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Doe v. Brunswick School Department

United States District Court, D. Maine

April 29, 2016

JANE DOE and MAINE HUMAN RIGHTS COMMISISON, Plaintiffs
v.
BRUNSWICK SCHOOL DEPARTMENT, et al., Defendants

          MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE

          JOHN H. RICH III, Magistrate Judge.

         In this civil rights action, the parties have filed simultaneous letter briefs and responses in accordance with the terms of my Report of Hearing and Order Re: Scheduling (ECF No. 17) addressing the defendants' request for production of the records of two therapists who have treated the plaintiff's minor son, who is the victim of the alleged discrimination that gives rise to this lawsuit. Treating the discovery dispute as a motion by the defendants to compel production of the requested records, I deny the motion, but only upon certain specific conditions.

         I. Applicable Legal Standards

         Rule 26(b) of the Federal Rules of Civil Procedure outlines the general scope of permissible discovery in a civil action.

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         Fed. R. Civ. P. 26(b)(1).

         "[A] party resisting discovery has the burden of showing some sufficient reason why discovery should not be allowed[.]" Flag Fables, Inc. v. Jean Ann's Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1186 D. Mass. 1989) (citation and internal quotation marks omitted). In addition, the proponent of a privilege bears the burden of demonstrating entitlement to its protection. See, e.g., In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) ("Despite a grand jury's vaunted right to every man's evidence, it must, nevertheless, respect a valid claim of privilege. But the party who invokes the privilege bears the burden of establishing that it applies to the communications at issue and that it has not been waived.") (citations omitted).

         II. Factual Background

         The detailed complaint herein alleges, inter alia, the following:

         1. While he was in the sixth and seventh grades, the plaintiff's son complained to the principal of his Brunswick school that he had been verbally and physically harassed by other male students because of his perceived sexual orientation. Complaint and Demand for Jury Trial; Injunctive Relief Sought ("Complaint") (ECF No. 1) ¶ 4.

         2. The principal did not take this harassment seriously. Id.

         3. When female students complained about derogatory sexual comments by male students, their complaints were treated on a higher level than were complaints by the plaintiff and her son. The "higher level" involved meeting with the alleged harassers and with their parents and could involve a suspension. Id. ¶ 4.

         4. The plaintiff's son reported to at least three of his teachers that male students were performing "the gay test" on him and would call him gay. Id. ¶ 14. The principal told the plaintiff that he would contact the parents of the four students who were performing the "test" on her son, but he only spoke to the parents of one of these students. Id. ¶ 16.

         5. During the 2010 to 2011 school year a group of male students frequently taunted the plaintiff's son when he was at his locker. Id. ¶ 20. When the victim told two of his teachers about this harassment, they told him to "suck it up." Id. ¶ 21. When he went to the ...


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