Doe v. The Ohio State University et al
ORDER denying 51 Motion to Quash. Signed by Magistrate Judge Terence P. Kemp on 2/11/2016. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
The Ohio State University,
Case No. 2:15-cv-2830
JUDGE GREGORY L. FROST
Magistrate Judge Kemp
This case, which will come before the Court for a
preliminary injunction hearing beginning on February 16, 2016,
was explained in this way in an earlier order of the Court:
John Doe is a former medical school student at The
Ohio State University who was enrolled in a joint
M.D./M.B.A. program. He was scheduled to graduate in
Spring 2016, but in July 2015, John Doe came before the
school's Conduct Board to answer an allegation that he
had engaged in sexual conduct with a medical student,
Jane Roe, without obtaining her consent.
Following the hearing, the school expelled John
Doe. He appealed, and after the school upheld his
expulsion, John Doe filed the instant action on
September 15, 2015. In his complaint, John Doe asserts
the following claims: declaratory judgment that the OSU
Defendants violated his due process rights (Count I);
violation of 42 U.S.C. § 1983 (Count II); declaratory
judgment that the OSU Defendants violated Title IX, 2o
(sic) U.S.C. § 1681 et seq., and its implementing
regulations, 34 C.F.R. Part 106 (Count III); violation
of Title IX (Count IV); and injunctive relief (Count
Doe v. The Ohio State University, 2015 WL 6082606, *1 (S.D. Ohio
Oct. 16, 2015)(Frost, J.).
The complaint has since been amended
and now alleges only the first two claims.
See Doc. 44.
Pursuant to Judge Frost’s order, the parties conducted
deposition was taken.
As a part of that discovery, Jane Roe’s
Plaintiff has issued a subpoena commanding
her to appear and testify at the preliminary injunction hearing.
She responded with a motion to quash, which is now fully briefed.
For the following reasons, that motion will be denied.
There are only a handful of basic facts underlying the
motion to quash, and they appear to be undisputed.
Jane Roe is
not a party to this case, but did testify at the student
According to Plaintiff’s amended
complaint, she was not truthful about when she received
accommodations from Ohio State or the extent of them, but he was
not allowed to pursue that issue, prejudicing his defense.
Jane Roe was deposed on January 14, 2016.
lasted several hours and has been transcribed and signed.
apparently within the subpoena power of the Court for purposes of
the preliminary injunction hearing, and has been properly served
with a subpoena.
According to Jane Roe’s attorney, the bulk of the questions
asked at the deposition dealt with Ms. Roe’s academic record.
Her academic file had been produced to Plaintiff’s counsel prior
to the deposition.
Should she appear as a witness at the preliminary injunction
hearing, Plaintiff does not intend to ask Jane Roe about the
alleged sexual assault.
Rather, he intends to question her about
what she told the various defendants about her academic
accommodations and what she told the hearing panel.
contends that this testimony would show that the hearing panel
did not have all the relevant facts to consider and that the
defendants knew that.
He also alleges in his responsive
memorandum that discovery which occurred after the deposition has
revealed new information about which Jane Roe has not been
Jane Roe apparently does not dispute this
allegation, but asserts that the same information can be obtained
from the defendants without the need for her to testify about it.
Finally, it appears that defendants have agreed to waive any
objection to the Court’s consideration of Jane Roe’s deposition
testimony in connection with the motion for a preliminary
There is a “time honored principle that under our system of
justice every litigant is entitled to another person's relevant
and non privileged testimony in a judicial proceeding.”
QVC, 221 F.R.D. 430, 432 (E.D. Pa. 2004).
Although Jane Roe
argues that because she is a non-party to this case, that “status
weighs heavily in favor of quashing the [s]ubpoena,”
Memorandum, Doc. 57, at 6, the authority cited for that
proposition comes from the discovery context where special
consideration is given to non-parties to avoid imposing undue
burdens upon them when they are asked to participate in the
Non-party witnesses are routinely subpoenaed
to testify at trial, and the fact that they are not parties to
the case is usually not viewed as a significant barrier to
enforcing a validly-issued subpoena.
On the other hand, as Jane Roe correctly observes, a
preliminary injunction hearing is not a trial.
This fact, plus
the fact that Ohio State has agreed to waive any objection to the
introduction of her testimony by way of deposition, substantially
undercuts Plaintiff’s argument that the only way he can present
her evidence to the Court is through live testimony.
It has long
been the case that affidavits, which are otherwise hearsay and
not admissible at trial, can be considered in connection with a
motion for a preliminary injunction.
See Wright & Miller,
Federal Practice and Procedure, 3d. Ed., at §2949
are appropriate on a preliminary-injunction motion ...”).
same holds true for other usually inadmissible forms of evidence.
“Rule 65(a) permits the use of evidence that would not be
admissible at a trial on the merits in determining a motion for a
Factors Etc., Inc. v. Pro Arts, Inc.,
496 F.Supp. 1090, 1104 (S.D.N.Y. 1980),
652 F.2d 278 (2d Cir. 1981).
rev’d on other grounds
And there is authority for quashing
a subpoena to appear at a preliminary injunction hearing because
the witness has already provided all relevant testimony at a
See Maui Vacation Rental Ass’n v. County of Maui,
2007 WL 4372075 (D. Hawaii 2007).
Consequently, the issue is not
so much whether, if the Court grants the motion to quash, it will
be deprived of Jane Roe’s testimony altogether; the issue is
whether the benefits to the truth-seeking process, which is in
play just as much at a preliminary injunction hearing as it is at
trial, outweigh any burden which Jane Roe will undergo if she is
forced to testify live.
The Court deems the following considerations to be important
to its decision.
First, one of the major drawbacks of a
deposition is that the Court cannot independently judge the
credibility of the witness other than through consideration of
the words spoken, which may or may not be helpful to that
Second, a deposition represents a witness’ testimony as
of a fixed point in time - the date of the deposition - and it
does not permit additional questioning of the witness about
later-acquired information (and there is some of that in this
Third, the Court cannot ask questions of witnesses who
appear only by deposition, and, especially at a hearing where the
Court is the fact-finder, the ability to ask questions is often
helpful, and sometimes crucial, to the outcome of the proceeding.
Fourth, there is something about the formality of testifying in a
courtroom in front of a judge, and as part of a formal, public
hearing (as opposed to giving a deposition in a lawyer’s office),
that reinforces the need for a witness to be open and forthright
in his or her testimony.
Against these factors, the Court may - at least in a nontrial setting where deposition testimony can be considered even
though the witness is available to testify - take into account
the burden and expense occasioned by a subpoena (usually measured
in terms of monetary expense or time away from work or family
duties) and the effort involved in travel or in the physical
requirements of testifying - for example, when a witness has a
medical condition that makes the very act of being a witness a
And, as noted, the Court may also consider
whether the deposition represents the full testimony of the
witness on the relevant subjects, so that his or her hearing
testimony would be merely duplicative or irrelevant.
that does not appear to be the case here (the Court is not
inclined, at this point, to conclude that testimony about the
alleged cash payment can be obtained with equal ease, and with
equal impact, from the defendants), and because Jane Roe has not
made the typical arguments about undue financial burden or
expense, none of these factors are particularly compelling.
leaves only one argument - that it will be traumatic for Jane Roe
to face her alleged assailant during the preliminary injunction
The Court does not mean, in any way, to suggest that this is
not a legitimate factor or that Jane Roe either would not, or
should not, have some trepidation about being questioned in a
public forum in the presence of the person whom she claims to
have assaulted her.
But, as the Court understands the record,
she has done so once already, at the student hearing - where
Plaintiff himself, and not his attorney, asked her questions -5-
and possibly twice, if Plaintiff attended her deposition.
has not submitted any evidence to suggest that these encounters
created or exacerbated any medical condition from which she might
Further, while this is not a criminal case, and the
Confrontation Clause does not apply, victims of various types of
assault testify in court every day in the presence of the alleged
They are undoubtedly uncomfortable in doing so, but
the truth-seeking process generally demands their live testimony.
The courtroom setting does afford a measure of protection to
witnesses in terms of rules of decorum, physical separation, and
control of the proceedings by a neutral party, all of which
operate to reduce or eliminate the risk that the proceeding will
be more traumatic than necessary.
Additionally, this case is
different from the typical criminal proceeding in that, as the
Court understands it, Jane Roe will not be asked about the
alleged assault, but will be questioned on collateral matters
relating to the fairness of the hearing process.
Exercising the equitable discretion of the Court is not a
Perhaps the absence of Jane Roe’s live
testimony will not impact the Court’s decision on the pending
motion for a preliminary injunction, but there is no way to know
that for sure.
Balancing all of the relevant factors, the Court
concludes that because Jane Roe is an important witness, because
her deposition testimony did not address at least one apparently
important issue, because the Plaintiff (and the University) have
significant interests to be furthered and protected by the
correct resolution of the preliminary injunction motion, and
because it is important that the process by which the motion is
to be decided gives the Court the best opportunity to ascertain
the truth, the motion to quash will be denied.
For all of the reasons set forth above, the Court denies the
motion to quash (Doc. 51).
Motion to Reconsider
Any party may, within fourteen days after this Order is
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. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
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, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge
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