Opinion
02-CV-273S(F).
October 27, 2004
CHIACCHIA FLEMING, LLP, ANDREW P. FLEMING, of Counsel, Hamburg, New York, Attorneys for the Plaintiffs.
WEBSTER SZANYI, LLP, TODD M. SCHIFFMACHER, of Counsel, Buffalo, New York, Attorneys for Defendants City of Tonawanda School District, Greene, and Board of Education.
DAMON MOREY, LLP, MARYLOU K. ROSHIA, BRIAN A. BIRENBACH, of Counsel, Buffalo, New York, Attorneys for Defendant Freedman.
DECISION and ORDER
In this § 1983 action against Defendants asserting an unreasonable seizure of Ted Mislin, Jr., a former student in the Defendant City of Tonawanda School District, ("Mislin"), Plaintiffs move to compel unredacted copies of a racial harassment complaint submitted to Defendants by another student, Francesca Boykin, Exhibit 1 to Exhibit A to Affidavit of Brian A. Birenbach in Opposition to Plaintiff's motion dated September 13, 2004 ("Birenbach Affidavit") and the unredacted transcript of an interview with Mislin conducted by Defendant Andrew Freedman, ("Freedman"), an attorney engaged by the Defendant School Board to investigate complaints of racial and sexual orientation harassment by Mislin directed to students at his high school, the City of Tonawanda High School ("the school") (Exhibits 2 and 3 to Exhibit A to Birenbach Affidavit).
Defendants refused the disputed discovery requests on the grounds of attorney-client privilege, work product, and the Family Education Rights and Privacy Act of 1974, 20 U.S.C. § 1232g ("the Act" or "§ 1232g") which prohibits (under threat of loss of federal education funds) release of a student's school records, pursuant to an official policy or practice, without a parent's written consent. 20 U.S.C § 1232g(b)(1). Defendants do not dispute the redacted material withheld is relevant to Plaintiffs' claims under Fed.R.Civ.P. 26(b) (1). Plaintiffs also request an amendment to the Scheduling Order dated November 5, 2003 (Doc. No. 57). Defendants oppose Plaintiffs' request arguing Plaintiffs failed to establish good cause for such amendment as required by Fed.R.Civ.P. 16(b).
Defendants retained Freedman to investigate the complaints against Mislin lodged by fellow students alleging that Mislin had engaged in misconduct at the school. Specifically, it was claimed that Mislin harassed fellow students based on their race and sexual, i.e., homosexual, orientation. Freedman conducted a private interview with Mislin at the school concerning the complaints on January 16, 2001 without the presence of his attorney or school personnel. Following the interview, Mislin received a two day in-school suspension which was enforced on January 18-19, 2001.
According to Larry Badgley, assistant principal of the school, on April 2, 2001, he advised Mislin that Mislin would be given an additional four day in-school suspension for being uncooperative during the interview with Freedman. Affidavit of Larry Badgley, dated May 21, 2001, Exhibit 3 to Exhibit 1 of Birenbach Affidavit ("Badgley Affidavit") ¶¶ 2, 7. Badgley also advised Mislin and, at Mislin's request, Mislin's father, by telephone, that the suspension could be appealed to the City Board of Education. Id. ¶¶ 9, 14. Prior to Badgley's telephone call, Mislin also informed Badgley that Mislin's father intended to retain an attorney in connection with Mislin's disciplinary matter. Id. ¶ 8. Mislin's additional suspension was imposed on April 2, 2001, and Mislin thereafter initiated an appeal. On June 12, 2001, Freedman filed papers defending the school's suspension. Mislin committed suicide the same day.
At the outset, Defendants argue that Plaintiff has failed to comply with the prerequisite to a motion to compel set forth in Fed.R.Civ.P. 37(d) requiring a certification that a good faith effort was made to confer with the requested party in an attempt to resolve the dispute without judicial intervention. Specifically, Defendants argue that Plaintiffs' attorney's letter of July 20, 2004 complaining that Defendants' discovery responses were deficient without specificity as to the deficiencies failed to comply with Rule 37. It is undisputed that Defendants did not respond to Plaintiffs' letter to justify their refusal to provide the unredacted documents as issue. However, given the grounds asserted by Defendants in opposition to Plaintiffs' requests at issue, particularly Defendants' reliance upon the Act as a basis to refuse the requested discovery, it is reasonably apparent that any further attempts by Plaintiffs to voluntarily obtain the requested unredacted material would have proven futile. In such circumstances, Plaintiffs' failure to specify in detail the Defendants' deficiencies in providing the requested documents or any failure to enter into discussions with Defendants in an attempt to resolve the matter without judicial intervention may be excused. Nagele v. Electronic Data Systems Corp, 193 F.R.D. 94, 97 n. 2 (W.D.N.Y. 2000) (if futility is present, strict compliance with Rule 37(d) not required).
Turning to Defendants' substantive objections, the court finds they are without merit. The attorney-client privilege "only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney." Upjohn Company v. United States, 449 U.S. 383, 395-96 (1981). Thus, even assuming Freedman was performing legal services for Defendants when he interviewed Ms. Boykin and Mislin, leading to Mislin's suspensions, the information communicated by Boykin and Mislin, including the identity of other alleged witnesses whose names Defendants have redacted from the documents Plaintiffs seek, is not within the privilege. Moreover, neither Mislin nor Boykin were Freedman's clients. Thus, the alleged client privilege is inapplicable to the requested unredacted documents.
The work product doctrine shields from disclosure material prepared by an attorney in anticipation of litigation where such disclosure would reveal the attorney's mental process. Upjohn, supra, at 399-400. See also Fed.R.Civ.P. 26(b)(3). Here, Defendants have previously disclosed the requested statements sans the identity of students mentioned by Ms. Boykin in her complaint and Mislin during his questioning by Freedman. It is therefore incorrect to contend the work product doctrine applies to the redacted portions of the statements, i.e., names of persons whose assertions or fact are recounted in the statements, but not the balance of the information included in the statements provided to Plaintiffs by Defendants without objection. Moreover, a fair reading of the documents demonstrates their text reveals no mental impressions formed by Mr. Freedman relating to any anticipated litigation or, for that matter, any potential legal advice to Defendants. Indeed, the statements were generated, so far as the record shows, several months before the Mislins contemplated hiring counsel in connection with Mislin's suspensions, or any attempt by the Mislins to administratively appeal. Thus, Freedman's conduct of his questioning of Mislin cannot be found to constitute legal services performed in anticipation of litigation. Additionally, courts have held that compliance by a school with discovery demands for student records does not constitute a disclosure policy or practice forbidden by the Act. See United States v. Adlman, 134 F.3d 1194, 1197-99 (2d Cir. 1998) (not necessary for work product protection that document prepared "primarily to assist in" litigation; test is whether document would have not been prepared "but for prospect of litigation. . . .").
Finally, Defendants' reliance upon the Act is misplaced. Student information otherwise protected by the Act is subject to disclosure where the purpose is to comply with a judicial order or lawfully issued subpoena. 34 C.F.R. § 99.31(9)(I). See Ellis v. Cleveland Municipal School District, 309 F. Supp.2d 1019, 1022-24 (N.D. Ohio 2004) (disclosures of incident reports, student witness statements, records pursuant to discovery requests do not violate § 1232g as compliance by school board does not constitute a policy or practice of disclosing student record the Act was intended to prevent); Rios v. Read, 73 F.R.D. 589, 598 (E.D.N.Y. 1977) (§ 1232g "does not by its terms limit discovery of school records under the Federal Rules of Civil Procedure. . . ."). Thus, neither Defendants' compliance with Plaintiffs' discovery requests, nor this court's order, violates § 1232g. However, to provide some deference to the privacy interests sought to be protected by the Act, the court directs that Plaintiffs' use of the unredacted information be limited to the purpose of this litigation. While the court finds that Defendants' refusal to provide the unredacted documents was not substantially justified, Fed.R.Civ.P. 37(a)(4)(A), as Plaintiffs do not request costs in connection with the instant motion, none will be granted.
Turning to Plaintiffs' request for an amendment of the Scheduling Order to extend the period for discovery by 120 days, the court finds good cause for the request. Plaintiffs served the discovery requests in December 2003; Defendant Freedman's responses were served on April 14, 2004; Defendant School Board's responses were served on May 25, 2004. The court notes that the instant motion was timely filed on August 10, 2004 following service of Plaintiffs' July 20, 2004 letter; as noted, oral argument was conducted on October 4, 2004. While Plaintiffs could have more aggressively pursued the discovery requests at issue, the court cannot say on this record that Plaintiffs failed to exercise the requisite degree of diligence required to establish good cause for an amendment to the Scheduling Order. See Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997). Plaintiffs' motion to amend the Scheduling Order entered November 5, 2003, is GRANTED. An Amended Scheduling Order enlarging each remaining date by 120 days will be filed.
CONCLUSION
Plaintiffs' motion to compel and to amend the Scheduling Order (Doc. No. 69) is GRANTED. Defendants shall provide the requested discovery subject to Plaintiffs' motion within 14 days of this order. No costs.
SO ORDERED.