IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DuShawn Sellers, :

Plaintiff, : Case No. 2:12-cv-005

v. : JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kemp

University of Rio Grande, :

Defendant. :

OPINION AND ORDER

This matter is before the Court for consideration of the

Plaintiff’s Motion to Compel Discovery and to Extend Time to

Provide an Expert Report. Doc. No. 31. For the reasons that

follow, the motion will be granted. 

I.

Plaintiff DuShawn Sellers commenced this action against the

University of Rio Grande claiming a violation of her rights under

the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794, and

the Americans with Disabilities Act, 42 U.S.C. § 12112, in

connection with her impending dismissal from the University’s

nursing program. Ms. Sellers suffers from epilepsy, resulting in

occasional seizures, as well as an anxiety disorder. She claims

that she was not given help, upon request, during certain

examinations and that the examinations themselves were prejudiced

against a person with her condition. She has worked as a

licensed practical nurse at the VA Hospital in Cincinnati, Ohio

since September 2007 and enrolled in the University’s nursing

program in order to maintain her employment. 

The Court issued a temporary restraining order shortly after

the action commenced, allowing Ms. Sellers to continue her

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 1 of 7 PAGEID #: <pageID>
nursing studies. Following an evidentiary hearing, the Court

denied Ms. Sellers’ request for preliminary injunction, finding

that there was no evidence of irreparable injury as it was

undisputed that Ms. Sellers could return to her employment at the

Cincinnati VA Hospital regardless of her enrollment in the

University’s nursing program. 

The parties engaged in expedited discovery at the outset of

this action, which included Ms. Sellers’ requests for “documents

. . . regarding testing information on Plaintiff and fellow

students (i.e. scores, answer key, answers provided by students

in response to test questions, etc.). . . .” Motion to Compel,

Doc. No. 31, at 2. Counsel for Ms. Sellers states that, despite

“several phone calls” to opposing counsel regarding production of

the foregoing, the items sought have not been produced. 

Affidavit of Robert F. Croskery, attached to Motion to Compel,

Doc. No. 31. According to Ms. Sellers’ counsel, the documents

“are needed for review by Plaintiff’s expert witness in order to

prepare her report.” Motion to Compel, Doc. No. 31, at 2. Ms.

Sellers’ expert holds a doctorate degree in nursing and has also

taught nursing. Ms. Sellers moves to compel production of the

items sought and also moves to extend the deadline for her

expert’s report until twenty-one (21) days after such production. 

The University argues that Ms. Sellers’ motion should be

denied for three reasons. First, the motion allegedly fails to

comply with S.D. Ohio Local Rule 37.2; second, the documents

sought are not relevant; and third, even if the documents are

relevant, the harm that would be suffered from production of such 

confidential documents outweighs their relevance. The Court will

address each of these arguments in turn. 

II.

The general principles involving the proper scope of

discovery are well known. The Federal Rules of Civil Procedure

2

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 2 of 7 PAGEID #: <pageID>
authorize extremely broad discovery. United States v. Leggett &

Platt, Inc., 542 F.2d 655 (6th Cir. 1976). Therefore, Fed. R.

Civ. P. 26 is to be liberally construed in favor of allowing

discovery. Dunn v. Midwestern Indemnity, 88 F.R.D. 191 (S.D.

Ohio 1980). Any matter that is relevant, in the sense that it

reasonably may lead to the discovery of admissible evidence, and

is not privileged, can be discovered. The concept of relevance

during discovery is necessarily broader than at trial, Mellon v.

Cooper-Jarrett, Inc., 424 F.2d 499 (6th Cir. 1970), and “[a]

court is not permitted to preclude the discovery of arguably

relevant information solely because if the information were

introduced at trial, it would be ‘speculative’ at best.” Coleman

v. American Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994). 

Information subject to disclosure during discovery need not

relate directly to the merits of the claims or defenses of the

parties. Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the

litigation. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340

(1978). On the other hand, the Court has the duty to deny

discovery directed to matters not legitimately within the scope

of Rule 26, and to use its broad discretionary power to protect a

party or person from harassment or oppression that may result

even from a facially appropriate discovery request. See Herbert

v. Lando, 441 U.S. 153 (1979). Additionally, the Court has

discretion to limit or even preclude discovery which meets the

general standard of relevance found in Rule 26(b)(1) if the

discovery is unreasonably duplicative, or the burden of providing

discovery outweighs the benefits, taking into account factors

such as the importance of the requested discovery to the central

issues in the case, the amount in controversy, and the parties’

resources. See Fed. R. Civ. P. 26(b)(2). Finally, the Court

notes that the scope of permissible discovery, which can be

3

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 3 of 7 PAGEID #: <pageID>
conducted without leave of court, has been narrowed somewhat by

the December 1, 2000 amendments to the Federal Rules. Rule 26(b)

now permits discovery to be had without leave of court if that

discovery “is relevant to the claim or defense of any party . . .

.” Upon a showing of good cause, however, the Court may permit

broader discovery of matters “relevant to the subject matter

involved in the action.” Id. 

III.

The Court first addresses Defendant’s argument that Ms.

Sellers’ motion to compel fails to comply with this Court’s local

rule. S.D. Ohio Local Rule 37.2 provides that “[o]nly those

specific portions of the discovery documents reasonably necessary

to a resolution of the motion shall be included as an attachment

to it.” While Ms. Sellers failed to attach a copy of either her

initial expedited discovery requests or the Defendant’s responses

thereto in filing her motion to compel, she has attached a copy

of Defendant’s responses in connection with the filing of her

Reply Memorandum, Doc. No. 33. In the Court’s view, compliance

with the local rule has now been satisfied. 

Ms. Sellers seeks production of six items: First, a copy of

the following examinations taken by Nursing V students, including

herself: (a) Final exam; (b) Respiratory exam; (c) Cardiac exam;

(d) Neurological exam; (e) any other exam taken in the course and

counted toward the final course grade. 

Second, a copy of the answer key for each of the following

exams taken by students in Ms. Sellers’ Nursing V class: (a)Final

exam; (b) Respiratory exam; (c) Cardiac exam; (d) Neurological

exam; (e) any other exam taken in the course and counted toward

the final course grade. 

Third and Fourth (the requests are identical), a copy, with

student names redacted and identifying numbers substituted apart

from DuShawn Sellers, of the answers given to the following exams

4

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 4 of 7 PAGEID #: <pageID>
by all students in Ms. Sellers’ course that passed Nursing V

overall: (a) Final exam; (b) Respiratory exam; (c) Cardiac exam;

(d) Neurological exam; (e) any other exam taken in the course and

counted toward the final course grade. 

Fifth, a copy of the validation analysis (such as Scantron

validation), if any, that was run on each of the following exams

from Ms. Sellers’ Nursing V class: (a) Final exam; (b) Respiratory

exam; (c) Cardiac exam; (d) Neurological exam; (e) any other exam

taken in the course and counted toward the final course grade. 

Sixth, a copy of the summary sheet of the entire class who

took the following exams, showing how each question was answered

and each student’s score, if such analysis was done, with all

student identifying information redacted apart from that of

Dushawn Sellers: (a) Final exam; (b) Respiratory exam; (c) Cardiac

exam; (d) Neurological exam; (e) any other exam taken in the

course and counted toward the final course grade. 

Defendant objects to each of the items of discovery sought.

With respect to the first four items, however, Defendant stated

in its initial response that it would make the items sought

(examinations, answer keys and student answers) available for

inspection by Plaintiff’s attorney at Baker & Hostetler’s

Cincinnati office on January 27, 2012 at 2:00 p.m., or another

agreeable time, subject to monitoring by a Baker & Hostetler

attorney or paralegal, and upon agreement that no notes would be

taken and no discussion be made, except with Plaintiff. See

Exhibit 1 attached to Reply Memorandum, Doc. No. 33. It is

unclear from the record whether this inspection in fact took

place. 

With respect to items five and six, Defendant objected to

initial production on the basis that the items are not relevant

nor reasonably calculated to lead to the discovery of admissible

evidence. Defendant also objected on the basis that the items

5

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 5 of 7 PAGEID #: <pageID>
sought are confidential and protected from disclosure, and for

the reason that Defendant has not located the documents sought.

See Exhibit 1 attached to Doc. No. 33. 

In the Court’s view, the items sought by Ms. Sellers are

indeed relevant or, at a minimum, are reasonably calculated to

lead to the discovery of admissible evidence. The claims in this

case center on the examinations taken as part of the Nursing V

program. Clearly, Ms. Sellers is entitled to production of items

one through four (the exams, answers, and answer keys used in the

testing process), subject to the redaction of any personal,

identifying information of other students. In the Court’s view,

simply viewing the items, as previously proposed by Defendant’s

counsel, is not a sufficient substitute for production of the

documents themselves. According to Ms. Sellers’ counsel, the

expert witness “wishes to examine the tests to determine whether

or not [they] were appropriately and fairly given, given a person

with Plaintiff Sellers’s limitations.” Reply Memorandum, Doc.

No. 33, at 2. The expert also wishes “to determine if the

particular times when Plaintiff Sellers was not given the

instruction she claimed she desired would have made a significant

difference.” Id. The Court finds these requests reasonable in

view of the claims raised in this case. 

With respect to production of items five and six (the

validation analysis used, and summary sheet, if any), it is

unclear whether such items exist for purposes of production. If

these items exist, the Court concludes that they should be

produced, again with the appropriate redactions in order to

maintain confidentiality. 

Ms. Sellers’ motion to compel is meritorious. Her motion to

extend the deadline to provide an expert report until twenty-one

days after receipt of the documents is also meritorious in view

of the stated objectives of the expert’s proposed analysis. The

6

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 6 of 7 PAGEID #: <pageID>
Court notes Defendant’s concern that the motion to extend the

time for the expert report has been extended previously. The

Court does not find, however, that an additional extension will

prejudice Defendant or unduly protract the remainder of the pretrial schedule in this case. 

IV.

In light of the foregoing, the Plaintiff’s Motion to Compel

and Extend Time, Doc. No. 31, is GRANTED. The Defendant shall

produce items one through six, to the extent they exist and

subject to appropriate redaction measures, within fourteen (14)

days of this Order. The Plaintiff shall provide her expert

report within twenty-one (21) days thereafter. 

Any party may, within fourteen (14) days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the opposing party are due seven days thereafter. The

District Judge, upon consideration of any motion, shall set aside

any part of this Order found to be clearly erroneous or contrary

to law. 

This Order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge, S.D. Ohio Local Rule 72.3. 

 s/ Terence P. Kemp 

United States Magistrate Judge

7

Case: 2:12-cv-00005-EAS-TPK Doc #: 34 Filed: 09/14/12 Page: 7 of 7 PAGEID #: <pageID>