Summary of Issues. Defendant redacted student names and other identifying information from a number of documents relevant to Dr. Seoane-Vazquez’s complaint that other faculty members had discriminated against him because of his national origin and it withheld an investigator’s summary of two interviews of students concerning that complaint. The Ohio State University asserts it was required by FERPA to redact the documents produced and to withhold the two interview summaries.

For the reasons set out below, I conclude that the students, who are third parties to this lawsuit, have significant privacy interests in personal identifiers but that documents created during the course of the investigation of Dr. Seoane-Vazquez’s discrimination complaint and those created or used during the course of the Department’s decision to deny him tenure are not “educational records” within the meaning of FERPA except to the extent that they may incorporate “educational records,” such as grades, student work product and the like. Although FERPA broadly defines “educational records” to include all documents that “contain information directly related to a student ...,” United States v. Miami University, 294 F.3d 797, 812 (6th Cir. 2002), it does not include records related to the discipline of faculty and staff. Ellis v. Cleveland Municipal School Dist., 309 F.Supp.2d 1019, 1022-23 (N.D. Ohio, E.D., 2004); Wallace v. Cranbrook Educational Community, 2006 WL 2796135, at *4 (E.D. Mich., 2006). The purpose of FERPA is to protect students' right to privacy by limiting the disclosure of their educational records without their consent. United States v. Miami University,294 F.3d at 806 (quoting Joint Statement, 120 Cong. Rec. 39858, 3982 (1974) ). Here the students have no reasonable expectation of privacy concerning their knowledge of facts relevant to whether the University discriminated against Seoane-Vazquez because of his national origin. They are simply fact witnesses whose evidence was relevant to the administrative investigation/tenure determination process. They are similarly fact witnesses who have evidence relevant to the claims and defenses of the parties in this lawsuit. The University has access to their statements and its investigators' summaries of those statements, used that information in its investigation/tenure determination, and is using it to defend this lawsuit. It would be unfair to deprive plaintiff of reasonable access to that information.

BACKGROUND

*2 On August 8, 2007, Enrique Seoane-Vazquez (“Vazquez”) instituted this action alleging discrimination and retaliation by his employer, Defendant Ohio State University (“OSU”), after receiving a right to sue letter, issued and mailed by the Equal Employment Opportunity Commission(“EEOC”) on May 9, 2007. The complant makes the following allegations. Dr. Enrique Seoane-Vazquez was hired as an assistant professor on August 19, 2002, and was appointed as a member of a search committee to fill a vacancy in OSU’s college of pharmacy. Pl.'s Am. Compl. ¶¶ 10,11. Plaintiff expressed concerns about one of the final three candidates, Dr. Rajesh Balkrishnan (“Balkrishnan”), regarding statements of conflict with faculty at his current university, and recommended that the committee request letters of recommendation from senior faculty or his division chair. Id. at ¶ 13. Dr. Milap Nahata (“Nahata”), Chair of the Division of Pharmacy Practice and Administration of OSU’s College of Pharmacy, did not request additional letters and hired Balkrishnan. Id. at ¶¶ 12,16,17.

Nahata, Balkrishnan, and others discriminated against him based on his Hispanic national origin, and retaliated against him for his objections to the hiring of Balkrishnan who, like Nahata, is of Indian national origin. Id. at ¶¶ 2, 14, 18. Balkrishnan, Nahata, and others within the college approached his advisees, recommended they stop taking classes taught by Vazquez, and that it would be in their best interests to stop working with him. Id. at ¶ 21. On one particular occasion an advisee of his was approached by a faculty member and told, “You are Indian why are you working with Assistant Professor Seoane-Vazquez, you should be working with Professor Balkrishnan.” Id. at ¶ 19. On August 22, 2005, Vazquez submitted a complaint to Dean Robert Brueggemeier (“Brueggemeier”), who referred the complaint to the College Investigation Committee (“CIC”), which made findings regarding all allegations except allegations of racial remarks, which were investigated by the University’s Department of Human Resources. Id.at ¶¶ 22, 23, 24.

The CIC report indicated that many of the allegations had merit and further investigation was warranted, yet Brueggemeier upon being presented with the report, decided not to further investigate. Id. at ¶¶ 25, 26. Vazquez appealed this decision to Vice Provost Anderson, yet the appeal was refused. Id. at ¶¶ 27, 28. The report from the Human Resources department determined there were inappropriate comments made by a faculty member, but concluded no violation of university policies had occurred. Id. at ¶¶ 30, 31. Vazquez appealed these conclusions to Larry M. Lewellen, Associate Vice President for Human Resources, but was denied, and subsequently filed a discrimination charge with the EEOC. Id. at ¶¶ 31, 32, 33. Two other individuals, Dr. Rosa Rodriguez-Monguio and Dr. Sheryl Szeinbach, who supported Vazquez in his action against OSU, are alleging retaliation for such support, and have filed their own actions with the EEOC. Id. at ¶¶ 36, 37, 39, 40.

Biased performance reviews, along with misrepresentations made to the Promotion and Tenure Committee by Nahata and Dr. Robert A. Buerki were the reasons for his denial of tenure on December 1, 2008. Id. at ¶¶ 48, 49, 50, 51, 56. Dr. Balkrishnan allegedly voted against Vazquez during this meeting. Id. at ¶ 55.

Since commencement of this suit there have been complications regarding discovery document production from OSU, specifically redaction of student names and statements under a claim of FERPA protection. Pl.'s Mot. Compel 1-2; Def.'s Resp. 4. On October 7, 2008, a protective order was issued, to which both parties agreed (doc. 4). This order provided that any documents produced and marked “confidential” shall be used in this matter only, and filed under seal. Doc. 4 at 2. Protected documents include documents protected by FERPA. Id. There have also been documents withheld under claim of privilege, and other specific missing or incomplete documents which Plaintiff seeks to have produced. Pl.'s Mot. 4-7.

DISCUSSION

*3 “A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession or control: any documents or electronically stored information[.]” Fed. R. Civ. P. 34(a). The production at issue in Plaintiff’s motion are documents and electronically stored information in the possession of Defendant.

“[A] party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the other person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Here Plaintiff has conferred and made a good faith effort to resolve discovery disputes, and certified such in his motion. SeePl.'s motion at 7. There is lengthy documentation presented by both sides as exhibits which demonstrate efforts to resolve disputes regarding FERPA issues, privilege claims, and other production irregularities without court involvement. The impasse on FERPA issues presented the need for court action.

“A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: ... a party fails to respond that inspection will be permitted—or fails to permit inspection—as required under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Here, Plaintiff is claiming that Defendant did not fully produce documentation and electronically stored information in its possession or control, and seeks an order compelling the production of such information.

The Family Educational Rights and Privacy Act denies federal funding to an educational institution “which has a policy or practice of permitting the release of educational records ... of students without written consent[.]” 20 U.S.C. § 1232g(b)(1). FERPA also prohibits the disclosure of personally identifiable information contained in educational records. Id. OSU is claiming they may not disclose two student statements as they are educational records in that they do not relate exclusively to Vazquez as an employee because he played a role in the students' education, nor can they produce other documents without personally identifiable information redacted. Def.'s Resp. 9-10. Plaintiff claims that student statements regarding OSU’s internal investigations do not qualify as educational records under FERPA, that there are more than two statements redacted in their entirety, and that the protective order of this court provides framework in which educational records could be produced while still protecting the privacy of students. Pl.'s Reply. 8-10.

Educational records are “[T]hose records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution[.]” 34 C.F.R. § 99.3. The impasse with regard to FERPA protection between the parties is whether the requested documents directly relate to students, and therefore qualify as educational records.

*4 Plaintiff claims that the investigational notes and statements of students related to investigations of university employees are not directly related to students because they directly relate to employee misconduct, in that the investigations were regarding alleged improper actions of other faculty within the college of pharmacology. Other documents sought in unredacted form are non-investigative documents including communications between students and professors regarding course requirements and recommendations.

In support of this position, Plaintiff cites Ellis v. Cleveland Municipal School Dist., 309 F.Supp.2d 1019 (N.D. Ohio, E.D., 2004). Ellis involved a discovery dispute arising from a student’s suit against the school district regarding corporeal punishment of students by substitute teachers. Id. The student was seeking records of allegations of physical altercations involving substitute teachers, as well as student and employee witness statements related to those altercations. Id. at 1022. The court held that these did not qualify as educational records because “[w]hile these records clearly involve students as alleged victims and witnesses, the records themselves are directly related to the activities and behaviors of the teachers themselves and are therefore not governed by FERPA.” Id. at 1023. The court reasoned that FERPA was designed to address systematic violations of student privacy, and is not undermined when “responding to narrowly-defined discovery requests pursuant to a court order.” Id. at 1023-24.

A more recent case which Plaintiff cites in support of the position that employee investigation reports do not count as educational records is Wallace v. Cranbrook Educational Community, 2006 WL 2796135 (E.D. Mich., 2006). In Wallace, an employee was terminated by the school district after anonymous statements by students alleging inappropriate sexual behavior. Id. at 1. The employee, a maintenance person, brought suit alleging improper termination, and during discovery, the student statements were provided with names and addresses redacted. Id. The school district objected to a motion compelling discovery of the unredacted statements because they believed these investigatory statements of students were protected as educational records, claiming the statements directly related to the students. Id. at 2-3. The court relied on the previously cited language of Ellis, and a Fifth Circuit Court of Appeals decision, which stated that “[incident reports] relate in no way whatsoever to the type of records which FERPA expressly protects; i.e., records relating to individual student academic performance, financial aid or scholastic probation which are kept in individual student files.” Supra at 6; Wallace, at 4 (Quoting Bauer v. Kincaid, 759 F.Supp. 575, 591 (W.D. Mo., 1991).)

Here, some of the documents sought by Plaintiff are of similar character to the information sought in Ellis and Wallace in that it relates primarily to alleged employee misconduct and involves statements from students. Additionally as in Wallace, the discovery is being sought by the employee relating to an employment law suit initiated by that employee against the educational institution. The incident reports and student witness documents being sought in Ellis & Wallace are very similar to some of the documents being sought by Vazquez. Vazquez, among other things, is requesting the production of student statements to university investigators regarding the complaints Vazquez filed about other university employees' interactions with students. These are student statements about employee conduct, and are directly related to the actions of university employees.

*5 Defendant offers the case of United States v. Miami University, 294 F.3d. 797 (C.A. 6th Cir. 2002) to support the position that the documents sought are educational records and therefore subject to the disclosure restrictions of FERPA. In Miami, a college newspaper was seeking statistics about the student bodies of universities regarding student disciplinary actions. Id. at 803. The university produced the records with personally identifiable information redacted, and the newspaper filed a mandamus action in the Ohio Supreme Court. Id. The Ohio Supreme Court granted the mandamus under Ohio Public Records Act, holding that student disciplinary actions do not constitute educational records and therefore are not exempted under the federal law provision of the Ohio Public Records Act. Id. The newspaper made similar requests for unredacted information to other universities, which notified the Department of Education (“DOE”), and the DOE immediately filed a complaint seeking declaratory relief enjoining universities from disclosing student disciplinary records. Id. at 804. DOE’s preliminary injunction was granted, the newspaper moved to intervene and did so, the DOE moved for summary judgment, was granted that motion, and the newspaper appealed. Id. The Miami court determined that student disciplinary actions were educational records, relying on two exceptions in FERPA which specifically allowed for the disclosure of student disciplinary records in certain situations. Id. at 812. “These two exemptions clearly evolve from a base Congressional assumption that student disciplinary records are ‘education records’ and thereby protected from disclosure.” Id.“If Congress believed that student disciplinary records were not education records under the FERPA, then these sections would be superfluous.” Id. at 813. The court stated that nothing prevented the universities from disclosing properly redacted student disciplinary records, if all personally identifiable information was removed. Id. at 824.

OSU urges that Miami sets a broad analytical framework for the determination of a particular record’s qualification as an education record. OSU argues that unless an exception is set forth in a statute, that a record is an education record. Def.'s Resp. 7. It is true that the court in Miami relied on the existence of two exceptions which specifically exempt certain types of student disciplinary records from FERPA protection, to conclude that Congress intended student disciplinary records generally to be covered by FERPA. To conclude the proper analysis is “[u]nless an exception set forth ... applies, the record is an education record[,]” is over simplified. Quoting Def.'s Resp. 7. The court in Miami found that a specific type of record, student disciplinary records, qualified as an educational record because certain types of that record were mentioned in the exceptions. (emphasis added) The court reasoned that because Congress mentioned circumstances in which that type of record was exempted, that generally that type of record was considered an educational record. Therefore, the analysis set forth in Miami is confined to student disciplinary records, and does not operate as inclusion as educational records of any record not mentioned in the exceptions.

OSU further argues that the cases advanced by Vazquez, are not in accord with the language of FERPA or the holding in Miami. To support this approach, OSU claims that Wallace relied on 20 U.S.C. § 1232g(a)(4)(B)(iii), an exception for persons who are employees of an educational institution, but not in attendance at such institution. OSU seeks to prove that Wallace, used the exception to justify the holding that investigatory and witness reports were not educational records because the language of the exception uses the phrase “which relate exclusively to such person in that person’s capacity as an employee”, and therefore the records in question would be considered educational records as they do relate in part to students' academic capacity. (emphasis added)

This argument is inaccurate, as Wallace first determined investigatory notes and student witness reports were not educational records, and then further supported this conclusion by stating “[t]he records are also not education records as one of the exceptions apply.” Wallace, at 5. (emphasis added) First, Wallace did not rely on the exception to hold that student statements and investigatory notes were not FERPA protected. The court cited language from Ellis stating “Congress did not intend FERPA to cover records directly related to teachers and only tangentially related to students” and in fact went on to distinguish the Miami case by showing that case involved student disciplinary action coverage under FERPA, not employee disciplinary action. Wallace, at 4 (Quoting Ellis, at 1023.)(emphasis added); Wallace, at 4. The court then went on to state that the records are “also not educational records as one of the exceptions apply.” Wallace, at 5. Therefore the courts conclusion that the investigatory notes and student statements were not educational records does not depend on the records relating exclusively to the employee, as defendant urges, because the court did not rely on the exception using that language in its determination that the records were not education records.

*6 Defendant argues that the situation present in Wallace, is far different because the employee in Wallace was a maintenance person / equipment operator, and is not as involved in a student’s academic sphere as are professors, like the employees investigated here. The Court does agree that this creates a more complex situation, but believes that the analysis of Ellisdoes not provide the investigatory notes and student statements FERPA protection, as they do not directly relate to the student, they directly relate to the employees behavior which was being investigated. The documents sought to be produced are more similar to the investigatory notes and student witness statements at issue in Wallace than they are to the records of student discipline in Miami. The notes and student statements sought by Vazquez directly relate to professors of the university, and their actions as employees of the university, which do involve interactions of an academic nature with graduate students. However, these records were not created to document the academic behaviors of students, but instead to document the actions of employees and student statements related to those employee actions, and the records tangentially relate to students' academic affairs. The student disciplinary records in Miami directly relate to a student as they are disciplinary actions, taken against the student, by the educational institution, for a violation of their rules or policies.

Although I conclude that the students, who are third parties to this lawsuit, have significant privacy interests in personal identifiers, documents created during the course of the investigation of Dr. Seoane-Vazquez’s discrimination complaint and those created or used during the course of the Department’s decision to deny him tenure are not “educational records” within the meaning of FERPA except to the extent that they may incorporate “educational records,” such as grades, student work product and the like. The purpose of FERPA is to protect students' right to privacy by limiting the disclosure of their educational records without their consent. United States v. Miami University, 294 F.3d at 806 (quoting Joint Statement, 120 Cong. Rec. 39858, 3982 (1974) ). Here the students have no reasonable expectation of privacy concerning their knowledge of facts relevant to whether the University discriminated against Seoane-Vazquez because of his national origin. They are simply fact witnesses whose evidence was relevant to the administrative investigation/tenure determination process. They are similarly fact witnesses who have evidence relevant to the claims and defenses of the parties in this lawsuit. The University has access to their statements and its investigators' summaries of those statements, used that information in its investigation/tenure determination, and is using it to defend this lawsuit. It would be unfair to deprive plaintiff of reasonable access to that information.

There are other documents responsive to Plaintiff’s discovery requests which, although not complied in reaction to Vazquez’s complaints to university officials, are probative regarding employees' discussions about Plaintiff with students and other faculty members. These have been produced to Plaintiff with redactions of personally identifiable information. Plaintiff claims that these redactions create problems such as, potential witnesses for trial or deposition may not be ascertained without the identity of the students. Many of these documents are likely to be communications between professors and students regarding their status as an advisee of the Plaintiff, or in relation to courses taught by the Plaintiff. These communications are academic in nature, and do not directly relate to the investigation of an employee of the educational institution, do directly relate to students of the educational institution, and therefore are protected from the educational institution having “a policy or practice of permitting the release of” those records. 20 U.S.C. § 1232g(b)(1).

“No funds shall be made available ... to any educational agency or institution which has a policy or practice of releasing ... any personally identifiable information in education records ... unless-- (A) ..., or (B) ... such information is furnished in compliance with judicial order, ... or subpoena, upon condition that parents and students are notified ... in advance[.]” 20 U.S.C. § 1232g(b)(2)(B). In the current situation, OSU has the ability to give notice to the individuals involved in the non-investigatory FERPA protected documents. OSU and Plaintiff have been attempting to resolve FERPA concerns by trying to secure written consent under subsection (A) of 20 U.S.C. § 1232g(b)(2).

*7 Since these documents are “educational records” this court cannot order their unredacted production. The only exceptions for court-ordered production of “educational records” are limited to criminal investigations and proceedings. 20 U.S.C. § 1232g(b)(1)(J). Since there is no exception for court-ordered production in civil cases, plaintiff will have to be satisfied with production of redacted educational records for those students who do not execute a FERPA waiver.

To withhold discoverable information as privileged a party must “expressly make the claim; and describe the nature of the documents ... not produced or disclosed-and do so in a manner that, without revealing the information itself privileged or protected, will enable the other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Plaintiff claims that OSU withheld documents under a claim of privilege without describing the nature of the documents in a manner that would enable Plaintiff to assess the claim of privilege. Plaintiff therefore seeks an order holding that the claim of privilege has been waived, or in the alternative, forcing OSU to comply with the requirements of Rule 26(b)(5)(A). Defendant’s assertion of privilege can be seen in responses to discovery requests, in which Defendant generally references the manual redaction of attorney client privilege documents without describing their nature. See Pl.'s Mot. Ex. 6. Response to Document Request no. 52 states: “Twenty two additional files not identified by the search protocol, were manually redacted, either because they were attorney-client privileged communications or because they related to ongoing tenure review[.]” Id. This expressly makes the claim of privilege, but does not describe the nature of the documents so that Plaintiff may assess the claim of privilege.

Plaintiff further argues that because Defendant has failed to comply with the provisions of Rule 26, that his claim of privilege is waived. Plaintiff cites the case of In re Search Warrant Executed at Law Offices of Stephen Gares, 1999 WL 137499 (6th Cir.) to support his claim that privilege should be waived. Gares, however presented a situation where a reviewing court was making a determination of a challenged status of privilege for certain communications, and held that for a court to make a determination of the privileged nature of certain documents, an archaic privilege log did not provide the reviewing court with enough information to make such determination, and therefore the claim was waived. Id. at 2. Here however, Plaintiff is not challenging the privileged nature of the documents, and asking a court to make a determination on said documents. Vazquez instead is asking for compliance with Rule 26 description requirements so he can determine whether or not to challenge the privileged nature of documents. The current case is not to the point where the contents and status of these documents are being challenged by Plaintiff after a claim of privilege is asserted and described. Therefore the claim of privilege is not waived.

Defendant concedes that it has not provided a privilege log. Def.'s Resp. at 13-14. OSU argues that they have agreed to produce a privilege log for all formerly produced documents after responding to the outstanding discovery requests, that Plaintiff never requested a log before February 23, 2009, that Plaintiff has not produced a privilege log, and a privilege log has been provided for all production subsequent to the February 23, 2009 request.

*8 Defendant’s first two objections assume there was no affirmative duty to expressly make the claim of privilege at the time of production. The assertion that Plaintiff only requested the log on February 23, 2009 is of no consequence, as there is no duty to request compliance with the requirements of Rule 26. “When a party withholds information otherwise discoverable by claiming that the information is privileged ... the party must: expressly make the claim; and describe the nature of the documents[.]” Fed. R. Civ. P. 26(b)(5)(A). When OSU produced the documents, and withheld portions as privileged, they were under an affirmative duty to expressly make the claim and describe the nature of the documents withheld so that Vazquez could evaluate the legitimacy of the privilege claim. There was no need for Vazquez to request the description of the documents by requesting a privilege log before OSU was obligated to do so. Therefore, the argument that OSU is working on a privilege log, and the argument that the request for such description was not made until recently, are both irrelevant.

OSU’s third objection is that Plaintiff has not himself provided a privilege log to OSU regarding documents Plaintiff withheld as privileged communications. Again this does not affect OSU’s duty to expressly claim and describe the nature of documents when asserting a defense of privileged communications in response to a discovery request. In examining this however, the Court notes that although Plaintiff has not created a privilege log, the description of documents withheld contained in Plaintiff’s response to Defendant’s discovery requests complies with the requirements of Rule 26(b)(5)(A) as it expressly makes the claim of privilege and describes the nature of documents withheld under the claim. See Pl.'s Reply 10-11.

Defendant’s final argument, that logs have been produced for all production since the February 23, 2009 request for a privilege log, shows that OSU is proceeding in compliance with the requirements of Rule 26(b)(5)(A), but does not affect the current situation regarding formerly produced documents.

Therefore, the Court holds that Defendant must produce a privilege log for all documents withheld under a privilege claim, or describe the nature of the documents previously withheld so that Plaintiff may assess the claim, within 30 days of entry of this order. No claim of privilege is waived for previously produced documents.

Plaintiff asserts that Defendant has not produced all documents relating to the Hapner investigations conducted by OSU. Specifically, Plaintiff seeks production of emails Ms. Hapner conducted with other employees of the university. Plaintiff further asserts that Defendant should be sanctioned for its interference with these documents, which were subpoenaed by this Court, and that OSU had no reason to withhold or redact any information there from.

Defendant answers by stating that the disk containing the emails has already been produced, and was initially “overlooked” by Defendant’s counsel. Upon noticing the disk, Defendant’s counsel attempted to open the file, and found the disk was corrupted. Ms. Hapner has already been contacted for a new disk so that the emails may be produced, and therefore Defendant claims that Plaintiff’s request to compel production is moot.

Plaintiff answers this in his reply by stating that the file provided to him was unable to be opened, and that hundreds of pages were inaccessible. Plaintiff further argues that sanctions should be imposed because Ms. Hapner’s interview disclaimer stated that she had not been retained to advise the university, and yet OSU intercepted the documents and made redactions prior to production.

Plaintiff’s argument is without merit and is an issue not ripe for presentation to this Court. First evidenced in both motions is that there are problems regarding the electronic format in which the documents are being produced, since Defendant’s counsel with the original disk, and Plaintiff’s counsel with the second disk, were both unable to access the files contained on such disk. As such Plaintiff “intends to request paper copies of these documents”. Pl.'s Reply 13. This shows that extrajudicial means of obtaining these documents could have been used as there has never been a statement from Defendant’s refusing to produce, or showing opposition to production. This seems to be a technical difficulty, which the parties should work out before involving the court.

*9 As to Plaintiff’s assertion that OSU should be sanctioned for intercepting these documents that were subject to a lawfully issued subpoena, this Court is not convinced any improper purpose was furthered by intercepting said documents. Plaintiff is correct that information needed not be redacted from those documents with regard to privileged redactions or withholdings. (emphasis added) However, OSU did have an interest in preventing the disclosure of educational records maintained by the educational institution, and therefore was justified in making FERPA redactions before producing said documents. The FERPA protection which OSU believed extended to these documents is not related to any claim of attorney client privilege as Plaintiff misstates in its argument. See Pl.'s Reply 13. Although this Court has subsequently determined that these investigational documents are not protected educational records under FERPA, OSU was justified in its redactions prior to that finding in order to protect its federal funding.

Therefore, Plaintiff’s motion to compel production of the Hapner emails is denied as it is not yet ripe for consideration because plaintiff did not make a good faith attempt to confer with opposing counsel without the need for court action. Furthermore, the request for sanctions relating to OSU’s interception of the Hapner documents is denied. However, any previously redacted materials or withheld statements which are part of the original production of Hapner documents must be produced in unredacted form or the withheld statement produced in accordance with this order and the outlined FERPA protections.

Plaintiff’s request to compel production of a draft letter attached to an email is not ripe for presentation to this court. As OSU states in its motion, this document is being produced. There is no indication that the production of the document is at issue, therefore court action on this particular issue is unnecessary.

Defendant noticed the court April 17, 2009, that this document has already been produced to Plaintiff in its entirety by Ms. Hapner in response to her subpoena. Doc. 41, 1. Therefore the request to compel production is denied as the issue is moot.

Per the status conference of the parties on March 20, 2009, Dr. Balkrishnan has complied with the Court’s order regarding his response to Plaintiff’s subpoena. Therefore the request to compel production is moot. See Doc. 41, 2.

Defendant makes the claim in its response that the email to which files were attached was between a university employee and university legal counsel soliciting advice in reaction to Plaintiff filing a charge with the EEOC. Defendant claims the cover page was produced because the fact that legal advice was sought is not protected, but withheld the attachments as they contained information about the communication. This satisfies the requirements of Rule 26(b)(5)(A) in that it expressly makes the claim of privilege and describes the nature of the documents withheld. Therefore the request to compel production of these attachments is denied.

Defendant noticed the court April 17, 2009, that this document was re-produced to Plaintiff in its entirety. (Doc. 41, 1.) The initial reason for incomplete production was claimed to be improper copying of a 2 sided email. Therefore the request to compel production is denied as the issue is moot.

*10 Plaintiff in his reply withdraws his request for a “pile of information” related to document request no. 40. See Pl.'s Reply 14.

“[T]he court shall ... require the party or deponent whose conduct necessitated the motion ... to pay the moving party reasonable expenses incurred in making the motion, including attorney fees, unless the court finds ... that the opposing party’s nondisclosure, response or objection was substantially justified.” Fed. R. Civ. P. 37(a)(5). Here, OSU was substantially justified in opposing discovery on both investigatory and non-investigatory documents withheld under alleged FERPA protection. OSU has an interest in protecting the federal funding they receive as an educational institution, and violating provisions of FERPA can cause denial of those funds. Furthermore, Defendant’s argument that records involving the investigation of academic affairs within a college, qualify as educational records under FERPA is not without merit. This Court is not in agreement with Defendant’s analysis of educational records under FERPA, however Defendant’s position was sustainably justified by the absence of case law addressing misconduct of professors in a graduate school context and also by their concern about denial of funding for possible violations of FERPA.

CONCLUSION

For the aforementioned reasons, Plaintiff’s Motion to Compel and Award of Reasonable Expenses is GRANTED in part and DENIED in part. Plaintiff’s request for a privilege log or compliance with Rule 26(b)(5)(A) is GRANTED. Plaintiff’s request to compel is GRANTED as to documents created during the course of the investigation of Dr. Seoane-Vazquez’s discrimination complaint and those created or used during the course of the Department’s decision to deny him tenure because they are not “educational records” within the meaning of FERPA. The motion is DENIEDto the extent that these documents may incorporate “educational records,” such as grades, student work product and the like. Plaintiff’s request for production of Hapner documents, and attachments to a Brueggemeier email is DENIED, as good faith efforts to resolve without court action have not been exhausted. All other requests for specific documents or piles of information are DENIED as they are moot. Finally Plaintiff’s request for attorney’s fees is DENIED as Defendant’s refusal to produce documents under alleged FERPA protection was substantially justified.