*1 This order concerns Baylor's motions to quash or modify subpoenas issued to current and former university employees.[1] Before the Court is Baylor's Motion for Protection and to Quash or Modify Subpoenas issued to Migdalia Holgersson, Ian McCaw, and Jim Doak, (Dkt. 282), Baylor's Motion for Protection and Motion to Quash or Modify Subpoena issued to Brian Nicholson, (Dkt. 294), Baylor's Motion for Protection and/or Motion to Quash or Modify Subpoenas to 19 current and former employees, (Dkt. 335), Baylor's Motion for Protection and/or Motion to Quash or Modify Subpoenas to 26 current and former employees, (Dkt. 381), and Baylor's Motion for Protection and/or Motion to Quash or Modify Subpoenas to12 current and former employees, (Dkt. 427). Baylor also filed three supplements to those motions, requesting the same relief from document requests included in deposition subpoenas to current and former employees. (Dkts. 439, 485, 509).[2] Plaintiffs filed responses opposing each of Baylor's motions. (Dkts. 283, 295, 367, 418, 433). Having considered the parties' submissions, the record, and the governing law, the Court enters the following order.

“A party to litigation has no standing to move to quash a third party subpoena duces tecum absent some ‘personal right or privilege’ in the materials sought.” Granados v. State Farm Lloyds, No. DR-10-CV-13-AML-VRG, 2010 WL 11597707, at *1 (W.D. Tex. June 2, 2010) (citing Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)). “District courts require parties to color their claims of a personal right or privilege in materials sought with specificity.” Id. (collecting cases). On timely motion, a court “must quash or modify a subpoena that ... requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A).

It is well established that “[m]atters relating to discovery are committed to the discretion of the trial court.” Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 347 (5th Cir. 2004). “Judges should not hesitate to exercise appropriate control over the discovery process.” Fed. R. Civ. P. 26 cmt. (quoting Herbert v. Lando, 441 U.S. 153, 177 (1979)).

*2 Baylor asks the Court to quash these subpoenas to the extent that they seek (A) production of documents in a manner that would violate the Federal Educational Rights and Privacy Act (“FERPA”),[3] (B) privileged material, or (C) information which Baylor asserts is “outside the scope of discovery.” The Court addresses each of these in turn.

The Family Educational Rights and Privacy Act (“FERPA”) prohibits the release of “educational records” containing “personally identifiable information” absent written consent from the student or their parents, a judicial order directing such disclosure, or a lawfully issued subpoena. 20 U.S.C. § 1232g. Baylor asks the Court to enter a protective order prohibiting third parties from producing FERPA-protected information to Plaintiffs until following the procedures for redaction or student notice as provided by the Court's prior orders.[4] (See Mot. Quash, Dkt. 282, at 6; Dkt. 294, at 5; Dkt. 335, at 9; Dkt. 381, at 10; Dkt. 427, at 5; Dkt. 439, at 2; Dkt. 485, at 2; Dkt. 509, at 2).

Specifically, Baylor argues that Plaintiffs' subpoenas “seek numerous items that will or could capture FERPA-protected non-party student records,” and that “each subpoenaed current and former employee has and/or had access to confidential student information during their employment with Baylor.” (See Mot. Quash, Dkt. 335, at 7). Baylor contends that “to the extent that these individuals possess FERPA documents in locations outside of Baylor's environs, Baylor must be able to ensure that FERPA protections for non-party students are respected.” (Mot. Quash, Dkt. 427, at 2). Baylor contends that third parties must redact such records in order to de-identify students before producing them to Plaintiffs, or, if “redaction is insufficient,” third parties must notify Baylor in order to conduct FERPA notices. (Dkt. 335, at 7).

Plaintiffs respond that FERPA does not apply to the personal records of employees and former employees. (Pls.' Resp., Dkt. 367, at 4). Plaintiffs advise the Court that they have informed Baylor that they will attach a copy of the Court's order governing redactions by Baylor, (Dkt. 300), to future subpoenas and ask recipients to comply with the same redactions, (id. at 6). Plaintiffs also advise the Court that they have informed counsel for subpoena recipients of the order. (Id.).

*3 FERPA applies to educational records maintained by schools that receive federal aid or parties acting on behalf of those agencies or institutions. 20 U.S.C. § 1232g(a)(1); 34 C.F.R. § 99.3. However, the statute provides that not all student records maintained by a federally-funded educational institution or a person acting for such an institution are protected by FERPA.

The statute specifies that “the term ‘education records’ does not include ... records made and maintained in the normal course of business which relate exclusively to [an employee] in that person's capacity as an employee and are not available for use for any other purpose.” Id. § 1232g(a)(4)(B)(iii) (emphasis added). Therefore, current employees' records “made and maintained in the normal course of business” that relate exclusively to their capacity as an employee and not available for use for any other purpose are not protected under FERPA, and must be produced without redactions as requested by Plaintiffs.[5]

Additionally, the statute states that “the term ‘education records’ means ... those records, files, documents, and other materials which ... (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A).

Baylor cites no authority supporting its proposition that the personal records of current or former employees may constitute “education records” under FERPA. The facts in Baylor's cited authorities do not involve student records that were both (1) at some point governed by FERPA and (2) held in the personal records of a current or former employee.[6] In the absence of any supporting precedent, this Court is not inclined to extend FERPA beyond its plain text. See Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 622 (5th Cir. 2013). The plain text of the statute provides that “the term ‘education records’ means ... materials ... maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). Records in the possession of a former employee, or in the personal records of a current employee, are not “maintained by” an educational institution or a person acting for such institution.

*4 Moreover, Baylor has not identified specific facts to suggest a contrary finding.[7] The Court concludes that personal records of current or former employees are not educational records maintained by federally funded educational agencies or institutions or a person acting for such agency or institution. See 20 U.S.C. § 1232g(a)(4)(A).

The Court also concludes that Baylor has not met its burden “to show the necessity of [ ]issuance” of a protective order restricting production of personal records by current or former employees on FERPA grounds. In re Terra Int'l, 134 F.3d 302, 306 (5th Cir. 1998). As such, there is no need for FERPA-like notices before unredacted disclosure to Plaintiffs. Accordingly, the Court will deny Baylor's request for a protective order prohibiting third parties from producing student records or information to Plaintiffs on FERPA grounds. To the extent that Baylor has concerns that current or former employees have student records in their personal possession that are properly governed under FERPA, Baylor bears the responsibility to educate its employees on the identification and management of protected student information.

The Court notes that a number of current and former employees have filed motions to quash certain subpoenas by Plaintiffs. To the extent that any of those motions raise additional FERPA-related claims for relief, the Court will consider those motions on their own merits.

The Court also notes that in camera review of FERPA materials is ongoing. The Court will ensure appropriate disclosures and resolve any outstanding discovery issues related to FERPA once that review is complete. (See Advisory Regarding Discovery, Dkt. 576).

Regarding privilege, Baylor asks the Court prohibit third-party witnesses from producing documents to Plaintiffs which might be protected by attorney-client privilege or work product privilege until Baylor is able to conduct a privilege review and log withheld or protected items. (Dkt. 282, at 6; Dkt. 294, at 5; Dkt. 335, at 10; Dkt. 381, at 10; Dkt. 427, at 6; Dkt. 439, at 2; Dkt. 485, at 2; Dkt. 509, at 2).

Discovery is outside the scope permitted by the Federal Rules of Civil Procedure if the discovery sought is (1) privileged; (2) not relevant to any party's claims or defense; or (3) not “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). If the Court finds that the discovery request seeks privileged material, the Court may issue a protective order. See Fed. R. Civ. P. 26(c). “[T]he burden is upon [the party seeking the protective order] to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, 134 F.3d at 306 (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)); Robinson v. Dall. Cty. Cmty. Coll. Dist., No. 3:14-CV-4187-D, 2016 WL 1273900, at *3 (N.D. Tex. Feb. 18, 2016) (explaining that the recent amendments to Rule 26 “do not alter the burdens imposed on the party resisting discovery”).

*5 This Court's orders on the Pepper Hamilton materials resolve part of Baylor's motion to quash. The Court will first address those materials. The Court will then address whether Baylor is entitled to any other requested relief as a matter of attorney-client privilege or work product privilege.

The Court will extend its prior orders regarding the Pepper Hamilton materials to all current and former employees. The Court has previously specified which Pepper Hamilton materials that Baylor may withhold as protected attorney work product:

(Order, Dkt. 168, at 19). The Court ordered that Baylor need not produce any of these materials. All other Pepper Hamilton materials remain discoverable. For the purpose of depositions, the Court explained that “work product immunity protects only the documents themselves and not the underlying facts.” (Order on Scope of Discovery, Dkt. 569, at 3 (citing In re Int'l Sys. & Controls Corp., 693 F.2d at 1240)). Following this reasoning, during depositions, “Plaintiffs may discover underlying facts; Plaintiffs may not discover the significance that attorneys have attached to the facts, or the conclusions drawn from them.” (Id. at 5).[8]

The work product privilege “belongs to both the client and the attorney, either one of whom may assert it.” In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994). “[W]ork product immunity protects ... the documents themselves.” In re Int'l Sys., 693 F.2d at 1240. Baylor has established that certain Pepper Hamilton materials constitute work product. (Order on Scope of Discovery, Dkt. 569, at 3–4; Order, Dkt. 168, at 18). Baylor may therefore assert its privilege over those materials in order to modify a third party subpoena duces tecum. See Granados, 2010 WL 11597707, at *1 (citing Brown, 595 F.2d at 967).

Because Baylor is entitled to assert the privilege, and has done so, the Court will extend its orders governing production of Pepper Hamilton materials, (Dkts. 168, 569), to all current and former employees. All current and former employees must respond to discovery requests and participate in depositions in a manner consistent with the terms of those orders. Accordingly, to the extent that they have such material in their possession or in their personal knowledge, all current and former employees must participate in depositions and produce all material that is responsive to Plaintiffs' discovery requests in their entirety, except:

(See Order, Dkt. 168, at 19; Order on Scope of Discovery, Dkt. 569, at 5). Current and former employees may not withhold any other material related to Pepper Hamilton.[9] During depositions, current and former employees who may have engaged in privileged communications with Baylor's counsel are only protected from responding to questions that “directly seek the mental impressions of Baylor's counsel,” such as specifying “which documents and interviews” formed the bases of the Findings of Fact or Recommendations. (Order, Dkt. 168, at 19; Order on Scope of Discovery, Dkt. 569, at 5).

Other than the motions currently pending, the Court will not entertain any further motions for protection regarding the Pepper Hamilton materials from Baylor or any third party. The Court next considers whether Baylor is entitled to any other requested relief as a matter of attorney-client privilege or work product privilege.

Baylor raises two distinct privileges—the attorney-client privilege and the work product privilege.[10] See United States v. Nobles, 422 U.S. 225, 238 n.11 (1975); see also Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989) (“The work product privilege is very different from the attorney-client privilege.”). The Court will first address the applicability of the broader privilege, the attorney-client privilege, and then turn to address the applicability of the work-product privilege.

“For a communication to be protected under the [attorney-client] privilege, the proponent ‘must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.’ ” Equal Empl.Opportunity Comm'n v. BDO USA, LLP, 876 F.3d 690, 695 (5th Cir. 2017) (quoting United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997). “[C]ourts generally construe the privilege narrowly because ‘assertion of privileges inhibits the search for truth.’ ” EEOC, 876 F.3d at 696 (citing Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex. 2004)). “Determining the applicability of the privilege is a ‘highly fact-specific’ inquiry, and the party asserting the privilege bears the burden of proof.” EEOC, 876 F.3d at 695 (citations omitted). “The burden is on the party asserting the privilege to demonstrate how each document satisfies all the elements of the privilege.” S.E.C. v. Brady, 238 F.R.D. 429, 439 (N.D. Tex. 2006) (citing Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)).

*7 Baylor does not satisfy this burden. The argument that Plaintiffs' discovery requests “are broad enough to encompass [privileged] documents” and that former employees may possess privileged documents, (Mot., Dkt. 282, at 5), is not a “particular and specific demonstration of fact” that is “distinguished from ... conclusory statements.” See In re Terra Int'l, 134 F.3d at 306 (quoting Garrett, 571 F.2d at 1326 n.3). Baylor argues that Doak, McCaw, and Holgersson “each had authority to receive and request legal advice from the university's lawyers regarding university business.” (Mot., Dkt. 282, at 4). Baylor asserts that these three former employees “interacted with” Baylor's General Counsel and other attorneys “regarding legal matters arising in their respective departments such as issues regarding employee or student conduct investigations and compliance with federal discrimination laws,” and that “communications on such issues were made confidentially for the primary purpose of securing a legal opinion or advice.” (Holmes Decl., Dkt. 282-1, at 1). But this assertion is simply a conclusory restatement of the elements of the privilege. “[S]imply describing a lawyer's advice as ‘legal,’ without more, is conclusory and insufficient to carry out the proponent's burden of establishing attorney-client privilege.” EEOC, 876 F.3d at 695 (citing United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996)).

Baylor has not made a particular and specific demonstration of “(1) ... a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.'” EEOC, 876 F.3d at 695. Moreover, “the privilege does not protect documents and other communications simply because they result from an attorney-client relationship.” S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 315 (N.D. Tex. 2009). “There is no presumption that a company's communications with counsel are privileged.” EEOC, 876 F.3d at 696 (citations omitted). “[T]he attorney-client privilege does not apply simply because documents were sent to an attorney.” Id. (citing NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)). Documents “sent from one corporate officer to another” are not privileged “merely because a copy is also sent to counsel.” Id. (citing Freeport–McMoran Sulphur, LLC v. Mike Mullen Energy Equip. Res., Inc., No. 03-1496, 2004 WL 1299042, at *25 (E.D. La. June 4, 2004)). Baylor makes no showing beyond speculating that former employees may have privileged material in their possession because they once had access to privileged material and engaged in privileged communications during their employment at Baylor.[11]

The Court concludes that Baylor has not met its burden to assert attorney-client privilege in this instance. Because the Court concludes that Baylor has failed to meet its burden to assert attorney-client privilege, the Court will address Baylor's arguments regarding the work-product privilege.

Work product typically constitutes “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ... including the other party's attorney.” Fed. R. Civ. P. 26(b)(3). Like the attorney-client privilege, “[t]he burden of establishing that a document is work product is on the party who asserts the claim.” Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treasury, I.R.S., 768 F.2d 719, 721 (5th Cir. 1985). To assert work product privilege, a party must show: “(1) the materials sought are documents or tangible things; (2) the materials sought were prepared in anticipation of litigation or for trial; (3) the materials were prepared by or for a party's representative; [and] (4) if the party seeks to show that the material is opinion work product, that party must show that the material contains the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party.” S.E.C. v. Brady, 238 F.R.D. 429, 441 (N.D. Tex. 2006) (citing Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 136 (E.D. Tex. 2003); Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 873 (5th Cir. 1991)). In the Fifth Circuit, “the privilege can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982)). “[F]actors relevant to determining the primary motivation for creating a document [include] the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance.” Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex. 2004) (internal quotations omitted).

*8 Baylor's submissions fail to meet the burden to show that any of the requested materials are work product. Baylor does not identify any specific materials or types of materials which might constitute work product. Baylor only argues that “[t]he requests are ... broad enough to seek information prepared in anticipation of litigation,” and that the former employee witnesses “had authority to receive and request advice from the university's lawyers regarding university business,” but makes no further showing to establish the elements of work product for any document. (Mot., Dkt. 282, at 1, 4).[12] The Court concludes that Baylor has not met its burden to establish work product privilege. Other than extending this Court's orders on the Pepper Hamilton materials to govern current and former employees, supra at 7–9, the Court will deny Baylor's request to screen third party materials before production to Plaintiffs.

Although Baylor has not met its burden for a protective order, the Court appreciates the possibility in this case that a current or former employee may inadvertently disclose privileged material to Plaintiffs. In order to facilitate the most efficient solution, and to avoid further discovery delays, the Court will adopt a claw back order based on the proposal in Plaintiff's response.[13] (Dkt 283, at 10). The Court finds that this approach adequately balances the interests of the parties and provides an appropriate degree of protection in the event that any privileged material is inadvertently produced. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (Rule 26 “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required”) (citing Fed. R. Civ. P. 26(c)(1)). The Court will enter a separate Claw Back Order outlining this procedure immediately following this order.

Addressing a specific former employee, Baylor argues that because Ian McCaw has been a co-defendant with Baylor in other Title IX litigation,[14] any communications between McCaw, Baylor, and/or their respective counsel for the purpose of their common defense are protected under the common interest doctrine. (Mot. Quash, Dkt. 282, at 5 (citing Ferko v. Nat'l Ass'n For Stock Car Auto Racing, Inc., 219 F.R.D. 396, 401 (E.D. Tex. 2003); In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001))). Plaintiffs do not address this issue in their response. (See Dkt. 283).

*9 The Court will take Baylor's submission under advisement, and resolve this question in its ruling on Plaintiffs' Motion to Compel and Request for in camera review of Ian McCaw Materials. (See Dkt. 363).

Next, Baylor argues that Plaintiffs' subpoenas to third party witnesses “seek information which the Court previously held is outside the scope of discovery.” (Mot Quash, Dkt. 335, at 3). Specifically:

(Id. at 3–6).

The Court resolved three of these issues in its recent order entered on October 10, 2018. (Order on Scope of Discovery, Dkt. 565).[15] In light of this order, items 1, 2, and 4 are now moot.

Only the third item—student counseling and medical records—requires further discussion. The Court has previously addressed discovery of this material in two orders. (See Dkt. 230 (ordering production of anonymized data in the form of spreadsheets, finding this form of discovery adequately satisfies Plaintiffs' discovery needs); Dkt. 302 (defining “sexual assault” for purpose of the spreadsheets)).[16] At this point in the litigation, the Court has neither ruled that student counseling and medical records are themselves “not discoverable,” nor that Plaintiffs are entitled to discover them.

Baylor now contends that Plaintiffs' requests to Baylor counseling and medical professionals for communications with sexual assault victims are “broad enough to seek” student counseling and medical records. (Mot. Quash, Dkt. 335, at 5; Dkt. 381, at 5). Baylor does not identify any specific discovery requests that raise this concern. (See id.). Baylor also has not specified the relief it seeks with respect to these records. (See id.).

*10 Plaintiffs' only response is part of a more general objection to Baylor's request for a protective order—in essence, that Baylor may not “gatekeep all discovery” from third parties. (Pls.' Resp., Dkt. 367, at 3; Dkt. 481, at 3). Plaintiffs do not identify any specific need for medical or counseling records, or assert their discoverability. (Id.). Given this, it appears to the Court that there is no genuine dispute between the parties regarding this material.

It is not apparent that Baylor engaged in a good faith conference with the Plaintiffs as required under Rule 26(c)(1) before filing this specific request.[17] Based on this alone, and noting the lack of a specific request for relief, the Court declines to enter a protective order with respect to student counseling and medical records at this time.[18]

Finally, as the Court has previously reminded the parties, (Dkt. 146), Baylor may not pick and choose which documents it deems relevant to Plaintiffs' claims. Similarly, third parties may not pick and choose which documents are relevant to Plaintiffs' claims. Certain arguments and suggestions made by Baylor and some third parties indicate that they seek to make their own determinations of relevance, rather than producing all documents responsive to Plaintiffs' production requests. To be clear: if Baylor or any third party seeks to withhold any documents or portions of documents subject to a discovery request from Plaintiffs due to relevance, absent an agreement with Plaintiffs, they must first seek a protective order from this Court. Otherwise, all documents responsive to the request must be produced in their entirety.

Accordingly, Baylor's Motions for Protection and to Quash or Modify Subpoenas, (Dkts. 282, 294, 335, 381, 427), and supplemental motions, (Dkts. 439, 485, 509), are GRANTED IN PART and DENIED IN PART, consistent with the terms of this Order. Specifically:

SIGNED on November 16, 2018.