Crochran et al v. Columbus City Schools et al

Filing 31

ORDER granting in part and denying in part 14 MOTION to Compel Discovery/MOTION for Sanctions; denying 15 MOTION to Quash; denying 18 MOTION to Compel. Signed by Magistrate Judge Terence P. Kemp on 4/27/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Naqis Crochran by his next
Best Friend, Amatullah
Shields, et al.,
Plaintiffs,

:
:
:

v.

: Case No. 2:15-cv-632

Columbus Board of Education,
et al.,
Defendants.

: CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
:

OPINION AND ORDER
This matter is before the Court on several discovery-related
motions.

Plaintiffs Naqis Crochran, by his next friend Amatullah

Shields, and Ms. Shields - Naqis’ mother, who has asserted claims
in her own right - have filed a motion to compel discovery
directed to defendants Columbus Board of Education and employees
of the Columbus City School District.

Plaintiffs have also filed

a motion to compel directed to the Columbus Police Department, a
non-party, seeking subpoenaed documents.

Also before the Court

is a motion to quash subpoenas filed by the Franklin County
Children Services Board, and Plaintiffs’ corresponding motion to
compel included within their response.

The motions have been

fully briefed and the Court resolves them as follows.
I.
Plaintiff Naqis Crochran is an autistic child and special
education student attending South Mifflin STEM Academy.

The

complaint alleges that his rights were violated when he was
placed in a “body sock” in what defendants claim was an effort to
control his unruly behavior.

He was injured as a result.

Plaintiffs claim that the use of the sock was not in Naqis’ IEP

and that it constituted illegal restraint.

Plaintiffs filed this

case under 42 U.S.C. §1983, the IDEA, the ADA, and the
Rehabilitation Act.

They also assert several state law claims.

Plaintiffs named as defendants Columbus City Schools; Columbus
Board of Education; Andrew Smith, the school principal; Courtney
N. Plummer, an intermediate MD teacher; Mary Nicole Ramming, RN,
the school nurse; and Miss Brooks and Laura Shearer, both
identified as teachers.
II.
The first discovery motion the Court will address is
Plaintiffs’ motion to compel directed to the defendants.
In this motion, Plaintiffs contend that the defendants have
delivered inadequate responses to the first set of
interrogatories and document responses, including specifically,
Interrogatory Nos. 1 and 10-12 and Request for Production of
Documents No. 3.

In response, Defendants assert that they have

provided a further response to Interrogatory No. 1.

In reply,

Plaintiffs appear to concede that defendants have provided an
answer to Interrogatory No. 1.

This leaves the following

discovery requests and responses at issue:
Interrogatory No. 10: State whether Columbus City
Schools trained any of the persons named as Defendants
in the Complaint to work with autistic children.
Answer: Objection, overbroad and unduly vague with
regard to the use of the term “to work with.” Without
waiving said objection, all relevant persons are
trained with regard to their college degrees and/or
certifications, and in addition thereto, annually
provided training concerning crises prevention
intervention.
Interrogatory No. 11. State how Columbus City
Schools trained any of the persons named in the
Complaint to work with autistic children.
Answer: See response to Interrogatory No. 10
above.
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Interrogatory No. 12. State how Columbus City
Schools determined that any of the persons named as
Defendants in the Complaint were qualified to work with
autistic children.
Answer: Objection, overbroad and unduly vague as
to the use of the term “to work with”. Without waiving
said objection, all relevant persons qualify through
the degrees, certifications and update annual CPI
training.
Request for Production No. 3. Produce for
inspection and/or copying the Columbus Public Schools
employee handbook, personnel policy manuals, procedure
manuals, employee rules, and supervisor’s handbooks in
effect at the time the events described in the
Complaint occurred.
Response: Objection, overbroad, unduly vage,
unduly burdensome, and not reasonably narrowed to the
issues in this case. If Plaintiff is more specific as
to which relevant policy/manuals are being requested,
Defendants are willing to supplement this response.
Plaintiffs argue that following a telephone conference with
the undersigned Magistrate Judge, Defendants have failed to
properly respond despite the demonstrated unambiguous nature of
the requests and the invalidity of the objections.
Defendants, on the other hand, have a different recollection
of the discovery conference.

They assert that they have answered

all of the interrogatories properly and that Plaintiffs have
ignored their repeated requests to narrow the scope of Request
for Production No. 3.

More specifically, they contend that

Interrogatory No. 10 required only a “yes” answer but that they
provided more information in response.

With respect to

Interrogatory No. 11, they assert that they answered with
specificity and that Plaintiffs are free to depose relevant
individuals for further detail.

As for Interrogatory No. 12,

they contend that they answered truthfully despite the
Plaintiffs’ vague use of the phase “to work with.”
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With respect

to Request for Production No. 3, they assert that they are
willing to supplement their response once Plaintiffs narrow the
scope of the request.
This motion to compel does not require much discussion. The
discovery requests relate to the training of the five individual
defendants - three teachers, a nurse, and a principal.

Turning

to Interrogatory No. 10, the Court agrees with Defendants that it
is worded in a way as to only require a yes or no answer.
Defendants’ response indicates that these individual defendants
receive training.

Consequently, the motion to compel will be

denied as to this interrogatory.
Interrogatory No. 11, on the other hand, appears intended to
elicit further information related to the response to
Interrogatory No. 10.

The Defendants have provided little in the

way of explanation as to how or what specific training has
occurred.

It may be that each individual’s training differed

according to his or her specific job duties.

The Defendants’

blanket response does not acknowledge this possibility.

Further,

to the extent Interrogatory No. 11 asks about training provided
by the Columbus City Schools, an answer that the Defendants
received

college or certification training does not seem

particularly responsive.

The Defendants do, however, make

cursory reference to “annually provided training concerning
crises prevention intervention.”

To the extent that this is

training provided by Columbus City Schools, the Defendants have
not supplied any detail or explanation regarding the training.
Such information would, at a minimum, include the length of the
training, its subject matter, materials provided, and background
on the instructors.

Further, this interrogatory may require a

response which distinguishes between the individual defendants
depending upon their different job duties.

Consequently, the

motion to compel will be granted as to Interrogatory No. 11
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In response to Interrogatory No. 12, Defendants take issue
with the meaning of the term “to work with.”

A reasonable

interpretation of this phrase requires only a common sense
approach which takes into account the specific job duties of each
the five individual defendants.

In their blanket, cursory

response, this is not the approach taken by the Defendants.

This

interrogatory is broader in scope than Interrogatory No. 11 and
requires some explanation of training beyond that provided by
Columbus City Schools, including college degrees or
certifications.

The response, as unique to each individual, may

need to identify qualifications specifically for each of the five
individual defendants.

Consequently, the motion to compel will

be granted as to Interrogatory No. 12.
Further, the motion to compel will be granted as to Request
for Production No. 3.

Following the discovery conference

Plaintiffs advised Defendants that they “are looking for any and
all documents in the defendants’ possession that govern[],
control[], instruct[], or direct[] defendants’ conduct toward
Naqis Crochran.”

Moreover, this request should be read as

limited by the allegations regarding defendants’ conduct toward
Naqis Crochran as contained in the complaint.

Consequently,

Defendants will be directed to respond to this request
accordingly.
Finally, the Court notes that Plaintiffs have requested an
award of attorneys’ fees as a sanction in connection with the
motion to compel.

The Court finds that, under the circumstances

presented, an award of sanctions would be unjust, although it is
hard to characterize Defendants’ responses as being designed to
secure the “just, speedy, and inexpensive determination” of the
case - something the parties are required to employ under
Fed.R.Civ.P. 1.

Consequently, the Court will deny Plaintiffs’

request for an award of attorneys’ fees incurred in connection
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with filing the motion to compel.
III.
The Franklin County Children Services Board has moved to
quash subpoenas issued to FCCS employee Jamie Chambers, FCCS
supervisor Rose Tackett, and the FCCS Keeper of Records seeking
“case file, case notes, summaries, emails, interviews,
recordings, [and] documents pertaining to Naqis Crochran
investigation of Child Abuse/Neglect received on 2/25/13
Substantiated.”
by statute.

It contends that this information is privileged

In support of its motion, FCCS explains that Ohio

Rev. Code §5153.17 imposes a duty on it to keep its records
confidential and that it has no duty under other statutory
provisions to allow inspection of its investigation reports.
Further, it cites to Ohio Rev. Code §2151.421(H), which prohibits
the unauthorized release of abuse and neglect report information,
and subsection (H)(1),

which states that any report made under

that section is confidential.
FCCS argues that this Court should honor the statutory
confidentiality which attaches to the records and should not
require their production.

It notes that Plaintiffs have

requested “an entire FCCS file, which may include information
concerning parties who are strangers to this case as well as
details of the child’s life which has no relevance to this case,”
but does not otherwise seriously contest the relevance of the
requested documents.

It also asserts that the substantial

equivalent of these records is otherwise available through
ordinary discovery methods.

As an alternative, FCCS requests

that the Court order an in camera inspection to determine whether
these records should be produced.

In offering this alternative,

FCCS recognizes that the Court has the "inherent power to order
disclosure" of the requested records as long as (1) they are
relevant; (2) good cause has been established; and (3) the
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admission of the information sought outweighs any confidentiality
considerations.
In response, Plaintiffs explain that they served the
subpoenas at issue in order to obtain additional information
after FCCS provided their counsel with a letter dated March 27,
2013.

According to plaintiffs, this letter was addressed to Gene

T. Harris at Columbus City Schools regarding “a report of alleged
Neglect of Naqis Crochran by Courtney Plummer” at South Mifflin
STEM Academy.

Further, this letter stated that “[a]fter all

individuals were interviewed, the allegation of Neglect has been
Substantiated.”

Plaintiffs have attached a copy of the letter to

their response as Exhibit A.

Plaintiffs contend that they are

entitled to this information despite state statutory requirements
of confidentiality because their interest in the information
outweighs any such concerns.

They contend that this information

must be produced because it is clearly relevant to all of their
federal claims, they have established good cause, and the
admission of such information outweighs the confidentiality
considerations.
In reply, FCCS primarily reiterates the arguments from its
motion.

Further, it notes that, to the extent Plaintiffs have

demonstrated relevance, that is only one of the factors to be
considered by the Court.

FCCS contends that a finding of good

cause for production of the documents requires that disclosure be
in the best interest of the child.

FCCS contends that the best

interest of this particular child is served by confidentiality.
When dealing with a similar state statute which creates a
privacy interest in certain records, this Court stated that:
To the extent that this statute may create a state law
privilege for certain student information, such a
privilege would not be binding on this Court under
Fed.R.Evid. 501. In federal cases dealing with a
federal question, Rule 501 states that privilege “shall
be governed by the principles of the common law as they
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may be interpreted by the courts of the United States
in the light of reason and experience.” Hancock v.
Dodson, 958 F.2d 1367, 1373 (6th Cir.1992); see also
Nilavar v. Mercy Health System–Western Ohio, 210 F.R.D.
597 (S.D. Ohio 2002). Further, the existence of
pendent state law claims does not relieve the Court of
“[the] obligation to apply the federal law of
privilege.” Id.
Smith v. Southwest Licking School Dist. Bd. of Educ., 2010 WL
3910487, *3 (S.D. Ohio Oct. 1, 2010).
Consistent with the above, FCCS recognizes that the Court
has the power to order the production of these records despite
the confidentiality provisions of various Ohio statutes.

In

fact, this Court has previously ordered the production of
documents withheld on the basis of Ohio Rev. Code §2151.421 or
§5153.17, holding that there is no federally-based privilege for
such records.

See, e.g., Wenk v. O’Reilly, 2012 WL 4089892

(S.D. Ohio Sept. 17, 2012).

FCCS, however, contends that the

Court must undertake an in camera inspection and a balancing of
interests before ordering disclosure.
To the extent that a balancing test is necessary, the
balance of interests weighs in favor of discovery given the clear
relevance of the requested information to Plaintiff’s
constitutional claims - relevance which FCCS does not dispute.
Moreover, it seems that, under the circumstances presented here,
the best interest of the child involved is served by the
production of these documents.
Further, while the Court recognizes that in some instances
an in camera inspection of the documents at issue may be
necessary, the Court declines to undertake one here.

Rather,

given that the documents addressed by this order are limited in
scope and pertain only to the events at South Mifflin STEM
Academy in February, 2013, involving plaintiff Naqis Crochran,

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the Court does not find any need to undertake such an inspection
before ordering their production.

Consequently, the Court will

order that these documents be produced without redaction under
whatever level of confidentiality the parties agree is
appropriate.

If the parties cannot agree as to confidentiality,

they may contact the Court.

To this extent, the motion to quash

will be denied and the corresponding motion to compel will be
granted.
IV.
Plaintiffs have also moved to compel the Columbus Police
Department, a non-party, to produce documents sought pursuant to
a subpoena relating to “case notes, summary, videos, recordings,
documents pertaining to investigation of Courtney N. Plummer for
Child Endangering involving child victim Naqis Crochran.”

In

response to the subpoena, Sgt. John Hurst of the Columbus Police
Special Victims Bureau responded stating “I was contacted by our
Public Records Unit, in regards to a subpoena requesting records
on Naqis Crochran.
available.

The only records have been sealed and are not

If you have any further questions contact the Public

Records Unit.”

In their motion to compel, as in their response

to the motion to quash discussed above, Plaintiffs assert that
these documents must be produced because state law
confidentiality privileges are inapplicable to this case.
In response, the City explains that the response to the
subpoena recognizes that, as a matter of Ohio law, expunged
sealed records shall be deemed not to exist.

According to the

City, the relevant statutory provisions are Ohio Rev. Code
§2953.31 through §2953.36 and §2953.52 through §2953.61.

Ohio

Rev. Code §2953.32 applies to records sealed by a court postconviction, and Ohio Rev. Code §2953.52 applies to records sealed
by a court after a not guilty finding, dismissal of charges, or a
no bill.

There are limited reasons for circumventing such
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orders.

Further, it is unlawful for any officer or employee of

the state or a political subdivision to release or make available
an individual’s sealed records.

Ohio Rev. Code §2953.36(A)(2).

The City cites to several cases where this Court has recognized
that it is unlawful to release sealed records, including McDonald
v. Franklin County, 2015 WL 7721187 (S.D. Ohio Nov. 30, 2015) and
Swecker v. Dublin City Sch. Dist., 2010 WL 518166 (S.D. Ohio Feb.
4, 2010).

In conclusion, the City, citing to Sheridan v. Kelly,

2015 WL 1179928 (S.D. Ohio March 13, 2015), notes that sealed
records are treated as if they do not exist and the appropriate
remedy for a person seeking such records is to seek to have the
records unsealed.
In reply, Plaintiffs contend that they are entitled to the
subpoenaed documents notwithstanding the statutes noted by the
City.

They explain that this is so for several reasons:

1) the

subpoena does not ask for sealed records; 2) the City does not
claim to have sealed court records; 3) the City has not produced
a court order; and 4) the records can be made available to Naqis
Crochran because he is the subject of the records.

Plaintiffs

also argue that all of the case law cited by the City is
distinguishable.

Finally, they argue that their interest in the

information outweighs any confidentiality considerations
underlying these specific Ohio Revised provisions and that state
law must yield to the full disclosure of all facts bearing upon
their federal claims.
As explained above, there are a number of potentially
conflicting provisions of rules and statutes that apply to this
situation.

It is this conflict that appears to drive the dispute

rather than any challenge to the relevance of the subpoenaed
documents.

Consequently, the question is whether any applicable

state law prohibitions should be recognized by a federal court as
legitimate reasons for resisting a subpoena which calls for the
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production of information relevant to a claim arising under
federal law.

Plaintiffs argue that they should not be.

The

Court does not agree.
Before addressing this issue at any length, however, the
Court will briefly address Plaintiffs’ other challenges to the
City’s position that sealed documents cannot be produced.

To the

extent Plaintiffs argue that they did not subpoena sealed
documents, it does not appear from their motion to compel that
they understood at the time the subpoena was issued that the
documents were sealed.

Further, to the extent that they contend

that the City does not claim to have sealed records, that appears
to be exactly what Mr. Hurst’s response to the subpoena states.
Additionally, Plaintiffs provide no authority for their position
that the City was required to produce a copy of the court order
sealing the documents in response to the subpoena.

Finally, the

Court does not believe, as Plaintiffs contend or to the extent
that it might have an impact here, that Naqis Crochran is the
subject of the records.

Rather, the focus of the investigation,

as described in the briefing, was Courtney N. Plummer.
Consequently, none of these arguments serve to persuade the Court
that the motion to compel should be granted.
Turning to the more substantive issue raised by Plaintiffs’
motion, the statute in question is not merely a prohibition
against disclosure of records.
penalties.

Rather, it calls for criminal

This prevents the Court from merely analyzing the

question under federal law and balancing the interests of state
law privilege against the interests furthered by disclosure as
was appropriate in considering the motion to quash above.

This

is so because the Court is also required to protect non-parties
to the litigation from being unnecessarily burdened, oppressed,
or harassed by discovery.

See Fed.R.Civ.P. 26(c), 45(d)(3)

Plaintiffs explain that, as with the subpoenas to FCCS, they
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are seeking this information because they were provided a copy of
a letter by Franklin County Children Services concluding that an
allegation of neglect of Naqis Crochran by Courtney Plummer was
substantiated relating to an incident at South Mifflin STEM
Academy.

As set forth above, FCCS has been directed to produce

responsive documents.

Plaintiffs have not demonstrated that any

additional information contained in these sealed records is
essential to their claims.

Further, they have not demonstrated

that information contained in these sealed documents is not
otherwise available.
Under these circumstances, the Court finds that it would be
unnecessarily oppressive to require the City’s Keeper of the
Records, identified in the plaintiffs’ motion as Sgt. John Hurst,
to produce the requested documents in a way that might subject
him to liability.

Rather, as the City suggests, Plaintiffs’

option is to apply to the court which sealed the records for an
order unsealing them.

Consequently, the motion to compel

directed to the City will be denied.
V.
For the reasons set forth above, the motion to compel
directed to defendants (Doc. 14) is granted in part and denied in
part.

The motion to quash filed by FCCS (Doc. 15) is denied.

Any documents relating to reports or investigations regarding the
Plaintiff withheld on the basis of Ohio Rev. Code §2151.421 or
§5153.17 shall be produced to Plaintiffs without redaction as set
forth above within seven days of the date of this order.

The

motion to compel directed to non-party City of Columbus (Doc. 18)
is denied.
VI.
Motions for Reconsideration
Any party may, within fourteen days after this Order is
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filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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