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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHELLE M., DONALD M., SR, and 

DONALD M., JR., by and through 

his guardian ad litem, DONALD M., SR.,

Plaintiffs, CIV S-04-2411 MCE PAN 

vs.

DUNSMUIR JOINT UNION 

SCHOOL DISTRICT, et al.,

Defendants. ORDER

 /

On January 27, 2006, plaintiffs filed a motion to compel defendants’ production of

documents. Fed. R. Civ. P. 34, 37(a). The motion came on regularly for hearing on March 2,

2006. Larry Schapiro appeared for plaintiffs. John Kelley appeared for defendants. The court

directed the parties to meet and confer outside the courtroom pursuant to E. D. Cal. L. R. 251 and

to file a joint stipulation by noon on March 8, 2006; the stipulation was filed on March 8, 2006 at

4:59 p.m. Upon review of the motion and the joint stipulation, upon hearing the arguments of

counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

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In this civil rights action pursuant to 42 U.S.C. § 1983 and California law, plaintiffs

allege Donald M., Jr. (“Donald M.”) was sexually harassed, assaulted and battered during his

freshman year at Dunsmuir High School by fellow student Jordan S. This conduct is alleged to

have occurred from October 2003 to March 2004, when Donald M. moved to another school. 

Plaintiffs assert defendants ignored their pleas to remove the alleged perpetrator from the school

due to a climate of tolerance for sexual harassment. Defendants concede that a separate sexual

harassment suit proceeds against defendant Superintendent Robert Morris, who commenced

employment with the district 17 years ago and resigned the summer of 2004 pursuant to a

confidential separation agreement.

Plaintiffs served their First Request for Production of Documents on December 8, 2005. 

Defendants served their responses on January 12, 2006. 

The joint stipulation provides that pursuant to the parties’ meet and confer process,

“[d]efendants agreed to produce the documents they said in their response to production that they

would produce, in addition to tort claims filings with the defendant district and non-student

information in request no. 61.” 

Remaining at issue are defendants’ responses to plaintiffs’ Requests 13, 19, 20, 28, 29,

30, 36, 38, 43, and 61.

The court is guided by the following general principles. “Parties may obtain discovery

regarding any matter, not privileged, that is relevant to the claim or defense of any party,

including the existence, description, nature, custody, condition, and location of any books,

documents, or other tangible things and the identity and location of persons having knowledge of

any discoverable matter.” Fed. R. Civ. P. 26(b)(1). However, “Federal Courts ordinarily

recognize a constitutionally-based right of privacy that can be raised in response to discovery

requests.” Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) and cases cited

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 The complaint alleges both federal question issues and state law claims. Federal law 1

applies to privilege-based discovery disputes involving federal claims, even if supported by

pendant state law claims. Martinez v. City of Stockton, 132 F.R.D. 677, 681-83 (E.D.Cal. 1990);

but see Jaffee v. Redmond, 518 U.S. 1, 15, n.15 (1996) (noting disagreement among the circuits

concerning the proper rule in cases where relevant evidence would be privileged under state but

not federal law).

 Although all requests were propounded upon each of the five defendants, the joint 2

stipulation addresses only the request propounded upon defendant Morris.

3

therein. “Resolution of a privacy objection or request for a protective order requires a balancing 1

of the need for the information sought against the privacy right asserted.” Id. Defendants do not

seek a protective order. 

Due to the impending discovery deadline in this case and plaintiffs’ failure timely to meet

and confer with defendants and to prepare a joint stipulation without court intervention, coupled

with the delayed filing of the present joint stipulation, the court looks with disfavor upon any

request that is so broad as to require defendants’ inquiry and production outside the March 13,

2006 deadline. 

Request No. 13 seeks “Any and all employment agreements, employment contracts,

and/or other contracts that have ever been in effect between defendant Robert Morris and

Dunsmuir Union High School.” Defendants have agreed to produce Mr. Morris’ employment 2

contracts. Plaintiffs further seek Mr. Morris’ separation agreement with defendant school

district. Defendants assert the agreement is irrelevant as it does not reference these plaintiffs or

any of their allegations, and is protected by an express confidentiality clause as well as the

general privacy rights accorded personnel records. Plaintiffs speculate the agreement may be

relevant if it identifies incidents of sexual harassment by Mr. Morris, and parties or witnesses

thereto, thereby demonstrating defendants’ alleged motive to coverup such complaints and

incidents, including those involving plaintiffs. Plaintiffs concede they failed to raise this matter

at the parties’ meet and confer session.

Mr. Morris’ conduct and decision-making authority appear to be at the heart of plaintiffs’

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allegations, but only regarding whether he condoned sexual harassment and related instances of

assault or battery, as demonstrated by his actions, inactions or decisions; the responses of the

school board are equally relevant. The probative value of this evidence, if it exists, outweighs

Mr. Morris’ interest in maintaining the privacy of this information.

Accordingly, plaintiff’s motion to compel documents responsive to request no. 13 is

granted in part. Defendants shall produce Mr. Morris’ separation agreement redacted of all

information save that which recounts Mr. Morris’ involvement, or allegations of his involvement,

in incidents of sexual harassment, assault or battery, either personally or administratively, and the

responses of the school board to any such allegations or incidents. 

Request No. 19 seeks “Any and all documents pertaining and/or relating to complaints

and/or incidents, and or alleged incidents of sexual harassment by any of the defendants.” The

parties have agreed that plaintiffs do not seek any documents subject to the attorney-client

privilege or work product doctrine. Again, plaintiffs demonstrate the general relevancy of this

request – Dunsmuir High School has fewer than 100 students; defendants concede that a separate

suit proceeds against Mr. Morris on allegations of sexual harassment; during the relevant period

the student handbook did not include the district’s sexual harassment policy; and it is alleged that

“pervasive acts of sexual harassment by members of the staff of the school” created a climate of

acceptance resulting in defendants’ failure properly to respond to these plaintiffs’ complaints of

sexual harassment. 

Defendants assert the request is overbroad but identify “one obvious” responsive

document: a 257-report prepared by private investigator Diane Davis at the direction of

defendant school board regarding allegations of inappropriate conduct by defendant Morris. 

These allegations do not include the allegations of Donald M. According to defendants, the

report was presented to the board under seal and reviewed in closed session shortly before Mr.

Morris’ resignation. The local newspaper sought unsuccessfully to obtain the report and Ms.

Davis’ interview notes, and thereafter sought a writ a mandate from Siskiyou County Superior

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Court. After reviewing the documents in camera, the court found insufficient grounds to

substantiate the allegations with the exception of Mr. Morris shouting at students. The ruling

was appealed to the Third District Court of Appeal and is still pending.

Defendants will be directed to deliver a sealed copy of the Davis report to the chambers

of the undersigned for review in camera. After the review, the court shall make such orders as

are appropriate. If temporally circumscribed, the remaining information sought by Request No.

19 remains relevant to plaintiffs’ claims and outweighs the privacy interests of the defendants. 

The court limits the request to the two-year period January 2003 through December 2004.

Accordingly, plaintiff’s motion to compel documents responsive to request no. 19 is

granted in part. On or before noon on March 22, 2006, defendants shall deliver a copy of the

Davis report the chambers of the undersigned for review in camera. Additionally, defendants

shall identify all known complaints and alleged incidents of sexual harassment by any of the

defendants during the period January 2003 through December 2004, and produce any responsive

documents contained in district records, including personnel files and student records.

Request No. 20 seeks “Any and all documents pertaining and/or relating to complaints,

and/or incidents, and/or alleged incidents of assault and/or battery by any of the defendants. The

parties refer the court to their respective arguments regarding Request No. 19. The information

is relevant for the reasons stated above. 

Accordingly, plaintiff’s motion to compel documents responsive to request no. 20 is

granted in part. Defendants shall identify all known complaints and alleged incidents of assault

or battery by any of the defendants during the period January 2003 through December 2004, and

produce any responsive documents contained in district records, including personnel files and

student records.

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 Request No. 28 seeks “Any and all documents pertaining to any investigation(s) into

3

the allegations made by plaintiffs in their complaint, including but not limited to written

statements of witnesses, notes of interviews with witnesses, tape recordings of any and all oral

statements and/or interview of witnesses, transcriptions of any tape

recordings of any and all oral statements and/or interview of witnesses, reports regarding the

results of any and all investigations and/or correspondence pertaining to the allegations contained

in the complaint.” 

 Request No. 29 seeks “All documents that reflect or relate to any statements made by 4

any person relating to any of the allegations contained in plaintiff’s complaint, including but not

limited to written statements, notes of interviews, tape recordings of any and all oral statements

and/or interviews, transcriptions of any tape recordings of any and all oral statements and/or

interviews, reports regarding the results of any and all interviews or investigations, or

correspondence relating to the allegations contained in the complaint.” 

6

Pursuant to Request No. 28, plaintiffs seek a copy of the Davis investigative report 3

prepared by defendant district and board members regarding “the sexual harassment and other

sexually-related activities of defendant Morris.” For the reasons set forth in the discussion of

Request No. 19, plaintiffs’ motion to compel documents responsive to request no. 28 is denied. 

Request No. 29 is overbroad; plaintiffs have made no attempt to narrow the request or 4

identify specific responsive documents. Defendants should have provided some information

responsive to this request in their initial disclosures as required by Fed. R. Civ. P. 26(a)(1).

Accordingly, plaintiffs’ motion to compel documents responsive to request no. 29 is denied.

Request No. 30 seeks “All documents that support any affirmative defense you have

pleaded or will plead in this action.” Plaintiffs explain they are seeking documents “relating” to

(1) the alleged student perpetrator, Jordan S., including “the document which requested that the

student perpetrator’s school file be sent out of the district to another location,” and (2) student

Cierra S., “providing the reason [why she] was transferred from the Dunsmuir High School to the

defendant district’s continuation/day school.” Plaintiffs assert they believe “there was a

disparity in the reasons not to transfer the perpetrator of the actions against plaintiff Donald M.,

Jr. and the reasons for the transfer of Shields to the continuation school,” that is significant to

plaintiff’s allegations.

Defendants assert they retain only limited information in the files of transferred students.

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Defendants state they will not use any documents relative to Cierra S. to support any affirmative

defense and , moreover, her file contains no documents setting forth the reason for her transfer. 

Accordingly, documents relative to Cierra S. are not responsive to plaintiff’s request. 

Defendants state that the only responsive information in Jordan S.’s file are the following

three documents: “[1] An information sheet on Jordan showing his date of transfer to the

Community Day School, [2] a letter from the Superintendent regarding [Jordan’s] attendance at

the high school and transfer to the Community Day School, and [3] [Jordan’s] actual attendance

records showing the days he attended school and his transfer to the Community Day School in

March of 2004.” Defendants state they informed Jordan S. by letter of the date and time of

plaintiffs’ motion to compel but Jordan S. neither appeared at the hearing nor contacted defense

counsel. Defendants seek an order of this court requiring the release of these documents. The

court finds that the probative value of these documents outweighs Jordan S.’s interests in

maintaining their privacy, particularly in light of the failure of Jordan S. or someone on his behalf

to contest their disclosure. 

Accordingly, plaintiffs’ motion to compel documents responsive to request no. 30 is

granted in part. Defendants shall produce: (1) the information sheet showing Jordan S.’s date of

transfer to Community Day School, (2) the letter from the Superintendent regarding Jordan S.’s

attendance at the high school and transfer to Community Day School, and (3) Jordan S.’s actual

attendance records showing the days he attended the high school and his transfer to the

Community Day School. Any other information held by the district relative to Jordan S.’s

student file–e.g., if Community Day School is within defendant district or, if outside the district,

any subsequent communications received about Jordan S.– shall also be produced.

Request No. 36 seeks “Any and all electronic mail relating or pertaining to student-onstudent harassment, and/or harassment defendant District’s employee or employees, student or

students, school board and/or defendant District’s employees since the time defendant Robert

Morris was first employed by defendant Dunsmuir Union High School District.”

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Plaintiffs assert no basis for their assumption there are responsive documents to this

request. Defendants state “there are no emails directly referring to plaintiffs’ complaints

regarding Jordan with the exception of emails by Mr. Morris to school counsel,” which plaintiffs’

counsel agrees are protected by the attorney client privilege. To the extent there are e-mails

responsive to Request No. 19, their disclosure is required pursuant to that request; the request is

otherwise overbroad. 

Accordingly, plaintiffs’ motion to compel documents responsive to request no. 36 is

granted in part, i.e., to the extent any e-mails meet the criteria for production set forth in the

court’s order regarding Request No. 19, these e-mails shall be produced excluding any e-mails

from Mr. Morris to school counsel. 

Request No. 38 seeks “Any and all documents used, considered, reviewed, read or relied

upon in deciding to impose any discipline against any student of defendant District based on

harassment of a student or students since the start of defendant Robert Morris’s employment with

defendant Dunsmuir Union High School District.” Plaintiffs explain only, “Plaintiff requests

documents as to what defendants have done to enforce the district’s sexual harassment policy.”

Defendants assert, properly, that this request is both vague and overbroad, even if temporally

limited. 

Accordingly, plaintiffs’ motion to compel documents responsive to request no. 38 is

denied.

Request No. 43 seeks “All documents pertaining to the harassment of plaintiff Donald

M., Jr.” The parties appear to agree this request is now limited to defendants’ production of the

three documents ordered by this court pursuant to Request No. 30. 

Accordingly, plaintiffs’ motion to compel documents responsive to request no. 43 is

denied, except as to those documents covered by other orders made herein.

Finally, Request No. 61 seeks “All documents relating to the identity, full name, complete

address and telephone numbers of all persons having knowledge of any facts relating to the

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occurrences in the Complaint and your Answer and Affirmative Defenses/Defenses to the

Complaint.” Plaintiffs seek a court order directing defendants to provide “the names, address

and telephone number of students and former students who have knowledge of facts related to

the allegations in the complaint and in the affirmative defenses.” Defendants assert they should

not be required to produce any information as plaintiff’s have not identified a student who comes

within this definition. The request is properly read more narrowly and defendants state they have

agreed to produce responsive tort claims filings with the district and non-student information. 

Defendants shall also provide the identifying information of all students and former students who

defendants know to be knowledgeable of the facts underlying this complaint or defendants’

affirmative defenses. 

Accordingly, plaintiff’s motion to compel production of documents pursuant to request

no. 61 is granted in part.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiffs’ motion to compel production of documents filed January 27, 2006,

is granted in part and denied in part.

2. On or before noon March 22, 2006, defendants shall deliver a copy of the

Davis report to the chambers of the undersigned for review in camera.

3. By noon Friday, March 24, 2006, defendants shall make available, for copying

and inspection, all documents ordered produced herein except for the Davis report.

4. The discovery produced pursuant to this order shall be used solely for purposes

of this litigation.

5. All requests for expenses and/or sanctions are denied.

DATED: March 15, 2006.

 

006.duns2411.ordII

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