United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DISCOVERY
H. RICH III, Magistrate Judge.
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.
Applicable Legal Standards
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
Civ. P. 26(b)(1).
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).
detailed complaint herein alleges, inter alia, the
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)
principal did not take this harassment seriously.
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. Â¶ 4.
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. Â¶ 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. Â¶ 16.
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. Â¶ 20. When the victim told two of his
teachers about this harassment, they told him to "suck
it up." Id. Â¶ 21. When he went to the