MCCLENDON v. DOUGHERTY et al
Filing
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MEMORANDUM OPINION indicating that, for reasons stated more fully within, Plaintiff's Motion for Reconsideration 51 is hereby granted consistent with the terms of this Memorandum Order. Signed by Judge Nora Barry Fischer on 7/28/11. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELLEN MCCLENDON,
Plaintiff,
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vs.
CHARLES J. DOUGHERTY, an individual;
RALPH L. PEARSON, an individual; and
DUQUESNE UNIVERSTIY, a Pennsylvania
Corporation,
Defendants.
Civil Action No. 2:10-cv-1339
Judge Nora Barry Fischer
MEMORANDUM ORDER
And now this 28th day of July, 2011, the Court having considered the Motion to Compel
Production of Documents (Docket No. [34]) and the Supplemental Motion to Compel Discovery
(Docket No. [45]), both filed by Plaintiff, the Responses in Opposition (Docket Nos. [36] and
[46]) filed by the Defendants, the arguments of counsel made at the motion hearing of May 11,
2011, and the Court‟s in camera review of the American Association of Law Schools Special
Site Visit Report (the Report) regarding the site visit of May 25 – 27, 2010, the Court‟s
Memorandum Order entered on May 23, 2011 (Docket No. [47]), Plaintiff‟s Motion for
Reconsideration and/or Clarification of this Court‟s order of May 23, 2011 (Document [51]),
Defendants‟ Response in Opposition (Docket No. [54]), the arguments of counsel at the hearing
of June 15, 2011 (Docket No. [66]), and having re-reviewed the Report sought by Plaintiff in
camera, the Court has reconsidered its order of May 23, 2011 (Docket No. [47]) and will permit
disclosure of a portion of said Report under the conditions set forth below.
“Motions for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure
are granted sparingly „[b]ecause federal courts have a strong interest in finality of judgments.‟”
Jacobs v. Bayha, Civ. A. No. 07-237, 2011 WL 1044638, at *2 (W.D.Pa. Mar. 18, 2011)
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(quoting Continental Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 938, 943 (E.D.Pa. 1995))
(emphasis added). “Because of the interest in finality, at least at the district court level … the
parties are not free to relitigate issues the court has already decided.” Williams v. City of
Pittsburgh, 32 F.Supp .2d 236, 238 (W.D.Pa.1998) (citing Rottmund v. Continental Assurance
Co., 813 F.Supp. 1104, 1107 (E.D.Pa.1992)). The purpose of a motion for reconsideration is “‟to
correct manifest errors of law or fact or to present newly discovered evidence.‟” Max’s Seafood
Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir. 1985)). A Court may grant a motion for reconsideration if the moving
party shows: (1) an intervening change in the controlling law; (2) the availability of new
evidence which was not available when the court issued its order; or (3) the need to correct a
clear error of law or fact or to prevent a manifest injustice. Max’s Seafood Café by Lou Ann, Inc.
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. Cigna Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
Where the basis of a motion for reconsideration is to correct a manifest injustice, the
moving party must show not only that the underlying decision was wrong but “that it was clearly
wrong and that adherence to the decision would create a manifest injustice.” Payne v. DeLuca,
No. 02-1927, 2006 WL 3590014, at *2 (W.D.Pa. Dec.11, 2006); see Donaldson v. Informatica
Corp., 2009 WL 5184380, *1 (W.D.Pa. December 22, 2010). In the Court‟s opinion, manifest
justice, taking into consideration that Plaintiff‟s counsel has never seen the Report 1, appears to
favor allowing Plaintiff‟s counsel the opportunity to review a portion of said Report in camera
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Plaintiff has seen the report twice before. It should be noted that the review of the Report by Plaintiff and his
execution of the confidentiality agreement took place after the filing of this lawsuit and so Plaintiff, a law professor,
should have been aware at the time he reviewed the Report that if it contained discoverable information, he might be
waiving his right to use it in this lawsuit by signing the confidentiality agreement.
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thus allowing Plaintiff‟s counsel the opportunity to pursue specific discovery requests addressed
to the AALS, if necessary.
The Court first notes that the Report relates to two (2) general areas: i.e. governance and
finances. Given the nature of the present suit, the finances section of the report is clearly
irrelevant and, in this Court‟s estimation, does not lead to potentially discoverable and
admissible evidence. Taking the focus of the report into consideration, the Court also notes that
Plaintiff alleges at ¶ 8 of his Amended Complaint (Docket No. [30]), disparate treatment, a
racially hostile working environment, a failure to establish and maintain an effective means of
resolving complaints of racial discrimination, failure to cooperate with internal Affirmative
Action investigations, improperly terminating Affirmative Action investigations, a failure to
affirm recommendations made by the Affirmative Action Officer, intimidation of and retaliation
against those who complain of racial discrimination and the denial of his contractual rights to a
grievance procedure for complaints of racial discrimination that include a completed
investigation and final determination.2 At argument, Plaintiff‟s counsel stressed his client‟s
deprivation of Plaintiff‟s purported contractual rights to a complete grievance procedure. (Docket
No. 68, p. 67). It is against these claims that relevance is determined as to each discovery request
made. Texas Capital Corp. v. Fleet Capital Corp., 2004 WL 1472778 (E.D.Pa.).
Plaintiff asserts that the imposition of unnecessary limitations on discovery is to be
avoided in Title VII cases. Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir.1983); see
Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 54 (D.N.J. 1985); see also Sempier v.
Johnson & Higgins, 45 F.3d 724, 734 (3d. Cir. 1995). While these cases support the Plaintiff‟s
contention, they all pre-date the amendments to Rule 26 that went into effect in 2000. Those
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His claims as to the decanal search of 2004-05 and the use of the term “token” applied to his application to that
search and the failure to investigate his grievance of 2010 have been dismissed as independent causes of action, with
prejudice. (Docket No. [26]).
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amendments “as restyled in 2007, narrowed the scope of party-controlled discovery to matters
„relevant to any party‟s claim or defense‟” rather than “any information that was not privileged
so long as it was relevant to the „subject matter involved in the pending litigation.‟” Moore’s
Federal Practice 3d. §26.41[2][a]. However, neither the 2000 nor 2007 amendments to Rule 26
preclude inquiry into all matters relevant to the subject matter involved in the pending litigation.
The Court is permitted to expand the scope of discovery in cases requiring a broader scope of
discovery, even as to a specific single request, and a demonstration of good cause. Id. at
§26.41[6][b]. It is for the Court to determine if the discovery is relevant to support a claim or
defense. Id. at §26.41[6][c]. Ultimately, it is the Court‟s responsibility to use its administrative
authority to control discovery eliminating instances in which parties stray well off the target of
what is relevant to the matters at issue in the case. Id. One consideration would be information
not specific to the particular claim, but similar enough to render the matter relevant. Id. at
§26.41[7][a]. In this case, information that demonstrates similar treatment as that alleged could
be relevant.
Having reviewed the Report in camera, the Court finds that the information contained in
it is entirely a summary of information supplied to the site visitors by others. Accordingly,
nothing in the report is admissible at trial as all the information is hearsay and does not fit within
any hearsay exception. Fed. R. E. 803, 804, 807; Ebenhoech v. Koppers Industries, Inc., 239
F.Supp 2d. 455, 462 (D.N.J. 2002) citing United States v. Furst, 886 F.2d 558, 571 (3d Cir.
1989), cert. denied, 493 U.S. 1062 (1990). However, it is not an objection to the discoverability
of information that it will not be admissible at trial. Id. at §26.43. This is particularly so when the
item sought to be produced could suggest the existence of documents that are related to the
allegations set forth in the complaint. Id. at §26.44. Finally, in Title VII cases, a plaintiff will still
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be permitted a broader than normal scope of discovery because of the very nature of the claims,
the information necessary to prove the claims, and the diasporatic nature of the information
itself. Id. at §26.46[7][a].
In its previous order (Docket No. [47]), the Court noted that the site visit was preceded by
communications from AALS to members of the law school faculty asking for faculty members to
meet with the site visitors. (Docket No. [54-1]). Plaintiff received such a letter as well as a list of
faculty members who had also received the letter. (Id.). Moreover, Plaintiff was asked to
recommend other faculty members to receive the letter. (Id.). It is clear that Plaintiff knew who
was asked to be interviewed by AALS as well as whom, if anyone, he recommended for an
interview. There is nothing to prevent Plaintiff from approaching anyone on the list to ask if
he/she were aware of alleged racial discrimination in the governance of the law school.
Moreover, as Plaintiff apparently met with the site visitors and read the Report on two (2)
occasions, he can surely identify the site visitors3. At the commencement of this case, Plaintiff
could have noticed such depositions and included a Rule 30(b)(6) notice for the deposition of an
AALS representative with a notice to produce any documents provided during the site visit. He
did not.4
With regard to the report in question, there is reference to Plaintiff and the fact he was not
recommended for the decanal position in 2005 and that his elimination from consideration
occurred at an early stage. The report then makes note of the filing of this lawsuit. In a footnote,
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The Court rejects Plaintiff‟s claim that he cannot communicate his knowledge of the contents of the report on the
grounds that he signed a confidentiality agreement. Such an argument suggests that no party can communicate with
his or her attorney any information acquired from a confidential source, even when that information could lead to
discoverable information. Such an argument is akin to asserting that communications between a physician and
patient cannot be disclosed to the patient‟s attorney in a medical malpractice action. It is clear that Plaintiff can
communicate freely with his counsel the contents of the report in an effort to identify relevant information for
additional investigation, permitted discovery, the identification of witnesses and use at trial.
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On January 10, 2011, this Court, after a Case Management Conference where discovery needs and timing were
discussed, entered an Order giving the parties until June 6, 2011 to complete fact discovery. (Docket Nos. 21 and
24).
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the report references voiced complaints about the 2004-2005 decanal search process, the absence
of minority candidates, and the receipt by the site visitors of a large number of documents about
the Guter search furnished by a faculty member who had access to information about that
particular decanal search.5 There are also references to comments by Dougherty in the press
denying claims of discrimination and the site visitors‟ acknowledgement that there are concerns
voiced by most of the minority faculty about the school‟s governance.
In its initial decision regarding the discoverability of the Report, the Court focused on
factual statements in the report that were specific to the claims raised in Plaintiff‟s Amended
Complaint. As can be understood from the Report references above, there are indirect
implications of possible discrimination voiced by faculty members that might lead to relevant
evidence pertinent to Plaintiff‟s claims to render limited disclosure of the Report, when
considering the arguments of counsel. Specifically, Plaintiff has narrowed his request to review
the Report in order to determine what information was gathered by the site visitors that
referenced possible discrimination. (Docket No. 68. p. 44). Such documents, as stated above are
mentioned in the Report. Plaintiff should be permitted to identify, obtain and review these
documents. Accordingly, the Court will permit the Plaintiff to review the Report in camera in
order to be exact in his attempt to obtain the noted documents and inquire as to the circumstances
in which they were obtained.
The Court has been informed that AALS considers the Report confidential. AALS
transmitted the Report to Dougherty and Dean Gormley with a cover page stating:
IMPORTANT: The report was prepared for the use of the President and
Executive Director of the Association of American Law Schools and is not for
public release. Any copying or redistribution of part or all of this report is subject
to this restriction.
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Plaintiff‟s claims arising out of the 2004-2005 decanal search have been previously dismissed, with prejudice.
(Docket No. 27)
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The Executive Director of the AALS, Susan Westerberg Prager, also directed a memorandum to
the Members of the Duquesne Law School Faculty , including Plaintiff, stating as follows:
At that outset I want to emphasize that all AALS site visit reports are formally
categorized by the AALS as confidential documents. AALS‟s written policies
make explicit that no person other than the Dean and the President has the right to
see the Report of an AALS site team. However, the Dean is permitted to share the
report with members of the full-time faculty, with professional staff of the law
school, and with officials of the university who have official reason for access.
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I cannot emphasize strongly enough that, if a Dean decides to share the report
with any individual(s) who fall within the limited circle of those to whom he may
provide access, AALS requires that the confidentiality of the report be preserved.
It has come to my attention that a member of the faculty has expressed resistance
to the idea that the AALS can constrain access to communications in the AALS
membership process. This fact causes me to take the unusual step of asking your
dean to consider not providing access to the Report of the Special Team to
members of the faculty who will not honor the confidentiality of the Report or to
take additional steps to assure confidentiality.
Plaintiff agreed that the Report would be kept confidential. Plaintiff signed the Confidentiality
Agreement and was given the opportunity to review the Report. Plaintiff was subsequently given
the opportunity to review the AALS Site Visit Report a second time. Because there is a general
agreement that the Report, itself, should be kept confidential, it is appropriate for the Court to
limit the use of the Report.
However, Rule 26 allows generally only two approaches for seeking the protection of
sensitive-but discoverable-information, like that at issue here. A party seeking to protect the
confidentiality of such information may argue that the information is protected by an evidentiary
privilege. Any material covered by a properly asserted privilege would necessarily be protected
from discovery, pursuant to Rule 26(b)(1). Where, as here, such a privilege is not available, a
protective order that limits discovery in accordance with Rule 26(c) may be applied. The court,
in its discretion, is authorized to fashion a set of limitations that allows as much relevant material
to be discovered as possible, while preventing unnecessary intrusions into the legitimate
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interests-including privacy and other confidentiality interests-that might be harmed by the release
of the material sought. Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).
Plaintiff‟s counsel, and Plaintiff, will therefore be permitted to review the Report in
camera, with the section pertinent to finances redacted. Counsel for Defendants shall produce the
Report to Plaintiff and his counsel in redacted form on or before August 11, 2011. Plaintiff and
his counsel are prohibited from disclosing the contents of the Report beyond the confines of this
case, without prior notice to AALS and Duquesne. Such notice will be sufficient to allow AALS
and/or Duquesne the opportunity to seek a protective order from this Court if either chooses to
do so.
Plaintiff‟s Motion for Reconsideration is hereby GRANTED consistent with the terms of
this Memorandum Order.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record.
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