LOZANO v. BAYLOR UNIVERSITY (2020)

ORDER

Before the Court are two motions filed by defendant Art Briles seeking to compel further discovery responses from co-defendant Baylor University. Dkts. 113, 120. The motions are before the Court for disposition pursuant to the district judge's referral. Dkt. 131.

I. BACKGROUND

This discovery dispute arises out of a lawsuit brought by Dolores Lozano against Baylor University, the City of Waco, Art Briles, and Ian McCaw. Lozano alleges that in 2014, while enrolled as a student at Baylor, she was physically assaulted three times by her then-boyfriend, a fellow Baylor student and member of the football team, and that Baylor, its former football coach Art Briles, former Athletic Director Ian McCaw, and the Waco Police Department all knew about the abuse but did nothing to assist her. Lozano brings Title IX and negligence claims against Baylor, a § 1983 substantive due process claim against the City of Waco, and negligence claims against Briles and McCaw. See Dkt. 50; Dkt. 105; Dkt. 130.

In the present two motions, Briles asserts that Baylor has failed to adequately respond to his discovery requests. Briles filed the first motion to compel arguing that Baylor's responses to his first Requests for Production were incomplete because Baylor had improperly limited the scope of discovery and withheld responsive documents. Dkt. 113. Baylor filed a response (Dkt. 121-1) and Briles filed a reply (Dkt. 125-1). Shortly before Baylor's response was filed, Briles filed a second Motion to Compel, challenging several of Baylor's objections to his first Interrogatories and seeking to compel Baylor to supplement its answers. Dkt. 120. Baylor filed a response (Dkt. 126) and Briles filed a reply (Dkt. 127), and both motions are now ripe.

II. LEGAL STANDARD

The scope of discovery is broad. Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). Federal Rule of Civil Procedure 26 provides that, unless otherwise limited by court order, parties 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, considering the importance of the issues at stake in the action, the amount in controversy, 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). “A discovery request is relevant when the request seeks admissible evidence or ‘is reasonably calculated to lead to the discovery of admissible evidence.’ ” Crosby, 647 F.3d at 262 (quoting Wiwa v. Royal Dutch Petrol. Co., 392 F.3d 812, 820 (5th Cir. 2004)). A party seeking discovery may file a motion to compel after conferring in good faith to secure that discovery without court action. Fed. R. Civ. P. 37(a).

“Once a party moving to compel discovery establishes that the materials and information it seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon the party resisting discovery to substantiate its objections.” Hobbs v. Petroplex Pipe & Constr., Inc., No., 2018 WL 3603074, at *2 (W.D. Tex. Jan. 29, 2018); see also McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). “A party objecting to discovery must state with specificity the objection and how it relates to the particular request being opposed, and not merely that it is overly broad and burdensome or oppressive or vexatious or not reasonably calculated to lead to the discovery of admissible evidence.” Id.; see also Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (stating that the party resisting discovery has the burden to “specifically object”) (citing McLeod, 894 F.2d at 1485).

III. FIRST MOTION TO COMPEL

Briles’ first motion pertains to the Requests for Production that Briles served on Baylor on July 22, 2019. See Dkt. 113-1. Briles identifies three points of dispute: (1) Baylor improperly refused to produce any documents that predate/postdate Lozano's enrollment at the university, and any assault-related documents other than those related to domestic or dating violence; (2) Baylor improperly refused to produce non-privileged Pepper Hamilton materials; and (3) Baylor improperly refused to comply with Briles’ request pertaining to Margolis Healy and Associates’ (“MHA”) investigation and report and Baylor's response to that report. See Dkt. 113.

Briles indicates in the motion that Baylor did not oppose production of the non-privileged Pepper Hamilton materials, but noted that at that time Baylor had not provided any supplemental production yet. Dkt. 113 at 2. At the status conference held on February 10, 2020, the parties informed the Court that since the motion to compel was filed, Baylor had begun producing non-privileged Pepper Hamilton materials. See Dkt. 138. Baylor indicated that supplemental production of these materials would be completed within 45 days. Id. Accordingly, Briles’ arguments with respect to the Pepper Hamilton materials are MOOT.

1. Scope of Discovery

Briles asserts that Baylor has improperly limited the scope of discovery in relation to his first Requests for Production in two respects: (1) by refusing to produce documents dated before or after the time during which Lozano was a student at the university;¹ and (2) refusing to produce documents beyond those involving domestic or dating violence. Dkt. 113 at 3-6. Baylor limited its responses in this respect on RFP Nos. 1-2, 6, 10-14, 18, 45-46, 48-51, 53-59, 61-62, and 71-93. Id. at n. 3.

As an initial note, Baylor's Response indicates that it has since agreed to produce documents related to “[Lozano's] alleged assaults (through the filing of this lawsuit in October 2016); documents related to Lozano's and Chafin's academics and student conduct (through the filing of this lawsuit in October 2016); policies and procedures related to student sexual misconduct and dating violence (August 1, 2010-May 31, 2014); and school files relating to sexual violence/dating violence incidents involving football players that occurred between August 1, 2010, and May 2, 2014 (the last day of the spring semester), even if the incidents were resolved in a later school year.” Dkt. 121-1 at 5. These objections are thus limited to the discovery requests “untethered to Lozano's time at Baylor,” as Baylor argues that those requests are not relevant to the claims or defenses in this litigation, and not proportional to the needs of the case. Id. at 6.

Briles responds that discovery should extend to the entire time Lozano alleges that the underlying misconduct occurred—2009-2015—and should include any incidents or subject matter related to violence against women at Baylor, whether sexual violence or physical violence. Dkt. 125-1 at 4, 6. Briles contends that because Lozano's claims against him are predicated on allegations of a culture of violence and “ad hoc discipline” instituted by Briles as the head football coach, as well as the claim that Briles fraudulently concealed these issues after Lozano graduated, he should be entitled to discover the basis for these allegations in the context of the time frame alleged by Lozano. Id. In response, Baylor argues that because Lozano asserts only negligence claims against Briles, Briles has not met his burden to prove discovery beyond the period of time Lozano was enrolled is relevant or proportional to the needs of this case. Dkt. 121-1 at 7. Baylor notes that Lozano's Title IX hostile environment/heightened risk claim is brought against Baylor only, not Briles. Id. at 8. Accordingly, Baylor contends that Briles “seeks background evidence that is not germane to claims or defenses actually pleaded.” Id. at 7.

Baylor is correct that Lozano lodges only a negligence claim against Briles. However, in stating her negligence claim against Briles, Lozano's Complaint alleges that he breached his duty of care by engaging in conduct that includes failing to properly train or educate student athletes regarding sexual misconduct and domestic violence, failing to properly implement safeguards for female students to protect them from foreseeable assaults by members of the football team, failing to supervise faculty and staff to ensure proper supervision, sanctioning and carrying out untrained and informal investigations of reports against football players, and failing to train athletic department staff to competently respond to and report allegations of sexual or physical violence. Dkt. 50 at ¶ 169. Accordingly, while Baylor is correct that Lozano does not allege her Title IX heightened risk claim against Briles, Lozano bases her negligence claim on allegations that Briles created a culture of violence, lack of discipline, and lack of supervision and training. See id. at 39-48. She specifically alleges that “[b]ut for the intentional and negligent acts” of Briles, “Lozano would not have been injured.” Id. at ¶ 171. Lozano's Complaint, which dictates the scope of discovery under Rule 26(e), alleges that this culture created by Briles existed among the football program from 2009-2015. Id. at ¶ 39. Accordingly, alleged incidents of sexual assault or physical violence from 2009-2015 are relevant and Briles may seek discovery of those matters.

Baylor next asserts that Briles’ Motion to Compel fails to address Baylor's other objections to the contested RFPs. Dkt. 121-1 at 10. Baylor states that “while Baylor briefly addresses some of these objections below, it respectfully reserves the right to brief these objections should Briles seek to overrule them in the future.” Id. In reply, Briles argues that Baylor's additional objections are general and fail to comply with Rule 34. Dkt. 125-1 at 5. Briles states that his motion to compel “moves in good faith to overrule objections limiting the scope of discovery to Lozano's period of enrollment,” and indicates that “[i]f Baylor continues to withhold pertinent materials based on general objections, then the parties will revisit that issue.” Id. As Briles notes, Baylor is attempting to use its general objections “offensively.” Id. at n. 19. The Court agrees. Briles’ motion to compel is granted and Baylor's objections as to the time period for discovery are overruled. To the extent Baylor raises other objections not addressed by Briles’ motions, those objections have no effect on the Court's findings regarding the proper scope of discovery. If Baylor continues to withhold documents under other objections, those objections are not before the Court.

2. Margolis Healy & Associates Materials

Briles next challenges Baylor's refusal to produce documents related to the MHA investigation and report, and any actions Baylor took in response. Dkt. 113 at 7-10. In 2014, Baylor commissioned Margolis Healy & Associates, a professional services firm specializing in campus safety, security, and regulatory compliance, to assess Baylor's compliance with Title IX and the Clery Act. Briles served several RFPs seeking materials related to MHA's investigation, report, and Baylor's actions in response. See Dkt. 113-1.

Baylor's Response first states that Baylor produced the MHA report to Briles when it responded to Lozano's RFPs. Dkt. No. 121-1 at 17. Baylor next asserts that Briles’ further requests for MHA materials (RFP Nos. 46-49 and 86) are overly broad. Dkt. 121-1 at 17-18. With regard to RFP No. 48, which seeks any documents concerning an assessment or feedback from MHA regarding the Baylor Athletics Department, the football program, Art Briles or Ian McCaw, Baylor asserts that MHA did not assess these entities during its investigation and that it has already produced all documents responsive to this request. Id. As to RFP No. 49, which seeks all documents identifying who MHA met with or interviewed when it visited campus May 4-9, 2014, Baylor states that it has already produced the responsive documents and if it locates additional documents, it will supplement its production. Id. at 18. With regard to RFP No. 86, which seeks interview notes, summaries, recordings, and transcripts for an identified list of individuals, Baylor responds that it produced all responsive documents that it located at that time, and would continue to supplement if it found additional material. Id. Accordingly, Baylor indicates that only RFPs 46 and 47 remain in dispute.

RFP Nos. 46 and 47 seek information regarding the actions Baylor took in response to the MHA report issued in September 2014. Baylor argues that actions it took in response to the MHA investigation and report are not relevant to any claim or defense in the case and that Briles has not met his burden to demonstrate he is entitled to this information. Id. at 20. Baylor further argues that because MHA recommended changes that Baylor needed to make to comply with new federal guidance from April 29, 2014, any actions Baylor took in response to the MHA report “have even less connection to Lozano's claims against Briles, for which she must prove that he had an independent duty of care separate and apart from any duty Baylor owed.” Id. at 21. Baylor asserts that Briles has not shown how any changes that Baylor made to its own policies and procedures following the September 2014 report would have any relevance to Briles’ individual duty toward Lozano in prior years. Id. The Court agrees. Briles has not demonstrated his entitlement to the materials sought by RFP Nos. 46 and 47. Accordingly, Briles’ motion to compel is denied as to RFP Nos. 46 and 47. As to the remaining requests related to MHA (RFP Nos. 48, 49, and 86) Baylor indicates that it produced all responsive documents and that it will continue to supplement its responses as necessary. Based on these representations, the motion is denied as to RFP Nos. 48, 49, and 86.

Accordingly, Briles’ first Motion to Compel (Dkt. 113) is GRANTED IN PART AND DENIED IN PART. Specifically, the motion is GRANTED and Baylor's objections as to the scope of discovery are overruled. The motion is DENIED as to Briles’ requests seeking materials related to Margolis Healy and Associates.

IV. THE SECOND MOTION TO COMPEL

In his Second Motion, Briles asks the Court to overrule objections raised by Baylor and to compel full and complete responses to several interrogatories. Dkt. 120. Briles notes that Lozano's Complaint bases its allegations on the Findings of Fact published by Baylor's Board of Regents in August of 2015, and on statements made by the Regents published in a Wall Street Journal article on October 28, 2016, arguing that both the Findings and the Wall Street Journal article alleged that the football program operated outside and inconsistently with the university's policies. Dkt. 120 at 4-6. Thus, Briles argues that he is entitled to discover the “factual basis, if any, for the Regents’ allegations, now incorporated into Lozano's civil suit against Briles.” Id. at 5. Specifically, Briles requests supplemental answers to Interrogatories 1, 3, 6-12, and 16. Baylor opposes most of these requests. See Dkt. 126.

A. Interrogatory Nos. 1 and 3

Interrogatory Nos. 1 and 3 ask for information regarding the specific policies and procedures Baylor had in place regarding disclosures of sexual assaults or dating violence. Specifically, Interrogatory No. 1 asks for information such as when each policy or instruction was issued, when it was withdrawn, superceded, or updated, and what policy replaced it. Dkt. 120-1 at 5. Interrogatory No. 3 asks about whether Baylor ever implemented a comprehensive, integrated, and unified policy for how a member of the campus community might report or seek support in connection with an incident of sexual assault or dating violence, as MHA recommended Baylor implement in its September 2014 report. Id.

Baylor objected to Interrogatory No. 1 arguing that Briles’ request for information on “all” policies, procedures, and instructions, without any time limit was an overly broad request as to scope and as to date. Dkt. 120-2 at 3. Nonetheless, Baylor's response referred Briles to several Bates numbered documents of policies, procedures, handbooks, and webpages responsive to the interrogatory during the time period of Lozano's enrollment. Id. Baylor objected to Interrogatory No. 3 as seeking irrelevant information, arguing that whether Baylor implemented any new policies in response to the September 2014 MHA report has no bearing on Lozano's claims, since that report was not issued until four months after Lozano graduated from the university. Id. at 4. Baylor maintains that both Interrogatory No. 1 and No. 3 seek information regarding policies before and after Lozano's enrollment at Baylor, which Baylor contends are irrelevant years. Dkt. 126 at 4.

As discussed above, Briles maintains that because Lozano's Complaint relies on the Regents’ findings that the football program's policies and actions were inconsistent with the university's policies, whether Briles complied with university policy is relevant to Lozano's claims. Dkt. 120 at 4-6. In its Response, Baylor asserts that even if discussed in Lozano's Complaint, whether Briles complied with university policies is not relevant to any of Lozano's actual claims against Briles. Dkt. 126 at 5. Likewise, whether Baylor implemented new policies in response to the MHA report has no bearing on Lozano's claims against Briles. Id. at 6.

The Court agrees. Any policies enacted by Baylor after the MHA report in September 2014 could not impact Lozano's claims against Briles, which allege negligence related to alleged incidents of dating violence during her enrollment at the university, which ended in May 2014. With respect to Interrogatory No. 1, as Baylor points out, Lozano does not allege that Briles’ duty of care to her originated from any university policy. Nor does Lozano allege that Briles’ failure to follow university policy constituted a breach of duty to her. Thus Interrogatory No. 1 also seeks information irrelevant to Lozano's claims against Briles. Because Baylor's responses to Interrogatory Nos. 1 and 3 are sufficient, the Court will DENY Briles’ motion on these point.

B. Interrogatory Nos. 6-12

In 2015, Baylor engaged the law firm Pepper Hamilton to conduct an investigation of Baylor's response to campus sexual harassment or sexual violence. After Pepper Hamilton completed its investigation, it made a two day presentation to the Board of Regents. Shortly thereafter, the Board of Regents published Findings of Fact stemming from the Pepper Hamilton investigation. Interrogatory Nos. 6-12 seek information regarding the factual basis of some of the Findings. Dkt. 120-1 at 6-7. Baylor objects to Interrogatory Nos. 6-12 on the basis that they seek protected work product. Dkt. 126 at 8.

“[W]ork product immunity protects only the documents themselves and not the underlying facts.” In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982). However, work product protection does extend to requests which directly seek the mental impressions of counsel. Id. In the related Doe 1-15 case, the Court has held that work product protection extended to questions which asked for responses “identifying which documents and interviews formed the bases of the Findings of Fact or Recommendations.” Doe v. Baylor Univ., No. 6:16-cv-000173, Dkt. 569 at 3 (W.D. Tex. Oct. 11, 2018). As Briles notes in his Reply, Interrogatory Nos. 6-12 do not ask Baylor to identify which documents and interviews formed the basis for certain findings. Rather, the interrogatories ask specific questions regarding the factual bases for specific findings. In the parallel Doe 1-15 cases, the Court has already ruled that “Baylor is not protected from providing testimony on the factual bases of the Findings of Fact.” Id. at 3. And in addressing questions it asked Regent Phil Stewart in his deposition, Baylor has also explicitly conceded that such material does not qualify as work product:

Baylor would also point out that the questions are consistent with Baylor's position, stated in open court, that Plaintiffs can ask Regents about facts of which they were aware or on which they relied to form the basis of any of the specific findings, as long as they do not directly ask what Pepper Hamilton attorneys presented to them as part of its presentation or use such questioning as a basis for arguing a broader waiver. Lest there be any confusion ․ that is still Baylor's position.

Doe 1-15, Dkt. 805 at 10 n.6. Baylor cannot claim work product protection from answering Interrogatory Nos. 6-12. Accordingly, Briles’ motion as to Interrogatory Nos. 6-12 is GRANTED and Baylor shall supplement its responses to provide full and complete answers.

C. Interrogatory No. 16

Finally, Interrogatory No. 16 addressed the October 28, 2016 article published by the Wall Street Journal, in which several Regents are quoted as stating that 17 Baylor women had reported sexual assault or domestic violence by 19 football players. 120-1 at 8-9. After noting this content, the interrogatory requests Baylor to answer a series of questions as to each of the 17 reports. Briles’ motion specifically seeks to compel Baylor to supplement its answers to sub-parts (m) and (n) of the interrogatory, which ask: “(m) State whether Art Briles violated any policy or directive of Baylor University or violated state of federal law in response to learning of the report;” and “(n) State whether Art Briles took any step to conceal the report from law enforcement or from officials of Baylor University who should have, according to Baylor policy, been notified by Briles.” Id.

Baylor first asserts that it fully answered the portions of Interrogatory No. 16 which it contends address relevant information. Dkt. 126 at 10-11. With respect to sub-part (n), Baylor asserts that it seeks “information regarding Briles’ own knowledge,” and that “Briles is, by definition, in a better position to answer those questions.” Id. at 11. That Briles may be in a better position to provide information to a question is not a proper objection to the interrogatory. Briles is entitled to know whether Baylor believes Briles took steps to conceal the report from Baylor or other officials. It is a plainly relevant, appropriate question. Accordingly, Briles’ motion is granted as to sub-part (n) of Interrogatory No. 16. Regarding sub-part (m), Baylor contends it has already answered the question, pointing to the following language that it repeats as to each report it identifies in response to the interrogatory:

As to whether Briles violated a policy as to this athlete, while the Board of Regents in May 2016 voted to suspend Art Briles and to begin the termination process, Baylor and Briles settled before any further steps were taken. The settlement occurred before the preparation of formal charges, and no findings were ever made.

E.g., Dkt. 126-1 at 18. This does not respond to the question. Briles is asking whether Baylor contends that Briles’ actions in response to learning of a report of sexual assault or domestic violence violated any Baylor policy or directive, not whether Baylor conducted or completed any official proceedings on that issue. Baylor must answer that question. Accordingly, Briles’ motion is also granted as to sub-part (m). Baylor is HEREBY ORDERED to supplement its answers to Interrogatory No. 16 sub-parts (m) and (n) to include full and complete responses.

V. CONCLUSION

For the reasons set forth above, Defendant Art Briles’ first Motion to Compel (Dkt. 113) and second Motion to Compel (Dkt. 120) are GRANTED IN PART and DENIED IN PART as set forth above. Baylor shall provide the required documents or responses no later than 30 days from the date of this order.

FOOTNOTES

1.   In Briles’ motion, he indicated that Baylor had also improperly limited the time period as beginning January 2011, improperly excluding Lozano's first semester at the university. Dkt. 113 at 4. Baylor's response states that it has since agreed to expand the relevant time period to include the entirety of Lozano's time at Baylor, August 1, 2010 to May 2, 2014, but that it still opposes expanding the time period to documents which fall outside of this period. Dkt. 121-1 at 4.

ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE