*1 Before the Court is (1) Non-Party Jane Roe's Motion to Quash, and Alternatively, for Protective Order (Mot. to Quash, ECF No. 66), filed August 3, 2022, (2) Texas Christian University's Response and Brief to Non-Party Jane Roe's Motion to Quash (Def.’s Resp., ECF No. 78), (3) John Doe's Response to Jane Roe's Motion to Quash (Pl.’s Resp., ECF No. 79), and (4) Non-Party Jane Roe's Reply in Support of Motion to Quash (Reply, ECF No. 81). On September 14, 2022, the Court issued an interim Order regarding Roe's motion (Interim Order, ECF No. 84), relieving Roe of her obligation to comply with the subpoena until the Court could further consider the motion on the merits.

I. BACKGROUND

On August 3, 2022, non-party to this litigation, Jane Roe, filed a Motion to Quash Plaintiff John Doe's Subpoena to Testify at a Deposition in a Civil Action, issued on July 19, 2022 (Subpoena, ECF No. 67 at 2–7). Roe's earlier reports of sexual assault by Plaintiff John Doe prompted Defendant TCU's Title IX disciplinary proceedings against him and, in turn, gave rise to this suit. See Compl., ECF No. 1. Doe's subpoena commands Roe to appear for deposition and to produce an array of documents and electronically stored information[1] (Subpoena at 7).

The parties disagree about (1) the importance of Roe's testimony to Doe's claims and (2) the burden a deposition might impose on her. They have the same fundamental disagreements with respect to Roe's production of requested documents. Unless Plaintiff can show particular need for the information sought, TCU supports Roe's motion to quash because TCU has no reason to doubt Roe's claim that a deposition would impose an undue burden (Def.’s Resp. at 2).[2] TCU did not express a position on the document production request.

A. Deposition

*2 Roe argues that requiring her to appear for an in-person deposition would produce only irrelevant, duplicative testimony (Mot. to Quash at 7–9), given that she has already testified exhaustively on the record produced in the Title IX disciplinary proceedings. Id. at 8. She argues that any information she possesses has no bearing on any of Doe's claims—erroneous outcome, selective enforcement, or gender bias (id. at 7–9; Reply at 3–5)—and that the Court's consideration should be confined to the disciplinary record (Mot. to Quash at 9; Reply at 2). Second, Roe claims that compelling her testimony would impose an undue burden in the form of “significant emotional harm and trauma” by forcing her to relive the experiences giving rise to her sexual assault allegations. Id. at 9–11.

Doe argues that it is essential to depose Roe—who is designated as a key witness by both parties to the suit—because she has personal knowledge and information “relevant to the fairness and thoroughness of the process from its inception to its end,” including information about the myriad interviews, meetings, and investigation that TCU conducted prior to and during the proceedings to which she was a party or witness; and information shedding light on her own credibility, including her motives for and manner of reporting (Pl.’s Resp. at 2–5). Doe also claims that Roe's evidence that compelling her testimony would impose an undue burden is insufficient and that she must therefore be deposed. Id. at 9–12. Should the Court uphold the subpoena, Roe requests strict limitations on deposition (Mot. to Quash at 19–22), which Plaintiff partially accepts (Pl.’s Resp. at 15).

B. Production of Documents

Roe argues that each document request is either irrelevant, duplicative, or—if relevant—is either obtainable from another source (TCU) or that any usefulness is outweighed by the burden production imposes (Mot. to Quash at 12–19). If the Court disagrees, Roe requests cost-shifting in light of her projections that compliance costs would exceed $380,000. Id. at 19–22. Defendant counters that Roe has offered only “boilerplate” objections lacking adequate evidentiary support and claims the documents are not available from TCU because “almost all” are FERPA-protected (Pl.’s Resp. at 12–15).

II. LEGAL STANDARDS

Rule 26(b)(1) permits parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, ... the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). And as the rule clearly states: “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. (emphasis added).

Even if the discovery request meets this standard, however, Rule 45 dictates that a court “must quash or modify” a subpoena that “subjects a person to undue burden.” Fed. R. Civ. P. 45(3)(A)(iv) (emphasis added). The party opposing the subpoena has the burden of proving that compliance would be “unreasonable and oppressive,” a fact-specific determination for which courts consider several items: (1) relevance of the information requested; (2) the need of the party for the documents; (3) the breadth of the document request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested documents; and (6) the burden imposed. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (cleaned up) (applying the rule to subpoenas duces tecum). The party opposing the subpoena may use affidavits or other evidence to demonstrate the unreasonable or oppressive nature of the burden imposed. HCAPS Conroe Affiliation Inc. v. Angelica Textile Servs. Inc., No. 3:15-MC-60-N-BN, 2015 WL 3867923, at *2 (N.D. Tex. June 22, 2015) (emphasis added).

*3 When the subpoena applies to a nonparty, as is the case here, courts “must be sensitive to the nonparty's compliance costs.” Leonard v. Martin, 38 F.4th 481, 489 (5th Cir. 2022). And when a court orders a nonparty to comply with a subpoena despite objection, the court must shift costs to protect the nonparty, provided those costs are significant. Id. at 489, 490 n.8 (finding a well-supported estimate of $60,000 in compliance costs was of disproportionate value compared to any information compliance would produce regarding the subpoenaed party's credibility).

As a general matter, “modification of a subpoena is preferable to quashing it outright.” Wiwa, 392 F.3d at 818. This is in keeping with the general rule that discovery rules are to be broadly and liberally construed. Aderholt v. Bureau of Land Mgmt., No. 7:15-CV-00162, 2016 WL 11782267, at *2 (N.D. Tex. Oct. 30, 2016). And when imposing limitations on discovery, courts have broad discretion to craft appropriate protective orders. See Fed. R. Civ. P. 26(c)(1); Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).

III. ANALYSIS

The Court has considered the parties’ arguments,[3] including their fundamental disagreement about whether Doe is entitled to discover evidence beyond just that “on the record before the disciplinary tribunal.” See Mot. to Quash at 9; Pl.’s Resp. at 6; Reply at 2. Based on a straightforward application of Rule 26, the Court agrees that Doe's discovery is not so limited and finds that the information Doe seeks—via deposition and document requests—is relevant and, with some modification, can be sought without imposing an undue burden on Roe.

The Court finds that Doe's need to discover information about interviews, meetings with TCU officials, the investigation, the panel hearing, and the appeal in which she participated directly or as a witness are relevant to Doe's claims as it may shed light on both the accuracy of the outcome of the disciplinary proceeding (erroneous outcome) and TCU's potentially disparate treatment of Roe (a female) and Doe (a male) throughout the investigation and proceedings (gender bias; selective enforcement).[4] Information reflecting on Roe's credibility—including potential motives to lie or to report, contradictory statements, and conversations with others throughout the process—is similarly relevant to Doe's claim of erroneous outcome.

Having considered her evidence, the Court recognizes that Roe's deposition will necessarily impose some hardship on her given the sensitive nature of the case. However, with the following limitations, the Court finds that allowing the deposition would not impose an undue burden and that it is justified in light of Doe's need to obtain the information. In keeping with its broad discretion to craft appropriate protective remedies, the Court ORDERS that any deposition of Roe will be subject to the following conditions:

Here the Court applies its prior reasoning as to relevance—namely, that much of the information Doe seeks may shed light on both the accuracy of the outcome of the disciplinary proceeding (erroneous outcome) and TCU's potentially disparate treatment of Roe (a female) and Doe (a male) throughout the investigation and proceedings (gender bias; selective enforcement), and is therefore relevant. And Roe has not offered anything but conclusory objections in protest. Likewise, Roe is in exclusive possession of much of the information sought, most of which is FERPA-protected. Nor has Roe sufficiently demonstrated that the burden of producing such information outweighs its likely benefit. Thus, the Court ORDERS that Doe may compel disclosure of the requested information except for police reports or complaints filed that Doe may personally request and obtain.

Roe estimates that the costs of compliance with the subpoena will exceed $380,000 (Mot. to Quash at 19–22). In the event Roe's costs do become “significant”—a standard that does not necessitate meeting even a portion of that total estimate, see Leonard, 38 F.4th at 489, 490 n.8—the Court will shift costs as necessary. Doe is free to amend his document production requests accordingly.

IV. CONCLUSION

Having considered the parties’ briefing materials, for the foregoing reasons, and in light of the modifications outlined above, the Court ORDERS that Non-Party Jane Roe's Motion to Quash be DENIED in part and GRANTED in part.

SO ORDERED on this 21st day of September, 2022.