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Hernandez v. Baylor University

United States District Court, W.D. Texas, Waco Division

May 1, 2017

BAYLOR UNIVERSITY, et al., Defendants.



         Before the Court in the above-entitled matter is Defendant Ian McCaw's Motion for Protective Order, which seeks to prevent the deposition of third-party Jerry Falwell Jr. (Dkt. 97). Having considered the motion, Plaintiff's response, and relevant law, the Court hereby GRANTS Defendant McCaw's Motion.

         I. BACKGROUND

         Plaintiff Jasmin Hernandez (“Plaintiff”), a former student at Baylor University, was sexually assaulted by fellow student Tevin S. Elliott (“Elliott”) during her freshman year.[1] She asserts claims against Baylor under Title IX of the Education Amendment Acts of 1972 and under the common-law doctrine of negligence. Plaintiff also asserts negligence claims against former Baylor Head Football Coach Art Briles (“Defendant Briles”) and former Baylor Athletic Director Ian McCaw (“Defendant McCaw”).[2]

         In November 2016, Defendant McCaw accepted a position as athletic director at Liberty University. (Mot. Protective Order, Dkt. 97, at 4). At the time, Liberty University President Jerry Falwell, Jr. (“Mr. Falwell”) issued a public statement regarding the hiring of Defendant McCaw. (Id.). Specifically, Mr. Falwell stated that he “communicated with people McCaw worked with at Baylor, including Regents who heard everything the investigating law firm ha[d] to say about what happened”; “conducted a background investigation and checked with other sources, including former head coach and athletic director Grant Teaff”; and “spoke openly and directly with Ian McCaw about the situation at Baylor.” (Dkt. 97-1, at 1). Plaintiff now seeks to depose Mr. Falwell. (Subpoena to Testify at Dep., Dkt. 97-2; Subpoena to Testify at Dep., Dkt. 119-1).


         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)).

         Federal Rule of Civil Procedure 26(b)(2)(C) mandates that a court limit the frequency or extent of discovery otherwise allowed if it determines that

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

         Fed. R. Civ. P. 26(b)(2)(C). Discovery is outside the scope permitted by Rule 26(b)(1) if the discovery sought is (1) privileged; (2) not relevant to any party's claims or defense; or (3) not “proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). Courts can “try to achieve proportional discovery by regulating the timing and sequence of discovery . . . as the circumstances warrant.” Fed.R.Civ.P. 26 cmt. “The party seeking discovery bears the initial burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence.” Reynolds v. Cactus Drilling Co., LLC, No. MO:15-CV-00101-DAE-DC, 2015 WL 12660110, at *2 (W.D. Tex. Dec. 21, 2015).

         The Federal Rules also provide for permissive limitations on discovery requests. To that end, a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). That order may-among other things-forbid the discovery, forbid inquiry into certain matters, or limit the scope of discovery to certain matters. Id. In such circumstances, “the burden is upon [the party seeking the protective order] to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)); Robinson v. Dallas Cty. Cmty. Coll. Dist., No. 3:14-CV-4187-D, 2016 WL 1273900, at *3 (N.D. Tex. Feb. 18, 2016) (explaining that the recent amendments to Rule 26 “do not alter ...

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