Doe 1 v. Baylor Univ.
Doe 1 v. Baylor Univ.
2019 WL 13254045 (W.D. Tex. 2019)
April 16, 2019
Pitman, Robert, United States District Judge
Summary
The Court ordered Plaintiffs to produce all ESI that is responsive to Baylor's Requests for Production of Documents, including emails, text messages, social media messages, and other forms of ESI. The Court also ruled that Plaintiffs must provide Baylor with unredacted copies of the records produced in response to Baylor's First Request for Production of Documents.
Additional Decisions
Jane DOE 1, et al., Plaintiffs,
v.
BAYLOR UNIVERSITY, Defendant
v.
BAYLOR UNIVERSITY, Defendant
6:16-CV-173-RP, Consolidated with 6:17-CV-228-RP, 6:17-CV-236-RP
United States District Court, W.D. Texas, Waco Division
Signed April 16, 2019
Counsel
Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, Eleeza Nickole Johnson, Andrea Michelle Mehta, James R. Dunnam, Dunnam, Dunnam, et al., Waco, TX, George (Tex) Quesada, Jody Rodenberg, Laura Benitez Geisler, Sean J. McCaffity, Sommerman McCaffity Quesada & Geisler, LLP, Dallas, TX, K. Scott Brazil, Brazil & Dunn, Houston, TX, for Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe 10.Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, James R. Dunnam, Dunnam, Dunnam, et al., Waco, TX, for Plaintiffs Jane Doe 12, Jane Doe 13, Jane Doe 14, Jane Doe 15.
James R. Dunnam, Dunnam, Dunnam, et al., Waco, TX, K. Scott Brazil, Brazil & Dunn, Houston, TX, Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, for Plaintiff Jane Doe 11.
Geoffrey D. Weisbart, Julie A. Springer, Mia A. Storm, Sara E. Janes, Danielle K. Hatchitt, Weisbart Springer Hayes, LLP, Austin, TX, Holly Gene McIntush, Thompson & Horton, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Matthew A. Reed, Ryan Hewlett Newman, Thompson & Horton, L.L.P., Houston, TX, for Defendant Baylor University.
Geoffrey D. Weisbart, Julie A. Springer, Sara E. Janes, Weisbart Springer Hayes, LLP, Austin, TX, Holly Gene McIntush, Thompson & Horton, LLP, Austin, TX, Lisa Ann Brown, Thompson & Horton LLP, Houston, TX, for Defendant Baylor University.
Geoffrey D. Weisbart, Julie A. Springer, Sara E. Janes, Weisbart Springer Hayes, LLP, Austin, TX, Holly Gene McIntush, Thompson & Horton, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Thompson & Horton, L.L.P., Houston, TX, for Defendant Baylor University.
Pitman, Robert, United States District Judge
ORDER
*1 Before the Court is Defendant Baylor University's Amended First Motion to Compel, (Am. Mot., Dkt. 605), Plaintiffs’ Response, (Dkt. 609), and Baylor's Reply, (Dkt. 614). Baylor filed this amended motion at the Court's request in light of the Court's discovery guidance and the parties’ progress over the past year. (See Mot., Dkt. 257; Order, Dkt. 599).[1] The Court notes with appreciation that the parties have been able to resolve certain issues by conference in advance of this motion. Having considered the parties’ original and amended submissions, the record, and the governing law, the Court enters the following order.
I. LEGAL STANDARD
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). Furthermore, 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).
II. DISCUSSION
A. Plaintiffs’ Communications with Baylor Employees and Third Parties
The Court has previously ruled that Plaintiffs must provide Baylor with unredacted copies of the records produced in response to Baylor's First Request for Production of Documents. (See Mot. Compel, Dkt. 240; Order, Dkt. 301). Plaintiffs must comply with that order if they have not already done so. Where multiple plaintiffs possess similar material, e.g., a Facebook message thread, each individual plaintiff must comply with the request for production in full even though it may be partially duplicative.
Regarding Baylor's Second and Third Requests for Production of Documents, Plaintiffs must produce unredacted and complete versions of all responsive communications other than those specifically excluded by the terms of this order or any prior order, if they have not done so already. Again, each Plaintiff is an individual custodian and must produce all materials in her custody and control even if it is duplicative of materials held by other plaintiffs.
B. Plaintiffs’ Pre-Suit Communications With Each Other
Given the lack of supporting legal authority, the Court is not persuaded that a common interest privilege extends to Plaintiffs’ pre-suit communications made outside the presence of counsel. Plaintiffs must produce all responsive pre-suit communications with each other that were made outside the presence of counsel.
If a plaintiff intends to withhold a responsive communication based on attorney-client privilege or work product doctrine, she must produce a privilege log identifying any communication she withholds.
C. Attorney Engagement Letters and Fee Information
*2 Disclosure of attorney engagement and fee information prior to final judgment is exceptional. Baylor has not met its burden to compel production of this material at this time.
D. Jane Doe 4's MCAT Score
In the Amended Complaint, Jane Doe 4 alleges that she has been unable to gain acceptance to medical school at least in part because of Baylor's improper conduct: “Jane Doe 4 has yet to gain acceptance to medical school due to the negative, unaddressed after effects of her sexual assault.” (Am. Compl., Dkt. 56 ¶ 145). Because Jane Doe 4 asserts this as evidence of her damages in this action, she must produce her official MCAT score.
E. Law Enforcement and the Department of Education
Plaintiffs take the position that they have already produced their communications with law enforcement and the Department of Education. (Resp., Dkt. 609, at 8). It is unclear to the Court what dispute remains. Plaintiffs must produce all responsive communications with law enforcement and the Department of Education if they have not already done so.
F. Proper Briefing
The Court has previously warned the parties to avoid speculating about opposing counsel's motivations and instead brief the Court with factual information and specific requested relief. (Order, Dkt. 597, at 3). However, in their Response to Baylor's First Amended Motion to Compel, Plaintiffs’ counsel have included two pages regarding “what is ongoing in discovery outside of motions.” (Resp., Dkt. 609, at 9–11). Plaintiffs’ counsel accuse Baylor's counsel of conducting depositions designed to “belittle, harass, and further traumatize” Plaintiffs. (Id. at 9). Plaintiffs’ counsel does not request any specific relief regarding the depositions.
The Court is aware of the highly sensitive nature of discovery in a case concerning sexual assault. It is critical that depositions are conducted with decency. The Court will entertain requests for relief if that is not the case. However, the Court will not permit the parties to use court filings to deliver material to the news media that is irrelevant to the immediate issue before the Court. If either party files briefing in the future that is not directly responsive to the motion pending or otherwise relevant to the requested relief, the Court will take appropriate measures.
III. CONCLUSION
Accordingly, IT IS ORDERED that Baylor's Amended First Motion to Compel, (Dkt. 605), is GRANTED IN PART and DENIED IN PART.
Baylor's motion is GRANTED with respect to Plaintiffs’ communications with Baylor employees and third parties, each other, and law enforcement and the United States Department of Education; and with respect to Jane Doe 4's MCAT score. Plaintiffs must produce all responsive pre-suit communications with each other that were made outside the presence of counsel. If a plaintiff intends to withhold a responsive communication based on attorney-client privilege or work product doctrine, she must produce a privilege log identifying any communication she withholds.
Baylor's motion is DENIED with respect to Plaintiffs’ attorney engagement letters and fee information.
To the extent that they have not already done so, Plaintiffs are ORDERED to produce unredacted and complete versions of all responsive materials consistent with the terms of this order no later than May 7, 2019. The parties may extend this deadline by mutual agreement.