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Mason v. Roman Catholic Archdiocese of Trenton

United States District Court, D. New Jersey

November 8, 2019

JANE MASON and MICHAEL LOMBARDO, individually and on behalf of their minor child, J.L., Plaintiffs,



         This 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.


         Plaintiffs 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.)

         In 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.)


         Plaintiffs 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, 2014). (Id.)

         In 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.

         Plaintiffs 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 ...

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