United States District Court, D. New Jersey
JANE MASON and MICHAEL LOMBARDO, individually and on behalf of their minor child, J.L., Plaintiffs,
ROMAN CATHOLIC ARCHDIOCESE OF TRENTON, et al., Defendants.
MEMORANDUM OPINION AND ORDER
N. QURAISHI, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court through a series of letters
filed by the parties (ECF Nos. 25, 29-30). The instant
controversy centers around discovery requests made to each of
the eight named defendants (collectively,
"Defendants"), in which Jane Mason and Michael
Lombardo (collectively, "Plaintiffs") seek, among
other things, to discover school records related to prior
incidents of bullying and harassment. (Pls.' Sept. 24,
2019 Letter 1-2, ECF No. 25.) Defendants objected to
production, arguing that the records are confidential student
records and irrelevant to Plaintiffs' claims of
deliberate indifference. (Pls.' Sept. 24, 2019 Letter Ex.
1, at 4-7, ECF No. 25 (Request No. 5, 8-10).) For the reasons
detailed below, the Court will order production in accord
with Request Nos. 5, 8, and 10, but will tailor the requests
and require personally identifying student information to be
redacted. If the need arises after review and receipt of the
redacted records, Plaintiffs may make the appropriate
application to the Court and seek unredacted copies of
records produced pursuant to this Order, or records beyond
the scope of the Court's tailoring. Further, to the
extent Request No. 9 was not fully answered by
Defendants' response, the Court sustains Defendants'
objections, but will leave the door open for Plaintiffs to
seek fulfilment of that request provided they make a more
particularized showing of how those application records would
be relevant to their claims.
BACKGROUND AND THE DISPUTE
brought this action on behalf of their minor son, J.L.
(Compl. ¶ 1.) They allege that, while enrolled in and
attending Defendant St. Joseph Grade School ("St.
Joseph"), their son, the only African American student
in his class, was bullied by his classmates and St. Joseph
acted with deliberate indifference in its response.
(Id. ¶¶ 2-13.) Plaintiffs seek damages for
deliberate indifference under Title VI, deliberate
indifference and discrimination under Section 1981,
negligence, breach of contract, third-party beneficiary
breach of contract, breach of the implied covenant of good
faith and fair dealing, third-party breach of the implied
covenant of good faith and fair dealing, and violations of
the Consumer Fraud Act. (Compl. ¶¶ 127-29, 137,
141, 153, 165, 170, 173, 177, 183.) Plaintiffs named several
other people and entities, including the Roman Catholic
Archdiocese of Trenton, St. Joseph's Parish (operates St.
Joseph), Reverend G. Scott Shaffer (directs St. Joseph's
administration), Michele Williams (the principal), Divina
Roche (the guidance counselor), Christopher Tobin (J.L.'s
teacher), and Rita Dishon (Vice Principal of Discipline)
(collectively, "Defendants"), as defendants in this
matter. (Compl. ¶¶ 17-36.)
their pursuit of discovery, the Plaintiffs made the following
requests for production:
(5) "Copies of, and all documents and communications
relating to, any other student's records, claims of
racial bias, discrimination and bullying, or other official
or unofficial St. Joseph's records that You maintain that
mentions, reference or relates to J.L.";
(8) "All notes, documents and communications relating to
any claims, allegations, complaints or incidents of alleged
or perceived bullying, harassment, racism or discrimination
involving St. Joseph students or personnel, directed towards
any student, including J.L., while J.L. attended St. Joseph
or within five (5) years before or any time after J.L.
attended St. Joseph";
(9) "All documents and communications relating to
applications for admission to St. Joseph, and admission
rates, graduation rates, un-enrollment rates and related
school statistics of non-Caucasian students at St. Joseph
from 2013 - 2018"; and
(10) "All documents and communications to students and
their parents relating to claims, allegations, complaints or
incidents of bullying, harassment and discrimination,
including but not limited to allegations or complaints of
bullying, harassment and discrimination of J.L."
(Pls.' Sept. 24, 2019 Letter 1-2.) Defendants objected to
the production. (Pls.' Sept. 24, 2019 Letter Ex. 1, at
4-7 (Request No. 5, 8-10).) As to all four requests,
Defendants claimed the information sought was irrelevant
under Federal Rule of Evidence ("FRE") 401.
(Id. at 4-6.) Specifically, Defendants highlighted
that, to prevail, "Plaintiffs must show Defendants acted
with deliberate indifference; that is, that Defendants'
'response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.'"
(Id. (quoting Whitfield v. Notre Dame
Middle Sch., 412 Fed.Appx. 517, 522 (3d Cir.
2011)).) Under that standard, they contend, unrelated
incidents of bullying or harassment are irrelevant.
(Id.) As to Request Nos. 5, 8, and 10, they object
to production to the extent that Plaintiffs seek "to
discover confidential and private information related to
non-parties, specifically other students . . . ."
(Id. (citing New Jersey Rule of Evidence
("NJRE") 534; 20 U.S.C. § 1232g; 34 C.F.R.,
Part 99; NJ.S.A. 18A:36-19; N.J.A.C. 6A:32-7.1 to -7.8).) As
to Request No. 8, Defendants claim they "lack any basis
for identifying 'perceived' but unreported potential
incidents of bullying, harassment or discrimination."
(Id. at 5.) As to Request No. 9, Defendants contend
the request for statistics related to non-Caucasian students
is vague and ambiguous, that St. Joseph's accepts all
students who meet the educational requirements, and that St.
Joseph's does not maintain records related to graduation
rates and un-enrollment. (Id. at 6.) And as to
Request No. 10, Defendants again argue there is no basis for
them to identify perceived bullying or harassment and they
object to the request on the grounds that it does not
identify a time period. (Id.)
argue that "evidence  to demonstrate that [St. Joseph]
experienced similar accounts of bullying or harassment, and
failed to make corrections to its policies and enforcement
procedures," "would be highly relevant to [their]
position that [St. Joseph]'s inadequate response was
clearly unreasonable." (Pls.' Sept. 24, 2019 Letter
2.) Plaintiffs cite Wanko v. Bd. of Trustees of Indiana
Univ., No. 116CV02789(TWP)(DML), 2018 WL 3631579, at
*2-4, 8-9 (S.D. Ind. July 30, 2018), aff'd, 927
F.3d 966 (7th Cir. 2019) (redacted records of other
students' performance and their demographic information
may be produced under FERPA) and Ke v. Drexel Univ.,
2014 U.S. Dist. LEXIS 36531, at *6-8 (E.D. Pa. Mar. 20,
their supplemental letter, Plaintiffs discuss Doe v.
Galster, (Pls.' Oct. 9, 2019, Letter 1-2, ECF No.
29), a case from the Eastern District of Wisconsin in which a
seventh-grade student sued a school she had attended for the
bullying she suffered at the hands of several classmates and
sought to compel the production of student records, No.
09-C-1089, 2011 WL 2784159, at *1, 9 (E.D. Wis. July 14,
2011). The judge compelled production, finding "the
plaintiffs claims require[d] her to establish what the
defendants knew about the abuse she suffered, when they knew
about it, what they did to stop it, and what they did to
stop harassment of similarly situated students who were of a
different race, national origin, and/or sex than the
plaintiff. Id. at *10 (emphasis added). The judge noted
that the plaintiff agreed to a protective order "that
would protect as much as possible the privacy of the students
whose records are disclosed." Id. at *11.
also discuss Jackson v. Willoughby Eastlake Sch. Dist.,
(id. at 2.), where the plaintiffs claimed the school
district "failed to take affirmative steps to report,
document and prevent bullying and retaliation against [the
student-plaintiff] and other students," No. L16CV3100,
2018 WL 1468666, at *1 (N.D. Ohio Mar. 23, 2018). The court
found "FERPA does not create an absolute bar or
privilege" and "that the [p]laintiffs' need for
the discovery outweigh[ed] the students' privacy
interests . . . ." Id. at *4. The Court
required the school district to notice the students whose