NOT FOR PUBLICATION

MEMORANDUM DECISION AND ORDER RESOLVING DEBTOR'S REQUEST FOR DOCUMENT DISCOVERY

JAMES L. GARRITY, JR., Bankruptcy Judge.

Introduction

In this adversary proceeding, Michael Grabis, the pro se chapter 7 debtor herein (the "Debtor"), is seeking a determination that his student loan indebtedness is not excepted from discharge under section 523(a)(8) of the Bankruptcy Code. The matter before the Court is the Debtor's request for leave to obtain document discovery from Navient Solutions, Inc. ("Navient"), the Department of Education (the "DOE") and Lafayette College ("Lafayette"). Navient is a defendant herein. The DOE and Lafayette were named defendants in the Debtor's complaint, but have been dismissed from this action by orders of this Court. The Debtor's discovery requests are embodied in three documents filed herein (referred to collectively as the "Discovery Motion.").1

The DOE, Navient, and Lafayette object to the Discovery Motion. As discussed below, the Court rejects their contention that the Court should deny the motion, as untimely. Accordingly, the Court has considered the merits of the Discovery Motion. For the reasons set forth herein, the motion is GRANTED in part, and DENIED in part.

Jurisdiction

This Court has jurisdiction over the Discovery Motion pursuant to 28 U.S.C. §§ 1334(a) and 157(a) and the Amended Standing Order of Referral of Cases to Bankruptcy Judges of the United States District Court for the Southern District of New York (M-431), dated January 31, 2012 (Preska, C.J.). This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(I).

Background

On March 5, 2013 (the "Petition Date"), the Debtor, through counsel, filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code in this Court. See ECF No. 1.2 By order of the Court dated June 11, 2013, the Debtor received his discharge in bankruptcy, the chapter 7 trustee appointed to administer the Debtor's estate was discharged, and the case was closed. See ECF No. 8.

As of the Petition Date, the Debtor's unsecured indebtedness included debts on account of federal and private student loans (collectively, the "Student Loan Debt"), as follows:

In August 2013, the Debtor reopened his case, and on December 15, 2015, acting pro se, he commenced this adversary proceeding by filing a complaint seeking a determination that his Student Loan Debt is not excepted from discharge under section 523(a)(8) of the Bankruptcy Code. See AP ECF No. 1. As filed, the complaint named Sallie Mae, Navient, Lafayette, and the University of Vermont as defendants. ECMC moved to intervene as a defendant, and over the Debtor's objection, the Court granted ECMC leave to do so. See AP ECF Nos. 11 (Motion to Intervene); 16 (Order Granting Leave to Intervene). With authorization of the Court, the Debtor amended the complaint several times. The operative complaint is the Debtor's "Third Adversary Complaint for Discharge of Student Loans" (the "Third Complaint"). See AP ECF No. 84. In that complaint, the Debtor added the DOE as a named defendant.

In support of the Third Complaint, the Debtor asserts that he filed this adversary proceeding "as an addition to my core bankruptcy proceeding to discharge my student loans under [Bankruptcy] Rule 4007(b), 11 U.S.C[. §] 523 (a)(8), as per my rights to a `fresh start' under the U.S. Bankruptcy Code." Third Complaint at 2. He alleges that there are two reasons why this Court should grant him such relief. First, he says that he is entitled to "the full discharge of the unqualified private loan portion of my debt and full discharge of my federal debt, both under section 523(a)(8) of the [B]ankruptcy [C]ode[,]" because

Id. He asks this Court

Id. Second, he maintains that he is entitled to relief under section 523(a)(8) to redress the harm caused to him by the defendants. He says that "I believe that my degree issuing college and lenders did not act in good faith in the origination and servicing of my student loans and, in fact, acted to collude, embezzle, and purposely defraud me as a student borrower." Id. at 1-2. Thus, in addition to his Brunner based arguments, he asserts that "I am alleging fraud, breach of contract, and unjust enrichment in my defense of repayment." Id. at 2. The Debtor is asking for damages that he says he has suffered by reason of the defendants' fraud. He maintains that although he is "seeking the full discharge of the unqualified private loan portion of my debt and my federal debt, both under sections 523(a)(8) of the [B]ankruptcy [C]ode[,] [t]he fraud that occurred also caused damage to me personally and I am asking the court to grant damages from these parties to pay towards the debt and personal costs incurred as a result of the fraud." Id.

Over the course of this litigation, the Debtor stipulated to dismiss the University of Vermont from the action, and the Court granted motions to dismiss all claims that the Debtor asserted against Lafayette, Sallie Mae and the DOE.3 The Court also dismissed all claims against Navient that are not predicated on section 523(a)(8) of the Bankruptcy Code.4 As such, the defendants remaining in this action are ECMC and Navient, and the matter at issue is whether the Debtor is entitled to a determination that his Student Loan Debt is not excepted from discharge under section 523(a)(8) of the Bankruptcy Code.

The following categories of educational loans are within the scope of section 523(a)(8):

11 U.S.C. § 523(a)(8).5 The first three loan categories fall under section 523(a)(8)(A), while the last category is within the scope of section 523(a)(8)(B). Those subsections are mutually exclusive. See Campbell v. Citibank, N.A. (In re Campbell), 547 B.R. 49, 55 (Bankr. E.D.N.Y. 2016). Accordingly, for the Debtor to prove that his Student Loan Debt is not excepted from discharge, he must establish either (i) that the Consolidation Loans and Private Loans do not fall within the scope of section 523(a)(8)(A) or section 523(a)(8)(B); or (ii) that excepting such loans from discharge would impose an undue hardship on him. In Brunner v. New York Higher Educ. Servs., 831 F.2d 395 (2d Cir. 1987) (per curiam), the Second Circuit established a three-prong test to determine if a debtor is eligible for an "undue hardship" discharge of its student loan debt. Under Brunner, the Debtor must prove:

Id. at 396. The Debtor must establish all three prongs of this test by a preponderance of the evidence. See Davis v. Educ. Credit Mgmt. Corp. (In re Davis), 373 B.R. 241, 245 (Bankr. W.D.N.Y. 2007; Garneau v. New York State Higher Educ. Servs. Corp. (In re Garneau), 122 B.R. 178, 180 (Bankr. W.D.N.Y. 1990).

At the hearing on this motion, Navient did not dispute the Debtor's assertion that the Private Loans are outside of the scope of section 523(a)(8)(A).6 Thus, to prove that the Private Loans are not excepted from discharge, the Debtor must establish either that (i) the Private Loans are not "qualified educational loans" incurred by an individual debtor under section 523(a)(8)(B), or (ii) under Brunner, it will be an undue hardship for him to repay that debt. Section 523(a)(8) defines the term "qualified education loan" by reference to section 221 of the Internal Revenue Code, 26 U.S.C. § 221. Under that section, a "qualified education loan" is any indebtedness incurred by the taxpayer solely to pay "qualified higher education expenses"—

26 U.S.C. § 221(d)(1). Section 221(d)(2) defines the term "qualified higher education expenses" to mean the "cost of attendance (as defined in section 472 of the Higher Education Act of 1965, 20 U.S.C. 1087ll, as in effect on the day before the date of the enactment of the Taxpayer Relief Act of 1997) at an eligible educational institution," reduced by educational expenses paid under certain other programs. 26 U.S.C. § 221(d)(2). In turn, section 472 of the Higher Education Act includes the following categories of costs within the definition of "cost of attendance":

20 U.S.C. § 1087ll.

The Debtor contends that the Student Loan Debt is not excepted from discharge under section 523(a)(8) of the Bankruptcy Code because: (i) it will be an undue hardship for him to repay that indebtedness; and (ii) the Private Loans are not "qualified education loans." See Third Complaint at 2. As support for the latter, and in furtherance of his request in the Discovery Motion7 for document discovery from the DOE, Navient and Lafayette,8 the Debtor makes the following arguments:9

The DOE, Navient, and Lafayette object to the Discovery Motion.10

Discussion

Rule 26 of the Federal Rules of Civil Procedure, as made applicable herein by Bankruptcy Rule 7026, governs the scope of discovery and provides, in relevant part:

Fed. R. Civ. P. 26(b)(1). In 2015, the rule was amended to narrow the relevance required of discovery requests and emphasize the proportionality factors in considering the scope of discovery. See Fed. R. Civ. P. 26(b)(1) advisory committee's note (2015) ("The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.").11 See also Lozada v. Cty. of Nassau, No. CV 16-6302, 2017 WL 6514675, at *4 (E.D.N.Y. Dec. 20, 2017) (stating that "the current version of Rule 26 defines permissible discovery to consist of information that is, in addition to being relevant `to any party's claim or defense,' also `proportional to the needs of the case.'"). The term "relevant" is not defined in Rule 26, and courts often look to the definition of "relevant evidence" under Rule 401 of the Federal Rules of Evidence.12 See, e.g., O'Garra v. Northwell Health, No. CV 16-2191, 2018 WL 502656, at *2 (E.D.N.Y. Jan. 22, 2018) ("Information `is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.'") Cf. 6 Moore's Fed. Prac. § 26.44[3][a] (3d ed. 2015) (noting that while Rule 26 does not define "relevant," "relevant evidence" is defined by FRE 401). A trial court has broad discretion in determining the "relevance" of the requested discovery. See, e.g., Homeward Residential, Inc. v. Sand Canyon Corp., No. 12-CV-5067, No. 12-CV-7319, 2017 WL 4676806, at *5 (S.D.N.Y. Oct. 17, 2017) ("A district court has wide latitude to determine the scope of discovery." (quoting In re Agent Orange Prod. Liability Litig., 517 F.3d 76, 103 (2d Cir. 2008))); Narayanan v. Sutherland Global Holdings Inc., 285 F.Supp.3d 604, 610 (W.D.N.Y. 2018) ("Motions to compel are entrusted to the sound discretion of the district court . . . and a trial court enjoys wide discretion in its handling of pre-trial discovery.") (internal citations and quotation marks omitted). Whether the discovery sought is relevant to a claim or defense depends on the facts and circumstances of the case. See, e.g., Carl v. Edwards, No. CV 16-3863, 2017 WL 4271443, at *9 (E.D.N.Y. Sept. 25, 2017) (noting that the court must determine if the discovery sought is "both relevant and proportional in light of the particular facts and circumstances of this case." (citing Fed. R. Civ. P. 26(b)(1)); Trevino v. Caliber Home Loans (In re Trevino), 564 B.R. 890, 911-12 (Bankr. S.D. Tex. 2017) ("Specifically, Rule 26 provides that discovery sought must be relevant to a claim and proportional given the specific circumstances of the case."). Cf. 6 Moore's Fed. Prac. § 26.42[1] (3d ed. 2015) ("A court's determination of whether a discovery request is `relevant to any party's claim or defense' must look beyond the allegation of a claim or defense to the controlling substantive law."). "The burden of demonstrating relevance is on the party seeking discovery." Republic of Turkey v. Christie's, Inc., 326 F.R.D. 394, 400 (S.D.N.Y. 2018); see also Winfield v. City of New York, No. 15 CV 05236, 2018 WL 840085, at *3 (S.D.N.Y. Feb. 12, 2018) ("The party moving to compel bears the initial burden of demonstrating relevance and proportionality." (citing Johnson v. J. Walter Thompson U.S.A., LLC, No. 16-cv-1805 (JPO) (JCF), 2017 WL 3055098, at *2-3 (S.D.N.Y. July 18, 2017))).

Non-party discovery is governed by Rule 45 of the Federal Rules of Civil Procedure, which is made applicable to this proceeding by Bankruptcy Rule 9016. When discovery is sought from third parties, the Court must also weigh the probative value of the information against the burden of production on the non-party. See generally Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48-49 (S.D.N.Y. 1996); see also Fed. R. Civ. P. 45(d)(1) & (d)(2)(B)(ii) (stating that non-party status entitles parties to consideration regarding expense). Whether a discovery request imposes an "undue burden" depends on factors including relevance, the need of the party for the documents, the breadth of the document request, the time period covered by the request, the particularity with which the documents are described, and the burden imposed. See Concord Boat Corp., 169 F.R.D. at 49. Therefore, "to the extent a subpoena sweepingly pursues material with little apparent or likely relevance to the subject matters it runs the greater risk of being found overbroad and unreasonable." Id. at 50 (quoting U.S. v. Int'l Bus. Machines Corp., 83 F.R.D. 97, 106-07 (S.D.N.Y. 1979).

On August 31, 2016, the Court entered a scheduling order calling for discovery herein to be completed by November 29, 2016 (i.e., 90 days after entry of the order). See AP ECF No. 44. None of the parties to the action sought to extend the discovery deadline and it was not extended. As a preliminary matter, Lafayette, the DOE and Navient all contend that the Court should deny the Debtor's request for discovery since he did not timely seek such discovery. In support of his request for leave to take discovery, the Debtor explains that he thought that the discovery deadline applied only to the defendants named in this adversary proceeding. He contends that he has complied with all the discovery requested of him and that "[i]t was [his] understanding that [he] would be afforded the same opportunity as the defendants to request information from them." See Simplified Discovery Request at 1. The Debtor is proceeding pro se and is actively pursuing this action. The Court credits the Debtor's assertion that he believed the discovery deadline was applicable to the defendants' discovery requests, and that he would be afforded the opportunity, if needed, to seek discovery later in this litigation against the defendants. Accordingly, the Court will consider the merits of the Discovery Motion.13

Department of Education

The Debtor seeks the production of a wide range of documents from the DOE.14 A party to an adversary proceeding in which the United States is not a party that seeks to obtain documents from a federal agency for use in that adversary proceeding must follow the so-called "Touhy regulations" applicable to that agency. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (authorizing such regulations).15 A party seeking records in the custody of the DOE or information relating to those records must satisfy the regulations governing "Demands for Testimony or Records in Legal Proceedings" set forth at 34 C.F.R. §§ 8.1-8.5. Briefly, those regulations provide that a demand for records must (1) be in writing, and (2) state the nature of the requested testimony or records, why the information sought is unavailable by any other means, and the reason why the release of the information would not be contrary to an interest of the Department or the United States. See 34 C.F.R. § 8.3(a). The demand for records must be served on "an employee who has custody of the records" with a copy simultaneously delivered to the General Counsel, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue, SW., room 6E300, Lyndon Baines Johnson Building, Washington, DC 20202-2100. 34 C.F.R. § 8.3(b).

The DOE contends that the Court must deny the Debtor's request for document production from the DOE because he failed to comply with the Touhy regulations applicable to the DOE. See DOE's Simple Opposition ¶¶ 4-8; DOE's Further Opposition ¶¶ 5-8. The Court agrees. The Debtor served the Discovery Motion on the Office of the United States Attorney, for the Southern District of New York, as counsel to the DOE. He did not serve it on either an employee of the DOE with custody of the information, or the Office of the General Counsel at the Department of Education, as required by the Touhy regulations described above. See, e.g., Debtor's Certificate of Service (attached to the Supplemental Discovery request) [AP ECF No. 191]. Moreover, in the Discovery Motion, he failed to state why the documents he seeks are unavailable by any other means, and why the production of those documents would not be contrary to an interest of the DOE or the United States. See 34 C.F.R. § 8.3(a)(2). For those reasons, the Court sustains the DOE's objection to the Discovery Motion, without prejudice to the Debtor's right to renew such requests through the Touhy procedures applicable to the DOE. See Manzo v. Stanley Black & Decker, Inc., No. 13CV3963JFBSIL, 2017 WL 1194651, at *7 (E.D.N.Y. Mar. 30, 2017) (denying plaintiff's motion to compel production of documents against the U.S. Department of Labor as premature where the plaintiff had not first made his request through the Touhy regulations applicable to the DOL, and thus the DOL had not yet provided a final determination as to the information sought). In addition to seeking the production of documents from the DOE, in the Discovery Motion, the Debtor seeks the appointment of an IRS Special Agent and the United States Trustee "to provide detailed definitions on some of the terms [he has] put forth in this filing." Supplemental Discovery Request at 4. The Court lacks the power to make such appointments and, as such, denies that request. In any event, to the extent that the Debtor is seeking discovery from the Internal Revenue Service or the Office of the United States Trustee, the Court denies it, without prejudice to the Debtor's right to request the information through the Touhy procedures applicable to the Department of Treasury/Internal Revenue Service and the Department of Justice, respectfully.

Navient16

The Discovery Motion includes 15 requests for document production from Navient. The Court groups them (each a "Navient Group") into requests seeking documents relating to:

Navient Request A.

The Debtor's account with Navient.

As noted previously, the Debtor contends that the Private Loan debt is not excepted from discharge under section 523(a)(8) of the Bankruptcy Code because it will be an undue hardship on the Debtor to repay that debt, and those loans are not "qualified education loans" under Section 523(a)(8)(B). Documents relating to the Debtor's account with Navient that the Debtor identified in the document requests underlying Navient Request A are relevant to those issues, and Navient acknowledges as much. In response to the Discovery Motion, Navient asserts, among other things, that it will "supply proof of the [Private Loan debt], the amount at issue, and any relevant payment history and related relevant documents at trial, or as part of a motion for summary judgment. See Navient's Simple Response ¶ 10. The Court directs Navient to deliver copies of those documents to the Debtor on or before December 28, 2018. Moreover, the Court finds that communications, including documents, emails and correspondence, evidencing, encompassing or concerning information or advice that Sallie Mae/Navient provided to the Debtor with respect to (i) forbearance, fees, and debt management, and (ii) the Private Loans, generally, are relevant to the Debtor's claims and defenses in this action. Under the Brunner test for evaluating undue hardship, a debtor must establish, among other things, that he has made good faith efforts towards repayment of the loan(s) sought to be discharged. The instructions or advice that Navient and/or Sallie Mae gave to the Debtor with respect to the repayment of the Private Loans, including, without limitation, matters concerning loan forbearance/forgiveness and repayment plans, may bear directly on that prong of the Brunner test. See J.P.Morgan Sec. LLC v. Mariano, 1:17-cv-01080, 2018 WL 522339, at *2 (S.D.N.Y. Jan. 22, 2018) ("noting that "with respect to relevance, the scope of discovery in the federal courts is quite broad." (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978))). That aspect of the Debtor's document request is narrowly drawn. It should not impose an undue burden on Navient to respond to it. Accordingly, the Court directs Navient to deliver copies of those documents to the Debtor on or before December 28, 2018.22 The Court also directs Navient to produce to the Debtor any communications, including documents, evidencing Navient/Sallie Mae's calculation of the Debtor's "cost of attendance," as that term is defined in Section 523(a)(8)(B) of the Bankruptcy Code, at Lafayette for the period of 1998 through 2002. That information is relevant to the Debtor's assertion that the Private Loans are not "qualified" education loans. Those documents shall include, without limitation, correspondence (email or otherwise) between Navient/Sallie Mae and the Debtor or Lafayette, or any other third party, relating to the calculation of the Debtor's "cost of attendance." Accordingly, the Court overrules Navient's objection to the document requests underlying Navient Request A and directs Navient to produce documents identified herein.

Navient Request B.

Instructions, including internal memoranda, directives and other training materials relating to Sallie Mae's advice to borrowers generally, relating to bankruptcy and Sallie Mae's collection of forbearance fees from borrowers.

The Court sustains Navient's objection to this request. The documents the Debtor is seeking relate to Sallie Mae's loan servicing operations generally, including advice the Sallie Mae gave to borrowers regarding bankruptcy, Sallie Mae's procedures relating to borrower forbearance agreements, and Sallie Mae's "strategy" for advising borrowers how to "stay current" on their federal loans and private loans. Those documents do not satisfy the relevancy requirement in Rule 26(b)(i), because they will not provide evidence relating to either whether the Private Loans are "qualified education loans" or whether the Debtor is entited to a hardship discharge. See generally Fed. Trade Comm'n v. Rensin, 687 F. App'x 3, 6 (2nd Cir. 2017) (affirming district court's denial of discovery because the request for invoices was irrelevant to the issue of whether the defendants' misrepresentations "were of a kind usually relied upon by reasonable prudent persons.").

Navient Request C.

Sallie Mae's alleged efforts to include private loans within the section 523(a)(8) exception to discharge.

The Court sustains Navient's objection this request. Sallie Mae's communications, if any, with the DOE for the period 1997-2006 related to Sallie Mae's attempts to include private student loans as exceptions to discharge, and with the House of Representatives Committee on Education regarding BAPCA, has no bearing on whether the Student Loan Debt should be excepted from discharge.

Navient Request D.

Sallie Mae's communications with Lafayette College and other colleges/universities.

The Court has determined that any communications between Lafayette and Sallie Mae regarding the Debtor's "cost of attendance" during his four years at Lafayette are relevant to the matters at issue herein. However, correspondence between Sallie Mae and Lafayette during the period of 1997 to 2005 relating to lending and lending limits, other than documents related to the Debtor's "cost of attendance," are not relevant to this litigation. Nor is correspondence between Sallie Mae and Lafayette's president, except to the extent that it relates to the Debtor's cost of attendance", or the "sales pitches" that Sallie Mae sent to colleges and universities during the period 1995-2008 regarding their lending services and how those services might benefit the colleges. The Court sustains Navient's objection to the production of documents responsive to those requests.

Navient Request E.

Sallie Mae's legal filings in connection with the litigation brought against it by former employee Michael Zahara, and records of complaints from Zahara or other internal employees relating to blocking or preventing borrower payments to increase their overall loan balance.

The Court sustains Navient's objection to the production of documents responsive to this request. Sallie Mae's legal filings with respect to litigation brought against it by Michael Zahara are a matter of public record. The Debtor can obtain those records on his own. Moreover, in any event, documents relating to that litigation, and to complaints from Zahara or other internal employees relating to borrower payments are not relevant to whether the Private Loans should not be excepted from discharge under section 523(a)(8).

Lafayette College

The Discovery Motion includes ten requests for document production from Lafayette. The Court groups them into requests (each a "Lafayette Request"), seeking documents relating to:

Lafayette Request (A).

The Debtor's personal record of financial aid with the college.

After filing its Initial Objection to the Discovery Motion, Lafayette accessed its financial aid award database to review the Debtor's personal record of financial aid received while he was a student at Lafayette. See Lafayette's Further Objection ¶ 12. Lafayette contends that it has produced to the Debtor printouts from the database that include a breakdown of the Debtor's grants, student loans and estimated family contribution amounts for the 1998-1999, 1999-2000, 2000-2001 and 2001-2002 school years (the "Lafayette Production"). As such, it asserts, in effect, that the Lafayette Production contains all documents in its possession that are responsive to Lafayette Request (A). See id. The Debtor does not contend otherwise. It is not clear to the Court whether the information provided by Lafayette to the Debtor in the Lafayette Production includes a calculation of the "cost of attendance" for the Debtor in each of the four years he attended Lafayette. To the extent that the production did not include documents evidencing that calculation, the Court directs Lafayette to provide those documents to the Debtor on or before December 28, 2018. The Debtor's request for documents responsive to Lafayette Request (A) is otherwise denied as moot.

Lafayette Request (B).

Any records of giving grants and financial aid to students "both in general and specific student records" for the period 1998-2014, and a "snapshot of what other borrowers received in grant money" versus the grant money the Debtor received for the years 1998 through 2002.

The Debtor is not entitled to discovery of these documents because they are not relevant to the matters at issue in this action. As discussed above, to obtain a determination that his Student Loan Debt is not excepted from discharge, the Debtor must demonstrate that his Consolidation Loans and Private Loans are not within the scope of section 523(a)(8)(A) or section 523(a)(8)(B), or that it would be an undue hardship on him if those loans are not discharged. The financial aid records (including grant information) of other students at Lafayette for the period of 2002-201428 have no bearing on any of the Brunner factors in determining the Debtor's undue hardship, or on whether his Student Loan Debt falls within the indebtedness described in section 523(a)(8)(A) and section 523(a)(8)(B). See Shim-Larkin v. City of New York, No. 16-CV-6099 (AJN), 2018 WL 4636839, at *4 (S.D.N.Y. Sept. 27, 2018) (noting that discovery requests that seek information irrelevant to the case are outside the scope of discovery under Rule 26 and should not be permitted). Additionally, as noted by Lafayette, records relating to the financial aid sought and/or received by other Lafayette students and borrowers are protected education records under the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g; 34 CFR Part 99.29 FERPA applies to any school, such as Lafayette, that receives funding under an applicable program of the DOE, and generally prohibits the release by the school of such education records unless there is written consent from the student or the student's parents. See 20 U.S.C. § 1232g(b). The purpose of FERPA is to "protect [students'] right to privacy by limiting the transferability (and disclosure) of their records without their consent." Rios v. Read, 73 F.R.D. 589, 597 (E.D.N.Y. 1977) (quoting 120 Cong. Rec. S21497 (daily ed. Dec. 13, 1974) (joint remarks of Sen. Buckley and Sen. Pell)). Thus, "a party seeking disclosure of education records protected by FERPA bears `a significantly heavier burden . . . to justify disclosure than exists with respect to discovery of other kinds of information. . . .'" Ragusa v. Malverne Union Free Sch. Dist., 549 F.Supp.2d 288, 292 (E.D.N.Y. 2008) (citation omitted); see also Alig-Mielcarek v. Jackson, 286 F.R.D. 521, 526 (N.D. Ga. 2012) (same). The Debtor has not met that burden. See, e.g., Marlow v. Chesterfield Cty. School Bd., No. 3:10cv18-DWD, 2010 WL 3660770, at *4 (E.D. Va. Sept. 15, 2010) (denying discovery of email correspondence within the scope of student records because of privacy concerns under FERPA, burden of notification on producing party, and lack of relevance of requested correspondence to plaintiff's claim "or any issue in the case"). Accordingly, the Court sustains Lafayette's objection to the production of documents requested by the Debtor in Lafayette Request (B).

Lafayette Request (C).

All records relating to Lafayette's cash and liquid investment reserves for the period 1995-2017, its federal tax filings for the period 1998-2005, and its annual report and financial statements" for the years 1998 through 2002.

The Debtor's request for this category of documents pertaining to Lafayette's reserves, federal tax returns, annual reports, and financial statements, ranging from 1995 through 2017,30 likewise fails to satisfy the relevancy standards under Rules 26 and 45 and warrants denial. Documents responsive to this request have no bearing on the Debtor's claim of undue hardship and his assertion that his Student Loan Debt are not of the types of loans described in section 523(a)(8). See Solow v. Conseco, Inc., No. 06 Civ. 5988, 2008 WL 190340, at *4-5 (Jan. 18, 2008) (denying plaintiff's discovery request for financial documents of non-party for period 2003-2007 where "the Court fails to see the relevance" of the non-party's financial condition to the transaction at issue). To be sure, the Debtor admits that the purpose behind his request for Lafayette's financial information is not to support the grounds for dischargeability, but to prove his theory that Lafayette, like other colleges and universities across America, and in conjunction with the DOE, Sallie Mae, and ECMC, is engaged in a massive illegal tax fraud that profits from students. See Simplified Discovery Request at 3 ("In this particular request, I advise Lafayette College to refer to University of Wisconsin Madison's 2005 public record of admission of unjust and illegal tuition raising and cash reserve creation for purposes of profit. I am seeking records of Lafayette College's similar or mimicking of Wisconsin Madison's operations for profit."). To the extent that the Debtor is asserting claims for fraud, breach of fiduciary duties, and/or violations of U.S. tax laws by Lafayette, the Court has already dismissed such claims. See Order signed on 8/31/2016 Granting Motion to Dismiss the claims against Lafayette College [AP ECF No. 43]; see also 8/25/16 Hr'g Tr. at 14:13-15:1. The Debtor cannot now seek discovery of documents as to claims which have already been dismissed. See, e.g., Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., No. 13-cv-1654, 2014 WL 5420225, at *7 (S.D.N.Y. Oct. 24, 2014) (stating that "[w]hile relevance is broadly construed in the context of discovery, it is proper to deny discovery of matter that is relevant only to claims or defenses that have been stricken." (quoting Treppel v. Biovail Corp., 233 F.R.D. 363, 375-76 (S.D.N.Y. 2006))).

Moreover, like the protected educational records, discovery of tax returns and financial records implicate privacy concerns and there is a general policy against their production. See, e.g., 6 Moore's Fed. Prac. § 26.45[1][b] (3d ed. 2015) ("Public policy disfavors disclosure of tax returns, and courts should not require their production if the information sought is available from another source.").31 See also S.E.C. v. Garber, 990 F.Supp.2d 462, 465 (S.D.N.Y. 2014) (noting that courts should exercise caution in ordering the production of tax returns because of "the private nature of the sensitive information" and the "public interest in encouraging filing by tax payers of complete and accurate returns" and collecting cases) (citations omitted). Thus, a party seeking the production of tax returns must satisfy a two-part test: (1) the tax returns must be relevant to the subject matter of the action, and (2) a compelling need must exist because the information is not readily obtainable from a less intrusive source." Sadofsky v. Fiesta Prods., LLC, 252 F.R.D. 143, 150 (E.D.N.Y. 2008) (citations omitted). Cf. Xiao Hong Zheng v. Perfect Team Corp., 739 F. App'x 658, (2d Cir. 2018) ("Courts in this Circuit long have observed that discovery of tax return information `presents a delicate situation.'" (quoting SEC v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985))). Generally, the burden is on the "party seeking discovery [of tax returns] to demonstrate both relevancy and a compelling need." Agerbrink v. Model Serv. LLC, No. 14 Civ. 7841, 2017 WL 933095, at *5 (S.D.N.Y. Mar. 8, 2017) (quoting Uto v. Job Site Servs. Inc., 269 F.R.D. 209, 212 (E.D.N.Y. 2010)).

Here, as discussed above, the Debtor has not demonstrated how Lafayette's financial statements, annual reports and tax returns are relevant to his claim or defense of undue hardship and the status of his Student Loan Debt as dischargeable indebtedness within the scope of § 523(a)(8). Nor has the Debtor set forth any compelling need for these documents or shown that these documents would support his wholly speculative theory that Lafayette was "mimicking" the University of Madison Wisconsin.32 As such, the Debtor's request for Lafayette's financial records (including as to Lafayette's reserve funds) and tax returns in Lafayette Request C is denied. See generally United States v. Fed'n of Physicians & Dentists, Inc., 63 F.Supp.2d 475, 479-80 (D. Del. 1999) (denying discovery from non-parties for confidential financial information where information sought was only "remotely connected" to the claims at issue and in support of a speculative argument). Accordingly, the Court sustains Lafayette's objection to the production of documents requested by the Debtor in Lafayette Request (C).

Lafayette Request (D).

Lafayette's institutional methodology for calculating grants, financial aid, cost of attendance, and estimated family contribution for the years 1998 through 2002.

Insofar as this request seeks documents that demonstrate how Lafayette calculated financial aid, cost of attendance, grants and estimated family contribution for the relevant years 1998-2002, as to the Debtor, Lafayette contends that such information has already been provided to the Debtor in the Lafayette Production. Insofar as this request seeks calculation records for all other Lafayette students for the years 1998-2002, such information is not relevant to the Debtor's claim or defense of the dischargeability of his Student Loan Debt and is protected from disclosure under FERPA, as more fully set forth above in Lafayette Request (B). Accordingly, the Court sustains Lafayette's objection to the production of documents requested by the Debtor in Lafayette Request (D).

Lafayette Request (E).

Any tuition reserve amount, defined as "an amount beyond or not used or applied to teaching and instruction costs" for the years 1998 through 2003,33 and what "Lafayette announced they had budgeted to pay out in financial aid" versus the amount of financial aid paid out during the years 1998 through 2002.

Like Lafayette Request (C), this request seeks the production of documents that are not relevant to the issues in this action. As already discussed herein, the Debtor's objective in obtaining Lafayette's financial information, including reserve amounts and tax filings is, by his own admission, to prove that Lafayette was profiteering illegally and fraudulently by, inter alia, charging higher than necessary tuition and/or not disbursing grants to students. Even if the Debtor's theory and allegations were assumed to be true, these claims of fraud have no bearing on the dischargeability of the Student Loan Debt under § 523(a)(8). Accordingly, the Court sustains Lafayette's objection to the production of documents requested by the Debtor in Lafayette Request (E).

Conclusion

Based on the foregoing, the Court: (i) sustains the DOE's objection to the Discovery Motion, without prejudice to the Debtor's right to renew the document requests underlying the motion through the Touhy procedures applicable to the DOE; (ii) sustains Navient's objection to the Discovery Motion, except that it overrules Navient's objection to the production of documents responsive to the document requests underlying Navient Request A, and directs Navient to produce to the Debtor the documents requested in Navient Group (A), as set forth herein, including documents, relating to the calculation of the Debtor's "cost of attendance at Lafayette; and (iii) sustains Lafayette's objection to the Discovery Motion, except that it directs Lafayette to supplement the Lafayette Production to the Debtor to include any documents containing Lafayette's calculation of the Debtor's "cost of attendance" during the years the Debtor attended Lafayette. Navient and Lafayette are directed to complete such document production on or before December 28, 2018.

IT IS SO ORDERED.