Doe v. Brown University
Filing
73
MEMORANDUM AND ORDER Dismissing Plaintiff's 63 Appeal of 1/12/17 Order on Motion to Compel entered by Magistrate Judge Lincoln D. Almond. So Ordered by Chief Judge William E. Smith on 4/13/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
BROWN UNIVERSITY,
)
)
Defendant.
)
___________________________________)
JOHN DOE,
C.A. No. 15-144 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before
the
Court
is
Plaintiff’s
appeal
from
Magistrate
Judge Lincoln D. Almond’s January 12, 2017 Order denying the
part of Plaintiff’s Motion to Compel that sought production—in
unredacted form—of the documents that Defendant had submitted to
the
U.S.
(“OCR”)
Department
regarding
Sclove.
a
of
Education’s
sexual
assault
Office
of
complaint
Civil
filed
Rights
by
Lena
This Court had previously memorialized the parties’
prior agreement that Defendant would produce “all documents and
communications,
including
exchanged
the
misconduct”
with
as
part
[OCR]
of
an
various discovery disputes. 1
1
emails
and
regarding
Order
that
letters,
that
Brown
complaints
of
sexual
addressed
and
resolved
Defendant apparently produced many
Aug. 26, 2016 Order 2, ECF No. 53.
documents pursuant to its agreement with Plaintiff, but redacted
several pages within two specific sets of correspondence with
the OCR.
one
These two sets of correspondence became the basis for
part
of
Plaintiff’s
subsequent
Motion
to
Compel;
the
Magistrate Judge’s ruling on this part of the motion is at the
heart of the instant appeal. 2
In
this
Motion
to
Compel,
Plaintiff
argued
that
he
is
entitled to the unredacted correspondence with the OCR regarding
Lena Sclove because “the Lena Sclove case served as a catalyst
for several events that are relevant to the way Brown University
handled [his] case.” 3
Plaintiff also argued that the redacted
portions of the documents produced may reflect evidence of prior
disciplinary
practices,
which
may
have
changed
after
Lena
Sclove’s public criticism of them, and that the correspondence
might
show
violations
of
the
Sclove-case
respondent’s
due
process rights similar to those claimed by Plaintiff in this
case.
Defendant
objected
to
Plaintiff’s
Motion
to
Compel,
asserting that “[t]here is no justifiable need to require Brown
2
Plaintiff’s Motion to Compel included two other discovery
requests, but Plaintiff only appeals from the part of Magistrate
Judge Almond’s Order that denies his request for the documents
discussed herein.
3
Pl.’s Mem. in Supp. of Mot. to Compel 6, ECF No. 56-1.
2
to disclose the redacted sections for purposes of completing
factual
discovery
in
this
litigation”
because
the
redacted
portions of the produced documents provide detail for multiple
complaints
and
disciplinary
Plaintiff’s case. 4
cases
that
are
unrelated
to
Defendant also asserted that, pursuant to the
Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C.
§ 1232(g),
it
could
not
disclose
any
records
that
contain
information from which a student could be identified without
either
a
court
order
or
subpoena
the
from
the
In his reply, Plaintiff argued for the first time that
should
either
consent
to
student.
Almond
express
notice
student(s)
Judge
or
with
specific
Magistrate
involved,
along
review
the
unredacted
documents in camera or require Defendant to produce a privilege
or redaction log.
After reviewing the parties’ submissions, the prior rulings
in this case, and the applicable scope of delivery pursuant to
Rule
26(b)(1)
of
the
Federal
Rules
of
Civil
Procedure,
Magistrate Judge Almond denied this part of Plaintiff’s Motion
to Compel. 5
In
his
appeal,
Plaintiff
requests
that
the
Court
order
Defendant to promptly produce a privilege and redaction log as
4
Def.’s Mem. in Supp. of Obj. 12, ECF No. 59-1.
5
Jan. 12, 2017 Text Order.
3
to all documents in the litigation and to produce unredacted
copies of the OCR documents for the Court to review in camera.
The
Defendant
neither
clearly
Plaintiff’s
that
the
Magistrate
erroneous
nor
contrary
request
camera review
beyond
argues
that
of
for
the
which
a
privilege
documents
was
initially
to
and
extends
Judge’s
law,
redaction
his
ruling
Motion
argued.
and
log
that
or
to
is
in
Compel
Defendant
also
reiterates that Plaintiff is already in possession of some of
the
information
it
seeks
from
the
OCR
documents
because
Plaintiff has a chart detailing all of Defendant’s proceedings
related to student sexual misconduct from the 2004-05 academic
year through Autumn 2014.
The
Court’s
U.S.C. § 636.
judge’s
role
in
this
appeal
is
circumscribed
by
28
A district judge may only reconsider a magistrate
pretrial
ruling
“where
it
has
been
shown
that
the
magistrate judge’s order is clearly erroneous or contrary to
law.” 6
The Court “must accept both the [magistrate judge’s]
findings of fact and the conclusions drawn therefrom unless,
after scrutinizing the entire record, [it] ‘form[s] a strong,
unyielding belief that a mistake has been made.’” 7
6
7
28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a).
Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st
Cir. 1999) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d
148, 152 (1st Cir. 1990)).
4
After carefully considering the parties’ arguments and the
record in this case, there is simply no basis for the Court to
conclude
that
the
Magistrate
Judge
clearly
erred
when
he
declined to compel Defendant to produce the unredacted form of
the OCR documents.
The Court notes that Plaintiff does not
contend that the Magistrate Judge was clearly wrong but simply
requests that this Court choose to decide the motion differently
than the Magistrate Judge.
Magistrate Judges play a “pivotal
role . . . in overseeing the conduct of the sort of complex
pretrial discovery typified by this case.” 8
The Court will not
second-guess the magistrate judge’s pre-trial discovery rulings
simply because a different conclusion could have been drawn. 9
In
addition, the Court notes that Plaintiff’s argument with respect
to Defendant’s failure to provide a privilege or redaction log
as well as his request that the Court review the documents at
issue in camera were raised for the first time in Plaintiff’s
Reply Memorandum in Further Support of his Motion to Compel.
Our local civil rules of procedure are clear that “[a] reply
8
Ferring Pharm. Inc. v. Braintree Labs., Inc., 168 F. Supp.
3d 355, 358 (D. Mass. 2016) (quoting Gargiulo v. Baystate Health
Inc., 279 F.R.D. 62, 64 (D. Mass. 2012)).
9
Harvard Pilgrim Health Care of New England v. Thompson,
318 F. Supp. 2d 1, 6 (D.R.I. 2004).
5
memorandum shall consist only of a response to an objection and
shall not present additional grounds for granting the motion . .
. .” 10
The Court therefore DISMISSES Plaintiff’s appeal (ECF No.
63)
from
Magistrate
Judge
Almond’s
January
12,
2017
Order
denying the part of Plaintiff’s Motion to Compel that sought the
production of unredacted OCR correspondence from Defendant.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: April 13, 2017
10
DRI LR 7(b)(2); see Pratt v. United States, 129 F.3d 54,
62 (1st Cir. 1997) (noting that arguments not advanced and in
the appellant’s opening brief are deemed waived).
6
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