Doe v. Board of Trustees of the Nebraska State Colleges
Filing
65
ORDER - Defendant's objection, (8:17CV31, Filing No. 70 ), is sustained. Plaintiff's motion for protective order, (8:17CV31, Filing No. 64 ), is denied. Plaintiff's motion for protective order, (8:17CV265, Filing No. 50 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISSETTE LARIOS ROOHBAKHSH, as
personal representative of the Estate of
Fatima Lissette Larios and on behalf of
next of kin; and NELSON LARIOS, as
next of kin;
8:17CV31
ORDER
Plaintiffs,
vs.
BOARD OF TRUSTEES OF THE
NEBRASKA STATE COLLEGES, and
CHADRON STATE COLLEGE,
Defendants.
JANE DOE,
8:17CV265
Plaintiff,
ORDER
vs.
BOARD OF TRUSTEES OF THE
NEBRASKA STATE COLLEGES, a
Political Subdivision of the State of
Nebraska;
Defendant.
Pending before me are the motions for protective order filed in each of the
above-captioned cases. Plaintiffs ask the court to grant an exception or modify its past
protective orders in the respective cases, thereby permitting Plaintiffs’ counsel to
exchange all discovery obtained on their respective Plaintiffs’ behalf for use in
litigating against their common defendant, Chadron State College (CSC). See,
8:17CV31-JFB-CRZ, Filing No. 64; 8:17CV265-JFB-CRZ, Filing No. 50). Defendant
opposes the motions. For the reasons stated below, the motions will be denied.
ANALYSIS
Defendant is represented by the same counsel in both cases, and in both, the
plaintiffs are alleging CSC violated Title IX, 20 U.S.C. § 1681(a), and Board Policy
3020. In 8:17CV31, the estate and survivors of Fatima Lissette Larios (hereinafter
“Larios”) allege CSC failed to intervene to protect Larios from domestic and dating
violence committed by her boyfriend, a CSC student. Larios claims CSC’s failure to
act began in November of 2014, and it caused Larios’ apparent suicide on January
30, 2015. In 8:17CV265, Plaintiff Jane Doe (Doe) alleges that while she was a student
at CSC, she was the victim of two incidents of rape committed by a fellow CSC
student, the first occurring on September 19, 2016. Doe alleges that although CSC
disciplined the rapist, they failed to expel him from school. Doe alleges that due to this
insufficient discipline, she experienced severe stress, panic attacks, lost wages, and
other damages because she was continually exposed to the risk of encountering her
assailant on CSC’s campus. Doe alleges CSC failed to protect her as required under
Title IX, 20 U.S.C. § 1681(a), and this failure was racially motivated in violation of 42
U.S.C. § 1981 and 42 U.S.C. § 2000d. The alleged violence against Larios and Doe
was committed by different male students.
Plaintiffs’ attorneys argue that both cases require discovery of the patterns and
practices of Chadron State College and its administrators between 2014 and 2016
relative to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). In both
cases, Plaintiffs have consented to sharing their personal information, otherwise
protected from disclosure by order of the court, for use in the other case. But by the
very nature of these cases, the plaintiffs are not the only students whose past
complaints or discipline may be unearthed in the discovery process. In Larios’ case,
at least nine students have been or will be deposed, with their deposition transcripts
and attached exhibits including personal information such as names, dates of birth,
and disciplinary actions. (Filing No. 54, at CM/ECF p. 5-6). These students’ testimony
2
may or may not be relevant to Doe’s case, and there is no showing that they
consented to releasing their personal information to Doe or her attorney.
Similarly, Doe’s written discovery requests (for a five-year period) all
“documentation of communications relating to notification, investigation, and/or
disposition of sexual assaults between any agent, employee or student” of CSC and
its System Director of Title IX, (8:17CV265, Filing No. 57, at CM/ECF p. 16, Request
No. 14), and all files maintained on Doe’s alleged assailant, including his academic
files, employment files, disciplinary files, athletic files, and Campus Security files.
(8:17CV265, Filing No. 57, at CM/ECF p. 12, Request No. 10). The responses to this
discovery may be relevant to Larios’ case, but they may not be.
Contrary to Plaintiffs’ argument, their motions seek mutual knowledge of “all
facts,” not “all relevant facts” obtained through discovery in both cases. (8:17CV31,
Filing No. 74, at CM/ECF p. 3). The court is unwilling to open wide all such discovery,
thus allowing Plaintiffs’ counsel to ferret through the discovery responses, including
the personal information of students and CSC personnel relevant to only one of the
two lawsuits, and then decide what each Plaintiff finds relevant and useful. While
sharing discovery may provide a more efficient and inexpensive means of litigating
the two cases, (8:17CV31, Filing No. 74, at CM/ECF p. 12), the court finds Larios’ and
Doe’s lawsuits are too dissimilar in terms of allegations, time frames, and actors to
permit consolidated discovery which may infringe on the confidentiality owed to third
parties, and will disclose at least some information which is not otherwise discoverable
as to each separate lawsuit under the Federal Rules.
Larios argues that “federal and state courts have routinely recognized that there
is a presumption that the public has a right of access to all court records.” (8:17CV31,
Filing No. 74, at CM/ECF p. 12). But discovery exchanged between the parties is not
a court record, and “restraints placed on discovered, but not yet admitted, information
3
are not a restriction on a traditionally public source of information.” Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 33 (1984). There is “no right to use pretrial discovery in one
case for the prosecution of another case.” Sasu v. Yoshimura, 147 F.R.D. 173, 176
(N.D. Ill. 1993) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)). “First
Amendment rights are not impinged when the protective order precludes [parties] from
disseminating or putting to other uses the confidential information that they have
obtained in discovery.” Id.
There may be some efficiencies to be gained by exchanging the depositions of
“the exact same (key) witnesses” from CSC as to the specific topics common to both
cases. (Filing No. 74, at CM/ECF p. 3). However, the plaintiffs’ motions are not limited
as such, and the court will not re-draft them—particularly where the parties did not
request a dialogue with the court prior to engaging in written motion practice which
has, by the necessity of written briefs and an opinion, slowed the progression of both
cases.
Accordingly,
IT IS ORDERED:
1)
Defendant’s objection, (8:17CV31, Filing No. 70), is sustained.
2)
Plaintiff’s motion for protective order, (8:17CV31, Filing No. 64), is
denied.
3)
Plaintiff’s motion for protective order, (8:17CV265, Filing No. 50), is
denied.
August 21, 2018.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?