Plaintiff Mark McDaniel, M.D., a veteran, initiated this action against Loyola University Medical Center (“LUMC”), its parent companies, and various physicians, alleging he was wrongfully terminated from LUMC's five-year orthopaedic residency program and exposed to a hostile work environment in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and his employment contract. According to plaintiff, his relationship with defendants turned sour towards the end of his fourth year of residency when he requested leave for three weeks of Air National Guard obligations as well as a separate ten-day medical leave. Plaintiff further claims that even before the requested leave, attending physicians at LUMC subverted his efforts to receive a fellowship position upon completion of his residency. Plaintiff was terminated from the residency program on September 17, 2012. For their part, defendants contend that misrepresentations in plaintiff's surgical case logs, his poor attendance, and his lack of professionalism were the factors that lead to his termination.

During his residency at LUMC, Dr. McDaniel was also enrolled as an Executive MBA student at the University of Chicago's Booth School of Business (“Booth”). According to plaintiff, Dr. McDaniel did not apply for a medical residency or fellowship at the University of Chicago. On March 4, 2015, defendants issued a subpoena to the University of Chicago for “the complete application records, including but not limited to residency and/or fellowship program applications, transcripts, educational records, disciplinary records, acceptance or rejection communications, and interview notes or summaries, unlimited as to time period, regarding Mark D. McDaniel, M.D.” On March 18, 2015, plaintiff moved to quash the subpoena. Given that defendants' response [136] does not assert that Dr. McDaniel applied for a residency or fellowship at the University of Chicago, the only University of Chicago records at issue for purposes of this motion are with respect to the plaintiff's application and enrollment at Booth.

According to plaintiff, Booth records are irrelevant to the present case involving Dr. McDaniel's termination from his medical residency. Plaintiff asserts that the subpoena is overly broad and has no bearing on any claims or defenses in this lawsuit. Plaintiff contends that the subpoena is at worst a general fishing expedition intended to harass and embarrass the plaintiff, and at best a careless subpoena that failed to consider that Dr. McDaniel never applied to the University of Chicago for a residency or fellowship. It is also plaintiff's position that Dr. McDaniel has a privacy interest in his educational records pursuant to the Family Educational and Privacy Rights Act (“FERPA”) 20 U.S.C. § 1232g. Plaintiff's reply [137] further asserts that the records fall under the protection of USERRA because Dr. McDaniel was attending Booth pursuant to military orders, and therefore his activities and records while on military orders should be protected.[1]

*2 For their part, defendants contend that the subpoena is relevant or reasonably calculated to lead to the discovery of admissible evidence for the following reasons: (1) the documents are relevant to the issue of damages and mitigation; (2) the documents may provide information on plaintiff's unexplained absences and/or poor performance in the LUMC residency program; (3) the documents may show a pattern of poor academic performance; and (4) the documents bear directly on plaintiff's credibility. Specifically, it is defendants' position that not only may the records reveal that plaintiff took courses at Booth that conflicted with his residency commitments, but also that the MBA program may have interfered with Dr. McDaniel's residency and affected his academic performance. Defendants also contend that the records may reveal whether there were similar deficiencies in plaintiff's academic performance, attendance, and conduct at Booth. With respect to damages, defendants assert that plaintiff's overall performance in business school has a bearing on his future earning potential. Defendants further claim that plaintiff waived the right to object to the subpoena because plaintiff initially indicated he would obtain the records and provide them to defendants. We agree with defendants that the subpoena relates to records that are relevant or reasonably calculated to lead to the discovery of admissible evidence; however, we also find the subpoena to be overbroad as worded and subject to modifications.

Legal Standard

Under Rule 45 of the Federal Rules of Civil Procedure, the court must quash or modify a subpoena that “requires disclosure of privileged or protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii). Under FERPA, a plaintiff has a right of privacy in his educational records. Black v. Kyle-Reno, No. 1:12-CV-503, 2014 WL 667788, at *1 (S.D. Ohio Feb. 20, 2014) reconsideration denied, No. 1:12-CV-503, 2014 WL 1308353 (S.D. Ohio Mar. 31, 2014). The burden of establishing that a requirement under Rule 45 is met is on the party seeking to quash the subpoena. Hard Drive Productions v. Does 1-48, No. 11-CV-9062, 2012 WL 2196038, at *2 (N.D. Ill. June 14, 2012).[2]

The FERPA statute does not create an independent privilege for educational records, but instead makes educational records confidential. Catron v. Miles, 215 Ariz. 446, 453 (2007); see also Ragusa v. Malverne Union Free School Dist., 549 F. Supp. 2d 288, 290 (E.D.N.Y. 2008) (“FERPA does not provide a privilege that prevents the disclosure of student records.”). Disclosure of educational records is permitted under FERPA if it is necessary to comply with a lawfully issued subpoena or judicial order. 20 U.S.C. § 1232g(b)(2)(B). There is, however, a “significantly heavier burden” on the party requesting educational records to show that the interest in obtaining the records outweighs the privacy interest of the student. Ragusa, 549 F. Supp. 2d at 292; Black, 2014 WL 667788, at *2.

Rule 45 does not include overbreadth or irrelevance as reasons for quashing a subpoena, but courts have held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26. Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011); Black, 2014 WL 667788, at *1-2. Rule 26(b)(1) allows the parties to obtain discovery regarding “any non-privileged matter that is relevant to any party's claim or defense.” “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action,” including information that is not itself admissible but “is reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Therefore, a subpoena will survive a motion to quash when it designates topics that are reasonably calculated to lead to admissible evidence. Rosales v. The Placers, Ltd., No. 09 C 1706, 2011 WL 846082, at *1 (N.D. Ill. Mar. 8, 2011) (citing Stock v. Integrated Health Plan, Inc., 241 F.R.D. 618, 621 (S.D. Ill. 2007)).

Analysis

The issue here is whether the standard for pre-trial discovery of the Booth documents is met. Plaintiff's assertion that the educational records are protected by FERPA fails to acknowledge that FERPA does, in fact, allow for the production of educational records to comply with a lawfully issued subpoena. While this Court recognizes the importance of keeping a student's records confidential, the defendants are entitled to discovery that is relevant to their affirmative defenses. Plaintiff's Booth records may shed light on plaintiff's commitments as an MBA student during his residency at Loyola. For example, an excerpt from a Peer Review specifically notes that Dr. McDaniel was absent from clinical responsibilities on Fridays during a six week period and that he asked someone to cover one day because of a “class downtown.”[3] (Resp. at Ex. 6.) Contrary to plaintiff's assertions, defendants are justified in their belief that the Booth records may be relevant to their affirmative defenses that plaintiff was terminated for poor attendance and academic performance.

*3 Plaintiff asserts that the issue of his alleged poor academic performance was never previously raised by defendants. This argument, however, is contradicted in plaintiff's recently filed motion to compel the Accreditation Council for Graduate Medical Education (“ACGME”) to produce documents in which plaintiff asserts that plaintiff's board pass rates and scores are relevant “in that [d]efendants claim to have terminated Dr. McDaniel in part due to poor performance.” (Dkt. 139 at 7.) Plaintiff cannot claim in one instance that academic performance is not relevant to the proceedings while later moving to compel academic records because of their relevancy. Although the Booth records do not directly reflect on Dr. McDaniel's performance in LUMC's residency program, the records may address other obligations Dr. McDaniel had that could have affected his LUMC performance. The records are therefore reasonably related to defendants' position that Dr. McDaniel's termination was due to poor performance and poor attendance.

Further, the records may be relevant to the issue of damages and plaintiff's future earnings. Plaintiff alleges he is unable to be employed as an orthopedic surgeon as a result of his termination from the residency program and the alleged interference with his ability to find a fellowship position. He seeks damages based on the expected lifetime income for an orthopedic surgeon. According to plaintiff, his academic pursuits at the University of Chicago may be the only way for him to find meaningful employment.

It is reasonable for defendants to seek information that may address plaintiff's earning capacity as a Booth graduate in order to determine mitigated damages. Additionally, in an email plaintiff sent to Dr. Hilton Gottechalk, a fellow at LUMC during plaintiff's residency, plaintiff comments, “I have lost my MBA (mental stress and terror...I could not study).” (Resp. at Ex. 7.) Plaintiff's Booth records are therefore relevant to any claim that his termination from LUMC also caused him difficulties in his MBA program, which could affect his future earning capacity.

This Court finds that defendants' interest in obtaining the plaintiff's records from Booth outweighs plaintiff's interest in privacy because the records are relevant to defendants' affirmative defenses as well as the damages at issue. However, this Court agrees with plaintiff that the subpoena as written is overbroad in scope. Specifically, there is no claim that plaintiff ever applied for a medical residency or fellowship at the University of Chicago or participated in any other program at the University of Chicago. Consequently, the only records at issue for the purposes of this motion are those from the Booth School of Business. The Court has the ability to impose limitations on the subpoena in order to restrict their scope to material that pertains to the acts specified in the complaint. See Chazin v. Lieberman, 129 F.R.D. 97, 98 (S.D.N.Y. 1990). Therefore, defendants are to reissue the subpoena for records related to plaintiff's enrollment at the University of Chicago's Booth School of Business in compliance with this Court's order.

Not only did plaintiff fail to raise this argument in his original motion, but the memorandum attached to the reply does not establish that Dr. McDaniel was on military orders to attend business school. Instead, the memorandum is a letter on behalf of the U.S. Air Force and Air National Guard verifying that the Booth curriculum was reviewed, that the requirements of the program were understood, and expressing support for Dr. McDaniel's educational endeavors. (Reply at Ex. A.) Therefore, this Court finds that plaintiff's argument that there is a protection under USERRA is without merit.

Although the plaintiff is a nonparty to the University of Chicago subpoena, the plaintiff has standing to challenge the disclosure of information as to which he possesses a claim of privilege or personal right. See Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 n. 1 (S.D. Ohio 2011); Hunt Intern. Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D. Ill. 1983).

According to Booth's website (http://www.chicagobooth.edu/programs/exec-mba/admissions/ visit/chicago), the executive MBA program's classes are at the downtown location, 450 North Cityfront Plaza Drive, Chicago, IL. Plaintiff insists that he was elsewhere, but that the location is irrelevant because plaintiff “must be permitted to maintain a modicum of privacy in this litigation.” (Reply. at 5.) While an individual's privacy rights are not waived by the filing of a lawsuit, plaintiff fails to cite to any authority supporting his decision to not disclose his whereabouts on an issue relevant to this lawsuit.