Doe #1 et al v. New York City Department of Education et al

Filing 27

MEMORANDUM & ORDER re: Plaintiff's 23 Motion for Discovery. Plaintiffs' Motion for Discovery (Dkt. 23) is GRANTED IN PART AND DENIED IN PART. The parties are DIRECTED to jointly propose to Judge Mann a plan for preliminary discovery co nsistent with this opinion by January 5, 2017. Defendant's request for additional discovery is DENIED WITHOUT PREJUDICE. Should Defendant wish to pursue the requested discovery at this time. Defendant may direct such request to Judge Mann. No additional requests for discovery will be considered until the court rules on Defendant's anticipated motion to dismiss. So Ordered by Judge Nicholas G. Garaufis on 12/5/2016. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

JOHN D0E#1 et al.
MEMORANDUM & ORDER

Plaintiffs,

16-CV-1684(NGG)
(RLM)

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiffs, Families for Excellent Schools and 23 minor John/Jane Does(the "Doe

Plaintiffs"), assert a class action against Defendant, the New York City Department ofEducation
("DOE"),alleging that Defendant has failed to adequately protect Plaintiffs and similarly
situated students from "in-school violence." (2d Am.Compl.(Dkt. 20).) Before the court is

Plaintiffs' motion requesting preliminary discovery ("Plaintiffs' Motion"). (Pis.' Mot. for Disc.
("PI. Mot.")(Dkt. 23)at 6.) Defendant opposes the motion in part, and makes an additional
request for discovery ("Defendant's Response"). (Def.'s Resp. in Opp'n to Mot. for Disc.
("Def. Resp.")(Dkt. 26).) For the reasons below. Plaintiff's Motion is GRANTED IN PART
AND DENIED IN PART. Defendant's request for additional discovery is DENIED WITHOUT
PREJUDICE.
I.

BACKGROUND

On October 18,2016,the court granted leave for Defendant to file a motion to dismiss
and set a deadline of March 17,2017,for the fully briefed motion. (Oct. 18, 2016, Min. Entry.)

When Plaintiffs asked about proceeding with discovery, the court instructed Plaintiffs to "file a

letter explaining why limited discovery would be appropriate at this time" if"Plaintiffs wish to
proceed with limited discovery before the court rules on the motion to dismiss." (Id)
Plaintiffs now request discovery on two categories of documents:(1)"DOE policies and

procedures" that were in effect from January 1,2013,to the present "concerning student bullying
and violence, corporal punishment by teachers or other DOE staff, and verbal abuse by teachers
or other DOE stafP'; and(2)"All DOE documents, emails, and text messages concerning

incidents" described in the Second Amended Complaint involving the 23 Doe Plaintiffs. (PI.
Mot. at 6.)

In response. Defendant raises concerns including Defendant's procedural obligations
under the Family Educational Records Protection Act("FERPA"),20 U.S.C. § 1232g, as well as
the baseline costs of conducting the requested electronic discovery, which implicates several
DOE employees at several schools across several years. fSee generallv Def. Resp.) Defendant
expressed its continued willingness to provide a more limited scope of preliminary discovery, as
articulated in a letter dated October 13, 2016, as long as Plaintiffs agreed to a protective order to

safeguard students' FERPA privacy rights. ("See Def. Resp.; Def. Oct. 13, 2016, Ltr.(Ex. 1, Def.
Resp.)(Dkt. 26-1).) Plaintiffs have indicated their willingness "to accept[] documents under an
appropriate protective order." (PI. Mot. at 5.)

Defendant's Response also includes a request for two types of additional information
from Plaintiffs:(1)the names ofthe alleged bullies who are described anonymously in the

Second Amended Complaint, and (2)details on any Doe Plaintiffs whose claims have been
mooted. (Def. Resp. at 6.) Plaintiffs did not file a reply addressing this request.

II.

DISCUSSION

A. Legal Standard

Courts in this jurisdiction agree that "there is no automatic stay ofdiscovery pending the
determination of a motion to dismiss." Rivera v. Inc. Vill. of Farmingdale. No.06-CV-2613

(DRH)
(ARL),2007 WL 3047089, at *1 (E.D.N.Y. Oct. 17, 2007)(citation omitted). When
district courts consider staying discovery during the pendency of a motion to dismiss, they

typically examine factors such as: "(1) whether a defendant has made a strong showing that the
plaintiffs claim is unmeritorious,(2)the breadth of discovery and the burden ofresponding to it,
and (3)the risk of unfair prejudice to the party opposing the stay." Am.Fed'n of Musicians &
Emp'rs' Pension Fund v. Atl. Recording Corp., No. 15-CV-6267(GHW),2016 WL 2641122, at
*1 (S.D.N.Y. Jan. 8,2016)(citation omitted).
B. Analysis
1. Plaintiffs' Requested Discovery

This case raises challenging questions about the scope of constitutional rights, the use of
statistical evidence, and the interplay of administrative and judicial remedies. tSee PI. Mot.

at 3-5; Def. Resp. at 6-7.) Without commenting on the merits at this stage, the court notes
Defendant's contention that certain among Plaintiffs legal theories do not flow directly firom

clear, binding precedent. (See Defs.' Appl. for Pre-Mot. Conf,(Dkt. 22); see also, e.g.. PL Mot.
at 4(acknowledging that "the Second Circuit has yet to rule" on the legal theory underpinning
their substantive due process claim).) Defendant has also persuasively argued that Plaintiffs'
requested discovery would be burdensome and expensive. (Def. Resp. at 4-5.) Plaintiffs,
meanwhile, have not alleged any specific prejudice from the stay, though the court acknowledges
Plaintiffs' call for urgency in light oftheir allegations of"a widespread, systemic deprivation of

education rights across the New York City public school system on a daily basis." (PI. Mot.
at 6.)

After considering these factors, the court finds that the limited discovery proposed in

Defendant's letter of October 13,2016, appropriately balances the parties' competing concerns.

Plaintiffs will receive certain key documents during the pendency of Defendant's motion, subject
to an appropriate protective order. Ifthe court ultimately determines that certain claims must be

dismissed. Defendant will be spared the burden of comprehensive document production and the
attendant FERPA notification obligations.
2. Defendant's Requested Discovery

Defendant requests that Plaintiffs provide the names ofthe alleged bullies described in

the Second Amended Complaint, and the names of any Doe Plaintiffs whose claims have been

mooted since the suit was initiated. (Def. Resp. at 6.) The court is not prepared to order

Defendant's requested discovery at this time. Unlike Plaintiff, Defendant did not request
briefing on preliminary discovery at the October 18, 2016,Pre-Motion Conference. Moreover,

the requested information does not appear to be material for arguing a motion to dismiss, and

Defendant has chosen to oppose general discovery until its anticipated motion is decided. (Id
at 2.) To avoid prejudice to Defendant, however,the court will permit Defendant to renew this
request before Magistrate Judge Roanne L. Mann,if Defendant so wishes,
m.

CONCLUSION

For the reasons stated above. Plaintiffs' Motion for Discovery(Dkt. 23)is GRANTED IN
PART AND DENIED IN PART. The parties are DIRECTED to jointly propose to Judge Mann

a plan for preliminary discovery consistent with this opinion by January 5, 2017. Defendant's
request for additional discovery is DENIED WITHOUT PREJUDICE. Should Defendant wish

to pursue the requested discovery at this time. Defendant may direct such request to Judge Mann.
4

No additional requests for discovery will be considered until the court rules on Defendant's
anticipated motion to dismiss.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brookl5m,New York
December S", 2016

NICHOLAS G. GARAUFIS

United States District Judge