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United States v. University of Nebraska at Kearney

United States District Court, D. Nebraska

August 25, 2014



CHERYL R. ZWART, Magistrate Judge.

Pending before me is the United States' motion to compel, (Filing No. 103), and its motion to strike portions of the defendants' responsive brief, (Filing No. 115). For the reasons discussed below, the plaintiff's motion to compel is denied, and its motion to strike is denied as moot.[1]


The United States' complaint is brought on behalf of Brittany Hamilton and other persons who may have been injured by Defendants' alleged violations of the Fair Housing Act ("FHA"). Specifically, the United States claims the defendants prohibited or hindered students from living with emotional assistance animals in university housing when such animals were needed to accommodate the requesting students' mental disabilities. The United States seeks a judgment which declares the defendants thereby violated the FHA, an order enjoining the defendants from doing so in the future, an award of damages for all aggrieved by the defendants' alleged discrimination, and assessment civil penalties pursuant to 42 U.S.C. ยง 3614(d)(1)(C).

The United States' complaint alleges no discriminatory conduct other than the failure to permit students to reside with emotional assistance animals in university housing. It alleges nothing about reasonable access to academic programming, financial aid, employment, health care, or university facilities other than housing.


This case was filed on November 23, 2011, (Filing No. 1), and the defendants' answer was filed on January 27, 2012. (Filing No. 12). On March 2, 2012, the parties filed a Stipulation and Order Regarding Discovery which outlined the form and manner of producing electronically stored information (ESI). This order on stipulation required the parties to confer about search terms, produce ESI in specific formats, and deduplicate ESI. (Filing No. 16).

The government served requests for production on April 6, 2012. On May 24, 2012, after several conferences about ESI, the United States sent a list of proposed terms, electronic databases, and custodians to be searched. The discovery deadlines were cooperatively extended, and the court entered orders governing disclosure, including a protective order. (Filing No. 21; Filing No. 26). On August 3, 2012, Defendants produced hard copies of documents, but it objected to the scope of the United States' proposed ESI search terms and it did not produce any electronic files. The United States produced non-privileged documents responsive to the defendants' discovery requests, including ESI, on August 6, 2012.

On August 30, 2012, after conferring with counsel, the court entered an order which stated, "The parties' cross-motions for summary judgment on the issue of whether the Fair Housing Act is applicable to university housing for students attending college shall be filed on or before October 3, 2012." (Filing No. 32). After extending this deadline at the parties' request, (Filing No. 33), the parties' summary judgment motions were timely filed on November 6, 2012, (Filing No. 37; Filing No. 40). While the summary judgment motions were under advisement, the parties continued discussing search terms and the production of ESI. A proposed search term list was provided by the government on December 31, 2012. Defendants' electronic discovery vendors began using the United States' search term list to create a frequency list.

The court ruled on the cross-motions for summary judgment on April 19, 2013, (Filing No. 80), holding that "for purposes of this case, ... UNK's student housing facilities are dwellings' within the meaning of the Fair Housing Act." (Filing No. 80, at CM/ECF p. 12).

Defense counsel produced a frequency list to the United States' counsel on May 1, 2013. But the list included duplicative documents. On May 21, 2013, Defendants' counsel notified the government's counsel that the defendants did not intend to proceed with ESI discovery. (Filing No. 90).

After conferring with counsel on August 19, 2013, in an attempt to avoid the discovery battle now erupting, the court stayed discovery pending the outcome of a settlement conference. The conference was scheduled to be held on September 10, 2013. (Filing No. 92). The government's representative in Washington, D.C. was granted leave to appear by telephone, provided he was accessible by telephone at all times during the conference. (Filing No. 92).

A two-day conference was held to no avail. The parties were afforded an additional four months to try to resolve their case. The case did not settle, and based on the representations of the parties, the court concluded further settlement efforts would serve no purpose. A new progression schedule was entered on January 10, 2014. (Filing No. 98).

The parties engaged in further discussions regarding the scope of ESI. The defendants objected that the government's search parameters were too expansive, and the cost of compliance would be unduly burdensome. (Filing No. 113-5). The defendants explained that the cost of retrieval, review, and production would approach a million dollars, and provided an outline identifying the document "hits" and the estimated discovery costs. (Filing No. 113-5, at CM/ECF pp. 5-10). The defendants argued this burden of production was unwarranted, explaining that in its initial response to the government's document production requests, it provided "all documents related to requests for reasonable accommodation in University housing, " without ...

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