United States District Court, W.D. Texas, Waco Division
PITMAN UNITED STATES DISTRICT JUDGE.
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
Jasmin Hernandez (“Plaintiff”), a former student
at Baylor University, was sexually assaulted by fellow
student Tevin S. Elliott (“Elliott”) during her
freshman year. 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
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).
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
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)).
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
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).
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 ...