Theidon v. Harvard University, et al.

Filing 92

District Judge Leo T. Sorokin: ORDER enteredOrder on Plaintiff's and Defendants' Respective Motions to Compel Discovery Upon due consideration of the parties' memoranda of lawand other filings with respect to the Motions, the Court orders that 84 Plaintiff's Motion is DENIED and 83 Defendants' Motion is ALLOWED IN PART and DENIED AS MOOT IN PART. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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KIMBERLY THEIDON,
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Plaintiff,
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v.
) Civ. Action No. 15-cv-10809-LTS
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HARVARD UNIVERSITY, and the
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PRESIDENT AND FELLOWS OF
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HARVARD COLLEGE,
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Defendants.
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__________________________________________)
ORDER ON PLAINTIFF’S AND DEFENDANTS’
RESPECTIVE MOTIONS TO COMPEL DISCOVERY (DOCS. 83, 84)
July 15, 2016
SOROKIN, J.
On June 8, 2016, Plaintiff Kimberly Theidon filed a Motion to Compel
Discovery, Doc. 84, and Defendants Harvard University, et al., also filed a Motion to
Compel Discovery, Doc. 83. Upon due consideration of the parties’ memoranda of law
and other filings with respect to the Motions, the Court orders that Plaintiff’s Motion is
DENIED and Defendants’ Motion is ALLOWED IN PART and DENIED AS MOOT IN
PART.

I.

Plaintiff’s Motion

Plaintiff moves to compel in response to objections set forth in defendants’ responses
to numerous document requests served by Plaintiff. Local Rule 37.1 requires that the

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“memorandum [in support of a motion to compel arising out of a discovery dispute] shall
state with particularity the following: . . . Each . . . request for production . . . raising an
issue to be decided by the Court, and the response thereto,” followed by a “statement of
the moving party’s position as to each contested issue, with supporting legal authority,
which statement shall be set forth separately immediately following each contested item.”
Local Rule 37.1(b). The terms of the rule are plain. In response to Plaintiff’s prior
motion to compel, the Court highlighted the rule and explained its substantive
importance. Doc. 82 at 2. The memorandum in support of the instant motion to compel
fails to set forth Plaintiff’s requests for production, or the responses thereto, or Plaintiff’s
position as to each contested issue. Accordingly, Plaintiff’s Motion to Compel (Doc. 84)
is DENIED. 1 See NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 6 (1st Cir. 2002).

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Two further points bear mention. First, the contested requests that Plaintiff served (which the Court
found in Harvard’s opposition to the motion) are substantially overbroad as crafted. For example, Plaintiff
seeks “[a]ll documents pertaining to the damage to Harvard’s reputation from negative press coverage, in
2012-2013,” as well as “[a]ll documents . . . exchanged among any person(s) in FAS [the Faculty of Arts
and Sciences at Harvard] referring to ‘Title IX,’ ‘sexual assault,’ ‘sexual violence,’ ‘sexual misconduct,’ or
any euphemism used to describe either [sic], during the period from September 1, 2012 to September 1,
2015.” Doc. 90 at 7, 9 (quoting RFPs 8 and 51). No theory advanced by Plaintiff or applicable to this case
remotely supports these discovery requests as written. Second, Plaintiff’s memo is not helpful in resolving
the issues. It argues, at one point, seventeen requests for production on the theory that all the requests
concern on-going student activities Theidon supported and Harvard opposed. Doc. 85 at 8. Yet, contrary
to Plaintiff’s memo, some of the seventeen requests (such as RFP 51, supra) are not at all focused on ongoing student activities. At other points in the memorandum, Plaintiff argues for discovery without
reference to any request for production. See Doc. 85 at 16. For these separate and independent reasons as
well, the Court DENIES the Motion to Compel.

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III.

Defendants’ Motion
Defendants’ Motion originally asked the Court to compel Plaintiff to produce

responsive documents to RFPs 4, 25, 28, and 34. Doc. 83 at 1. In its opposition, Plaintiff
agrees to search for and/or produce any documents responsive to RFPs 4, 25, and 34.
Doc. 87. Accordingly, the Motion is DENIED AS MOOT as to these three requests.
Turning to RFP 28, Defendant asks for “[a]ll documents concerning any
communications between you or your attorneys with any media outlet concerning the
allegations of the Complaint.” Doc. 83-1 at 5. Statements Plaintiff and her lawyers made
to the media regarding the allegations of the Complaint are not privileged and are
relevant, as they “‘might be useful for purposes of impeachment.’” Neuberger and Scott
v. Shapiro, 196 F.R.D. 286, 287 (E.D. Pa. 2000) (quoting Hickman v. Taylor, 329 U.S.
495, 511 (1947), in which the Supreme Court held that non-privileged information in an
attorney’s files is discoverable). The record shows that Plaintiff has made statements to
the media, her counsel is listed as her media contact, and, contrary to Plaintiff’s assertion,
journalists may not have published all of the statements she made to them about this case.
See Doc. 87 at 3. The Court finds no basis to accept Plaintiff’s bare assertion that
allowing discovery of these statements would “contradict[] the public policies behind
Title IX.” Id. Finally, the three cases Plaintiff cites in support of her arguments, id. at 24, are each wholly inapposite. Accordingly, Defendants’ Motion to Compel is
ALLOWED as to RFP 28.

/s/ Leo T. Sorokin
United States District Judge

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