United States District Court, D. Nebraska
LISSETTE LARIOS ROOHBAKHSH, as personal representative of the Estate of Fatima Lissette Larios and on behalf of next of kin; and NELSON LARIOS, as next of kin; Plaintiffs,
BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, and CHADRON STATE COLLEGE, Defendants. JANE DOE, Plaintiff,
BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, a Political Subdivision of the State of Nebraska; Defendant.
R. Zwart United States Magistrate Judge.
before me are the motions for protective order filed in each
of the above-captioned cases. Plaintiffs ask the court to
grant an exception or modify its past protective orders in
the respective cases, thereby permitting Plaintiffs'
counsel to exchange all discovery obtained on their
respective Plaintiffs' behalf for use in litigating
against their common defendant, Chadron State College (CSC).
See, 8:17CV31-JFB-CRZ, Filing No. 64;
8:17CV265-JFB-CRZ, Filing No. 50). Defendant opposes
the motions. For the reasons stated below, the motions will
is represented by the same counsel in both cases, and in
both, the plaintiffs are alleging CSC violated Title IX, 20
U.S.C. § 1681(a), and Board Policy 3020. In 8:17CV31,
the estate and survivors of Fatima Lissette Larios
(hereinafter “Larios”) allege CSC failed to
intervene to protect Larios from domestic and dating violence
committed by her boyfriend, a CSC student. Larios claims
CSC's failure to act began in November of 2014, and it
caused Larios' apparent suicide on January 30, 2015. In
8:17CV265, Plaintiff Jane Doe (Doe) alleges that while she
was a student at CSC, she was the victim of two incidents of
rape committed by a fellow CSC student, the first occurring
on September 19, 2016. Doe alleges that although CSC
disciplined the rapist, they failed to expel him from school.
Doe alleges that due to this insufficient discipline, she
experienced severe stress, panic attacks, lost wages, and
other damages because she was continually exposed to the risk
of encountering her assailant on CSC's campus. Doe
alleges CSC failed to protect her as required under Title IX,
20 U.S.C. § 1681(a), and this failure was racially
motivated in violation of 42 U.S.C. § 1981 and 42 U.S.C.
§ 2000d. The alleged violence against Larios and Doe was
committed by different male students.
attorneys argue that both cases require discovery of the
patterns and practices of Chadron State College and its
administrators between 2014 and 2016 relative to Title IX of
the Education Amendments of 1972, 20 U.S.C. § 1681(a).
In both cases, Plaintiffs have consented to sharing their
personal information, otherwise protected from disclosure by
order of the court, for use in the other case. But by the
very nature of these cases, the plaintiffs are not the only
students whose past complaints or discipline may be unearthed
in the discovery process. In Larios' case, at least nine
students have been or will be deposed, with their deposition
transcripts and attached exhibits including personal
information such as names, dates of birth, and disciplinary
actions. (Filing No. 54, at CM/ECF p. 5-6). These
students' testimony may or may not be relevant to
Doe's case, and there is no showing that they consented
to releasing their personal information to Doe or her
Doe's written discovery requests (for a five-year period)
all “documentation of communications relating to
notification, investigation, and/or disposition of sexual
assaults between any agent, employee or student” of CSC
and its System Director of Title IX, (8:17CV265, Filing
No. 57, at CM/ECF p. 16, Request No. 14), and all files
maintained on Doe's alleged assailant, including his
academic files, employment files, disciplinary files,
athletic files, and Campus Security files. (8:17CV265,
Filing No. 57, at CM/ECF p. 12, Request No. 10). The
responses to this discovery may be relevant to Larios'
case, but they may not be.
to Plaintiffs' argument, their motions seek mutual
knowledge of “all facts, ” not “all
relevant facts” obtained through discovery in both
cases. (8:17CV31, Filing No. 74, at CM/ECF p. 3).
The court is unwilling to open wide all such discovery, thus
allowing Plaintiffs' counsel to ferret through the
discovery responses, including the personal information of
students and CSC personnel relevant to only one of the two
lawsuits, and then decide what each Plaintiff finds relevant
and useful. While sharing discovery may provide a more
efficient and inexpensive means of litigating the two cases,
(8:17CV31, Filing No. 74, at CM/ECF p. 12), the
court finds Larios' and Doe's lawsuits are too
dissimilar in terms of allegations, time frames, and actors
to permit consolidated discovery which may infringe on the
confidentiality owed to third parties, and will disclose at
least some information which is not otherwise discoverable as
to each separate lawsuit under the Federal Rules.
argues that “federal and state courts have routinely
recognized that there is a presumption that the public has a
right of access to all court records.” (8:17CV31,
Filing No. 74, at CM/ECF p. 12). But discovery
exchanged between the parties is not a court record, and
“restraints placed on discovered, but not yet admitted,
information are not a restriction on a traditionally public
source of information.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 33 (1984). There is “no
right to use pretrial discovery in one case for the
prosecution of another case.” Sasu v.
Yoshimura, 147 F.R.D. 173, 176 (N.D. Ill. 1993) (citing
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31
(1984)). “First Amendment rights are not impinged when
the protective order precludes [parties] from disseminating
or putting to other uses the confidential information that
they have obtained in discovery.” Id.
may be some efficiencies to be gained by exchanging the
depositions of “the exact same (key) witnesses”
from CSC as to the specific topics common to both cases.
(Filing No. 74, at CM/ECF p. 3). However, the
plaintiffs' motions are not limited as such, and the
court will not re-draft them-particularly where the parties
did not request a dialogue with the court prior to engaging
in written motion practice which has, by the necessity of
written briefs and an opinion, slowed the progression of both
IT IS ORDERED:
1) Defendant's objection, (8:17CV31, Filing No.
70), is sustained.
2) Plaintiff's motion for protective order, (8:17CV31,
Filing No. 64), is denied.
3) Plaintiff's motion for protective order, (8:17CV265,
Filing No. ...