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United States v. University of Nebraska at Kearney

United States District Court, Eighth Circuit

May 15, 2013



CHERYL R. ZWART, Magistrate Judge.

This matter is before the court on the defendants' motion for protective order, (Filing No. 62). For the reasons set forth below the motion will be granted in part and denied in part.


The plaintiff, United States of America, alleges the defendants discriminated against, and failed to make reasonable accommodation for, a disabled student. Specifically, the complaint asserts the defendants violated the Fair Housing Act by failing to allow a student to live with an animal the student described as an emotional assistance animal. The student suffers from anxiety attacks and depression. Her dog is trained to respond to the student's anxiety attacks by distracting the student, but is allegedly not a trained service animal. The University did not allow the student to reside with her dog absent showing the dog was certified, trained, or licensed service animal.

The plaintiff served a third-party subpoena on the National Association of College and University Attorneys ("NACUA"). "The NACUA is an association of attorneys serving non-profit, regionally accredited institutions of higher education in the United States, Canada, and further abroad." (Filing No. 59, CM/ECF at p. 3.). The members of the NACUA are primarily non-profit colleges and universities, including the University of Nebraska. UNK produced documents exchanged between the University of Nebraska and the NACUA regarding the Fair Housing Act and whether students are entitled to reasonable accommodation in student housing. However, the plaintiff seeks additional documents from the NACUA including:

§ Any and all documents that relate to, mention, or analyze which laws apply to university housing;
§ Any and all documents that relate to or mention whether animals, and if so what type of animals, universities or colleges should accommodate for persons with disabilities, whether as a matter of law or policy, in housing owned or managed by a university or college.

(Filing No. 60-1, at CM/ECF p. 17).

The defendants filed a motion for a protective order prohibiting the NACUA from responding the requests.[1] Specifically, the defendants argue that the information sought has either been provided, or in the case of documents that were not specifically provided to UNK and were not reviewed by any employee or other representative of UNK, are not relevant.


The scope of permissible discovery is extremely broad and parties may obtain "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense including the existence, description, nature, custody, condition, and location of any documents..." Fed.R.Civ.P. 26(b)(1). "A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action". Gladfelter v. Wal-Mart Stores, Inc , 162 F.R.D. 589, 590 (D. Neb. 1995). However, the scope of discovery is not unlimited. Some threshold showing of relevance must be made before parties are required to produce a variety of information which does not "reasonably bear upon the issues in the case." Hofer v. Mack Trucks, Inc. , 981 F.2d 377, 380 (8th Cir. 1992).

Once the requesting party meets the threshold relevance burden, "[a]ll discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing to bear that burden." Continental Ill. Nat'l Bank & Trust Co. Of Chicago v. Caton , 136 F.R.D. 682, 684-85 (D. Kan. 1991). "[T]he scope of discovery under a subpoena is the same as the scope of discovery under Rules 26(b) and 34" and is subject to the rules that apply to other methods of discovery. Desert Orchid Partners, L.L.C. v. Transaction Sys. Architects, Inc., 237 F.R.D. 215, 217 (D. Neb. 2006) (quoting Goodyear Tire & Rubber Co. v. Kirk's Tire & Auto Servicecenter, Inc. , 211 F.R.D. 658, 662 (D.Kan.2003).

Fed.R.Civ.P. 26(c) requires that "good cause" be shown for a protective order to be issued. The burden is therefore upon the movant to show the necessity of its issuance, which contemplates "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements...." Such determination must also include a consideration of the relative hardship to the non-moving party should the protective order be granted.

DeJong v. Bell Helicopter Textron, Inc., 124 F.R.D. 207, 208 (W.D.Mo.1988) (quoting Gen. Dynamics Corp. v. Selb Mfg. ...

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