EXHIBIT 2

1:15-cv-11236-TLL-PTM Doc # 73-3 Filed 02/26/16 Pg 1 of 4 Pg ID 3618
Vamplew v. Wayne State University Bd. of Governors, Slip Copy (2014)

2014 WL 266407

 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 266407

Only the Westlaw citation is currently available.

United States District Court,

E.D. Michigan,

Southern Division.

Brad VAMPLEW, Plaintiff,

v.

WAYNE STATE UNIVERSITY BOARD

OF GOVERNORS, et al., Defendants.

No. 12–14561.

|

Jan. 24, 2014.

Attorneys and Law Firms

Anthony Della Pelle, Anthony Della Pelle Assoc, Southfield,

MI, for Plaintiff.

Daniel B. Tukel, Butzel Long, Bloomfield Hills, MI, Shanta

S.W. McMullan, Butzel Long, Detroit, MI, for Defendant.

MEMORANDUM AND ORDER GRANTING

IN PART AND DENYING IN PART

PLAINTIFF'S MOTION TO COMPEL (Doc. 55)

AVERN COHN, District Judge.

I. Introduction

*1 This is essentially a discrimination case. Plaintiff Brad

Vamplew is suing the Wayne State University Board of

Governors and several faculty members of the Wayne State

University College of Nursing (collectively, Wayne State).

Plaintiff was removed from the nursing program at Wayne

State after he allegedly engaged in an “unsafe practice” in

a clinical setting. Specifically, plaintiff was given a failing

grade in the clinical portion of course NUR 3020. Plaintiff

alleges that his removal was done without prior warnings

and in violation of written policies. The complaint makes

several claims, including discrimination and retaliation under

the Americans with Disabilities Act and state law, § 1983 due

process and equal protection, and tort claims.

Before the Court is plaintiff's motion to compel against

Wayne State. Plaintiff seeks documents, depositions, and

responses to discovery requests. Following the filing of the

motion papers, the parties submitted a statement of resolved

and unresolved issues (Doc. 60). This order addresses only the

unresolved issues set forth in the statement. For the reasons

that follow, plaintiff's motion is GRANTED IN PART AND

DENIED IN PART.

II. Legal Standard

Rule 37 of the Federal Rules of Civil Procedure authorizes

a motion to compel discovery when a party fails to provide

proper response to requests for production of documents

under Rule 34. Fed. R. Civ. Pro. 37(a)(3)(B). “The proponent

of a motion to compel discovery bears the initial burden of

proving that the information sought is relevant.” Martin v.

Select Portfolio Serving Holding Corp., No. 1:05–cv–273,

2006 U.S. Dist. LEXIS 68779, at *2 (S.D.Ohio Sept. 25,

2006) (citing Alexander v. Fed. Bureau of Investigation, 186

F.R.D. 154, 159 (D.D.C.1999)). Rule 26(b) provides that

“[p]arties may obtain discovery regarding any nonprivileged

matter that is relevant to any party's claim or defense.”

Fed.R.Civ.P. 26(b)(1). Relevance for discovery purposes is

extremely broad. Lewis v. ACB Bus. Servs., Inc., 135 F.3d

389, 402 (6th Cir.1998). “The scope of examination permitted

under Rule 26(b) is broader than that permitted at trial.

The test is whether the line of interrogation is reasonably

calculated to lead to the discovery of admissible evidence.”

Mellon v. Cooper–Jarrett, Inc., 424 F.2d 499, 500–01 (6th

Cir.1970).

Finally, a party moving to compel discovery must certify that

it has “in good faith conferred or attempted to confer with the

person or party failing to make disclosure or discovery in an

effort to obtain it without court action.” Fed.R.Civ.P. 37(a)

(1).

III. Discovery Requests

A. E–Mails from Associate

General Counsel Linda Galante

Linda Galante is an attorney in Wayne State University's

Office of the General Counsel, and serves as an Associate

General Counsel for the University. Plaintiff seeks emails

from Galante on the grounds she was an alleged decision

maker in plaintiff's appeal to the Provost. As a basis for his

request, plaintiff relies on a May 4, 2012 email produced

1:15-cv-11236-TLL-PTM Doc # 73-3 Filed 02/26/16 Pg 2 of 4 Pg ID 3619
Vamplew v. Wayne State University Bd. of Governors, Slip Copy (2014)

2014 WL 266407

 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

during discovery from Dr. Howard Shapiro, the Provost's

Designee in plaintiff's appeal, to Galante. In that email,

Shapiro states “You guys are the experts here. I'll endorse

whatever you decide to do.” Plaintiff says that this statement

implies that Shapiro essentially abdicated his role in plaintiff's

appeal to the Provost to Galante. Thus, plaintiff says Galante

not acting just as legal counsel.

*2 Plaintiff is mistaken as to the context of Shapiro's

email. The email references an incident on May 4, 2012.

Plaintiff appeared in person at the Provost's office with some

additional documents. He gave those documents to Amy

Cooper, the Administrative Assistant. Cooper (who has been

deposed) reported that while in the Provost's Office, plaintiff

said that he had been to the doctor and was on medication for

stress and panic attacks, that he “is about to snap” and also

stated “If I have to come back you will not be happy.” Cooper

reported plaintiff's statements to David Strauss, Dean of

Students, and at that time the Chair of the S.U.I.T. Committee.

Dean Strauss testified at deposition that as soon as he received

the e-mail from Cooper reporting plaintiff's conduct “I called

the office of the General Counsel to seek advice and to speak

with them about an action that I would like to take and to seek

their advice.” Thus, the “decision” to which Shapiro refers is

the decision regarding what action, if any, to take regarding

the perceived threat made in the Provost's Office. Such advice

is protected by the attorney client privilege. Ultimately, Dean

Strauss sent plaintiff a “cease and desist” letter instructing that

plaintiff have no further contact with the Provost's Office or

the College of Nursing.

Other than plaintiff's speculation, there is nothing to indicate

that either Galante or Dean Strauss had any role in

the Provost's decision on plaintiff's appeal. Under these

circumstances, plaintiff is not permitted to discover emails

from Galante. This request is denied.

B. Deposition of Dr. Jean Davis

Plaintiff seeks to depose Dr. Jean Davis, who is one of two

individuals within the College of Nursing who reviewed and

considered plaintiff's appeal. Plaintiff has deposed the other

individual. Wayne State says plaintiff knew of Dr. Davis's

role long ago and chose not to depose her. Wayne State also

notes that the parties have already agreed to allow plaintiff

to take in excess of the 10 depositions permitted under the

rules and argues plaintiff should not be permitted another

deposition.

While the Court appreciates Wayne States's position, the

better course is to allow plaintiff to depose Dr. Davis. The

deposition shall be no more than 1(one) hour.

C. Requests For Document 13

This request seeks the clinical evaluation forms for every

student in a different class, NUR 3010, the semester prior to

when plaintiff failed NUR 3020, and the clinical evaluation

forms for every student in NUR 3020 in the semester in which

plaintiff failed.

With regard to the evaluation of students from NUR 3010,

Wayne State says they are wholly irrelevant. The Court

agrees. Plaintiff did not fail NUR 3010. That class was from

the semester prior to plaintiff failing, and Mary Zugcic—

who was the course coordinator of NUR 3020 and made the

decision to fail plaintiff in that class—was not the clinical

coordinator of NUR 3010 the prior semester. How students

other than plaintiff performed in a different class taught by a

different instructor the prior semester—a class which plaintiff

himself passed—is irrelevant.

*3 As to the evaluations for every other student in the

class in which he did fail, NUR 3020, Wayne States says

they are irrelevant and may contain information protected by

the Family Educational Rights and Privacy Act (FERPA).

Plaintiff says that any confidential information can be

redacted to alleviate any concerns and that he needs the

records to see if in fact any other student engaged in a similar

practice and was treated differently. The Court agrees with

plaintiff. The records shall be produced, redacted of any

confidential information.

D. E–Mails By And Between Defendants

After May 9, 2012 That Reference Plaintiff

Plaintiff requests all e-mails by and between the defendants

that referenced plaintiff after May 9, 2012. This is after

plaintiff failed NUR 3020 and his appeals had been

exhausted, and after plaintiff had already commenced this

litigation.

Wayne State says that the emails are not relevant. The Court

agrees. Plaintiff's request is denied.

1:15-cv-11236-TLL-PTM Doc # 73-3 Filed 02/26/16 Pg 3 of 4 Pg ID 3620
Vamplew v. Wayne State University Bd. of Governors, Slip Copy (2014)

2014 WL 266407

 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3

SO ORDERED. All Citations

Slip Copy, 2014 WL 266407

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

1:15-cv-11236-TLL-PTM Doc # 73-3 Filed 02/26/16 Pg 4 of 4 Pg ID 3621