*1 Before the Court are various discovery disputes between the parties first raised by Plaintiffs’ Motion to Compel Responses to Plaintiffs’ First Request for Production, (Dkt. 94), and Defendant's Motion for Protection, (Dkt. 97). Since these motions were filed, the parties have filed responses and replies, attended a hearing at which they argued the motions before the Court, and submitted additional briefing on many of these issues. The Court appreciates the extensive and thorough briefing by counsel and turns now to address the remaining issues raised by these motions.[1]

This suit involves ten plaintiffs who allege they were sexually assaulted by fellow students while attending Baylor University and seek to hold Baylor liable under Title IX. (Am. Compl., Dkt. 56). Defendant Baylor University moved to dismiss Plaintiffs’ claims, but the Court denied Baylor's motion on March 7, 2017, holding that six of the plaintiffs had stated claims plausibly alleging Baylor's deliberate indifference to their reports of sexual assault and that all plaintiffs had plausibly alleged a claim that Baylor had an official policy of discrimination that created a heightened risk of sexual assault for Plaintiffs. (Order, Dkt. 78). Although the Court stayed discovery while it considered Baylor's motion to dismiss, after the motion was denied, the stay was lifted, and the parties were permitted to engage in discovery. (See id.)

Not long afterward, the parties informed the Court that they were unable to resolve disagreements regarding the appropriate scope of discovery and requested that the Court set a briefing schedule and an in-person hearing regarding those disagreements. (Joint Advisory, Dkt. 91). The Court granted this request and set a hearing for June 16, 2017. (Order, Dkt. 92).

On May 24, 2017, the parties filed the two motions presently before the Court—Plaintiffs’ motion to compel, (Pls.’ Mot. Compel, Dkt. 93), and Defendant's motion for a protective order, (Def.’s Mot. P.O., Dkt. 97). After the parties filed their respective responses and replies, the Court held oral argument on the motions. (Minute Entry, Dkt. 112). At the hearing, the Court gave some indication of its leanings on several of the issues raised by the parties’ motions and resolved some of the disputes between the parties. The Court also requested that Defendant file certain documents for in camera review and requested additional briefing on certain issues. The Court now intends to resolve any remaining issues raised by the parties, with the exception of (1) those it will address at the hearing scheduled for Friday, July 28, 2017, regarding the protective order to be entered in this case; and (2) those raised in Plaintiffs’ separate motion regarding the Pepper Hamilton materials, which it will address by separate order.

The scope of discovery is broad. Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). Federal Rule of Civil Procedure 26 provides that, unless otherwise limited by court order, parties

Fed. R. Civ. P. 26(b)(1). “A discovery request is relevant when the request seeks admissible evidence or ‘is reasonably calculated to lead to the discovery of admissible evidence.’ ” Crosby, 647 F.3d at 262 (quoting Wiwa v. Royal Dutch Petrol. Co., 392 F.3d 812, 820 (5th Cir. 2004)). A party may move for an order to compel discovery if another “party fails to produce documents.” Fed. R. Civ. P. 37(a)(3)–(4).

Federal Rule of Civil Procedure 26(b)(2)(C) mandates that a court limit the frequency or extent of discovery otherwise allowed if it determines that

Fed. R. Civ. P. 26(b)(2)(C). Discovery is outside the scope permitted by Rule 26(b)(1) 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). Courts can “try to achieve proportional discovery by regulating the timing and sequence of discovery ... as the circumstances warrant.” Fed. R. Civ. P. 26 cmt. “The party seeking discovery bears the initial burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence.” Reynolds v. Cactus Drilling Co., LLC, No. MO:15-CV-00101-DAE-DC, 2015 WL 12660110, at *2 (W.D. Tex. Dec. 21, 2015).

The Federal Rules also provide for permissive limitations on discovery requests. To that end, a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). That order may—among other things—forbid the discovery, forbid inquiry into certain matters, or limit the scope of discovery to certain matters. Id. In such circumstances, “the 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 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)); Robinson v. Dallas 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”). Generally, “ ‘[j]udges 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)).

There are six discovery disputes currently before the Court: (1) the discoverability of Baylor's records relating to sexual assaults and code of conduct violations of non-plaintiff students; (2) the discoverability of Baylor's communications with certain third-party entities—the NCAA, the Big XII, and the Texas Rangers—regarding on-campus sexual assaults; (3) the discoverability of four settlement agreements between Baylor and former Baylor officials or employees; (4) the discoverability of an unredacted version of an email from former Baylor Regent Neal “Buddy” Jones; (5) whether the time period for Plaintiffs’ discovery requests is proportional to the needs of the case; and (6) whether Baylor needs to alter the manner in which it produces documents to Plaintiffs. The Court will address each of these disputes below.

*3 Plaintiffs, through various requests for production, seek discovery regarding all student code of conduct violations. They also seek documents related to sexual violence and sexual harassment for all students. Baylor responds that Plaintiffs’ requests regarding third-party students raise serious privacy concerns, encompass irrelevant material, and are not proportional to the needs to the case.

At the June 16 hearing, the Court directed the parties to negotiate an agreed protective order, similar to the one the Court entered in Hernandez v. Baylor, et al., 6:16-cv-169-RP, to address the privacy concerns raised by Baylor. The parties have indicated that they are unable to agree on the terms of that order, and the Court has set a hearing to resolve those disagreements for this Friday, July 28. The Court expects the hearing to address and fully resolve any remaining arguments regarding the protective order.

At the hearing, the Court indicated that it considered any records related to sexual violence or sexual harassment to be highly relevant to this case, regardless of whether or not the records pertained to Plaintiffs or non-party students. It suggested, however, that Plaintiffs’ requests regarding code of conduct violations were overly broad.

In post-hearing briefing, the parties addressed the Court's position on these issues. Noting a statement by Plaintiffs’ counsel at the hearing that Plaintiffs sought “data showing trends over time,” Baylor suggested producing a spreadsheet summarizing information regarding reports of sexual assault. (Def.’s Post-Hearing Br., Dkt. 114, at 1). As proposed, such a spreadsheet would contain the following:

(Id. at 1–2).

In arguing that such a spreadsheet would be sufficient, Baylor claims that providing summary information would offer more protection to third-party students, who would otherwise receive a FERPA notice regarding the planned production of documents relating to a sexual assault in which they were an alleged assailant or victim. (Id. at 3). Baylor further argues that “if an official policy does not emerge from the Plaintiffs’ ten cases, then they should not be allowed to fish through non-party files looking for one.” (Id. at 5). In light of these concerns, Baylor contends, the Court should not allow discovery into third-party records at this time but instead allow Baylor to prepare and produce the summary spreadsheet it proposes.

The Court is acutely aware of the privacy concerns Baylor raises, and those concerns weigh heavily on nearly every decision made by the Court in this and related cases. But in this instance, at least, the Court cannot agree that those privacy concerns outweigh Plaintiffs’ interest in being able to adequately investigate the substantial and serious allegations made in their complaint. The protective order the Court expects to enter in this case will add a substantial level of privacy protection to students whose records will be disclosed. Baylor's argument that the records from the ten Plaintiffs alone should be sufficient to demonstrate an official policy of discrimination, if one indeed exists or existed, seems to ignore the realities of how an official policy adopted by custom can be demonstrated. Reviewing Baylor employees’ communications and records relevant to third-parties may provide details about exactly how sexual assault reports were handled at the school that are not apparent (or not as apparent) from Plaintiffs’ own records, but still very relevant to their claims. Unlike in Hernandez, where the Court barred an early discovery request by the plaintiff because the information was accessible from other sources, here the Court finds it quite likely that the information Plaintiffs seek may only be available in these third-party records.

*4 Moreover, the Court finds that allowing Baylor to prepare a spreadsheet summarizing third-party reports of sexual assault would almost completely undercut the documents’ value to Plaintiffs. Compiling summaries of “[h]ow Baylor learned of alleged assault,” who at Baylor was “made aware of the alleged assault,” and the “[d]isposition of the complaint,” will, in many cases, require weighing evidence and drawing conclusions about certain facts. It would be fundamentally unfair to allow Baylor to conduct that investigation itself. (Def.’s Post-Hearing Br., Dkt. 114, at 1–2). The Court has no trouble envisioning situations in which, after reviewing original documents, Plaintiffs and Defendant could reasonably come to different conclusions about who at Baylor knew about an assault, how the school learned of the assault, and how the report was ultimately resolved. To allow Baylor to make all of those conclusions would undercut the value of discovery regarding third-party assaults to Plaintiffs.

Further, Plaintiffs seek this information for reasons other than exploring trends over time—instead, as the Court already discussed, certain communications and records may themselves demonstrate a schoolwide policy of discrimination. For example, what language Baylor employees use to describe reports of sexual assault, what details about the reports and the victims are included in records, and who at Baylor is informed of various reports of sexual assault and why could be relevant to Plaintiffs’ claims. Such information would be impossible to learn from Baylor's proposed summaries. The Court will therefore order Baylor to produce original documents—not summaries—related to sexual violence against and sexual harassment of third-party students.

The Court turns now to the issue of third-party violations of the student code of conduct. Plaintiffs admit that academic violations are irrelevant, but argue that violations “relating to alcohol use, sex or other prohibited personal conduct” should be produced. (Pls.’ Post-Hearing Br., Dkt. 117, at 10). At this stage, the Court stands by the position it took at the hearing, with one small exception. The Court agrees with Baylor that to the extent violations related to alcohol use and other prohibited personal conduct by third-party students are relevant, the burden arising from producing them, both on Baylor and on the students, strongly outweighs any utility the records may have. The Court will, however, allow discovery regarding violations relating to “sex”—which the Court understands to mean sexual conduct generally. In all likelihood, to the extent such code of conduct violations exist, they may be encompassed in Plaintiffs’ other requests. In the event they are not, the Court finds it much more likely that such violations will be related to Plaintiffs’ claims than would be all violations encompassed within Plaintiffs’ broader request.

Plaintiffs request certain communications between Baylor and third-party investigators—the NCAA, the Big XII, and the Texas Rangers[2]—relating to the school's handling of reports of sexual assaults on campus. Baylor has explained that none of the underlying documents or data provided to these third-party investigators is being withheld from Plaintiffs because of these investigations. Rather, the school seeks to protect the content of communications with these investigators in order to protect the integrity of those investigations and the confidentiality of any negotiations with those third-party entities. Plaintiffs argue that those confidentiality concerns do not preclude discovery, that knowing which documents were sent to which investigative bodies could be useful in determining whether Baylor has fully cooperated with investigators, and that Baylor's communications with these entities could shed light on whether there is a broader cover-up still ongoing.

*5 The Court agrees that confidentiality agreements with the NCAA and any other entity do not bar discovery into a particular matter. Under Rule 26, however, the existence of such agreements requires the Court to consider the impact of requiring Baylor to violate those obligations in determining whether Plaintiffs’ request is proportional to the needs of the case. The Court determines that it is not.

Plaintiffs’ primary argument on this issue appears to be that these documents might demonstrate whether Baylor has been duplicitous with these third-party investigators or Plaintiffs themselves. The evidence will not reveal how Baylor directly handled reports of sexual assault, but how the schools representatives talked about doing so with various other entities. In other words, the evidence sought is impeachment-like evidence rather than direct evidence regarding the issues at the core of Plaintiffs’ claims. Plaintiffs suggest this evidence is nevertheless critical to their claims, but why that is remains unclear to the Court.

Even if Plaintiffs were to uncover what they seek—evidence that Baylor has made inconsistent statements or disclosures to various entities—it is unclear how useful such evidence would be in proving Plaintiffs’ claims. Ultimately, the Court concludes that the value of that evidence is outweighed by the very real confidentiality concerns faced by Baylor and these investigating entities. Ongoing criminal investigations, such as the one currently being conducted by the Texas Rangers, are typically treated as confidential to ensure the integrity of the investigation is not compromised. See ABA Standards on Prosecutorial Investigations § 1.2(d)(iv). For the investigations by the NCAA and the Big XII, as Baylor notes, disclosing communications with these entities during an ongoing investigation could compromise the investigation or disrupt negotiations. This burden is not outweighed by the likely utility of the discovery Plaintiffs seek—particularly when the lives of many of Baylor's students will be affected by the decisions of the NCAA and the Big XII. The Court will therefore grant Baylor protection from discovery requests regarding communications with the NCAA, the Big XII, and the Texas Rangers.

Plaintiffs seek settlement agreements between Baylor and four officials who departed the university following the disclosure of the Pepper Hamilton report: Kenneth Starr, Art Briles, Tom Hill, and Ian McCaw. Plaintiffs argue that these agreements may reveal an inconsistency between how Baylor has allegedly represented the departures—as an effort to hold employees accountable for failing to take appropriate action in response to reports of sexual assaults—and reality. Baylor responds that public policy strongly favors protecting the confidentiality of settlement agreements in order to encourage the settlement of claims. Further, as Baylor notes, only one of the plaintiffs’ allegations relate to athletics—Doe 1. None of the allegations regarding Doe 1, however, involve athletic staff. (Am. Compl., Dkt. 56, ¶¶ 30–71). The Court therefore concludes that, at this time, permitting the discovery of the settlement agreements between Baylor and Art Briles, Tom Hill, and Ian McCaw would not be in keeping with the proportionality requirements of Rule 26, as the relevance of those agreements to this lawsuit is outweighed by the strong public policy interests in preserving the confidentiality of settlement agreements. Should Plaintiffs’ future discovery efforts give rise to information suggesting that requiring Baylor to disclose these agreements would outweigh the burden to Defendant or the named individuals and play an important role in resolving material issues, Plaintiffs are welcome to re-urge the issue with the Court.

*6 The Court reaches a different conclusion with respect to the settlement agreement between Baylor and Kenneth Starr. After reviewing that agreement in camera, the Court is satisfied that it is appropriately discoverable by Plaintiffs. Plaintiffs make allegations regarding events that occurred during Starr's tenure as president of Baylor. Further, at least one of the plaintiffs, Doe 6, specifically alleges that she communicated with Starr about her assault. (Id. ¶ 188). Any burden to him or Baylor caused by permitting the discovery of his settlement agreement will be mitigated by requiring that the agreement be designated confidential and attorneys’ eyes only and is in any case outweighed by the important role the agreement may play in resolving issues central to Plaintiffs’ claims.

Plaintiffs subpoenaed former Baylor Regent Neal “Buddy” Jones, who said in response that he has destroyed all documents relevant to Plaintiffs’ request except one email. That email is subject to a protective order arising out of another lawsuit that requires Jones to obtain Baylor's permission before producing the email. Baylor declined to grant that permission in response to Plaintiffs’ request, arguing that the email was not relevant to Plaintiffs’ claims. At the June 16 hearing, counsel for Plaintiffs confirmed that they had already obtained a redacted copy of the email; they then temporarily ceased their pursuit of Baylor's permission for Jones to produce the document. After the hearing, however, Plaintiffs requested that the Court order Baylor to allow Jones's counsel to provide them an unredacted and authenticated version of the email and filed the redacted version with the Court. Baylor maintains its objection to the email's production on the grounds that it is not relevant.

After reviewing a redacted version of the email, the Court concludes that the email should be produced. While the Court is sympathetic to Baylor's argument regarding relevance—the email reflects a discussion between Jones and another Baylor employee about underage drinking—it concludes that the document may be relevant to Plaintiffs’ claims. In the email, Jones indicates that he wants a certain female student expelled, arguably under the pretext of an underage drinking violation. The actual reason he suggests expulsion is unclear. Given Plaintiffs’ arguments regarding the university's use of alcohol violations, the Court is satisfied that the email may lead to relevant evidence. Further, the burden placed on Baylor to allow production of a document by another party is negligible. The Court will therefore order Baylor to allow production of an unredacted and authenticated version of the document by Jones’ counsel.

Plaintiffs sought production of student documents going back to January 1, 1996. The Court agrees with Baylor that this request—which reaches back more than twenty years—is not proportional to the needs to this case. However, the Court finds that production for time periods directly surrounding Plaintiffs alleged sexual assaults are relevant and proportional to Plaintiffs’ claims. It will therefore order Baylor's production of documents back to January 1, 2003, approximately a year before the earliest alleged sexual assault.

Finally, the Court must address some general allegations regarding the manner in which Baylor has produced documents and Baylor's general behavior in discovery. At the June 16 hearing, Baylor's counsel assured the Court that it was producing documents to Plaintiffs in the manner in which they are kept in the usual course of business, as required by Rule 34(b). At this time, the Court accepts this assertion, but reminds Defendant of its ongoing requirement to comply with Rule 34.

*7 Plaintiffs have also repeatedly expressed concern about Baylor's arguments regarding relevance. Specifically, certain arguments and suggestions made by Baylor indicate that it seeks to only make available to Plaintiffs documents and information it deems relevant, not all documents responsive to Plaintiffs’ production requests. To be clear, however, Baylor may not pick and choose what documents it deems relevant to Plaintiffs claims—if it seeks to withhold any documents or portions of documents subject to a discovery request from Plaintiffs due to relevance absent an agreement with Plaintiffs, it must seek a protective order from this Court. Otherwise, all documents responsive to the request must be produced in their entirety.[3]

In light of the forgoing, the Court hereby: GRANTS Plaintiffs’ motion to compel Baylor to produce third-party student records related to sexual violence or sexual harassment, and student code of conduct violations related to sexual conduct. It DENIES Plaintiffs’ motion related to other third-party student code of conduct violations, including those for drinking and other personal conduct, and GRANTS Baylor protection from related discovery requests.

The Court hereby DENIES Plaintiffs’ motion to compel the production of communications with investigators from the NCAA, the Big XII, and the Texas Rangers and GRANTS Baylor protection from related discovery requests.

The Court hereby GRANTS Plaintiffs’ motion to compel production of Baylor's settlement agreement with Kenneth Starr, DENIES Plaintiffs’ motion to compel production of Baylor's settlement agreement with Ian McCaw, Art Briles, and Tom Hill, and GRANTS Baylor protection from Plaintiffs’ requests to product those three settlement agreements. Baylor's settlement agreement with Kenneth Starr is designated attorneys’ eyes only, and should remain absolutely confidential absent further order from this Court.

Finally, the Court hereby GRANTS Plaintiffs’ motion to compel production of certain documents going back to January 1, 2003, DENIES Plaintiffs’ motion to compel production of documents prior to that date, and GRANTS Baylor protection from requests for documents dated prior to January 1, 2003.