GWYNNE E. BIRZER, United States Magistrate Judge.
This matter is before the Court on three motions filed by Plaintiffs. For the reasons set forth below, Plaintiffs' Motion for Leave to File a Third Amended Complaint (
The factual background of this case has been thoroughly explored in previous orders and will not be repeated in detail. In essence, plaintiffs Gene Hirt and Eric Clark are community members who assert claims against their local school district, Unified School District No. 287 ("District"), the school superintendent, Jerry Turner, and other district officials for alleged violations of their Constitutional rights under 42 U.S.C. § 1983.
In June 2015, Hirt attended a District school board meeting when an interaction during the meeting resulted in Turner banning Hirt from all school property. A July 13, 2015 letter from Turner to Hirt noted Hirt's "inability to express [himself] in a civil and socially acceptable manner." (ECF No. 1-1, Ex. A.) Since the July 2015 meeting, Hirt stopped attending school board meetings, and was later escorted from school property by law enforcement when Hirt and Clark attended an elementary school open house in August 2015. After this contact with law enforcement, Clark claims he stopped attending board meetings "solely because of fearing consequences that may arise from attending or speaking at those meetings." (ECF No. 63, at 10.)
In May 2017, Hirt and Clark, proceeding pro se, filed this lawsuit against the District,
Plaintiffs originally filed their lawsuit against seven defendants (Compl., ECF No. 1; Am. Compl., ECF No. 6), but later voluntarily dismissed their official-capacity claims against the five school board members and the official-capacity claim against Turner (ECF No. 49). Plaintiffs' remaining claims are those against the District and the individual capacity claims against Turner.
Upon filing the case, Plaintiffs sought a preliminary injunction to enjoin Defendants from taking "adverse action against Plaintiff Hirt based upon the July 13, 2015 letter" and from enforcing the "ad hoc policy" requiring them to express themselves in a "socially acceptable manner" at school board meetings. (ECF No. 4, at 11.) During briefing on the injunction issue, Turner mailed a letter to Hirt on June 14, 2017, which permitted Hirt to attend any meeting or event on District property to which the public is invited, so long as he "refrain[s] from disruptive behavior" and "limit[s] [his] participation in the meetings to the allotted three minutes for public comments." (ECF No. 20-3, Ex. 3.) Plaintiffs' motion for injunctive relief was then denied as moot by Chief Judge Robinson. (Mem. and Order, ECF No. 41.) The Court determined Turner's June 2017 letter to Hirt "permits precisely the behavior in which Plaintiffs wish to engage according to their motion for a preliminary injunction, i.e., participation in the patron forum portion of school board meetings." (Id. at 12.)
Plaintiffs sought reconsideration of Judge Robinson's order, which the Court denied. (Mem. Order, ECF No. 62.) Plaintiffs also sought to file a Second Amended Complaint, which was unopposed by Defendants. (Order, ECF No. 59.) Soon after the filing of that motion, however, Plaintiffs sought to file a Third Amended Complaint, which Defendants predictably oppose. Plaintiffs also filed a motion to compel certain discovery responses from Defendants. (Motion, ECF No. 58.) After a December 22, 2017 conference with the undersigned to discuss the posture of the case and the pending motions, the parties were ordered to participate in mediation. (Orders, ECF Nos. 59, 66.)
Although the parties completed mediation (ADR Rpt., ECF No. 80), the effort was unsuccessful. Plaintiffs filed a second discovery motion (ECF No. 74) and all pending motions are now ripe for the Court's decision. The Court addresses each motion in the order of filing.
Plaintiffs ask the Court for leave to file a Third Amended Complaint. The proposed pleading adds eleven paragraphs to their previous pleading, including: six paragraphs of factual allegations (¶¶ 34.b — 34.g); three additional causes of
The focus of the amendments appears to be both the June 2017 letter, permitting Hirt to attend school events specifically open to the public, and the Court's October 23, 2017 denial of an injunction. Plaintiffs' prior focus had been the District's enforcement of the "ad hoc policy" limiting Plaintiffs' speech to a "socially acceptable manner," based on the July 13, 2015 letter to Hirt. Plaintiffs now contend, because the Court found the "socially acceptable manner" policy is no longer being enforced, the District's continued restrictions on Plaintiffs' rights are apparently the result of either that earlier policy or some "as yet unknown policy" articulated by the June 14, 2017 letter. Plaintiffs interpret the 2017 letter to limit Hirt's (and by extension, allegedly, Clark's) access to school property solely for public events. Plaintiffs consider the 2017 letter as a point of "continuing restriction" that has not yet been included in the pleadings. They seek to add three additional causes of action, including violation of Hirt's First Amendment rights (Count IX); violation of Hirt's Fifth and Fourteenth Amendment rights (Count X); and violation of Clark's First Amendment rights (Count XI), all resulting from the "as yet unknown policy."
Under the Federal Rules, the standard for permitting a party to amend his or her complaint is well established. A party may amend its pleading as a matter of course under Fed. R. Civ. P. 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent a party may amend its pleading only by leave of the court under Rule 15(a)(2).
Rule 15(a)(2) provides leave "shall be freely given when justice so requires," and the decision to allow an amendment is within the sound discretion of the court.
Plaintiffs argue the proposed amendment is timely because the request to amend was filed by the November 1, 2017 deadline established in the Scheduling Order. (ECF No. 33.) They contend the amendment is necessary to add additional causes of action and factual allegations to support the additional claims, and they maintain Defendants will not suffer substantial prejudice because this case is in its early stages.
Defendants oppose the amendment because they believe the amendment is futile. They assert Hirt has no First Amendment right to enter school property during school hours, nor an interest in entering school property during school hours which would be protected by the Fourteenth Amendment. They further argue Clark is not "chilled" by his speculation of an "unknown policy." Defendants also maintain Plaintiffs' request to amend was unduly delayed, because Hirt received the June 14, 2017 letter prior to filing the Second Amended Complaint (ECF 40). They contend Plaintiffs have no adequate explanation for waiting until now to assert new claims based on that letter or some "unknown policy." Additionally, Plaintiffs have already been deposed (see ECF Nos. 34, 35, and 40). Defendants argue the addition of new claims — after Plaintiffs' depositions are complete — would be prejudicial. The arguments of the parties are addressed in turn.
Of the factors analyzed by the Court under Rule 15(a)(2), Defendants first oppose Plaintiffs' amendment based on futility. As the party opposing amendment, Defendants bear the burden of establishing its futility.
"A proposed amendment is futile if the complaint, as amended, would be subject to dismissal."
In their briefs, the parties engage in considerable discussion regarding the futility of Plaintiffs' proposed claims. Defendants contend the claims are subject to dismissal, in part because the claims are alleged in conclusory fashion and because existing law simply does not support Hirt's
As to Defendants' first argument, they claim the proposed amendment "contains only conclusory allegations which do not raise a right to relief above a speculative level" (ECF No. 50 at 3). But, the Court must afford Plaintiffs some leniency as pro se parties, and holds their pleadings to a "less stringent standard than formal pleadings drafted by lawyers."
The remainder of Defendants' futility arguments are more akin to summary judgment contentions. Defendants cite the Tenth Circuit case of First Unitarian Church of Salt Lake City v. Salt Lake City Corp.,
Likewise, Defendants cite three cases from other jurisdictions to contend Hirt does not have an interest in entering school property that would be protected by the Fourteenth Amendment. In Lovern v. Edwards,
The Third Circuit dealt with a similar claim in Cole v. Montague Board of Education.
Defendants also rely on a 1988 Eastern District of Pennsylvania case, Henley v. Octorara Area School District.
Though this Court makes no predictions about the success of some later dispositive motion by Defendants, the Court does find Defendants' cited authorities to be either non-binding or sufficiently distinct such that they do not prevent Plaintiffs' amendments at this stage. In Lovern, the court dismissed the complaint after an evidentiary hearing; here, discovery is ongoing and no such hearing has occurred. In Cole, the court underwent very little analysis and largely relied upon the decision in Lovern. And, the plaintiff in Henley had an underlying criminal conviction involving the school system, evidence of which was before the court when considering summary judgment.
Here, the Court is tasked with determining whether Plaintiffs' Third Amended Complaint is plausible on its face, not whether Defendants are entitled to judgment after presentation of evidence. Although the Court recognizes Defendants could present a viable defense in a later dispositive motion, at this juncture, given the lack of binding authority and current posture of this case, the Court finds a dismissal would be premature and therefore cannot find Plaintiffs' proposed amendment entirely futile. The issue in resolving a Rule 12(b)(6) motion to dismiss, or the futility of a proposed amendment, is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled
Exercising its discretion, and recognizing Defendants will have an opportunity to challenge the sufficiency of the new claims through a later dispositive motion,
Defendants' sole argument regarding the prejudice they may face if the amendment were permitted boils down to Plaintiffs' delay in seeking amendment, particularly after their depositions were taken. They contend amendment at this point will deprive them of the opportunity to explore the new claims in depositions.
As the parties opposing amendment, Defendants bear the burden to demonstrate undue prejudice within the meaning of Rule 15.
Considering the nature of the new claims and the procedural posture of this litigation, the Court notes there will be some practical prejudice, but struggles to discern any true injustice which would occur from the proposed amendments. Much of the facts supporting the new claims arise from the same occurrences as Plaintiffs' other claims, and have been discussed in prior briefing. Discovery is likely to overlap. And, although Plaintiffs have already been deposed, discovery is ongoing and does not conclude for nearly three months.
In addition to its futility and prejudice arguments, Defendants contend Plaintiffs' request is unduly delayed. To determine whether an amendment is untimely, or unduly delayed, the Court evaluates the reasons for delay.
Here, the Court does not find the delay so inexplicable as to prevent its filing. Although these parties have been litigating for some time, Plaintiffs sought amendment within the deadline established in the Scheduling Order. As previously noted, the current procedural posture of the case weighs in Plaintiff's favor. Although the timing of the June 14, 2017 letter would, on its face, suggest Plaintiffs should have sought to include the letter in earlier pleadings, the Court acknowledges the pro se Plaintiffs' confusion and reliance on the October 23, 2017 injunction ruling before seeking to amend their claims. Therefore, their delay in seeking amendment is not unexplained or "undue."
Applying the standards for consideration of amendment under Rule 15, accepting all Plaintiff's factual allegations as true, and affording Plaintiffs leniency as pro se litigants, the Court does not deny the amendment based upon Defendants' futility contentions. Additionally, although amendment may create some difficulty, Defendants failed to demonstrate undue prejudice which would occur because of the amendment. Therefore, finding that Plaintiff's proposed amendment is not clearly futile, would cause no undue prejudice, and was filed within the appropriate timeframe, the Court prefers this case to proceed on its full merits.
On November 6, 2017, Plaintiffs served a third set of written discovery on Defendants. After Defendants responded on December 6, 2017, Plaintiffs attempted to reach Defendants' counsel to confer regarding what they viewed as insufficient responses to multiple interrogatories. After unsuccessful attempts to confer, Plaintiffs timely filed their motion to compel answers to nine disputed interrogatory answers. (ECF No. 58.)
Pursuant to D. Kan. Rule 37.2, this Court "will not entertain any motion to resolve a discovery dispute" unless counsel, or in this case, the moving party, "has conferred or has made reasonable effort to confer with opposing counsel" before filing a motion. On review of the briefing, the Court is troubled by the half-hearted and self-serving efforts at conference demonstrated by both sides. Plaintiffs provided untenable ultimatums without consideration of opposing counsel's possible scheduling difficulties. (See Defs.' Resp., ECF No. 64 at 2.) At the same time, defense counsel declined to make either attorney available for a phone call for several days' time. (See Pls.' Motion, ECF No. 58-1 at 4.) Although the Court understands litigation has its difficulties, in this instance, all parties could have presented more genuine and accommodating efforts at conference.
However, despite the parties' minimal efforts to confer to that point, the undersigned held a phone conference on December 22, 2017 to discuss the pending discovery issues, in which Plaintiffs and defense counsel participated. The parties appear to have conferred following the Court's discussion and prior to Defendants' formal response, and they participated in mediation. In light of these later efforts, the Court addresses the merits of Plaintiffs' motion.
Of the initial nine interrogatory answers disputed by Plaintiffs, six disputes remain following Defendants' supplemental responses.
Plaintiffs' Third Interrogatory No. 7 reads:
Defendants responded: "The statement `this action' referred to the previous sentence in the letter, Bates No. 810, explaining to Mr. Hirt that he was excluded from school property due to his behavior." Plaintiffs contend Defendants' answer is incomplete.
The first sentence of the July 13, 2015, letter clearly reads "[A]fter your rude and uncivil behavior ... you [Hirt] will no longer be allowed on USD 287 property", and the second sentence states Hirt's behavior "brought about this action by the
Plaintiffs' Third Interrogatory No. 12 asks:
Defendants' initial answer stated:
Defendants later supplemented their answer to include: "Defendants have no recollection of additional dates of Mr. Hirt's disruptive behavior at board meetings. Defendants have no recollection of the duration of Mr. Hirt's disruptions during board meetings."
Plaintiffs contend Defendants failed to adequately identify the duration of any of the alleged disruptions. They argue Defendants are claiming the events took place, so they must have some recollection of the duration.
Under Fed. R. Civ. P. 33(b)(3), Defendants are tasked with answering each interrogatory "separately and fully," and they may elect to answer by specifically designating, in detail, those records which answer the interrogatory.
In their Third Interrogatory No. 13, Plaintiffs ask Defendants to identify the federal law which applies to a specific statement in an agenda utilized at a specific school board meeting (ECF No. 58-3, Ex. A). Defendants responded, "Generally, the Board adopts policies recommended by the Kansas Association of School Boards
Plaintiffs' Reply memorandum (ECF No. 67, at 11) indicates that Plaintiffs sent a later request for admission to follow up on this topic, and notes its resolution "will have minimal prejudice" and Plaintiffs are "not adverse to a finding by the Court that this particular dispute, about Interrogatory # 13, is prudentially moot." In light of Plaintiffs' Reply, the issue is
Plaintiffs' Third Interrogatory No. 15 seeks:
Defendants' initial answer referred to previously-produced documents "regarding Mr. Hirt's behavior. Defendants are unaware of other specifics." That answer was incomplete. However, Defendants later supplemented their answer to read:
Despite the supplementation, Plaintiffs contend the answer remains incomplete. Plaintiffs ask the Court to require Defendants to identify the date each of the identified persons were afraid. Defendants contend they do not recollect the specifics for the events, but provided general concerns.
Although Defendants' initial answer was incomplete, the supplemental answer identified specific documents and names of individuals. The Court finds Defendants' answer sufficient and Plaintiffs' motion is
Plaintiffs' Third Interrogatory No. 17 reads as follows:
Defendants' initial answer was questionable, stating only, "See Bates Nos. 782-786 and 788-792, providing information regarding denial of entry of Mr. Hirt. Defendants are unaware of other specifics." Defendants later supplemented their answer to read:
Plaintiffs contend this answer remains incomplete, because Defendants' answer only provides "generalized location references" and failed to identify "the specific `entry' that was denied with more specificity (e.g., parking lot, lobby, classroom, etc)." (Pls.' Reply, ECF No. 67 at 11).
Because Defendants' supplemental answer identified specific documents, those names of administrators denying entry, and identifies specific school buildings for which entry was barred — which, the Court notes, is a suggestion found in the interrogatory itself,
In this interrogatory, Plaintiffs ask:
Defendants' initial answer was lacking, and noted, "See Bates Nos. 782-786 and 788-792, providing documented information. Defendants are unaware of other incidents. USD 287 policies KGD and KGDA, Bates Nos. 208-209, address public conduct on school property." However, Defendants later supplemented their answer to read:
As previously noted in the discussion of Interrogatory No. 12, Bates Nos. 782-786 and 788-792 contain the dates and locations of Hirt's visits to school property. Defendants have then sufficiently responded to Plaintiffs' interrogatory by specifying the details of the visits, and explaining the visits were unauthorized pursuant to specific policies also provided by Defendants, "because he has no official permission or approval for entering onto school property on those dates." The Court finds this answer sufficient, and Plaintiffs' Motion is
For the reasons stated above, Plaintiffs' Motion to Compel Answers to Interrogatories (
On December 6, 2017, Plaintiffs served their fourth set of discovery requests on Defendants. Defendants received an extension and timely served their responses on January 18, 2018. Plaintiffs note that the parties disagreed on the responses to twelve requests; however, the parties have narrowed their disputes to seven responses for which Plaintiffs filed the instant motion.
As discussed above, the moving party is required to certify they have sufficiently complied with D. Kan. Rule 37.2 before filing a discovery motion. However, Plaintiffs failed to include a certification in their motion "describing with particularity the steps taken" to resolve the disputed discovery.
Although Plaintiffs title their motion as one to determine the sufficiency of Defendants' answers to their Fourth Request for Admission under Fed. R. Civ. P. 36(a)(6), Plaintiffs also seek responses to their Fourth Set of Interrogatories under Rule 33 and their Fourth Request for Production of Documents under Rule 34. Therefore, the Court also treats the motion as a motion to compel discovery responses under Rule 37(a)(3)(B). Each disputed answer and discovery response
Fed. R. Civ. P. 36 provides the standards for requests for admission. This rule "allows a party to serve on another party a written request to admit `the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.'"
The rule includes precise requirements for a party's answers to such requests:
"Requests for admission serve `two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be [eliminated].'"
If the requesting party is dissatisfied with the opposing party's response, "the requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served."
This request reads, in pertinent part:
In response, Defendants stated:
Plaintiffs take issue with Defendants' final sentence, which is responsive to the last clause of Plaintiffs' request (both emphasized above). Plaintiffs only take issue with Defendants' use of the word "solely", and contend if Defendants were to admit the District denied access to the records under K.S.A. § 45-221(a)(14), such an admission would not admit access was the sole grounds for denial; simply that it was one of the grounds. The Court agrees. Finding Defendants' answer does not comply with Rule 36, Plaintiffs' motion is
Plaintiffs' Request for Admission No. 7 asked Defendants to admit or deny:
Defendants answered:
Plaintiffs contend the response is incomplete, because the request did not seek any admission or denial regarding any right to a hearing or appeal, but merely asks Defendants whether they have provided Hirt with either an appeal or hearing. Defendants admit, in their briefing, that Hirt "did not receive a hearing or an appeal after receipt of the July 13, 2015 letter." (ECF No. 86, at 4-5.) However, they argue that an unqualified admission here would be inaccurate, so Defendants qualified their answer in good faith.
Finding some merit to each parties' arguments, Plaintiffs' motion is
Fed. R. Civ. P. 33 governs interrogatories to parties. "An interrogatory may relate to any matter that may be inquired into under Rule 26(b)," and "each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath."
Plaintiffs' Interrogatory No. 21 asks, "Whose decision was it to lift some, but not all of the restrictions on Mr. Hirt (See Dk. 20-3) [the June 14, 2017 letter] and what were all of the reasons for that decision?" Defendants responded, "Objection. This interrogatory erroneously assumes that the June 14, 2017 letter did not lift all restrictions on Mr. Hirt imposed by the July 13, 2015 letter."
Plaintiffs contend Defendants' objection is invalid, because the June 2017 letter lifts some restrictions but clearly states Hirt "should continue to refrain from coming on USD 287 property which is not generally open to the public." Plaintiffs maintain Defendants should answer the question of who made the decision and why.
Defendants argue the lawsuit was filed based on the July 2015 letter, which excluded Hirt from all District property, and the June 2017 letter removed all restrictions of the 2015 letter and permitted Hirt to attend any school events generally open to the public. Therefore, no restrictions remain.
Clearly, the parties interpret the "continue to refrain" statement very differently. Regardless, even if Defendants do not perceive this statement as a restriction, the interrogatory references the decision announced in the June 14, 2017 letter, and Defendants can answer who made the decision to send the letter and why. Defendants' objection is
Plaintiffs' next interrogatory reads:
Defendants answered, "Not applicable because no restrictions imposed by the July 13, 2015 letter remain."
Plaintiffs contend Defendants erroneously injected the July 2015 letter into the interrogatory. Plaintiffs are asking what restrictions remain on Hirt, and if any restrictions remain, they ask Defendants to identify the District policy on which those restrictions are based. Defendants argue they have fully responded, because they do not consider any restrictions on Hirt to remain.
Again, the parties interpret the "continuing restriction" language entirely differently. But Plaintiffs ask
On November 8, 2017, Defendants' counsel sent an email counteroffer to Defendants, responding to Plaintiffs' earlier settlement offer, as required by the Scheduling Order. (ECF No. 33, at 3.) In that email, defense counsel referred to "any other similarly-situated member of the public." (ECF No. 75-4, Ex. C, sealed.)
In their Interrogatory No. 26, Plaintiffs asked Defendants to "as specifically and completely as possible please explain what was meant by `similarly-situated'" in the November 8, 2017 correspondence. Defendants objected, stating:
Plaintiffs argue Defendants' counsel, Mr. Pigg, has "not always been acting as counsel", and even if the email is not admissible evidence, information need not be admissible to be discoverable.
The Scheduling Orders entered by this Court, including the one entered in this case (ECF No. 33), specifically prohibit the public filing of confidential settlement reports — and by extension, the underlying settlement offers exchanged by the parties.
And, though information need not be admissible to be discoverable,
Even if the information were discoverable or admissible, Plaintiffs bear a responsibility to "exercise reason and common sense to attribute ordinary definitions to terms utilized in"
Finally, the Court dismisses Plaintiffs' argument that defense counsel was somehow acting outside his scope as counsel when sending the email on Defendants' behalf. Such an email is precisely the type of activity counsel engages in, on behalf of their clients. Nothing Plaintiffs submitted in their briefing demonstrates counsel was acting outside the scope of his representation, and directing a discovery request to counsel, rather than a party, is inappropriate under Fed. R. Civ. P. 33.
In light of the above, the Court finds Interrogatory No. 26 is an improper question to counsel and lacks relevance on its face. Defendants' objections are upheld, and Plaintiffs' motion is
In addition to the disputed interrogatories and requests for admission, two requests for production of documents ("RFPs") remain at issue.
The first Request disputed by the parties is RFP No. 7, in which Plaintiffs ask Defendants to produce "Documentation for each visitor's pass issued during calendar years 2012-2015." Defendants responded with the following objections:
Each of Defendants' objections are addressed in turn.
First, with regard to relevance, Defendants present a similar argument to that addressed above in Section II regarding futility of amendment
Finding the information at least minimally relevant, the Court turns to whether release of the information contained in the visitor logs is prevented under the Family Education Rights and Privacy Act of 1974 ("FERPA").
It is well-established that compliance with FERPA is mandatory for any federally-funded educational institution.
Relative to this case, there are two methods by which some, or all, of any FERPA-governed information could be released: 1) if the information sought is "directory information"; or 2) if the information is released pursuant to a court order. First, FERPA defines "educational records", which may not be released, as "those records, files, documents, or other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution."
Second, FERPA "expressly provides that protected information may be disclosed pursuant to court order."
Plaintiffs contend all student information contained in the visitor logs amounts to directory information, which is not protected by FERPA. Defendants argue the identification of students, and their entrance or exit from school, amount to attendance records, which are educational records protected by FERPA. But regardless of whether a student's name or reasoning for entering or leaving the school equates to an "education record" prohibited from disclosure — and the Court does not reach this issue — the school may disclose educational records without consent if the disclosure is to comply with a judicial order.
Plaintiffs argue this Court's Scheduling Order necessitates discovery, which should suffice as a court order requiring disclosure (ECF No. 75, at 12). This Court disagrees with this oversimplification. The privacy protection afforded by FERPA requires more than simply a generic order permitting discovery.
Plaintiffs contend visitor logs regarding non-students are not protected, and any other information Defendants seek to protect — such as the personal reasons each visitor entered the school, or the names of family members or guardians of students listed on the logs — could be sufficiently protected with a protective order, restricting the use of the information in the logs to the present litigation. Defendants concede the names of family members and guardians, as well as the reasons for their visits, would not be protected by FERPA.
Because the information is at least minimally relevant, all student information could be produced pursuant to court order, and non-student information is generally not protected, the Court sees little legal barrier to ordering the information produced based on the nature of the information itself. Other courts in this district have permitted similar disclosure of educational and "otherwise confidential information" "without running afoul of FERPA so long as the school district notifies the parent or student of the disclosure and a protective order restricts the use of such information to this litigation only."
Defendants argue the request is unduly burdensome and not proportional to the needs of the case. They contend Plaintiffs' request encompasses "approximately 460 pages of visitor logs from 2012 to 2015, and each contains anywhere from 16 to 44 entries per sheet." (ECF No. 86, at 10.) Defendant Turner's Declaration claims it would take a "minimum of four weeks" for District employees to review the logs and redact student information from them, which would significantly detract from their job duties.
Plaintiffs claim the request is sufficiently narrow because "it isolates a specific narrow topic and a specific timeframe." (ECF No. 75, at 11.) Plaintiffs suggest there would be little burden to Defendants if they simply copy the logs, without redaction, under a protective order. The Court agrees that the burden of production is reduced when the duty to redact is removed; however, the Court finds the request is overly broad on its face. Plaintiffs do not address the temporal scope of the request to explain why the three-year timeframe for records was requested, or how those three years relate to the claims in this case. Nor do Plaintiffs address the number of schools the request covers.
Defendants claim it would require six secretaries from various schools to work on the request, and included in an exhibit to Plaintiffs' Reply brief is a list of six schools (ECF No. 87-2, Ex. A). So, the Court infers for the sake of this order that the District is comprised of six school buildings, each of which maintains its own visitor logs. And, although Defendants do not address this aspect of potential burden, the Court notes any unredacted logs produced pursuant to this order which specifically identify student information will require pre-notification of the identified student(s) and their parents, placing added burden on Defendants.
Although the subject matter of the request appears facially relevant, and privacy concerns can be cured by a combination of this order and a protective order, the broad temporal scope and failure to identify individual schools creates issues of overbreadth and corresponding undue burden to Defendants. Consequently, the Court will order some production, but will impose reasonable limits on that production.
The Court finds disclosure of visitor logs for the period of one year — beginning six months prior to Hirt's initial prohibition from District property on July 13, 2015, and ending six months following that date — will sufficiently demonstrate the District's utilization of its public schools. Additionally, rather than impose a duty to respond on each of the six buildings, the request is narrowed to the two schools from which Hirt has previously been barred: Appanoose Elementary School and Williamsburg Elementary School.
The parties are to confer, using their best efforts to agree upon a jointly proposed protective order, and submit the proposed order to the chambers of the undersigned at
If the parties disagree concerning the scope or form of the protective order, the parties must file an appropriate motion and supporting memorandum, with the proposed protective order attached, by
In the Court's discretion as permitted under Fed. R. Civ. P. 26(c)(1), the Court
Therefore, as set forth above, Plaintiffs' Motion is
Plaintiffs' RFP No. 8 is a follow-up to Defendants' earlier response to Plaintiffs' Interrogatory No. 5. In Defendants' interrogatory response, they provided documents that "contain notations of unusual activity on school property," including notations concerning persons not parties to this case. In RFP No. 8, Plaintiffs ask Defendants to "provide documents containing any such notations which were created or recorded during calendar years 2012-2015." Defendants both objected and responded as follows:
Defendants contend they provided the information to Plaintiffs regarding unusual activity on school property, but "redacted the names of the public who were identified in the documents." (ECF No. 86, at 10.) Defendants argue public identification of non-parties to this case, and the potentially embarrassing behavior committed by those non-parties, lacks relevance to either
Plaintiffs claim the notations of unusual activity and actions taken against Hirt and others is relevant, not only to the defense, but to Hirt's equal protection claim. They also contend the information is "directly relevant to policies and customs of the district related to a First Amendment cause of action." (ECF No. 75, at 14.)
Although the Court finds the relevance of this information questionable regarding the First Amendment claims, Plaintiffs are also pursuing an equal protection claim. (See 2nd Am. Compl., ¶ 59.) And, even after the 2015 amendment of Fed. R. Civ. P. 26(b), relevance is still to be construed broadly.
Defendants' sole argument is that identification of the non-party individuals lacks relevance; however, Defendants did not address Plaintiffs' equal protection claim and how the identification of those individuals lacks relevance to that claim. Because Defendants did not address the issue, the Court finds Defendants failed to meet their burden to demonstrate lack of relevancy. That said, the Court interprets Defendants' objection as actually an objection based on privacy concerns. However, privacy does not equate to privilege
Therefore, Defendants' objections are overruled, and Plaintiffs' motion is
For the reasons stated above, Plaintiffs' Motion to Determine the Sufficiency of Answers and Objections (
Pursuant to Rule 37(a)(5), if a motion to compel is granted, the court must require the party whose conduct necessitated the motion to pay expenses incurred in making the motion unless circumstances make such an award unjust. If such a motion is denied, the court must require the movant to pay the opposing party its reasonable expenses.
