Hernandez v. Baylor University Board of Regents et al
ORDER GRANTING 97 Motion for Protective Order. Signed by Judge Robert Pitman. (tb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
BAYLOR UNIVERSITY, et al.,
Before the Court in the above-entitled matter is Defendant Ian McCaw’s Motion for
Protective Order, which seeks to prevent the deposition of third-party Jerry Falwell Jr. (Dkt. 97).
Having considered the motion, Plaintiff’s response, and relevant law, the Court hereby GRANTS
Defendant McCaw’s Motion.
Plaintiff Jasmin Hernandez (“Plaintiff”), a former student at Baylor University, was sexually
assaulted by fellow student Tevin S. Elliott (“Elliott”) during her freshman year. 1 She asserts claims
against Baylor under Title IX of the Education Amendment Acts of 1972 and under the commonlaw doctrine of negligence. Plaintiff also asserts negligence claims against former Baylor Head
Football Coach Art Briles (“Defendant Briles”) and former Baylor Athletic Director Ian McCaw
(“Defendant McCaw”). 2
In November 2016, Defendant McCaw accepted a position as athletic director at Liberty
University. (Mot. Protective Order, Dkt. 97, at 4). At the time, Liberty University President Jerry
Falwell, Jr. (“Mr. Falwell”) issued a public statement regarding the hiring of Defendant McCaw. (Id.).
Elliott was convicted of sexually assaulting Plaintiff on April 23, 2015. See Tevin Elliott v. State of Texas, No. 10-1400112-CR, 2015 WL 1877052, at *1 (Tex.App.—Waco, April 23, 2015, pet. ref’d).
2 Plaintiff also asserted claims against all defendants for intentional infliction of emotional distress; those claims were
dismissed. (Order, Dkt. 105, at 25).
Specifically, Mr. Falwell stated that he “communicated with people McCaw worked with at Baylor,
including Regents who heard everything the investigating law firm ha[d] to say about what
happened”; “conducted a background investigation and checked with other sources, including
former head coach and athletic director Grant Teaff”; and “spoke openly and directly with Ian
McCaw about the situation at Baylor.” (Dkt. 97-1, at 1). Plaintiff now seeks to depose Mr. Falwell.
(Subpoena to Testify at Dep., Dkt. 97-2; Subpoena to Testify at Dep., Dkt. 119-1).
II. LEGAL STANDARD
The scope of discovery is broad. Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 262
(5th Cir. 2011). Federal Rule of Civil Procedure 26 provides that, unless otherwise limited by court
may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “A discovery request is relevant when the request seeks admissible evidence
or ‘is reasonably calculated to lead to the discovery of admissible evidence.’” Crosby, 647 F.3d at 262
(quoting Wiwa v. Royal Dutch Petrol. Co., 392 F.3d 812, 820 (5th Cir. 2004)).
Federal Rule of Civil Procedure 26(b)(2)(C) mandates that a court limit the frequency or
extent of discovery otherwise allowed if it determines that
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C). Discovery is outside the scope permitted by Rule 26(b)(1) if the
discovery sought is (1) privileged; (2) not relevant to any party’s claims or defense; or (3) not
“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Courts can “try to achieve
proportional discovery by regulating the timing and sequence of discovery . . . as the circumstances
warrant.” Fed. R. Civ. P. 26 cmt. “The party seeking discovery bears the initial burden of showing
that the materials and information sought are relevant to the action or will lead to the discovery of
admissible evidence.” Reynolds v. Cactus Drilling Co., LLC, No. MO:15-CV-00101-DAE-DC, 2015
WL 12660110, at *2 (W.D. Tex. Dec. 21, 2015).
The Federal Rules also provide for permissive limitations on discovery requests. To that end,
a court “may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). That order
may—among other things—forbid the discovery, forbid inquiry into certain matters, or limit the
scope of discovery to certain matters. Id. In such circumstances, “the burden is upon [the party
seeking the protective order] to show the necessity of its issuance, which contemplates a particular
and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In
re Terra Int’l, 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326
n.3 (5th Cir. 1978)); Robinson v. Dallas Cty. Cmty. Coll. Dist., No. 3:14-CV-4187-D, 2016 WL 1273900,
at *3 (N.D. Tex. Feb. 18, 2016) (explaining that the recent amendments to Rule 26 “do not alter the
burdens imposed on the party resisting discovery”). Generally, “‘[j]udges should not hesitate to
exercise appropriate control over the discovery process.’” Fed. R. Civ. P. 26 cmt. (quoting Herbert v.
Lando, 441 U.S. 153, 177 (1979)).
Defendant McCaw argues that both the mandatory and permissive limitations on discovery
requests require the Court to prohibit Plaintiff from seeking the deposition of Falwell. (Mot.
Protective Order, Dkt. 97, at 9). The Court addresses each of these arguments in turn.
A. Rule 26(b)(1)
With respect to Rule 26(b)(1)’s mandatory limitations on discovery requests, Defendant
McCaw first argues that the Court “must issue a protective order prohibiting Plaintiff from deposing
President Falwell because the deposition . . . will not reveal information relevant to any parties’ claim
or defense.” (Id.). Specifically, Defendant McCaw asserts that (1) Mr. Falwell’s decision to hire
Defendant McCaw—made over four years after the incident that forms the basis of Plaintiff’s
claims—“has nothing to do with McCaw’s actions or inactions while at Baylor that are the subject of
this lawsuit”; and (2) the only information Mr. Falwell may have is second- or third-hand knowledge
received from Defendant McCaw and/or members of the Baylor Board of Regents. (Id. at 10).
In response, Plaintiff argues that the discovery sought is relevant to her negligence claim
against Defendant McCaw and to her negligence and Title IX claims against Baylor. (Resp., Dkt.
109, at 7–8). Mr. Falwell publicly stated that he communicated with people Defendant McCaw
worked with at Baylor, including but not limited to members of the University’s Board of Regents,
regarding “what happened at Baylor.” (Dkt. 97-1 (“We communicated with people [Defendant
McCaw] worked with at Baylor, including Regents . . .”; “We conducted a background investigation
and checked with other sources, including former head coach and athletic director Grant Teaff
. . .”)). Those communications led Mr. Falwell to conclude that Defendant McCaw “did not attempt
to hide the sexual assault that was reported.” (Id.). Plaintiff argues that such information is
irrefutably relevant to her case, which is grounded in the defendants’ alleged failure to reasonably
respond to rampant sexual assault allegedly committed by the university’s football players. (Resp.,
Dkt. 109, at 8).
The Court agrees with Plaintiff. Defendant McCaw’s assertion that Mr. Falwell’s decision to
hire him “has nothing to do with McCaw’s actions or inactions while at Baylor that are the subject
of this lawsuit,” (Mot. Protective Order, Dkt. 97, at 10), is belied by Mr. Falwell’s contemporaneous
publication of a statement indicating that he investigated Defendant McCaw’s involvement in the
sexual assault allegations at Baylor, (Dkt. 97-1, at 1). Information regarding Mr. Falwell’s
investigation into and communications regarding Defendant McCaw’s actions at Baylor are certainly
relevant to Plaintiff’s assertions that Baylor was “deliberate[ly] indifferent to a known issue of sexual
misconduct within its football program,” (Second Am. Compl., Dkt. 53, ¶ 84), and that Baylor and
Defendant McCaw’s “ad hoc, internal system of discipline’ for football players” and “untrained,
flawed, and biased investigations” of sexual assault allegations “affirmatively increased the likelihood
that Plaintiff, and other female students, would be raped by football players,” (id. ¶¶ 91, 101).
Plaintiff also argues that the discovery sought is relevant because Mr. Falwell “publicly
admitted that he obtained information regarding Pepper Hamilton’s independent investigation into
Baylor’s sexual assault scandal.” (Resp., Dkt. 109, at 9). In its response to Plaintiff’s first request for
production of documents, Baylor withheld information related to the Pepper Hamilton investigation
on the basis of the attorney-client and work-product privileges. (Dkt. 109-1, at 2, 7–8). Mr. Falwell’s
assertion that Baylor representatives provided him information about the Pepper Hamilton
investigation, Plaintiff asserts, “would support an argument that Baylor waived any protections.”
(Resp., Dkt. 109, at 9).
The Court agrees. The Court reserves the issue of whether the materials in question are
indeed protected by the attorney-client or work-product privileges. It notes, however, that the
former is waived by disclosure of confidential communications to third parties. Nguyen v. Excel Corp.,
197 F.3d 200, 207 (5th Cir. 1999) (collecting cases); Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382
(5th Cir. 1989). Baylor has asserted that information related to the Pepper Hamilton investigation is
subject to the attorney-client privilege, and Mr. Falwell’s statement suggests he communicated with
Baylor agents regarding that investigation. Mr. Falwell may, therefore, be in possession of
information relevant to whether the attorney-client privilege indeed applies to the material in
Plaintiff finally argues that the discovery sought is relevant for impeachment purposes, as
she intends to depose Defendant McCaw and several former and current members of Baylor’s
Board of Regents. The Court agrees. See, e.g., Cazorla v. Koch Foods of Miss., L.L.C., 883 F.3d 540,
557–59 (5th Cir. 2016) (finding that a district court did not abuse its discretion in determining that
information sought in discovery was relevant under Rule 26(c) for, in part, impeachment).
For the foregoing reasons, the Court finds that the discovery sought is relevant for purposes
of Federal Rule of Civil Procedure 26(b)(2)(C) and 26(b)(1).
2. Convenience, Burden, and Cost
Defendant McCaw next argues that the Court must limit the extent of discovery because the
discovery sought can be obtained directly from Baylor, its regents, and Defendant McCaw. (Mot.
Protective Order, Dkt. 97, at 12). In response, Plaintiff asserts that Mr. Falwell’s statement indicates
he “conducted an entire background investigation into Defendant McCaw and his role in the Baylor
sexual assault scandal” and that Mr. Falwell “admittedly spoke to other sources.” (Resp., Dkt. 109, at
Here, the Court agrees with Defendant McCaw. At this point in time, there is little reason to
believe Plaintiff would be unable to obtain the same information she seeks from Mr. Falwell from
other, more direct sources. For example, a deposition of Defendant McCaw may reveal each of the
“other sources” with whom Liberty communicated regarding his involvement in the events at issue,
as could an interrogatory requesting that Mr. Falwell name each of the “other sources” with whom
Liberty conferred. (See Dkt. 97-1 (stating that Liberty communicated with members of the Baylor
Board of Regents and former Athletic Director Grant Teaff, but suggesting that the university
“checked with other sources” and conducted its own investigation into Defendant McCaw’s role in
the events at issue)). Further, a deposition of Defendant McCaw or members of the Board of
Regents could reveal not only what these individuals told Mr. Falwell and others at Liberty, but also
their personal knowledge of the events. In other words, conducting depositions of these sources
may provide Plaintiff not only the same information she seeks from Mr. Falwell, but also more
relevant, more reliable testimony.
At this point in the litigation, the only relevant information Plaintiff seeks from Mr. Falwell
that she could not obtain directly from other sources is impeachment evidence. But while
impeachment evidence is relevant, Plaintiff has yet to provide any evidence that a deposition of Mr.
Falwell will produce different information from what Defendant McCaw, the regents, or any other
sources would disclose in their own depositions. This argument is reinforced by the fact that the
noticed deposition currently at issue was Plaintiff’s first. At this time, therefore, allowing the
deposition of Mr. Falwell is not proportional to the needs of this case.
The Court acknowledges that while Plaintiff has not persuasively rebutted Defendant’s
arguments at this point in time, she may be able to do so later. After Plaintiff deposes Defendant
McCaw, members of the Baylor Board of Regents, and others, certain statements or inconsistencies
in the evidence may indicate that further discovery, including the deposition of Mr. Falwell, is
warranted. Allowing Plaintiff to ask this Court to lift the protective order at some later time if
subsequent discovery suggests a deposition of Mr. Falwell would reveal new information is
consistent with Rule 26’s concept of proportionality. As the comments on the rule explain:
Most discussions of discovery management focus on courts trying to achieve
proportional discovery by placing limits on the frequency or extent of
discovery. Courts can also try to achieve proportional discovery by regulating
the timing and sequence of discovery, principally by ordering that discovery
be conducted not all at once, but rather in stages or phases, as the
For example, the court can structure the order of discovery to ensure that the
parties gather the “low hanging fruit” first, taking discovery from the most
important or the most accessible sources before determining whether there is
any need to cast the discovery net more widely. That approach is often
referred to as “focused” discovery, and it has two main benefits: (1) focusing
on the most important information from the most accessible sources
naturally keeps those efforts well within the proportionality requirement; and
(2) the information obtained can be very helpful in determining what further
discovery efforts would be proportional to the needs of the case. For
example, the early results may show or strongly suggest that there is more
important information to be gathered. On the other hand, if discovery from
the “best” sources comes up dry, that may raise legitimate questions about
the expected benefit of further discovery. Each case will depend on its own
Fed. R. Civ. P. 26 cmt. Here, as Plaintiff has not yet gathered the “low hanging fruit,” this Court
finds it would be inappropriate to allow her to pursue information from less convenient, less
relevant sources—namely, Mr. Falwell. But Plaintiff has more than ten months to continue
discovery. In the future, if she believes the circumstances warrant, she may request that this Court
lift the protective order.
However, for now, Defendant has demonstrated that discovery proportional to the needs to
this case can be obtained from a more convenient, less burdensome, and less expensive source. See
Fed. R. Civ. P. 26(b)(2)(C). The Court will therefore grant Defendant’s motion.
For the reasons stated herein, the Court hereby GRANTS Defendant Ian McCaw’s Motion
for Protective Order (Dkt. 97).
SIGNED on May 1, 2017.
UNITED STATES DISTRICT JUDGE
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