T. v. Raymond School District, SAU 33 et al

Filing 27

ORDER granting in part 16 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Bethany T., as next friend of
and on behalf of T.T., a minor
v.

Civil No. 11-cv-464-SM

Raymond School District with
School Administrative Unit 33;
Superintendent Dr. Jean Richards,
in her individual and official
capacity; Principal Mr. Kirk
Bietler, in his individual and
official capacity; and Assistant
Principal Ms. Jayme Rodriguez,
in her individual and official
capacity

O R D E R
Plaintiff has sued in six counts.

She asserts claims under

42 U.S.C. § 2000d (Count I), 42 U.S.C. § 1983 (Count II), N.H.
Rev. Stat. Ann. § 354-B (Count III), and the common law of New
Hampshire (Counts IV and V).

She also asserts a claim for

attorney’s fees under 28 U.S.C. § 1988 (Count VI).1

Plaintiffs’

claims are all based upon defendants’ alleged failure to protect
plaintiff’s son, T.T., from acts of racial discrimination
inflicted on him by fellow students at Raymond High School
(“RHS”).
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Before the court is defendants’ sealed motion to

Given that the United States Code includes no 28 U.S.C. §
1988, the court presumes that the claim for attorney’s fees
arises under 42 U.S.C. § 1988.

compel plaintiff to execute authorizations for the release of
records pertaining to both T.T.’s general medical care and
certain mental-health counseling he has received.
objects.

Plaintiff

For the reasons that follow, defendants’ motion to

compel is granted in part.
Background
Based upon Bethany T.’s complaint, as supplemented by
information revealed in the motion, objection, and reply now
before the court, the relevant factual background is as follows.
During the 2010-2011 school year, T.T. was a freshman at RHS.
On nearly a dozen occasions during that year, T.T. was subjected
to racial slurs directed toward him by other RHS students.

In

addition, T.T. was the target of incidents in which: (1) a
student threatened to burn a cross in his front yard while
wearing a white hood; and (2) a student taunted him with a
library book about the Ku Klux Klan, asking T.T. if he wanted to
learn anything from that book.

RHS officials disciplined some

but not all of T.T.’s harassers.

In her complaint, Bethany T.

alleges that
[a]s a result of the Defendants’ repeated failures to
act, T.T. has suffered from severe emotional distress,
including, but not limited to depression, anxiety,
humiliation, shame, crying, loss of sleep and
nightmares. T.T.’s emotional distress has also

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manifested itself into physical symptoms, including,
but not limited to severe migraines and stomach aches.
Redacted Compl. (doc. no. 1-3) ¶ 68.
In February of 2012, T.T. attempted suicide.

As a result,

he received treatment from a Dr. Burnett at Seacoast Mental
Health.

In the fall of 2012, T.T. and his now former partner

participated in couples counseling that was provided by Bonnie
Kanin.
Discussion
During the course of motion practice, defendants have
diminished the scope of some of their discovery requests, and
the parties have resolved some of the issues that prompted
defendants to file their motion to compel.

Accordingly, the

parties’ dispute is now limited to defendants’ requests for:
A.

Authorizations for the records from non-mental
health medical providers from September, 2005 (5
years before [ ] T.T.’s freshman year) to the
present; and

B.

Authorizations for the mental health records from
Bonnie Kanin, who treated T.T. through couples
counseling regarding a relationship that began
before or during T.T.’s freshman year and ended
in 2012.

Defs.’ Sealed Reply (doc. no. 23), at 3.

The court begins by

outlining the relevant legal principles and then turns to the
two remaining disputes.

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A. Legal Principles
“Unless otherwise limited by court order, the scope of
discovery . . . [extends to] any nonprivileged matter that is
relevant to any party’s claim or defense – including the
existence, description, nature, custody, condition, and location
of any documents . . . .

Relevant information need not be

admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.”
Fed. R. Civ. P. 26(b)(1).

A party dissatisfied with an

opponent’s response to a request for discovery may “move for an
order compelling disclosure or discovery.”

Fed. R. Civ. P.

37(a)(1)
“[T]he purpose of pretrial discovery is to ‘make trial less
a game of blindman’s bluff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable
extent.’”

Wamala v. City of Nashua, No. 09-cv-304-JD, 2010 WL

3746008, at *1 (D.N.H. Sept. 20, 2010) (quoting Macaulay v.
Anas, 321 F.3d 45, 53 (1st Cir. 2003)).

In this court, the

party moving to compel discovery over an adversary’s objection
bears the burden of showing that the information he seeks is
relevant and not privileged.

Id. at *2; see also Saalfrank v.

Town of Alton, No. 08-cv-46-JL, 2009 3578459, at *3 (D.N.H. Oct.
27, 2009).

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B. General Medical Records2
Defendants ask the court to compel Bethany T. to provide
authorizations for the release of all of T.T.’s general medical
records for a period running from September, 2005, through the
present.

Plaintiff contends that she has produced all the

general medical records that are relevant.

The court does not

agree.
Plaintiff devotes much of her objection to an argument that
to be relevant, and subject to discovery, a general medical
record from the 2010-2011 school year must have been created
roughly contemporaneously with one of T.T.’s harassment-related
absences from school.

She takes too narrow a view of relevance.

That she might not rely upon a particular medical record to
prove her claims does not make that record irrelevant to a
reasonable defense to her claims.

Bethany T. has placed T.T.’s

physical health at issue by claiming that the harassment she
alleges caused T.T. to suffer emotional distress with physical
manifestations.

Defendants have a right to information about

T.T.’s baseline physical health prior to the alleged racial
harassment, including information about the possible preexistence of any of the physical conditions that Bethany T.
2

By “general medical records,” the court refers to all
medical records not generated by providers of mental-health
care.
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claims to have been caused by the alleged harassment.

Such

information is necessarily to be found in plaintiff’s general
medical records from September of 2005 through the date of his
enrollment at RHS.

Moreover, it is clear that T.T. was beset by

emotional stressors other than the alleged harassment before,
during, and after the conduct at issue in this suit, which
further underscores the potential relevance of the medical
records defendants seek.

Because they have carried their burden

of demonstrating relevance and privilege is not an issue,
defendants are entitled to authorizations for the release of all
of T.T.’s general medical records for a period running from
September 2005, through the present.

See Wamala, 2010 WL

3746008, at *2.
C. Records of T.T.’s Couples Counseling
Defendants seek an authorization for the release of Bonnie
Kanin’s records of the couples counseling she provided to T.T.
and his former partner starting in the fall of 2012.

Plaintiff

objects, on grounds that those records are irrelevant and cannot
be released without the consent of T.T.’s former partner.
Plaintiff’s argument is partially meritorious, but even so,
defendants are entitled to a portion of the records they seek.
Taken as a whole, Kanin’s records of T.T.’s couples
counseling are relevant or reasonably calculated to lead to the

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discovery of admissible evidence.

Just as T.T.’s general

medical records are relevant for the purpose of establishing a
baseline for determining the extent of defendants’ liability, if
any, for various physical ailments that T.T. is alleged to have
suffered, so too are the records of T.T.’s couples counseling
relevant to determining the extent to which defendants may be
liable for emotional distress T.T. is alleged to have
experienced after his year at RHS.

The court rests that

conclusion on the common-sense proposition that the issues that
inspired T.T. to participate in couples counseling could
reasonably be expected to have caused emotional distress.

If

so, that would be emotional distress for which defendants are
not liable.
For her part, plaintiff says that Kanin’s counseling
records are not relevant, but she offers no reasoned support for
that position.

Moreover, her production of the records of

T.T.’s treatment with Dr. Burnett in 2012 demonstrates her
recognition that at least some mental-health records post-dating
the alleged harassment are relevant.

In sum, to the extent that

the records of T.T.’s couples counseling include information on
T.T.’s emotional state during a time period for which Bethany T.
is claiming emotional-distress damages, defendants have carried
their burden of establishing the relevance of those records.

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But, defendants also bear the burden of establishing that
the records they seek are not privileged.
3746008, at *2.

See Wamala, 2010 WL

That presents a somewhat thornier issue.

It

would seem to be indisputable that the records of T.T.’s couples
counseling include a variety of information about T.T.’s former
partner.

Information about T.T.’s former partner, in turn, is

both irrelevant to any claim or defense in this case and, more
importantly, privileged.

Thus, even if Bethany T. were willing

to authorize the release of information about T.T.’s former
partner, she is in no position to do so, given that such
information is confidential to the former partner.
Happily, there is a way around the conundrum created by
defendants’ right to some but not all of the information
contained in Kanin’s records of T.T.’s couples counseling.
Specifically, defendants are entitled to an authorization for
the release of the records of T.T.’s couples counseling, so long
as the records released to defendants are redacted to eliminate
anything that identifies T.T.’s former partner.

In other words,

defendants are entitled to a release that is tailored to the
production of only the information in Kanin’s records that is
relevant to their defenses and that is T.T.’s information to
release.

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Conclusion
For the reasons described above, defendants’ sealed motion
to compel, document no. 16, is granted, but with the proviso
that the authorization to release the records of T.T.’s couples
counseling shall direct Bonnie Kanin to redact anything in those
records that would identify T.T.’s former partner.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
February 26, 2013
cc:

Brian J.S. Cullen, Esq.
Karen E. Hewes, Esq.

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