stated

that

[was]

to

look

see

what

we

accessible, ADA compliant.”

the

and
need

(Id. at 5).

charge

assess

our

to

to

do

“from

the

websites
get

them

Plaintiffs aver that

President Loh “could have important information about why this
Committee was formed, who made the decision to form it, and more
details about its goals and outcomes.”

(ECF No. 53, at 3).

But

as Defendant points out, the Office of the President “houses
multiple executives who each have broad discretionary power and
authority to act on a day-to-day basis independent of President
5

Loh”

and

the

fact

that

President

Loh’s

office

created

this

committee does not mean President Loh is knowledgeable about
this committee.

(ECF No. 55, at 7-8).

Plaintiffs have deposed

Kevin Anderson, the Director of Athletics at the University of
Maryland, who, according to Plaintiffs, testified that he was
aware of the accessibility committee, and had conversations with
Dr. Loh about accessibility and the Athletic Department.

(ECF

No.

this

53,

point.
asked

at

3).

Mr.

Anderson’s

deposition

contradicts

Specifically, during the deposition, Mr. Anderson was
whether

he

discussed

the

committee

on

website

accessibility with President Loh, to which he responded: “I have
not.”

(ECF No. 55-1, at 7).

When asked who was involved with

this committee, Mr. Anderson identified Gabe Unterman.
11).

Mr.

Anderson

acknowledged

that

he

often

(Id. at

meets

with

President Loh regarding specific budget issues related to the
athletic department, but stated that
ribbon

board

at

Byrd

Stadium

he

and

[r]egardless of what, how -- the cost.”

approved to buy the
the

Comcast

Center,

(ECF No. 55-1, at 11).

Plaintiffs further argue that “[i]n addition to the work of
the

Committee,

what

the

President

himself

is

aware

of

is

important information regarding the steps the University may or
may not take to address its accessibility issues.”
at 3).
Loh

(ECF No. 53,

Defendant Loh’s affidavit suggests otherwise.

declares

that

he

has

“no
6

personal

knowledge

President
of

the

captioning capabilities of the Comcast Center, Byrd Stadium, or
videos streamed on any website related to the University or the
University’s athletic department.”

(ECF No. 45-2 ¶ 8).

He

further avers that he has:
not been immersed in the details of specific
University
initiatives
regarding
the
University’s compliance with the Americans
with Disabilities Act and other similar
federal or state laws, including University
of
Maryland
Intercollegiate
Athletics’
efforts to maintain best practices regarding
the accessibility of Athletic events and
websites to handicapped individuals.
(Id.) (emphasis added).

He states that “with the exception of

being briefed by University Counsel, my staff has not briefed me
in detail regarding [the issues in this litigation].”
This

declaration

is

bolstered

by

deposition

(Id.).

testimony

from

Joshua Kaplan, the Assistant Athletic Director for Facilities,
Operations, and Events, who avers that ultimately, it was his
responsibility to ensure compliance with Title II of the ADA and
Section 504 of the Rehabilitation Act.
Mr.

Kaplan

captioning

also
on

“collaborative

testified

hand-held
decision

(ECF No. 55-2, at 7).

that

the

decision

devices

for

deaf

[between

supervisor] and Kevin Anderson.”

him,]

Kelly

(Id. at 19).

to

patrons

provide
was

Mehrtens[,

a
his

Nowhere in his

deposition does Mr. Kaplan point to President Loh’s involvement.
Mr. Anderson’s deposition also identifies Joshua Kaplan as the
individual who oversees all of the facilities at the University
7

of Maryland and who is responsible for “signing off and going
through

the

equipment.]”
being

procurement

process

to

(ECF No. 55-1, at 7).

responsible

for

purchase

[the

hand-held

He identified Mr. Kaplan as

ensuring

that

the

technology

University purchased had captioning capabilities.

the

(Id. at 18).

Plaintiffs next argue that President Loh has been involved
with the University of Maryland’s decision to leave the Atlantic
Coast

Conference

Conference.

(“ACC”)

Thus,

and

move

Plaintiffs

to

believe

the
that

Big

10

Athletic

“[President]

Loh

knows about ownership of the website, whether the day-to-day
activities on the website will be transferred to the Big Ten,
whether the Big Ten will pick up costs of the website, and
whether the Big Ten has plans to caption the website or at least
pay part or all of the costs of captioning.”
Anderson’s

and

Joshua

Plaintiffs

have

already

Kaplan’s
obtained

(Id. at 4).

depositions
this

suggest

information

from

Kevin
that
these

deponents and there is no indication that President Loh would
have additional insight.

Specifically, Mr. Anderson was asked

“what impact will the move to the Big Ten have on [accessibility
discussions],” to which he responded:
That we don’t know.
We know that some of
the video live streaming that we have now
will not be on our website anymore, that Big
Ten will take that, have the media rights to
take some of those things over.

8

(ECF No. 55-1, at 14).

Similarly, Joshua Kaplan was asked about

the Big Ten during his deposition:
Q: And when do you expect to hear from the
Big Ten on what, what will, you know, what
will happen to the [] umterps.com website
and the videos that are associated with it?
A: Well, the Big Ten doesn’t have any
control per se over our videos that we put
on there.
What we’re waiting for is for
them to announce what they’re broadcasting,
so the process with the ACC will mirror what
the process was for the Big Ten in regards
to live events.
Q: But as far as switching to, University of
Maryland joining the Big Ten and the Big Ten
Network, will that have any effect on the
preproduced videos on umterps.com?
A: Not preproduced.
Q: Just live?
A: Just live.
(ECF No. 55-2, at 33, 35).
no

reason

necessarily

to

believe

must

depend

As Defendant points out, “[t]here is

that
on

the
his

University
subordinates

President,

who

to

the

manage

details of the University’s various operations, would be in a
better position to explain how or why these things remained
unsettled.”

(ECF No. 55, at 6).

Plaintiffs next argue that:
[President]
Loh
also
has
relevant
information
about
the
importance
of
athletics and its place at UMCP. . . . To
the extent the President of the University
believes that athletics is an important part
9

of the University and aids in recruiting
students, that information is relevant to
the need to make all athletics programming
accessible.
(ECF No. 53, at 3).
Loh’s

beliefs

This argument is unavailing.

regarding

the

importance

of

President

athletics

at

the

University of Maryland and its role in student recruitment is
not

relevant

allege

to

the

disability

instant

litigation,

discrimination

on

the

in

which

basis

of

Plaintiffs
Defendants’

failure to offer effective communication in aural information
displayed at Byrd Stadium, the Comcast Center, and the athletic
website at the University of Maryland.
President Loh contends that the burden he faces if deposed
“greatly outweighs the non-existent benefit that the plaintiffs
would enjoy from his deposition.”
points

to

donors,

his

and

individuals

busy

role
and

(ECF No. 45-3, at 4).

travel

schedule,

the

University’s

as

institutions.

meetings

with

ambassador

Considering

the

He

potential

to

outside

information

Plaintiffs have already obtained from deposition testimony of
Kevin Anderson, Joshua Kaplan, and Gabe Unterman, the matters
Plaintiffs

seek

(ECF

55-4),

No.

to

explore

and

during

President

President

Loh’s

Loh’s

affidavit

deposition
disclaiming

knowledge of specific decisions and discrete services, networks,
and technology pertaining to this litigation, the burden would
outweigh the benefit in this case.

10

Plaintiffs rely on Minter v.

Wells Fargo Bank, N.A., 258 F.R.D. 118, 126 (D.Md. 2009), but it
is

inapposite.

protective
executive

In

order
who

Minter,

the

court

to

preclude

the

deposition

claimed

to

lack

unique

declined

or

of

to
a

a

high-level

personal

because “there [was] direct evidence to the contrary.”
not the case here.

grant

knowledge
This is

Nothing on the record contradicts President

Loh’s affidavit disclaiming relevant knowledge.

See Sharma v.

Lockheed Engineering & Mgmt. Servs. Co., Inc., 862 F.2d 314,
1988

WL

proposed

118154,
deponent

at

*3

(4th

Robert

Cir.

Young

1988)
stated

(“By
that

affidavit,
he

does

the
not

personally know Sharma and has no personal knowledge regarding
the allegations of Sharma’s complaint.

While such a statement

by itself will not always be sufficient to justify a protective
order, it does establish that, in this case.”).
Defendant submits that Assistant President Michele Eastman
is the more appropriate candidate for deposition because she has
knowledge of facts and events related to the allegations in
Plaintiffs’ second amended complaint.

(ECF No. 45-3, at 7).

Specifically, Defendant avers that “Assistant President Eastman
has

knowledge

about

the

University’s

internet

accessibility

committee that was discussed during the University’s 30(b)(6)
depositions.”

(Id.).

Although Plaintiffs have argued that Ms.

Eastman was not identified as a relevant witness by any of the
deponents or in responses to the interrogatories, they request
11

that they be permitted to depose her in the event that the
protective order is granted.
protective

order

as

to

For the foregoing reasons, the

President

Loh

will

be

granted.

order

filed

by

Defendant

Plaintiffs may depose Michele Eastman.
III. Conclusion
The

motion

for

a

protective

Wallace D. Loh will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

12