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