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Doe v. Board of Trustees of The Nebraska State Colleges

United States District Court, D. Nebraska

August 31, 2018

JANE DOE, Plaintiff,
v.
BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, a Political Subdivision of the State of Nebraska; Defendant.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jane Doe moves for an order compelling Defendant to provide additional responses to Interrogatories and Requests for Production of Documents, and for an award of attorney fees. (Filing No. 57). Plaintiff further moves to stay case progression. (Filing No. 59). For the reasons stated below, Plaintiff's motions will be denied.

         Pursuant to the court's scheduling order, “[m]otions to compel shall not be filed without first contacting the chambers of the undersigned magistrate judge to set a conference for discussing the parties' dispute.” (Filing No. 22, at CM/ECF p. 2). When, as in this case, the responding party objects to discovery as overbroad, court conferences assist in clarifying what the moving party actually requires, and if necessary, narrowing the language of the discovery request or the timeframe at issue, thus promoting discovery of relevant information rather than formal motion practice. If these conferences are unsuccessful, the court enters an expedited formal motion schedule and will rule on the objections to the discovery requests- as written. This pre-motion conference requirement, implemented by the undersigned magistrate judge in 2015, has decreased the number of written discovery motions by over 80%, and serves to keep cases progressing as scheduled despite discovery disagreements.

         Contrary to the court's order, Plaintiff filed a motion to compel without first contacting the court to request a hearing. For this reason alone, Plaintiff's motion will be summarily denied. In addition, as explained below, upon review of the disputed requests as written, Defendant's objections will be sustained. Plaintiff's motion to compel will be denied both procedurally and on the merits, therefore mooting any request for sanctions. As to Plaintiff's motion to stay, the parties may proceed with depositions without awaiting additional written discovery responses, and the deposition deadline is over six weeks away. The court finds no good cause for amending the case progression schedule.

         STANDARD OF REVIEW

         Rule 26(b)(1) of the Federal Rules of Civil Procedure, amended on December 1, 2015, limits the scope of discovery to

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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1) (emphasis added). Courts must examine each case individually to determine the weight and importance of the proportionality factors.

         Although the burden of demonstrating the proportionality of the requested information is a collective responsibility between the parties and the court, a party requesting discovery must show how the requested information is important to the issues and resolution of the case. The party requesting discovery must present a threshold showing of relevance before parties are required to “open wide the doors of discovery” and “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). Discovery requests are considered relevant if there is any possibility that the information sought is relevant to any issue in the case. But mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case. See Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.1972). “While the standard of relevance in the context of discovery is broader than in the context of admissibility, . . . this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery.” Hofer, 981 F.2d at 380.

         Sweeping discovery requests which are not tailored to obtain only information relevant or capable of leading to the discovery of information relevant to this case are overbroad. “A party resisting facially overbroad . . . discovery need not provide specific, detailed support” to raise and stand on its objections. Madden v. Antonov, 2014 WL 4295288, 3 (D. Neb. 2014); Carlton v. Union Pacific R. Co., 2006 WL 2220977, 5 (D. Neb. 2006) (citing Contracom Commodity Trading Co. v. Seaboard, 189 F.R.D. 655, 665 (D. Kan.1999).

         FACTUAL BACKGROUND

         Plaintiff's complaint alleges Doe was a full-time student at Chadron State College from August 2013 until she graduated in December 2016. Doe alleges she was sexually assaulted by a fellow student in May and September of 2016, and she reported the September incident to CSC officials. Her complaint alleges that although CSC investigated the incident and disciplined the assailant, it failed to expel him from school. Doe alleges the discipline imposed was inadequate to protect Doe: She was continually exposed to the risk of encountering her attacker on the CSC campus while she tried to complete her schooling. Doe alleges she experienced severe stress, panic attacks, lost wages, and other damages because CSC failed to adequately protect her from her assailant in violation of Title IX, 20 U.S.C. § 1681(a), and this failure to sufficiently discipline was racially motivated in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000d. (Filing No. 1).

         Doe served written discovery on January 17, 2018. Defendant's responses were served on April 6, 2018, and supplemental responses and a privilege log were served on June 11, 2018. Plaintiff is dissatisfied with Defendant's responses and on July 10, 2018, filed a motion to compel further discovery responses and a request for sanctions. Plaintiff also argues case progression was stayed and new case progression deadlines are necessary due to Defendant's failure to comply with written discovery.

         Motion to Compel and Request for Sanctions (Filing No. 57)

         A. The Discovery Requests.

         Categorized to avoid repetition, the disputed discovery requests, the parties' respective arguments, and the court's ruling as to that discovery are as follows:

         1. Training Materials.

REQUEST FOR PRODUCTION NO. 2: For the five years preceding these Requests, please produce all materials used to train persons holding the position of Title IX Coordinator (including interim Title IX Coordinators) at Chadron State College.
REQUEST FOR PRODUCTION NO. 13: For the five years preceding these Requests, please produce all materials relating to notification, investigation and/or disposition of sexual assaults, as well as relating to remedying discriminatory effects of sexual assault upon the victim, used to train the Title IX Coordinator (including interim Title IX Coordinators) and persons “other Chadron State College employees who assist with Title IX complaints” (see https://www.csc.edu/titleix/contact/index.csc).

         Defendant produced copies of Title IX training materials provided to Sherri Simons, Anne DeMersseman, Jon Hansen, Pat Beu, Don Keiper and Robin Bila for the time period beginning August 1, 2013 and ending December 31, 2016. (Filing No. 61, at CM/ECF p. 14). Defendant otherwise objected, stating a request for “all materials relating to” training the Title IX Coordinators is overbroad and irrelevant because it is not limited to the years when Plaintiff attended CSC. In response, Plaintiff argues Defendant has failed to show how producing two additional years of materials would be burdensome. Doe also states that evaluating whether training programs changed may be relevant to whether the school met its Title IX obligations during the relevant time frame. In response, Defendant explains that CSC routinely changes its training or Title IX materials based upon evolving federal guidance and relevant jurisprudence, so prior policy changes are not relevant to determine if CSC appropriately responded to Plaintiff's complaint in September of 2016. (Filing No. 61, at CM/ECF p. 5).

         The documents provided by Defendant are the programs it implemented. They date back to three years before Doe reported being sexually assaulted, and they cover the entire period of Plaintiff's attendance at CSC. Plaintiff's request for further documentation, which would include training which pre-dates the reported assault by an additional two years and working drafts or discussion notes generated while creating the training programs, includes information not relevant to this case, and is overly broad and disproportionate to the needs of the case. Defendant's motion will be sustained.

         2. Record-Keeping

         INTERROGATORY NO. 1: Identify all manner(s) in which Chadron State College records notifications, investigations and/or dispositions of sexual assaults. For each manner of recording, your Answer should indicate, for example:

a. The office that records notifications, investigations and/or dispositions (i.e., Campus Security, Office of the Title IX Coordinator, Office of Student Affairs, Counseling Services, etc.);
b. The protocol and/or policy providing for recording such notifications, investigations and/or dispositions;
c. The program or application used for recording (i.e., Excel, Word/WordPerfect, etc.); and
d. The name of the document or file in which recordings of notifications, investigations and/or dispositions are kept.
Defendant answered:
[T]he Nebraska State College System Board of Trustees' Board Policy 3020 (“Board Policy 3020”) governs the College's investigation of complaints of sexual violence and sex harassment in any form (including, but not limited to, sexual assault, stalking, dating violence, domestic violence, acquaintance, date or stranger-rape, nonconsensual sexual intercourse, sexual cyber-harassment or sexual bullying). Please see the attached Board Policy 3020 (for 2013-14, 2014-15, 2015-16 and 2016-17) for a detailed description of the complaint process, including each level of the process, the length of the process and types of records maintained (CSC000001-000072). Please also see the Nebraska State College System Board of Trustees' website, which references Board Policy 3020:
http://www.nscs.edu/policy-manual.htm. The Title IX Coordinator is responsible for maintaining information related to Title IX notifications, investigations and dispositions. Defendant also maintains statistical information regarding certain crimes on campus as required by federal law, including the Clery Act.

         (Filing No. 58-1, at CM/ECF p. 8). Defendant objected to providing any additional information, explaining that Doe's interrogatory was unlimited as to time or to sexual assaults that occurred on campus. In addition, Defendant explains that numerous CSC employees are responsible for reporting violations, and to require each of these employees to enumerate and list every method they use to maintain their records is overbroad and irrelevant.

         Plaintiff argues the duty to report exists as to both on- and off-campus assaults, and a review of the recording processes used both before and during the relevant time frame may show whether the numbers reported are accurate, whether CSC employees were adequately trained on the subject of campus sexual assault, and whether recording processes have changed to hinder outside review of data reflecting a campus sexual assault problem or its magnitude.

         Plaintiff's Interrogatory No. 1, as written, is unlimited as to time. And even if the court accepts the ten-year limitation offered in Plaintiff's briefing, the court has reviewed the complaint and is not convinced Defendant's record-keeping system, particularly dating back a decade or more, has anything to do with whether CSC adequately disciplined Doe's assailant or that this alleged insufficient discipline was racially motivated. Plaintiff's Interrogatory No. 1 is overbroad because it encompasses information that is neither relevant nor proportional to the needs of the case. Defendant's objection will be sustained.

         3. Reported Incidents/Complaints and Criticism.

INTERROGATORY NO. 2: For the ten years preceding the date of your Answer, please identify the sexual assaults on the campus of Chadron State College. For each sexual assault ...

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