Opinion
7:99CV3247
October, 2000
ORDER
Before me is the plaintiff's statement of appeal (Filing No. 42) of the magistrate's order (Filing No. 41) of August 30, 2000, granting the defendants' motion (Filing No. 26) to quash.
In a subpoena dated May 22, 2000, see Filing No. 37, the plaintiff sought from the school district the discipline and behavior records of four male students who have allegedly sexually harassed her at Gordon High School. See Filing No. 31, Amended Complaint. The school district, the custodian of the records, moved to quash the subpoena on the ground the records are privileged under a Nebraska statute which provides in part that access to a public school's files or records on a student "shall not be divulged in any manner to any unauthorized person." Neb. Rev. Stat. § 79-2,104. The school district argued that it has standing to object to the records' disclosure since it could be financially sanctioned for their unauthorized disclosure pursuant to the Family Educational Privacy Act, 20 U.S.C. § 1232g(b)(1).
The magistrate's order did not reach the privilege issue. The magistrate found that regardless of whether federal law would recognize an evidentiary privilege allegedly created by Nebraska's statute, both students and parents have a privacy interest in the records protected by the statute that allows them to control the records' disclosure. The magistrate said that the plaintiff had not sought authorization or consent from the students' parents for the records' disclosure as required by Federal Rules of Civil Procedure 45(c) (governing subpoenas) and 26(c) (governing discovery). While the school district might be the custodian of the original records and while those originals might be needed for trial, "discovery of copies of the documents produced by the students and/or their parents or authorization by the students and/or their parents to allow the plaintiff to inspect the originals is sufficient for discovery purposes." Filing No. 41 at 4.
The magistrate noted that Rule 45(a)(1)(C) allows a plaintiff to command a nonparty to "produce and permit the inspection and copying of designated . . . documents . . . in the possession, custody or control" of the nonparty. Hence, the magistrate determined, "[t]he court would be remiss to adjudicate the privacy interest of an individual, who has control over the documents by state statute, but whose authority or involvement has not been sought." Filing No. 41 at 4. Since the discovery deadline in this case is not until January 10, 2001, the magistrate observed that the plaintiff "has the time and legal resources to seek the documents through direct discovery, rather than this court prematurely determining an evidentiary privilege matter, which may become moot." Id.
Motions to quash are reviewed for an abuse of discretion. "This deferential standard means `that the court has a range of choice, and its decision will not be disturbed as long as it stays within that range[,] is not influenced by any mistake of law' or fact, or makes a clear error of judgment in balancing relevant factors." Miscellaneous Docket v. Miscellaneous Docket, 197 F.3d 922, 925 (8th Cir. 1999) ( quoting McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1403 (8th Cir. 1994) (internal quotations omitted)). I find that the magistrate's decision was well within his discretion.
Rule 45(c) authorizes the court to quash or modify a subpoena if it "requires disclosure of privileged or other protected matter and no exception or waiver applies" or if it "subjects a person to undue burden." Fed.R.Civ.P. 45(c), (d). Likewise, Rule 26(b) bars discovery into privileged matters and allows limits on discovery "obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed.R.Civ.P. 26(b)(1), (2). "Even if relevant, discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information." Miscellaneous Docket v. Miscellaneous Docket, 197 F.3d at 925 ( quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990) (emphasis omitted)).
Here, the plaintiff apparently sought the release of the students' records directly from the school district rather than from the students themselves or their parents. The plaintiff's subpoena puts the defendant school district in a precarious position. If the school district complies with subpoena, releasing the students' records without the consent or authorization of the students or their parents, the school district potentially opens itself to liability under both Neb. Rev. Stat. § 79-2,104 and the Family Educational Privacy Act, 20 U.S.C. § 1232g(b)(1) — provided that the records are in fact privileged under state law and this court ultimately recognizes that privilege. The school district should not have to bear the burden of that risk at this stage of the litigation when the plaintiff has yet to show she cannot obtain the records from the nonparty individuals who actually control the records — the students and their parents. Any burden on the plaintiff in seeking consent or authorization from the students or their parents is outweighed by the harm the school district would incur if it released the records without authorization.
I therefore agree with the magistrate that a decision on whether the records are privileged under Neb. Rev. Stat. § 79-2,104(1) is premature. I realize that my decision may only be prolonging the inevitable — a direct challenge on the privilege issue — but fairness requires the plaintiff to comply with evidence rules and to first seek the records from a less legally vulnerable source than the school district. Accordingly,
IT IS ORDERED that plaintiff's statement of appeal (Filing No. 42) of the magistrate's order (Filing No. 41) of August 30, 2000, is denied.