Doe v. Emerson Coll.
Doe v. Emerson Coll.
2016 WL 11004384 (D. Mass. 2016)
December 28, 2016

Boal, Jennifer C.,  United States Magistrate Judge

Failure to Produce
Proportionality
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Summary
The court granted the plaintiff's motion to compel the defendant to produce certain documents and answer certain interrogatories. The court also ordered the defendant to produce ESI subject to a protective order and other requirements of 20 U.S.C. §§ 1232g(a)(4), 1232g(b)(2) or 34 C.F.R. § 99.31(9). The defendant must produce the documents or information by January 13, 2017.
Jane DOE, Plaintiff,
v.
EMERSON COLLEGE, Defendant
Civil Action No. 14-14752-FDS
United States District Court, D. Massachusetts
Filed December 28, 2016

Counsel

David P. Angueira, Kevin P. O'Connor, Kathryn J. Wickenheiser, Swartz & Swartz, Boston, MA, for Plaintiff.
Katrina N. Chapman, Paul G. Lannon, Jr., Holland & Knight, LLP, Boston, MA, for Defendant.
Boal, Jennifer C., United States Magistrate Judge

ORDER ON PLAINTIFF’s MOTION TO COMPEL [Dkt. No. 55]

*1 Plaintiff Jane Doe sued defendant Emerson College alleging violations of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681. Her claims arise out of the college’s investigation of an alleged sexual assault. Doe has moved to compel Emerson to produce certain categories of documents and to answer certain interrogatories. Dkt. No. 55. After review and consideration of the parties' briefs, as well as the arguments made at the December 20, 2016 hearing, the plaintiff’s motion is granted in part and denied in part.
DISCUSSION
Rule 26(b)(1) of the Federal Rules of Civil Procedure requires the production of non-privileged information that is relevant to the plaintiff’s claims and proportional to the needs of this case. Fed. R. Civ. P. 26(b)(1).[1]With respect to Doe’s motion, the Court has considered the importance of the requested information, the significance of the substantive issues as “seek[ing] to vindicate vitally important personal or public values,” and the defendant’s access to the information, which necessitates a stronger showing of burden and expense. See Doe v. Trustees of Boston Coll., C.A. No. 15-10790-DJC, 2015 WL 9048225, at *1 (D. Mass. Dec. 16, 2015)(citing Fed. R. Civ. P. 26(b)(1) Advisory Committee Notes, 2015 Amendment). The Court also considered the privacy and confidentiality interests of non-party students. See id. (listing cases). Having balanced these factors, the Court rules as follows.
Request No. 1; Interrogatory Nos. 4, 5, 6, 23.[2] These requests seek information about Emerson’s Title IX and alcohol policies, reported sexual assaults, and subsequent investigations. In response to these requests, Emerson has agreed, in general, to produce documents with respect to the 2012-2013 academic year.[3] Doe argues that she is entitled to materials ranging from 2000 through the present, claiming that “if there were prior incidents where the school became aware of their policies and means for performing said policy as being inadequate, it was their responsibility to change them.” Dkt. No. 55 at 15. In particular, Doe argues that a 2011 guidance letter from the Department of Education (“DOE”) to Emerson—which in turn refers back to guidance published in 2001—is relevant to her claims. She contends that prior assaults on campus (which did not involve either Doe or the alleged assailant), in conjunction with the DOE guidance, serve as probative evidence of Emerson’s deliberate indifference. Although the alleged failure to comply with DOE guidance may provide a basis for DOE action against a college, such a failure, by itself, does not provide for a private right of action under Title IX. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291-92 (1998). Rather, a plaintiff must show in general that the educational institution had actual knowledge of his/her reports of sexual assault or harassment and was deliberately indifferent to such reports. For example, where there has been an assault, followed by an inadequate response by the college, evidence of such response is relevant to an action pertaining to a subsequent assault by the same assailant. SeeWillis v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999) (affirming exclusion of evidence regarding harassment of non-party victims, which occurred after the alleged harassment of the plaintiff). Alternatively, a plaintiff may prove a “failure to prevent” theory in part by showing that Emerson knew its policies were inadequate, yet deliberately chose not to remedy the violation. SeeDavis v. Monroe County Bd. Of Educ., 526 U.S. 629, 642 (1999). However, Doe has provided this Court with little to support this theory.
*2 Here, the plaintiff alleges she was assaulted by the same assailant in 2012 and 2013. Accordingly, documents from these years are certainly relevant to her claim. While Emerson’s compliance with DOE guidance has some relevance to the claims in this case, documents from more than 10 years prior to the alleged assaults have limited value and are certainly not proportional to the needs of the case. In addition, Doe has not articulated how information pertaining to policies and other assaults after 2013 is relevant to a showing of deliberate indifference. For these reasons, in addition to the documents produced for the 2012-2013 academic year, Emerson is ordered to produce only relevant documents and/or responses for the academic years 2010-2011 and 2011-2012.[4]
Request No. 23; Interrogatory Nos. 9, 10. Doe’s counsel was unable, at oral argument or in her opposition, to provide the Court with a basis for seeking “all” communications between Emerson personnel discussing the Facebook page “Emerson Confessionals.” In addition, Doe’s counsel could not identify for the Court custodians that might be appropriate for Emerson to search in response to these requests. Counsel did specifically identify David Hayden, who they allege made relevant statements about the Facebook website at issue. Accordingly, the defendant is ordered to produce only communications from or to Mr. Hayden regarding the Emerson Confessionals Facebook page.
Emerson shall produce any documents or information compelled by this order no later than January 13, 2017. To the extent that any such production involves any part of a non-party student’s educational record, such information shall be subject to a protective order and/or other requirements of 20 U.S.C. §§ 1232g(a)(4), 1232g(b)(2) or 34 C.F.R. § 99.31(9). The information shall not include any personally identifiable information of non-party students, and Emerson may use code names in place of actual identifying information or make redactions as it deems appropriate.
So Ordered.

Footnotes

The Court finds that it is just and practicable to apply Fed. R. Civ. P. 26 as amended on December 1, 2015. See Order 1-2 (U.S. Apr. 29, 2015), available at http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf (Apr. 29, 2015) (“[T]he foregoing amendments ... shall take effect on December 1, 2015, and shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”).
The Court focuses solely on the time frame with respect to these discovery requests because it finds that Doe has not met her burden to show any other deficiencies in Emerson’s responses to these requests.
Emerson also agreed to produce certain documents responsive to interrogatory number 6 for the “three-year period 2011-2013.” Dkt. No. 60 at 16-18.
A number of Doe’s requests seek “all” documents concerning Emerson’s Title IX policies and procedures. At oral argument, Doe’s counsel conceded that they are not seeking Title IX policies with respect to, for example, funding of sports teams. Rather, they only seek Title IX documents pertaining to sexual assaults and harassment. Accordingly, the Court narrows any request referencing Title IX to documents and communications pertaining to sexual assault and/or harassment and subsequent investigations. In addition, with respect to interrogatory 6, the Court compels Emerson to produce the same types of documents it previously produced for 2011-2012 through 2012-2013, i.e. the College Campus Security Policy, Crime Statistics, and Fire Safety Reports, see Dkt. No. 60 at 16-18, for the additional year of 2010-2011. Doe has not met her burden of establishing why any further information should be compelled in response to this request.