Case Name: Jane Doe v. Campbell Union High School District, et al.
Case No.: 16-CV-289981

I. Background and Discovery Dispute

This is an action arising out of the sexual assault of a minor brought by Jane Doe (“Plaintiff”) against Campbell Union High School District (“Defendant”). Plaintiff attended Prospect High School, operated by Defendant. (Compl., ¶ 2.) In December 2013, when Plaintiff was 15 years old, another minor student sexually assaulted her in a campus restroom during school hours. (Compl., ¶¶ 3, 15-18.) Plaintiff alleges Defendant was negligent in hiring administrators, teachers, and staff who failed to adequately supervise students. (Compl., ¶¶ 20-32.) Plaintiff asserts causes of action against Defendant for: (1) negligent retention, hiring, and supervision; (2) negligent supervision of students; and (3) sexual harassment.

Plaintiff served Defendant with requests for the production of documents, set one (“RPD”). (Sebastian Decl., Exh. 1.) As relevant to the present discovery dispute, RPD Nos. 3, 7, 8, 9, and 10 sought the school records of the alleged student perpetrator (referred to as “Doe 1”). (Sebastian Decl., Exh. 1.) RPD No. 13 sought documents relating to Defendant’s investigation of complaints it received from Plaintiff and her parents. (Sebastian Decl., Exh. 1.) Defendant objected on numerous grounds, including confidentiality, and provided substantive responses that were limited by its objections. (Sebastian Decl., Exh. 2.) The parties met and conferred in good faith in an attempt to informally resolve their discovery dispute, but were unsuccessful in doing so. (Sebastian Decl., Exhs. 3-6.) During their meet and confer discussions, the parties agreed to execute a stipulated protective order, but have yet to file one with the Court. (Sebastian Decl., Exh. 5.) Currently before the Court is Plaintiff’s motion to compel further responses to RPD Nos. 3, 7, 8, 9, 10, and 13.

II. Motion to Compel Further Responses

The propounding party may move for an order compelling further responses to inspection demands if the party deems the responding party’s objections are too general or lack merit or that its representations of inability to comply are inadequate, incomplete, or evasive. (Code Civ. Proc., § 2031.310, subd. (a)(2)-(3).) The moving party must first show there is good cause for the discovery sought. (Code Civ. Proc., § 2030.310, subd. (b)(1).) Once the propounding party establishes good cause, the burden shifts to the responding party to justify its objections and responses. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

A. Good Cause

To demonstrate good cause for the discovery sought, the moving party must make “a fact-specific showing of relevance.” (Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is allowed for any matters not privileged that are either relevant to the subject matter involved in the action or reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid., original italics.) Courts liberally construe the relevance standard, and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

Here, the RPD seek documents tending to show whether or not the school knew that Doe 1 posed a risk to the safety of Plaintiff or other students as well as its knowledge of the adequacy of its staffing and student supervision. Such information is relevant because it may tend to prove or disprove Plaintiff’s claims for negligent hiring and negligent supervision, and may lead to the discovery of admissible evidence with respect to these claims and her sexual harassment claim. Defendant does not dispute the relevance of the requests at issue. Accordingly, Plaintiff has carried her initial burden of demonstrating good cause for the discovery sought. The burden thus shifts to Defendant to justify its objections and responses.

B. Objections

1. Miscellaneous Objections

Defendant objected to each RPD at issue on the grounds of overbreadth, vagueness and ambiguity, relevance, and equal availability of information. Defendant does not attempt to justify any of these objections. Defendant’s objections on these grounds are therefore overruled, although the Court finds many of the requests to be overbroad in type and timeframe. For example, the Court finds little basis for RPD 3 which seeks production of all of Doe 1’s school records, many of which will have little or no relevance to this case.

Defendant also objected to each RPD at issue on the grounds of the attorney-client privilege and work product doctrine. Plaintiff argues it has waived these objection by failing to include specific information in support of its objections in its responses and a privilege log. While Defendant does not attempt to justify the attorney-client privilege and work product doctrine objections, a party’s assertion of a boilerplate privilege objection does not operate as a waiver of its objection. (See Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-89.) Accordingly, Defendant’s objections on the grounds of attorney-client privilege and the work product doctrine are preserved. If any responsive document is withheld on the basis of the attorney-client privilege or the work product doctrine, Defendant must produce a privilege log identifying each document withheld and setting forth sufficient facts for Plaintiff to evaluate the merits of the claim of privilege. (See Best Products, Inc. v. Superior Court, supra, 119 Cal.App.4th at pp. 1188-89; see also Code Civ. Proc., § 2031.240, subd. (c).)

2. Official Information Privilege Objections

Defendant attempts to justify its objections to each RPD on the ground these requests seek information protected by the official information privilege.

The official information privilege protects “information acquired in confidence by a public employee in the course of his or duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code, § 1040, subd. (a).) A government entity has the privilege to refuse to disclose such information if disclosure is prohibited or would go against the public interest. (Evid. Code, § 1040, subd. (b)(1)-(2).) The government entity bears the burden of proving it is entitled to withhold documents based on the official information privilege. (Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1128.) “The threshold determination is whether the information [ ] was acquired in confidence.” (Ibid.) “If the information was acquired in confidence, the trial court next must balance the interests to determine whether the necessity for preserving the confidentiality of the information outweighs the necessity for disclosure in the interest of justice.” (Id. at pp. 1128-29.)

Defendant has not established the information sought by each RPD at issue was acquired in confidence. Defendant states in a conclusory manner that it “conducted an internal investigation, acquiring official information in confidence, when [Plaintiff] notified [Defendant] of her injuries.” (Opp. at p. 4:23-24.) Defendant does not actually claim that the official information it purportedly acquired in confidence is the same information sought by each RPD at issue or otherwise provide any specifics as to how or why documents responsive to each RPD or facts contained in those documents were obtained in confidence. Defendant cites no authority in support of its position. Moreover, Defendant does not address whether it has maintained the confidentiality of the purportedly privileged information up until the time it made its claim of privilege. Defendant thus fails to carry its threshold burden of establishing the RPD at issue seek information acquired in confidence.

Additionally, even if Defendant had carried its threshold burden, it fails to demonstrate the necessity for preserving the confidentiality of the information outweighs the necessity for disclosure in the interest of justice. Defendant’s argument in this regard is little more than a recitation of the legal standard. Defendant states, without more, that its “interest in maintaining the full and free participation in internal investigations (conducted with the intent to improve the safety of its students) outweighs [Plaintiff’s] interest in the documentation.” (Opp. at p. 5:2-4.) It does not provide any authority in support of its argument or provide any explanation why its interest outweighs Plaintiff’s.

Furthermore, the parties agreed to execute a stipulated protective order. The Court observes that “[i]f intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.” (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38.) The Court will require that a stipulated protective order be signed before any of the documents are produced, and the parties are ordered to submit a proposed order. As a result, there will be no significant disclosure of the information produced.

Defendant’s claimed interest in student safety does not outweigh Plaintiff’s interest in the information, given she also has an interest in student safety and this action may ultimately result in improved policies and supervision of students that may reduce the likelihood of on-campus sexual assaults. (See, e.g., Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 374 [litigant’s interest in discovery bolstered by potential benefit to others as a result of the litigation].) Defendant thus fails to establish its interest in the confidentiality of the information outweighs Plaintiff’s need for this relevant information.

In conclusion, Defendant has not justified its objections on the ground of the official information privilege. Its objections on this ground to each RPD at issue are therefore overruled.

3. FERPA and Education Code Section 49077 Objections
Defendant objected to RPD Nos. 3, 7, 8, 9, and 10, but not RPD No. 13, on the ground these requests seek information protected under the Family Educational Rights and Privacy Act (the “FERPA”), 20 U.S.C. § 1232, et seq. Defendant argues its objections are justified because the FERPA prohibits it from releasing this information.
Defendant’s objections are not well-taken because the “FERPA does not actually prohibit the release of education records.” (Rim of the World Unified School District v. Superior Court (“Rim of the World”) (2002) 104 Cal.App.4th 1393, 1398.) “It is obvious [ ] that [FERPA] does not provide a privilege against disclosure of student records.” (Rios v. Read (E.D.N.Y. 1977) 73 F.R.D. 589, 598.) “The statute says nothing about the existence of a school-student privilege analogous to a doctor-patient or attorney-client privilege.” (Ibid.)
“Rather, FERPA conditions the availability of federal funds on conformance with its provisions.” (Rim of the World, supra, 104 Cal.App.4th at p. 1398; see also BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 751-52.) In exercising its power of the purse, Congress sought to deter schools from adopting lax policies allowing unfettered disclosure of student records, not to prohibit disclosure under appropriate circumstances and pursuant to notice requirements designed to protect student information. (Ibid.; see also Gonzaga University v. John Doe (2002) 536 U.S. 273, 275 [the FERPA is directed towards institutional policies and practices, not individual instances of disclosure].)
The FERPA expressly allows the release of school records “furnished in compliance with judicial order [ ] upon condition that parents and the students are notified of all such orders [ ] in advance of the compliance therewith by the educational institution or agency. . . .” (20 U.S.C. § 1232g, subd. (b)(2)(B).) Consequently, an institution is not at risk of losing federal funding by disclosing school records on a case-by-case basis, so long as its disclosure is in conformity with this procedure. (See, e.g., Ellis v. Cleveland Municipal School Dist. (N.D.Ohio 2004) 309 F.Supp.2d 1019, 1023-24 [case-by-case disclosure of protected student information was consistent with the FERPA].)
Defendant argues, for the first time in its opposition, that it is similarly prohibited from producing responsive documents pursuant to Education Code section 49077. Defendant did not object on this basis to any of the RPD at issue.
As an initial matter, objections not raised in response to an inspection demand are waived. (Scottsdale Insurance Co. v. Superior Court (1997) 59 Cal.App.4th 263, 273-74; see also Code Civ. Proc., §§ 2031.240, 2031.300, subd. (a).) Defendant did not object to any RPD on the basis of Education Code section 49077.
In any event, the Legislature adopted Education Code section 49060, et seq. in response to the FERPA. (See Ed. Code, §§ 49060, 49076 [specifically referencing the FERPA and legislative intent to create procedures consistent therewith]; see also BRV, Inc. v. Superior Court, supra, 143 Cal.App.4th at pp. 751-52.) Education Code section 49077, while a completely separate statute, is nearly identical to the companion subdivision of the FERPA and states: “Information concerning a student shall be furnished in compliance with a court order or a lawfully issued subpoena. The school district shall make a reasonable effort to notify the parent or legal guardian of the pupil in advance. . . .”
However, the Court is concerned about production of private student information without prior notice to Doe 1 (if 18 years of age or older) and Doe 1’s parents before making this order. Accordingly, the Court will continue this hearing to September 22, 2016 at 9:00 a.m., or any later Tuesday or Thursday that counsel agrees to, to allow for notice to Doe 1’s parents so they have an opportunity to be heard. Defendant shall give notice to Doe 1 and/or Doe 1’s parents within five days after this hearing, provide them with a copy of this order and the moving papers, and inform that any written opposition must be filed and served on all parties at least 9 court days before the hearing, and that they have the right to attend the hearing.

C. Substantive Responses

In response to RPD No. 3, Defendant stated: “Subject to and without waiving these objections, Defendant is unable to comply with this request. All responsive documents in defendant’s possession, custody or control are either protected by the attorney-client privilege or otherwise not subject to disclosure pursuant to FERPA.” (Sebastian Decl., Exh. 2.)

In response to RPD Nos. 7, 8, 9, 10, and 13, Defendant stated: “Subject to and without waiving these objection, Defendant has conducted a diligent search and reasonable inquiry in a good faith effort to comply with this request but is unable to do so. Defendant has no unprivileged documents in its possession, custody, or control that are responsive to this request.” (Sebastian Decl., Exh. 2.)

If a party represents he or she is unable to comply with an inspection demand, he or she must indicate a diligent search and reasonable inquiry was undertaken, the reason the documents could not be located (e.g., lost, destroyed, never existed), and any individuals he or she believes might have the requested documents. (Code Civ. Proc., § 2031.230.)

Defendant’s responses are stated as inability to comply and contain some statutory language from Code of Civil Procedure section 2031.230. However, these responses merely restate Defendant’s other objections, including its FERPA and official information privilege objections, discussed above. Further written responses to RPD Nos. 3, 7, 8, 9, 10, and 13 are therefore warranted.

III. Conclusion

Based on the foregoing, the motion to compel further written responses to RPD Nos. 3, 7, 8, 9, 10, and 13 is GRANTED. Within 10 calendar days of this order, Defendant shall provide Plaintiff with verified, code-compliant further responses, without objections, except for those based on the attorney-client privilege or work product doctrine, and shall produce a privilege log.

The motion to compel production of responsive documents is continued to September 22, 2016 at 9:00 a.m. in Department 9, or such later date as the parties agree. Within 5 calendar days of this order, Defendant shall give written notice to Doe 1 and his parents or legal guardians of this order with the moving and opposing pleadings, and as stated above, inform them of the right to file opposition and appear at the hearing.

Both parties represent they intend to execute a stipulated protective order. (See Motion at p. 8:14-15; see also Opp. at p. 5:12-13; see also Sebastian Decl., Exh. 5.) The parties are ordered to execute and submit the proposed order forthwith.

The Court will prepare the order.