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Dempsey v. Bucknell University

United States District Court, Third Circuit

September 23, 2013

REED C. DEMPSEY, Plaintiff
v.
BUCKNELL UNIVERSITY, et al., Defendants.

MEMORANDUM

KAROLINE MEHALCHICK, Magistrate Judge.

In this action, Plaintiff Reed C. Dempsey has asserted various claims against Bucknell University and several individual defendants, including a breach of contract claim in which he alleges that the University, where he was enrolled as a student, failed to provide him with relevant information for a student conduct hearing that ultimately resulted in his formal censure for Disorderly Conduct. The matter now comes before the Court on the Bucknell University Defendants' Motion for Protective Order (Doc. 87), filed on May 10, 2013. These defendants have moved for a protective order, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, to prohibit Dempsey from deposing certain University employees who participated in the adjudication of his student conduct hearing, or in the University's administrative appeals process thereafter, and to modify the time and place of deposition for three additional witnesses-defendant Dean Kari Conrad and two University trustees. The motion is fully briefed and ripe for decision. See Fed.R.Civ.P. 78(b); L.R. 7.9.

I. BACKGROUND

Dempsey filed the complaint in this action on September 6, 2011. (Doc. 1). On November 14, 2011, the Bucknell University Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 11). On May 3, 2012, the Court entered an Order granting in part and denying in part the Bucknell University Defendants' motion to dismiss. (Doc. 31). The Order of May 3, 2012, denied the motion to dismiss and permitted the case to proceed with respect to Dempsey's breach of contract claim alleging a failure by the University to disclose certain information regarding the student conduct charges against Dempsey in advance of his student conduct hearing, as required by the Bucknell University Student Handbook. Several other claims not related to the student conduct hearing process, and not implicated in the instant discovery dispute, also survived the motion to dismiss. The Bucknell University Defendants filed their answer to the surviving counts of the complaint on June 18, 2012. (Doc. 40).

The record of this case is peppered with discovery disputes. One of the most recent disputes involves Dempsey's attempt to depose several officers and employees of Bucknell University. This dispute appears to have begun with an April 23, 2013, e-mail request by Dempsey to the Bucknell University Defendants requesting dates of availability for several witnesses employed by or otherwise affiliated with Bucknell University. On April 28, 2013, the Bucknell University Defendants replied by e-mail to Dempsey, providing dates of availability for certain witnesses, promising to provide dates for another witness shortly, and refusing to produce several other witnesses on the ground that they possessed no relevant information. Counsel exchanged additional e-mail messages on May 1 and 3, 2013, but they were unable to resolve their differences with respect to the contested depositions.

On or about May 3, 2013, Dempsey served counsel for the Bucknell University Defendants with notices of deposition and Rule 45 subpoenas commanding the appearance of various witnesses, including Eric Faden, Tammy Hiller, Judy Mickanis, Dennis Hopple, Michael Smyer, Kari Conrad, Kenneth W. Freeman, and William A. Graham IV, each of whom is employed by or an officer, director, or managing agent of Bucknell University. On May 10, 2013, the Bucknell University Defendants moved pursuant to Rule 26(c) for a protective order to prohibit the depositions of Faden, Hiller, Mickanis, Hopple, and Smyer, and to modify the time and/or place of the depositions of Conrad, Freeman, and Graham. (Doc. 87). On May 17, 2013, Dempsey filed his brief in opposition to the motion for a protective order. (Doc. 89).

On June 12, 2013, one day before fact discovery was scheduled to close, the parties jointly moved to stay all discovery and other pretrial proceedings pending mediation and resolution of pending discovery disputes. (Doc. 91). The Court entered an Order granting the motion and staying the case later that same day. (Doc. 92).

On July 10, 2013, the parties advised the Court that mediation was not successful, and they requested a telephone status conference to discuss a new scheduling order. (Doc. 93). A telephone status conference is currently scheduled to take place on October 8, 2013. ( See Doc. 98). The case remains stayed pending the status conference and the disposition of outstanding discovery disputes.

II. DISCUSSION

A. STUDENT CONDUCT HEARING AND APPEALS PROCESS WITNESSES

Dempsey has noticed the deposition of five witnesses-Eric Faden, Tammy Hiller, Judy Mickanis, Dennis Hopple, and Michael Smyer-whose roles in the underlying events are limited to their participation in Dempsey's student conduct hearing and appeals process. Faden, Hiller, and Mickanis were members of the initial student conduct hearing panel, Hopple was a member of the panel that adjudicated Dempsey's first-level appeal, and Smyer adjudicated Dempsey's second-level appeal. In support of their motion for a protective order, the Bucknell University Defendants contend that, as a result of the Court's Order of May 3, 2012 (Doc. 31), in which most of Dempsey's claims regarding the student conduct hearing and appeals process were dismissed, these five witnesses have no relevant testimony to offer. In a footnote to their brief in support, the Bucknell University Defendants further note that Dempsey failed to properly serve the Rule 45 subpoenas on these five witnesses, instead delivering them by mail to defense counsel, who had not previously agreed to accept service of process on behalf of these five individuals.

1. Relevance

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). "Rule 26(c) authorizes a court to issue a protective order where justice so requires and upon good cause shown. The party seeking a protective order bears the burden of demonstrating the good cause' required to support such an order." Trans Pacific Ins. Co. v. Trans-Pacific Ins. Co. , 136 F.R.D. 385, 391 (E.D. Pa. 1991). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Cipollone v. Liggett Grp., Inc. , 785 F.2d 1108, 1121 (3d Cir. 1986).

Dempsey's lone surviving claim regarding the student conduct hearing process is a breach of contract claim based on the University's alleged failure to disclose certain information regarding the student conduct charges against Dempsey in advance of his student conduct hearing, as required by the Bucknell University Student Handbook. The Bucknell University Defendants note that the roles of these five witnesses were strictly limited to the hearing itself and the appeals process that followed - none of these five had any involvement in discharging, or failing to discharge, the University's pre-hearing disclosure obligation, which apparently was the responsibility of Defendant Conrad. As such, the Bucknell University ...


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