695 F.Supp.3d 246
D.R.I.2023Background:
- Plaintiff David Smith alleges Brown University wrongly disciplined him for sexual assault and brings Title IX claims alleging "erroneous outcome" and "selective enforcement" based on gender bias.
- Smith served discovery seeking comparator materials: investigation reports, adjudication decisions, and appeal decisions (names redacted, genders indicated) for six of ~30 prior student-on-student sexual misconduct matters identified by Brown.
- Brown produced a summary chart for 2017–18 but refused to produce the underlying files, citing FERPA and risk of re-identification; Brown noted it must attempt to notify students before disclosure under FERPA.
- Smith moved to compel; Brown opposed on relevance, proportionality, and FERPA privacy grounds. The court evaluated discovery under Rule 26 and FERPA's litigation exception (34 C.F.R. § 99.31(a)(9)(i)-(ii)).
- The court concluded the requested records are relevant and proportional to Smith's Title IX claims and may be disclosed under FERPA's litigation exception if Brown makes reasonable efforts to notify affected third parties and parties agree on notice/timing/redaction.
- The motion to compel was granted subject to a stipulated agreement on FERPA notice content and timing, additional time for redaction/production, and procedures for third parties to seek protective orders; parties may seek court assistance if they cannot agree.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of prior adjudication files | Comparator files are necessary to show patterns of bias and to test Brown's decisionmaking, credibility assessments, and sanctions | Each case is unique; different decisionmakers and prior policies make files irrelevant | Relevant — comparator files can show patterns and are discoverable for Title IX theories |
| Proportionality of production | Limited to 6 of 30 cases, redacted, and essential to claims; burden not disproportionate | Volume and private detail make production burdensome and intrusive | Proportional — limited scope and redactions make production appropriate |
| FERPA disclosure permissibility | FERPA's litigation exception allows disclosure by court order; reasonable notice to students satisfies statute | FERPA bars disclosure absent consent; even redacted records risk re-identification and require robust notice period | Permitted under FERPA's litigation exception if Brown makes reasonable efforts to notify affected students and follow court-ordered procedure |
| Terms/timing of FERPA notice and protection | Proposed 14-day response; reasonable production period after notice | Prefers 21-day response and additional 30 days for objections and production | Court left timing/details to be negotiated; ordered stipulation on notice language, timing, redaction, and Rule 26(c) procedures; court to resolve disputes if no agreement |
Key Cases Cited
- Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38 (1st Cir. 2003) (district courts have broad discretion to manage discovery)
- Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016) (Title IX erroneous outcome framework and need to allege patterns of decisionmaking)
- Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994) (standards for Title IX discrimination claims, including comparators)
- Doe v. Brown Univ., 327 F. Supp. 3d 397 (D.R.I. 2018) (selective enforcement standard and similarly situated comparator requirement)
- Perkins v. Brigham & Women's Hosp., 78 F.3d 747 (1st Cir. 1996) (definition of "similarly situated" for comparator analysis)
- Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Ohio 2004) (FERPA creates a higher burden for parties seeking educational records in discovery)