United States District Court, D. Nebraska
R. Zwart, United States Magistrate Judge.
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,  the motion will be denied.
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).
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.
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
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
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
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.
answer denies any allegations of deliberate indifference,
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).
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,
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).
counsel asked why the stipulation was necessary. (Filing
No. 94-1, at CM/ECF p. 10). In response, defense counsel
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