United States District Court, E.D. Michigan, Southern Division
Mona
K. Majzoub U.S. Magistrate Judge
ORDER SUSTAINING IN PART AND OVERRULING IN PART
PLAINTIFF'S AND NON-PARTIES' OBJECTIONS [141, 142,
143, 146] TO THE MAGISTRATE JUDGE'S
SEPTEMBER 6, 2019 ORDER [132]
ARTHUR
J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff,
Andrew Lipian, trained to be a vocalist at the University of
Michigan School of Music, Theatre and Dance. Former
Defendant, David Daniels, was hired by the University as a
voice professor in the fall of 2015. Plaintiff alleges that
Daniels sexually harassed him throughout his training, and,
in March 2017, raped him. He alleges that the University and
several of its employees and officials ignored warnings about
Daniels' aggressive sexual behavior, causing injuries
actionable under 42 U.S.C. § 1983 and Title IX of the
Education Amendments.
On
September 6, 2019, Magistrate Judge Mona Majzoub issued an
order on six pending discovery motions [89, 93, 100, 101,
102, 109]. The Court had referred the motions to her for
resolution pursuant to 28 U.S.C. § 636(b)(1)(A). Andrew
Lipian, Scott Walker, and David Daniels all filed objections
to this Order. Despite the broad powers given to a reviewing
Court to weigh the many interests impacted by a discovery
request, a district judge reviewing a Magistrate Judge's
ruling on a non-dispositive matter does so according to the
“clearly erroneous” or “contrary to
law” standard of review set forth in Rule 72(a). Fed R.
Civ. P. 26(a); see also 28 U.S.C. §
636(b)(1)(A). The Court held a hearing on October 17, 2019 on
all the objections and upheld the Magistrate Judge's
rulings in certain respects and overruled it in others.
First,
on Plaintiff's Motion to Compel [89] the Magistrate Judge
found that although the names of student witnesses to
Daniels' misconduct were relevant, the Family Education
and Privacy Rights Act (“FERPA”) bars the
disclosure of personally identifiable information in
education record. She ordered that the University give
students an opportunity to object to the disclosure of their
names. Plaintiff objected to the applicability of FERPA and
the limitations on the disclosure of the student witness
names.
For the
reasons stated on the Record, this objection was overruled
without prejudice. Defendant will provide Plaintiff with the
names of students who are willing to participate in this
litigation. If the information those students provide is not
sufficient, and if Plaintiff has ground to believe that
proving essential elements of his case require testimony by
the remaining students, the Court will revisit the
applicability of FERPA as to the students who do not wish to
be contacted by Plaintiff's attorney.
Second,
the Magistrate Judge granted the University of Michigan's
Motions to Compel Forensic Examinations of David Daniels'
and Plaintiff's Phones [100, 101]. She found that both
Plaintiff and David Daniels had gaps in the text message
records they had produced. She rejected David Daniels'
defense that he had a Fifth Amendment right to not produce
his cell phone for such an examination. Both Daniels and
Lipian objected to this order.
For the
reasons stated on the Record, the Court sustained in part and
overruled in part these objections. Both Lipian's and
Daniel's cell phones are subject to a forensic
examination - by an examiner agreeable to both parties -
insofar as the conditions set by the Magistrate Judge are
met. The following restrictions will also apply. The forensic
examination will be restricted to text messages from between
March 29, 2017 and May 29, 2017. The examiner will be
provided with records of all text messages currently in
Defendants' possession, and he or she shall only turn
over text messages that Defendants do not currently possess.
If Defendants already have all the text messages revealed by
the forensic examination, the examiner will turn over no
data. The data collected from mirroring the phones shall not
be retained.
Third,
the Magistrate Judge denied David Daniels' and Scott
Walter's Motion for Protective Orders [93, 109] regarding
their depositions. She ruled that although they could be
entitled to plead their Fifth Amendment rights in response to
certain questions in their deposition, they were not entitled
to forego the depositions altogether. Both Walters and
Daniels objected to this order.
For the
reasons stated on the Record, Daniels' and Walter's
objections are denied.
Fourth,
on the University of Michigan's Motion to Compel [101]
and Plaintiff's Motion to for a Protective Order [102],
the Magistrate Judge ruled that “as long as Lipian
contends that Daniels' sexual advances were unwanted
because Lipian is ‘heterosexual and married,
'” he would have to answer deposition questions
about his sexual orientation and sexual history. (Dkt. 132,
pg. 9). Lipan has since stipulated to the removal of all
mention of his heterosexuality and marital status in the
Third Amended Complaint.
For the
reasons stated on the record, Plaintiff's objection is
sustained in part and overruled in part. As long as Plaintiff
does not bring his own sexual orientation or history into
controversy, Defendants will not be entitled to ask questions
about Lipian's sexual history with people unconnected to
the allegations in this case. Any relationship he may have
had with Scott Walters, however, may pertain to allegations
in this case. Defendants are entitled to discovery on whether
or how communications and conduct between Lipian and Walters
affected or illuminated Lipian's relationship with
Daniels. This line of inquiry will be limited, however.
Questions presented to Lipian regarding Walters on matters
not connected to Daniels must be of a generic and abstract
nature. Probing questions into specific acts or speech are
precluded. On events or communications where Daniels was
either present or discussed, however, questions can be more
detailed and specific, but only where calibrated to produce
information on Lipian's interactions with Daniels.
Accordingly,
IT IS ORDERED that Plaintiff's Objection
[146] to the Magistrate Judge's September 6, 2019 Order
is SUSTAINED IN PART AND OVERRULED IN PART.
IT
IS FURTHER ORDERED that David Daniels' and Scott
Walker's Objections [142, 143] to the Magistrate
Judge's Order regarding their depositions are
OVERRULED. David Daniels' Objection
[141] to the Magistrate Judge's order regarding the
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