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Jackson v. Willoughby Eastlake Sch. Dist.

United States District Court, N.D. Ohio, Eastern Division

March 23, 2018

ROBERT JACKSON, et al., Plaintiffs,
v.
WILLOUGHBY EASTLAKE SCH. DIST., et al., Defendants.

          CHRISTOPHER BOYKO JUDGE.

          MEMORANDUM AND ORDER

          David A. Ruiz United States Magistrate Judge.

         This case arises from Plaintiffs' allegations concerning incidents of student bullying and/or harassment, and Defendants' responses. Plaintiffs Robert Jackson and Kim J., individually, and as next friend and parent(s) of C.J., a minor, filed a five-count complaint against defendants Willoughby Eastlake School District (“the District”); Willoughby Eastlake Board of Education (“the Board”); Steve Thompson, Superintendent of the District; and individuals Jason Wilson, David Miller, Matt Sternberg, and Laura Musgrave, employees of the District. (R. 1, Compl.) Plaintiffs claim that the District failed to take affirmative steps to report, document and prevent bullying and retaliation against C.J. and other students, and that the District, Board, and individual defendants violated substantive due process rights and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Plaintiffs further allege violation of C.J.'s rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.

         Currently before the court are Plaintiffs' motion to compel, motion for sanctions and related filings.

         I. MOTION TO COMPEL

         Plaintiffs filed their motion to compel on December 29, 2017, alleging the defendants failed to provide written responses to plaintiffs' combined interrogatories and requests for production of documents served on October 5, 2017. (R. 12, PageID #: 116, 118.) Defendants had advised plaintiffs they objected to discovery requests, which requested student educational records that were confidential under the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and that a fire destroyed other responsive documents. Defendants filed an opposition to the motion, and a motion for protective order. (R. 13.) The discovery dispute was referred to the undersigned. During a conference call with the court and parties' counsel, defendants agreed to serve their written responses to the combined discovery requests by January 24, 2018, and reiterated their FERPA objection. The court established a supplemental briefing schedule to address the discovery dispute. (R. 19.) Plaintiffs filed a supplemental motion to compel, with leave of court, and also filed a motion for sanctions. (R. 21.) Defendants have filed an opposition. (R. 24.)

         Plaintiffs' supplemental motion to compel moves that the court order defendants to provide, under a protective order, “all individual personnel records as identified in Interrogatory Nos. 7, 16, 17, 22, 23, and 25” and requested student disciplinary records. (R. 21, PageID #: 214, 229.)[1] Interrogatory No. 7 requests specific information concerning any “follow-up action” taken in response to allegations of bullying, harassment, or physical assault of C.J. by fellow students. (R. 21-1, PageID #: 236.) The defendants asserted an objection, stating: “The foregoing interrogatory seeks information protected by FERPA and is confidential in nature.” Id. Interrogatories No. 16 and 17 request specific information concerning “the investigation of any allegations made against [student D.H., [2]” including any documents or reports created as part of the investigation. (R. 21-1, PageID #: 241.) Defendants' response indicates David Miller was involved in the investigation, but otherwise objects that each of the interrogatories “seeks information which is confidential in nature and protected by FERPA.” Id.

         Similarly, Interrogatories No. 22 and 23 request specific information concerning “the investigation of any allegations made against [student H.S., ]” including any documents or reports created as part of the investigation. (R. 21-1, PageID #: 243-244.) Defendants' response identifies Jason Wilson as involved in the investigation, but otherwise objects that each of the interrogatories “seeks information which is confidential in nature and protected by FERPA.” Id. Interrogatory 25 seeks information regarding documents or reports created as part of “the investigation of any allegations made against [student H.J.].” (R. 21-1, PageID #: 244-45.) Defendants object that the interrogatory “seeks information which is confidential in nature and protected by FERPA.” Id.

         The Federal Rules of Civil Procedure provide that: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. . . .” Fed. R.Civ. P. 26(b)(1). “Information within the scope of discovery need not be admissible in evidence to be discoverable.” Id. The scope of discovery under the Federal Rules traditionally has been quite broad. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998); Richardson v. Board of Educ. of Huber Heights City Sch., No. 3:12CV00342, 2014 WL 8619228, at *2 (S.D. Ohio Mar. 11, 2014); 8 Wright & Miller, Federal Practice and Procedure, § 2008. The purpose of written interrogatories, permitted under Rule 33, is “to focus the fundamental issues between the parties and to enable the parties to learn what the facts are and where they may be found before trial, to the end that the parties may prepare their case in the light of all the available facts.” United States v. A.B. Dick Co., 7 F.R.D. 442, 443 (N.D. Ohio 1947). Under Rule 34, a party must produce or otherwise make available all discoverable documents or things responsive to a request or assert with specificity the grounds for objecting and whether any responsive documents are being withheld on the basis of that objection. Fed. R.Civ. P. 34(b)(2)(B)(C).

         A. FERPA

         FERPA “protects educational records or personally identifiable information from improper disclosure.” Richardson, 2014 WL 8619228, at *1 (quoting Doe v. Woodford County Bd. of Educ., 213 F.3d 921, 926 (6th Cir. 2000)); see also United States v. Miami University, 294 F.3d 797, 806 (6th Cir. 2002) (FERPA protects privacy interests of students and their parents); Ellis v. Cleveland Mun. Sch. Dist., 309 F.Supp.2d 1019, 1022 (N.D. Ohio 2004). The Sixth Circuit has determined that “Congress intend[ed] to include student disciplinary records within the meaning of ‘education records' as defined by the FERPA.” Miami University, 294 F.3d at 812. FERPA, however, “does not ..., by its express terms, prevent discovery of relevant school records under the Federal Rules of Civil Procedure.” Richardson, 2014 WL 8619228, at *2 (quoting Edmonds v. Detroit Pub. Sch. Sys., No. 12CV10023, 2012 WL 5844655, at *3 (E.D. Mich. Nov. 19, 2012)); Ellis, 309 F.Supp.2d at 1023. In other words, records that are considered protected under a statute are not necessarily privileged for discovery purposes, and FERPA does not provide such a privilege. Edmonds, 2012 WL 5844655, at *3 (quoting Ellis, 309 F.Supp.2d at 1022, and citing cases); see also Jones v. Espanola Mun. Sch. Dist., No. CV13-741, 2016 WL 10257481, at *2 (D. N.M. May 13, 2016) (FERPA does not create an evidentiary privilege, citing cases); Cherry v. Clark County Sch. Dist., No. 2:11CV01783, 2012 WL 4361101, at *5 (D. Nev. Sept. 21, 2012) (same).

         Plaintiffs argue that FERPA is not an absolute bar against the disclosure of individual student information, especially in civil rights cases. (R. 12, PageID #: 122, citing Ellis, 309 F.Supp.2d at 1024). One exception to FERPA protection exists when educational records or personally identifiable “information is furnished in compliance with judicial order...” Richardson, 2014 WL 8619228, at *1 (quoting 20 U.S.C. § 1232g(b)(2)(B)); see also Jones, 2016 WL 10257481, at *2 (school may disclose information without consent required if disclosure is to comply with judicial order, citing 34 C.F.R. § 99.31(a)(9)(i)); Edmonds, 2012 WL 5844655, at *3. Plaintiffs acknowledge, however, that relevancy must be well-established by the party seeking disclosure, and assert that a protective order would be sufficient to address the privacy concerns of any named students. (R. 12, PageID #: 126). Defendants argue that the individual records sought are protected from disclosure, without the written consent of the parents, by FERPA. (R. 13, PageID #: 193, quoting 20 U.S.C. § 1232g(b)(1).) They contend that student disciplinary records are protected as “education records, ” and students have a privacy interest in their disciplinary records. Id., at 193, 195, citing Miami Univ., 294 F.3d at 813.

         In the Miami University case, the Sixth Circuit discussed certain express statutory exemptions from privacy protections:

The FERPA sanctions the release of certain student disciplinary records in several discrete situations through exemption. The Act does not prohibit disclosure “to an alleged victim of any crime of violence ... or a nonforcible sex offense, the final results of any disciplinary proceeding conducted by the institution against the alleged perpetrator....” 20 U.S.C. § 1232g(b)(6)(A) (emphasis added). The public generally may be informed of “the final results of any disciplinary proceeding conducted by [an] institution against a student who is an alleged perpetrator of any crime of violence ... or a nonforcible sex offense, if the institution determines ... that the student committed a violation of the institution's rules or policies with respect to such crime or offense.” Id. at § 1232g(b)(6)(B). “[T]he final results of any disciplinary proceeding (i) shall include only the name of the student, the violation committed, and any sanction imposed by the institution on that student; and (ii) may include the name of any other student, such as a victim or witness, only with the written consent of that other student.” Id. at § 1232g(b)(6)(C).

Miami University, 294 F.3d at 812. The court found that the first exemption, which is relevant to the allegations in this case, balanced the privacy interests of an alleged perpetrator of violence (or a sex offense) with the rights of the alleged victim, “and concluded that the right of an alleged victim to know the outcome of a student disciplinary proceeding, regardless of the result, outweighed the alleged perpetrator's privacy interest in that proceeding.” Id. at 813. See also Ellis, 309 F.Supp.2d at 1024 (FERPA recognizes important public policy of protecting student safety).

         Given FERPA's underlying privacy concerns, there is a higher burden on a party seeking disclosure of student records. Cherry, 2012 WL 4361101, at *5 (quoting Ellis, 309 F.Supp.2d at 1022). “[T]he party seeking the information is required to demonstrate a genuine need for the information that outweighs the privacy interests of the students.” Jones, 2016 WL 10257481, at *3 (quoting Rios v. Read, 73 F.R.D. 589, 599 (E.D. N.Y. 1977)).[3]

         In this case, plaintiffs' complaint identifies three specific students accused of engaging in abuse, assault, bullying, and intimidation against plaintiff C.J. (R. 12, PageID #: 122.) The complaint further alleges that the District failed to properly address these allegations of bullying. Id. at 122-125. The plaintiffs contend that the District failed to address C.J.'s allegations, “as evidenced by a failure to investigate, a failure to discipline and a failure to protect C.J. from future acts of bullying and violence.” Id. at 125-126. Plaintiffs claim that the individual records of T.H., D.H. and H.J.[4], specifically, and other reports against individual students made by C.J., are not merely relevant but are “critical in either proving or disproving the portion of her claims supported by these allegations.” Id. at 126. Plaintiffs contend this information is the only way to corroborate their allegations. Conversely, aside from claiming the requested discovery seeks confidential information protected from disclosure by FERPA, Defendants have not asserted any other pertinent objection or argued that the requested information lacks relevance.

         The court agrees with the above authority that FERPA does not create an absolute bar or privilege that prevents the disclosure of the records sought here. Miami University, 294 F.3d at 812-813; Jones, 2016 WL 10257481, at *2; Richardson, 2014 WL 8619228, at *2; Edmonds, 2012 WL 5844655, at *3; Ellis, 309 F.Supp.2d at 1023. The court finds that the Plaintiffs' need for the discovery outweighs the students' privacy interests, and the motion to compel is granted, as to the production sought, namely requested student disciplinary records and “all individual personnel records as identified in Interrogatory Nos. 7, 16, 17, 22, 23, and 25.” (R. 21, PageID #: 214, 229.) Although the information is discoverable, the court does not sanction the unabated production of such documents, as explained below.

         B. ...


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