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Doe v. Board of Trustees of Nebraska State Colleges

United States District Court, D. Nebraska

December 31, 2018

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


          Cheryl R. Zwart, United States Magistrate Judge.

         Defendant noticed the deposition of Plaintiff's counsel, with deposition currently scheduled for January 7, 2019. (Filing No. 89, Filing No. 94-1, at CM/ECF p. 55). Plaintiff moved to quash that notice, for a protective order, and for a reward of the attorney fees expended in filing the motion. (Filing No. 92). For the reasons stated below, [1] the motion will be denied.


         Plaintiff's complaint alleges Doe was a full-time student at Chadron State College (CSC) from August 2013 until she graduated in December 2016. Doe alleges she was sexually assaulted by a fellow student, and CSC investigated the incident. CSC concluded the sexual assault occurred, and on October 25, 2016, the assailant, Ige, was disciplined, but was not expelled from school. (Filing No. 94-1, at CM/ECF p. 57). The discipline included imposing a No Contact Order prohibiting Ige from contacting Doe. Doe complained that the discipline was too lenient; that so long as Ige was on the campus, she would possibly encounter him-a risk that was interfering with her on-campus employment and counseling, her mental health, and her ability to fully attend school. (Filing No. 94-1, at CM/ECF pp. 57-58). An email sent by Defendant's Vice President for Student Affairs, Jon Hansen, on November 14, 2016 explained the school's position. (Filing No. 94-1, at CM/ECF p. 59-61). The email ended, "Please let me, your supervisor, or DeMersseman know if you have any questions or concerns." (Filing No. 94-1, at CM/ECF p. 61). Plaintiff responded by asking "what options are available to me such as completing the rest of my semester online or transferring?" (Filing No. 94-1, at CM/ECF p. 62). Hansen responded to this email on November 16, 2018. (Filing No. 94-1, at CM/ECF p. 63). This was the last communication between Doe herself and the CSC administration regarding the facts underlying this lawsuit. (Filing No. 94-1, at CM/ECF p. 33).

         Doe's counsel sent a letter to CSC on November 18, 2016, which notified CSC that the Chaloupka, Holyoke law firm represents Doe, demanded that CSC preserve all evidence relevant to Doe's case, and directed CSC to "address further communications regarding [Doe] to [Doe's counsel] rather than contacting [Doe] directly." (Filing No. 94-1, at CM/ECF p. 18). On behalf of Defendant, Taylor Sinclair acknowledged receipt of the letter on November 22, 2016. (Filing No. 94-1, at CM/ECF p. 20). Doe's counsel sent a letter to CSC on Doe's behalf on November 23, 2016, asking that Doe's assailant be expelled from the school and that Doe be permitted to attend school as a normal student-without a security escort or taking independent study courses. (Filing No. 94-1, at CM/ECF p. 34). Doe graduated a month later, on December 16, 2016.

         Does' complaint alleges she could not attend counseling because CSC failed to offer time and location options that did not pose a risk of encountering her assailant. (Filing No. 1, at CM/ECF pp. 6-7, ¶¶ 27-28). See also, Filing No. 97-2, at CM/ECF p. 2-3, Response to Inter. No. 9. She alleges she did encounter her assailant in an academic building, had a panic attack, and was unable to complete an exam at the scheduled time. (Filing No. 1. at CM/ECF p. 7, ¶ 29). See also, Filing No. 97-2, at CM/ECF p. 2-3, Response to Inter. No. 9. Essentially summarizing the November 2016 email exchanges between Doe and CSC, and thereafter Doe's counsel and CSC, Doe's complaint alleges:

30. DOE asked CSC what her options were, so that she could complete her coursework without encountering Ige. In response, CSC approved DOE for independent study, and thereafter insisted that DOE had requested independent study. DOE did not want independent study. DOE wanted the freedom to attend class and work on-campus without the threat that she would encounter her rapist.
31. CSC advised DOE that she could have another campus security officer escort her around campus.
32. This proposal would not prevent DOE from seeing Ige. It would also make DOE conspicuous to other students and staff. DOE would visibly be "the student who needs a security escort." 33. DOE did not want to be conspicuous. She declined that proposal. What DOE wanted was the freedom to attend classes, like any other student, without fear of encountering Ige.
34. DOE expressed to CSC her concerns and her disappointment with CSC's refusal to ban Ige from campus. She did so multiple times, in writing and eventually through the assistance of counsel.
35. In its responses, CSC insisted repeatedly that DOE had requested independent study, and that it had done everything appropriate to accommodate and protect DOE. If anything, CSC's responses exacerbated DOE's sense of despair and helplessness.

Filing No. 1, at CM/ECF pp. 7-8, ¶¶ 30-35). In her interrogatory responses, Doe states "Plaintiff also saw Ige when she returned to work on the representation that Ige would not be in the housing complex. She saw Ige that night, which is how Plaintiff learned that Ige had not been moved." (Filing No. 97-2, at CM/ECF p. 7, Supp. Response to Inter. No. 9). Does' complaint alleges Defendant acted with deliberate indifference in failing to protect and assist Doe while she completed her education at CSC.

         CSC's answer denies any allegations of deliberate indifference, specifically alleging:

Doe never reported to CSC that Ige violated the No Contact Order or that she had subsequently encountered Ige on campus. CSC also offered Doe a security escort upon request. CSC repeatedly requested of both Doe and her legal counsel that they inform CSC of any further concerns or necessary accommodations. Neither Doe nor her counsel ever told CSC that Doe was concerned about encountering [her assailant] in the counseling center, or that Doe may need alternate counseling locations or times.

(Filing No. 18, at CM/ECF pp. 10-11, ¶ 27).

         Doe's counsel warned "this is not a one-way street:" "The development of this evidence, if allowed, should concomitantly allow the undersigned to take depositions duces tecum - with no privileges available - of Taylor Sinclair and Kristin Peterson." (Filing No. 93, at CM/ECF p. 41). "If you're going to push to depose me, I'll probably need to depose Taylor Sinclair as well." (Filing No. 97-2, at CM/ECF p. 8). Taylor Sinclair is an attorney employed by Defendant. "Defendant has never taken the position with Plaintiff's counsel that Taylor Sinclair, the NSCS's Title IX Director, is protected from deposition. Although Sinclair is a licensed attorney, her relevant actions on behalf of the NSCS were not in her capacity as an attorney." (Filing No. 97-1, at CM/ECF p. 1, ¶ 6).

         To avoid noticing the deposition of Doe's counsel, Defendant proposed a stipulation on November 20, 2018. (See, Filing No. 94-1, at CM/ECF p. 12-13). Defendant believes this stipulation would render the testimony Doe's counsel as undisputed, thereby sidestepping any need to depose Doe's counsel. The stipulation provides foundation for admitting the emails and letters exchanged between CSC and Doe's counsel into evidence and confirms that no other communications occurred between Doe's counsel and CSC between November 16 and December 16, 2016 other than those reflected in the stipulation's attachments. (Filing No. 94-1, at CM/ECF p. 11).

         Doe's counsel asked why the stipulation was necessary. (Filing No. 94-1, at CM/ECF p. 10). In response, defense counsel explained:

By requiring that all communications with Ms. [Doe] regarding her Title IX complaint and remaining time on campus be filtered through you, you made vourself her spokesperson. In fact, you explicitly instructed the College to cease any direct communication with Ms. [Doe]. Consequently, the College's knowledge of Ms. [Doe]'s needs or accommodations, her access to educational opportunities, or her concerns regarding encountering Ige necessarily depends on what you communicated to the College and when. The information you provided to the College and all communications you had regarding Ms. [Doe] need to be ...

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