Doe v. The Ohio State University et al
Filing
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OPINION AND ORDER granting the Department of Education's 66 Motion to Quash Subpoenas and denying without prejudice Plaintiff's 68 Motion to Compel. Signed by Magistrate Judge Chelsey M. Vascura on 3/19/2018. (kpt)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN DOE,
Plaintiff,
Civil Action 2:16-cv-171
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura
v.
THE OHIO STATE UNIVERSITY, et al.,
Defendants.
OPINION AND ORDER
Plaintiff Doe brings this action under Title IX of the Educational Amendments of 1972,
20 U.S.C. §§ 1681, et seq., and 42 U.S.C. § 1983. He alleges, inter alia, that Defendants
expelled him from The Ohio State University in response to pressure exerted on the University
from The United States Department of Education to aggressively pursue disciplinary actions
against male students for alleged sexual misconduct. Plaintiff further alleges that pressure from
the Department of Education resulted in an erroneous outcome in his case.
As part of his attempt to show that the Department of Education exerted such pressure,
Plaintiff issued a subpoena to the Department of Education’s Office for Civil Rights on
December 27, 2017. The subpoena listed five categories of documents; however, Plaintiff
subsequently narrowed the request to the following two categories:
(1) All document(s) and communication(s) created between April 4, 2011 and
August 7, 2015 – which the Department of Education neither provided to OSU
nor received from OSU – that related to any sexual misconduct investigations(s)
the Department conducted regarding OSU’s implementation of Title IX;
(2) All document(s) and communication(s) created between April 4, 2011 and
August 7, 2015 – which the Department of Education neither provided to OSU
nor received from OSU – that related to any sexual misconduct complaint the
Department received regarding OSU’s implementation of Title IX.
On January 31, 2018, the Department of Education moved to quash the subpoena.
Plaintiff opposes the Department’s motion and has moved to compel production of documents in
the two above-described categories. This matter is now before the Court on the parties’ motions
(ECF No. 66 and 68).
The Department of Education refused to provide documents in response to the subpoena
on the ground that Department regulations, enacted pursuant to the Supreme Court’s decision in
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), permit it to withhold requested
documents at the discretion of the Secretary of Education or her designee. Candice Jackson,
Acting Assistant Secretary for Civil Rights, is the Secretary’s designee. Ms. Jackson determined
that production of the documents requested by Plaintiff would be contrary to the interests of the
Department of Education and the United States. The Department of Education asks the Court to
quash the subpoena on that basis.
Plaintiff opposes the Department’s motion to quash and asks the Court to compel
production on the ground that Touhy regulations do not supplant the Federal Rules of Civil
Procedure or wrest authority from this Court to compel production under Rule 26(b). The
Department of Education opposes Plaintiff’s motion to compel on the same Touhy regulation
ground that it asserts in support of its motion to quash. It also argues, in its memorandum in
opposition to Plaintiff’s motion to compel, that documents in the two above-described categories
are not relevant to Plaintiff’s allegation that Defendants imposed discipline on him as a result of
pressure from the Department of Education.
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The Federal Rules of Civil Procedure grant parties the right to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1). Relevance is construed very broadly for discovery purposes. See Lewis v. ACB Bus.
Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). However, the concept of relevance is not
unlimited. Averett v. Honda of Am. Mfg., Inc., No. 2:07-cv-1167, 2009 WL 799638, at *2 (S.D.
Ohio March 24, 2009). The burden of demonstrating relevance is on the party issuing the
subpoena. Am. Electric Power Co., Inc. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)
(citing Katz v. Batavia Marine & Sporting Supplies, 984 F.2d 422, 424-25 (Fed. Cir. 1993)). See
also Berryman v. Supervalu Holdings, Inc., No. 3:05-cv-169, 2008 WL 4934007, at *9 (S.D.
Ohio 2008) (“At least when the relevance of a discovery request has been challenged the burden
is on the requestor to show the relevance of the requested information”) (internal citation
omitted)).
To satisfy the discoverability standard, the information sought must have more than
minimal relevance to the claims or defenses. Vaigasi v. Mgmt. Corp., No. 11 Civ. 5088, 2016
WL 616386, at *7 (S.D.N.Y. Feb. 16, 2016). See also Jenkins v. Pech, No. 8:14CV41, 2015 WL
728305, at *4 (D. Neb. Feb. 19, 2015) (minimal relevance insufficient to support issuance of
subpoena). Information that is “negligibly relevant [or] minimally important in resolving the
issues” does not satisfy the standard. See VHT, Inc. v. Zillow Grp., Inc., No. C15-1096JLR, 2016
WL 7077235, at *1 (W.D. Wash. Sept. 8, 2016).
Under Rule 45 of the Federal Rules of Civil Procedure, a party may command a nonparty
to produce documents. Fed. R. Civ. P. 45(a)(1). Rule 45 permits the Court to quash a subpoena
that subjects a non-party to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv). Although Rule
45 does not specifically include irrelevance as a basis for quashing a subpoena, “the scope of
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discovery under a subpoena is the same as the scope if discovery under Rule 26.” Hendricks v.
Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (internal citation and
quotation marks omitted). When a nonparty challenges a subpoena on grounds that the request is
over-burdensome, the party seeking the discovery must establish that the information sought is
relevant. See Spartanburg Reg. Healthcare Sys. v. Hillenbrand Indus., No. 1:05-mc-107, 2005
WL 2045818, at *4 (W.D. Mich. Aug. 24, 2005). Courts will balance the need for the discovery
against the burden imposed on the person ordered to produce documents, and that person’s status
as a nonparty is a factor weighing against disclosure. See Katz, 984 F.2d at 424.
The Department of Education’s primary basis for resisting the subpoena in this case is
that its designated official has declined to permit production under its Touhy regulations.
Plaintiff counters that the Touhy regulations do not permit the Department to evade discovery
requests that comply with the Federal Rules of Civil Procedure. See, e.g., United States v. Blue
Cross/Blue Shield of Mich., No. 10-14155, 2012 WL 4513600, at *5 (E.D. Mich. Oct. 1, 2012).
Even if Plaintiff is correct in his formulation of the applicable law, however, he must still
demonstrate that the requested documents are more than minimally relevant in order to gain
production. He has not done so.
The theory of relevance under which Plaintiff seeks the two categories of documents
identified above is that they will help him to prove that Defendants “unlawfully expelled
[Plaintiff] in part to prove to [the Department of Education] that OSU was correcting its alleged
past failure to discipline male students accused of sexual misconduct.” (Mot. to Compel 1, ECF
No. 68 at PAGEID #3562.) In other words, Plaintiff alleges that Defendants succumbed to
pressure from the Department of Education to find him guilty of sexual misconduct. So, to be
relevant, the documents must have some tendency to support that theory.
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Plaintiff has described the categories he seeks as explicitly excluding documents of which
Defendants would have known. Both categories include only documents “which the Department
of Education neither provided to OSU nor received from OSU.” So, responsive documents relate
to the Department’s investigation of The Ohio State University and to communications the
Department received about sexual misconduct complaints related to that investigation but only to
the extent that those documents were not shared with Defendants or received from Defendants.
Plaintiff is certainly correct in asserting that the requested documents may illuminate the
Department’s motivations as they relate to the University. The Department is not a party,
however, and its motivations are not at issue. They are not relevant. Its actions directed at the
University and its interactions with the University are relevant to the extent that they may
support Plaintiff’s theory that Defendants acted in response to those actions and not solely on the
basis of the evidence sexual misconduct by Plaintiff. The problem with the subpoena is that it
explicitly excludes documents that would tend to illustrate those actions and interactions. It
requests only documents that could not have motivated Defendants because they were unknown.
Although the requested documents may serve to demonstrate a motivation within the Department
to apply pressure to the University, the documents are only negligibly relevant to Plaintiff’s
claims because they do not serve to clarify Defendants’ motivations, which are at issue. Any
documents or communications from the Department of Education to the University or from the
University to the Department that may bear on the factors motivating Defendants should be in
the University’s possession and obtainable from Defendants.
For that reason, the Court concludes that the two categories of subpoenaed documents
described above are not relevant to Plaintiff’s claims. The Department of Education’s Motion to
Quash Subpoenas (ECF No. 66) is GRANTED. Plaintiff’s Motion to Compel a Subset of
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Documents Sought in Plaintiff’s Subpoena to the United States Department of Education (ECF
No. 68) is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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