United States District Court, W.D. Texas, Waco Division
JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, JANE DOE 5, JANE DOE 6, JANE DOE 7, JANE DOE 8, JANE DOE 9, and JANE DOE 10, Plaintiffs,
BAYLOR UNIVERSITY, Defendant.
PITMAN, UNITED STATES DISTRICT JUDGE.
the Court in the above-entitled matter is Defendant Baylor
University's Opposed Motion for Protective Order, (Dkt.
224), and Plaintiffs' response thereto, (Dkt. 225).
Having reviewed the parties' filings, relevant law, and
the case file, the Court enters the following order.
31, 2017, the Court entered a Confidentiality and Protective
Order governing, among other things, Baylor's production
of student information in response to discovery requests.
(Dkt. 156, at 3-4). That order provided that Baylor, before
producing such information, provide affected students with
written notice of the discovery request. That provision was
made in accordance with the Family Educational Rights and
Privacy Act ("FERPA"). 20 U.S.C. § 1232g; 34
C.F.R. § 99.31(a) (9) (i) & (ii) (providing that an
educational agency or institution may disclose student
information in order to comply with a judicial order or
lawfully issued subpoena, so long as the institution
"makes a reasonable effort to notify the parent or
eligible student of the order or subpoena in advance of
compliance, so that the parent or eligible student may seek
does not require that a parent or eligible student who seeks
protective action be granted such relief. See Id. In
an effort to protect student privacy to the fullest extent
possible, however, the Court ordered that the records of
students who objected to the production of their information
be submitted by Baylor for in camera and ex parte
review. (Dkt. 156, at 4). The Court, again out of an abundance of
caution, further directed that the failure by an affected
student to consent or object to the disclosure of his or her
student information would only be deemed consent if Baylor
received a receipt or other evidence that a certified mail
letter was successfully delivered to that student.
(Id.). This procedure has, as expected, prompted the
filing of thousands of pages of student records for in
camera review by the Court. (See, e.g., Dkts.
194, 195, 197, 203, 204, 206, 207, 211, 212, 214).
p.m. on October 31, 2017, Defendant filed an Opposed Motion
for Protection regarding a deposition of former Baylor
employee Gabrielle Lyons scheduled for 9:00 a.m. on November
2, 2017. (Dkts. 224; 224-2, at 4). In that motion, Defendant
represents that the subpoena duces tecum associated
with the deposition of Ms. Lyons suggests that the
examination "may include questions about information
contained in confidential student records that have been
presented to the Court for in camera inspection
pursuant to the Court's protective order." (Dkt.
224, at 2). Defendant therefore seeks an order prohibiting
Ms. Lyons from "testifying about nonparty sexual assault
claims, and records pertaining to those claims, pending
further orders of the Court." (Dkt. 224-1). Plaintiffs
Court first addresses the representations made in
Defendant's motion regarding when it became aware of the
alleged need for court-ordered protection. Baylor represents
that it was served with a copy of a notice of deposition for
Ms. Lyons on September 29, 2017; that it did not receive a
copy of the proof of service until October 18, 2017; and that
it did not receive a copy of the actual subpoena until
October 25, 2017. (Dkt. 224, at 1). It implies that it thus
did not become aware of the scope of the subpoena duces
tecum until October 25, 2017. (Dkt. 224, at 2). It
appears, however, that Baylor was made aware of the scope of
the deposition on September 29, 2017.
Court now turns to the substance of Defendant's motion.
As demonstrated above, the undersigned is committed to
ensuring that documents pertaining to any student who has not
consented to the production of his or her records are
reviewed in camera. However, that process was put in
place to ensure that an appropriate balance is struck between
providing Plaintiffs discovery to which they are entitled and
ensuring that any personally identifying information of
non-party students is protected when possible. The same
concern is not implicated by questions that (1) relate to
FERPA records on which the Court has not yet ruled, but (2)
do not call for testimony regarding identifying information.
IS THEREFORE ORDERED that Defendant's motion is
GRANTED IN PART AND DENIED IN PART. Ms.
Lyons is prohibited from testifying only as to any personally
identifying information regarding non-party students
contained in FERPA records the Court has not yet reviewed.
IS FURTHER ORDERED that Ms. Lyons be available for a
second deposition within six weeks of the Court's entry
of an order regarding the non-party student information
submitted in docket entries 194, 195, 197, 203, 204, 206,
207, 211, 212, and 214. This order does not impact the
Court's previous order extending the length of the
deposition scheduled for tomorrow, November 2, 2017. (See