IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

JOHN DOE, § 

 § 

Plaintiff, § 

 § 

v. § Civil Action No. 4:22-CV-00297-O 

 § 

TEXAS CHRISTIAN UNIVERSITY § 

& VICTOR J. BOSCHINI, JR., § 

 § 

Defendants. § 

NON-PARTY JANE ROE’S MOTION TO QUASH,

AND ALTERNATIVELY, FOR PROTECTIVE ORDER AND BRIEF IN SUPPORT 

WICK PHILLIPS GOULD & MARTIN LLP 

David J. Drez III

Texas Bar No. 24007127

david.drez@wickphillips.com

Colin P. Benton

Texas Bar No. 24095523

colin.benton@wickphillips.com

100 Throckmorton Street, Suite 1500

Fort Worth, Texas 76102

Telephone: 817.332.7788

Facsimile: 817.332.7789 

ATTORNEYS FOR NON-PARTY JANE ROE 

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i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii

I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 3

III. ARGUMENT AND AUTHORITIES ................................................................................. 4

A. Legal standards under Federal Rules of Civil Procedure 26 and 45. ...................... 4

1. The test for showing undue burden under Rule 45. .................................... 4

2. The subpoena must be relevant as defined by Rule 26, but it 

requires a stronger showing of relevance for non-party 

discovery. .................................................................................................... 5

B. The Subpoena for Roe’s deposition should be quashed. ........................................ 7

1. Roe could offer no non-duplicative relevant testimony. ............................. 7

2. A deposition in this case would cause Roe undue burden. ......................... 9

C. The Subpoena for production of documents should be quashed. ......................... 12

1. Lack of relevance is already established, but assuming 

arguendo the information would be relevant, its benefit 

would be marginal. .................................................................................... 13

a. Request #1: Each communication between Roe and 

Doe, including (without limitation), all screenshots 

and archives of Snapchats and text messages. .............................. 14

b. Request #2: Each communication sent or received 

by Roe that mentions Doe, the Allegations, and/or 

the Proceedings. The scope of this request includes 

social media posts by Roe, and/or communications 

between Roe and TCU, Roe’s family, four named 

individuals and/or any law enforcement personnel 

(including police reports or complaints filed). .............................. 14

c. Request #3: Each communication sent or received by 

any of Roe’s lawyers, to or from a person other than 

Roe that mentions Doe, the Allegations, and/or any 

of the Proceedings. ........................................................................ 15

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d. Request #4: Each TikTok video posted by Roe that 

refers (directly or indirectly) to Doe. The scope of 

this request includes deleted TikTok videos. ................................ 15

e. Request #5: Communications between Roe and any 

person regarding a named individual. ........................................... 16

f. Request #6: Each document evidencing questions, 

notes or scripts prepared for or by a named individual 

to testify at the Panel Hearing. ...................................................... 16

g. Request #7: Each document evidencing Snapchat 

conversations or photos between Roe and Doe. ........................... 17

h. Request #8: Each photograph and/or video that 

depicts Doe or records Doe’s voice. ............................................. 17

i. Request #9: Each audio and video recording made of 

a conversation during which the Allegations, Doe or 

the Proceedings are mentioned. .................................................... 18

j. Request #10: Each communication between TCU 

and Roe or Roe’s family or Roe’s lawyers that 

reference any text message between a named 

individual and Roe. ....................................................................... 18

k. Request #11: All no-contact orders signed by Roe 

with respect to Doe. ...................................................................... 18

l. Request #12: Journal entries, diaries or any form of 

notes made by Roe about Doe, the Allegations, 

and/or the Proceedings. ................................................................. 19

2. Burden Imposed ........................................................................................ 19

D. The Court should order cost-shifting if Roe is required to produce 

documents. ............................................................................................................ 21

E. Alternatively, the Court should impose strict limitations on any 

testimony. .............................................................................................................. 22

IV. PRAYER ........................................................................................................................... 24

CERTIFICATE OF CONFERENCE ............................................................................................ 25

CERTIFICATE OF SERVICE ..................................................................................................... 25

 

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TABLE OF AUTHORITIES 

Cases

Advance Tech. Incubator, Inc. v. Sharp Corp., 

263 F.R.D. 395 (W.D. Tex. 2009) .............................................................................................. 4 

Andra Group, LP v. JDA Software Group, Inc., 

312 F.R.D. 444 (N.D. Tex. 2015) ............................................................................................. 11 

Burns v. Bank of Am., 

No. 03 Civ. 1685(RMB)(JCF), 2007 WL 1589437 (S.D.N.Y. June 4, 2007) .......................... 13 

Castleberry v. Camden Cnty., 

331 F.R.D. 559 (S.D. Ga. 2019) ................................................................................................. 6 

Dart Indus. Co. v. Westwood Chem. Co., 

649 F.2d 646 (9th Cir. 1980) ...................................................................................................... 9 

DeGeer v. Gillis, 

755 F. Supp. 2d 909 (N.D. Ill. 2010) .................................................................................. 20, 21 

Doe v. Amherst Coll. et al., 

No. 2:16-CV-01296-JLR, ECF No. 13 (W.D. Wash. Nov. 16, 2016) .............................. 2, 9, 10 

Doe v. Maryland, 

No. ELH-20-1227, 2021 WL 1174707 (D. Md. Mar. 23, 2021) ................................................ 1 

Doe v. Ohio State Univ., 

No. 2:16-CV-171, 2018 WL 1373868 (S.D. Ohio Mar. 19, 2018) ............................................. 6 

Doe v. Princeton Univ., 

No. CV 20-4352 (BRM), 2020 WL 3962268 (D.N.J. July 13, 2020) ........................................ 7 

Doe v. Purdue Univ., 

928 F.3d 652 (7th Cir. 2019) ...................................................................................................... 4 

Doe v. St. Joseph’s Univ., 

832 F. App’x 770 (3rd Cir. 2020) ............................................................................................... 8 

Doe v. Texas A&M Univ., 

No. H-20-4332, 2021 WL 257059 (S.D. Tex. Jan. 26, 2021)................................................. 8, 9 

Doe v. Univ. of Denver, 

1 F.4th 822 (10th Cir. 2021) ....................................................................................................... 8 

Doe v. Univ. of St. Thomas, 

240 F. Supp. 3d 984 (D. Minn. 2017) ......................................................................................... 1

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Doe v. Univ. of the South, 

687 F. Supp. 2d 744 (E.D. Tenn. 2009) ...................................................................................... 1 

Edelson, P.C. v. Bandas Law Firm, P.C., 

No. 2:18-MC-980, 2018 WL 6588436 (S.D. Tex. Dec. 14, 2018) ............................................. 5 

Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC, 

No. 14-1011-RDR, 2014 WL 6472885 (D. Kan. Nov. 18, 2014) .......................................... 5, 9 

Gomes v. Univ. of Maine Sys., 

365 F. Supp. 2d, 6 (D. Me. 2005) ............................................................................................... 1 

Hatcher v. Precoat Metals, 

271 F.R.D. 674 (N.D. Ala. 2010)................................................................................................ 5 

HDSherer LLC v. Nat. Molecular Testing Corp., 

292 F.R.D. 305 (D.S.C. 2013) ...................................................................................... 18, 19, 20 

In re Venequip, S.A., 

No. MC 21-2090, 2022 WL 834780 (E.D. La. Mar. 21, 2022) .................................................. 5 

Jenkins v. Pech, 

No. 8:14-CV-41, 2015 WL 728305 (D. Neb. Feb. 19, 2015) ..................................................... 6 

Klocke v. Univ. of Tex. at Arlington, 

938 F.3d 204 (5th Cir. 2019) ...................................................................................................... 4 

Laxalt v. McClatchy, 

116 F.R.D. 455 (D. Nev. 1986)................................................................................................... 6 

Legal Voice v. Storman’s, Inc., 

738 F.3d 1178 (9th Cir. 2013) .................................................................................................. 21 

Leonard v. Martin, 

38 F.4th 481 (5th Cir. 2022) ..................................................................................................... 21 

Linder Calero-Protocarrero, 

251 F.3d 178 (D.C. Cir. 2001) .................................................................................................. 21 

MetroPCS v. Thomas, 

327 F.R.D. 600 (N.D. Tex. 2018) ............................................................................................... 5 

Ntakirutimana v. CHS/Cmty. Health Sys., Inc., 

No. L-09-114, 2011 WL 13135608 (S.D. Tex. June 28, 2011) ................................................ 13 

Tech. Serv., Inc. v. Zurich Am. Ins. Co., 

377 F. Supp. 3d 1197 (D. Or. 2019) ..................................................................................... 5, 22 

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Plummer v. Univ. of Houston, 

860 F.3d 767 (5th Cir. 2017) ...................................................................................................... 8 

Positive Black Talk v. Cash Money Records, 

394 F.3d 357 (5th Cir. 2004) ...................................................................................................... 4 

Schorr v. Briarwood Estates, Ltd. P’ship, 

178 F.R.D. 488 (N.D. Ohio 1998) ............................................................................................ 23

Stamy v. Packer, 

138 F.R.D. 412 (D. N.J. 1990) .................................................................................................... 6 

Thomas v. IEM, Inc., 

No. 06-886-B-M2, 2008 WL 695230 (M.D. La. Mar. 12, 2008) ............................................. 13 

Transcor, Inc. v. Furney Charters, Inc., 

212 F.R.D. 588 (D. Kan. 2003)............................................................................................... 5, 6 

Vaigasi v. Mgmt. Corp., 

No. 11 Civ. 5088, 2016 WL 616386 (S.D.N.Y. Feb. 16, 2016) ................................................. 6 

VHT, Inc. v. Zillow Grp., Inc., 

No. C-15-1096-JLR, 2016 WL 7077235 (W.D. Wash. Sept. 8, 2016)....................................... 6 

Wiwa v. Royal Dutch Petroleum Co., 

392 F.3d 812 (5th Cir. 2004) ............................................................................................. passim 

Yusuf v. Vassar Coll., 

35 F.3d 709 (2d Cir. 1994).......................................................................................................... 4 

Zukoski v. Philadelphia Elec. Co., 

No. CIV. A. 93-4780, 1994 WL 637345 (E.D. Pa. Nov. 14, 1994) ........................................... 6 

Rules

FED. R. CIV. P. 26(b)(1) .................................................................................................................. 6 

FED. R. CIV. P. 45(d) .............................................................................................................. passim 

FED. R. CIV. P. 45(d)(1) .................................................................................................................. 4 

FED. R. CIV. P. 45(d)(3)(A)(iv) ................................................................................................. 4, 13 

FED. R. CIV. P. 34 ..................................................................................................................... 5, 18 

FED. R. EVID. 412 ......................................................................................................................... 12 

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Other Authorities

Sedona Commentary, 

9 SEDCJ (2008) ........................................................................................................................ 32 

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NON-PARTY JANE ROE’S MOTION TO QUASH,

AND ALTERNATIVELY, FOR PROTECTIVE ORDER AND BRIEF IN SUPPORT 

PAGE 1

Under Federal Rules of Civil Procedure 26(c) and 45(d), Non-Party Jane Roe1 (“Roe”) files 

this Motion to Quash, and alternatively, for Protective Order (“Motion”), concerning the Subpoena 

Duces Tecum (“Subpoena”) served by Plaintiff John Doe (“Doe”). The Subpoena purports to 

compel the production of documents and appearance for testimony on September 14, 2022, and to 

the extent necessary, Roe requests that she be relieved of any obligation to comply with the 

Subpoena until such time as the Court has considered this Motion. In support of this Motion, Roe 

states as follows: 

I. INTRODUCTION 

Roe reported to Texas Christian University (“TCU”) that Doe sexually assaulted her, and 

TCU’s disciplinary process followed. Doe subsequently filed the underlying Title IX and breach 

of contract lawsuit against TCU (not Roe), claiming that the school discriminated against him on 

the basis of his sex when it found him responsible for violating the school’s sexual harassment 

policy. 

Doe served a subpoena duces tecum on Roe for her deposition and requested broad 

categories of documents. “It is not the province of [the] Court ‘to retry’ [Doe’s] disciplinary 

proceeding.” Doe v. Maryland, No. ELH-20-1227, 2021 WL 1174707, *23 (D. Md. Mar. 23, 

2021).2 Doe’s efforts to obtain discovery from Roe, however, are designed to do just that. This 

1

 This Court previously permitted Plaintiff to proceed under a pseudonym. ECF No. 41. Throughout the pleadings 

in this case, Roe is identified as the person who reported to TCU that she had been sexually assaulted by Doe, and 

Roe accordingly adopts that usage herein. Roe separately seeks leave to file unredacted versions of Exhibit A (the 

Subpoena, APP001 - 007) and Exhibit B (declaration of treating therapist, APP008 – 010) under seal. Redacted 

versions are contained within the Appendix in support of this Motion, filed concurrently herewith. 

2

 Numerous cases support the principle that a Title IX case is not a retrial of the underlying proceedings. See, e.g., 

Doe v. Univ. of the South, 687 F. Supp. 2d 744, 755 (E.D. Tenn. 2009) (“This is not a lawsuit between [Roe] and the 

Plaintiff[]...The Court therefore expresses no opinion as to whether a sexual assault occurred, whether any such acts 

were consensual, or who, as between John Doe and [Roe] is credible.”); Doe v. Univ. of St. Thomas, 240 F. Supp. 3d 

984, 989-90 (D. Minn. 2017) (“As a general rule, Title IX is not an invitation for courts to second-guess disciplinary 

decisions of colleges or universities.”); Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d, 6, 13 (D. Me. 2005) (“This 

Court’s review is substantially circumscribed; the law does not allow this Court to retry the University’s disciplinary 

proceeding.”). 

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AND ALTERNATIVELY, FOR PROTECTIVE ORDER AND BRIEF IN SUPPORT 

PAGE 2

Court already has found that for Doe to show the Title IX panel reached an erroneous conclusion, 

Doe “must provide evidence ‘on the record before the disciplinary tribunal’ that casts ‘articulable 

doubt’ on the panel’s decision.”3 The entirety of Roe’s participation in the disciplinary process is 

contained within TCU’s records, which Doe either already has or can request from TCU. 

None of Doe’s theories of liability against TCU turn on evidence that could be elicited from 

Roe. Yet Doe now improperly attempts to bring non-party Roe into his lawsuit by serving the 

Subpoena to compel her to testify at a deposition and produce documents responsive to 12 separate 

and overly broad requests. In a nearly identical scenario, U.S. District Judge James L. Robart 

quashed in its entirety a subpoena issued to the non-party complainant (like Roe) in the underlying 

school disciplinary proceeding and explained as follows: 

The heavy burden imposed on Ms. Jones may . . . be justified in a case litigating 

what happened [the night the alleged sexual assault took place]. However, the 

underlying litigation does not pose that question. Instead, Mr. Doe’s claims 

challenge the policies under which [the college] and its administrators conducted 

their investigation and review, whether the administrators in fact followed [the 

college’s] policies, and whether the process or policies discriminate against men, 

such as Mr. Doe. The majority of topics that Mr. Doe seeks to take up in a 

deposition of [Ms. Jones] are not relevant to those claims. 

John Doe v. Amherst Coll. et al., No. 2:16-CV-01296-JLR, ECF No. 13, p. 6 (W.D. Wash. Nov. 16, 

2016).4

 The same reasoning applies in this case. 

Because the die is cast on the record that was before the disciplinary tribunal, Doe’s request 

for testimony and documents from Roe is duplicative, unnecessary, irrelevant and not proportional 

to the needs of the case. Moreover, Roe includes evidence from a treating therapist that establishes 

subjecting her to a deposition will result in significant emotional harm and trauma. The undue 

burden caused to Roe outweighs any potential relevance, and the Subpoena should be quashed in 

3

 ECF No. 40 at 8 (emphasis added). 

4

 For the Court’s convenience, the Order is attached hereto at APP016 – 024. 

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NON-PARTY JANE ROE’S MOTION TO QUASH,

AND ALTERNATIVELY, FOR PROTECTIVE ORDER AND BRIEF IN SUPPORT 

PAGE 3

its entirety. Alternatively, the Court should enter a protective order limiting, inter alia, the manner, 

means, scope, and duration of any testimony from Roe. To the extent that Roe is required to 

produce documents, she further requests the Court order Doe to pay for the costs of complying 

with the Subpoena given its breadth and burdensome nature. 

II. BACKGROUND 

The Court is familiar with the underlying allegations and record before TCU’s disciplinary 

tribunal.5 While Roe accordingly limits her factual recitation to those relevant to this Motion, it is 

important to bear in mind that the disciplinary proceeding lasted nearly 17 hours, with both Doe 

and Roe providing voluminous documentary evidence and live testimony, including that of Roe 

who was subjected to rigorous cross examination by Doe’s counsel. Further, this Court already has 

held an extensive evidentiary hearing in connection with Doe’s request for a preliminary injunction 

and temporary restraining order. Doe managed to conduct this hearing without any live testimony 

of Roe or documents such as those requested in the Subpoena. Any deposition testimony Doe seeks 

from Roe is not Doe’s first opportunity to question Roe, but instead a second round of questioning 

without any apparent limitation or relevance to this lawsuit against TCU. Similarly, to the extent 

Doe requests relevant documents (he does so only marginally), such documents are either already 

part of the record before the disciplinary tribunal or records in the possession of TCU. 

Doe’s claims pertain to TCU’s actions and alleged bias. It is the outcome of TCU’s process 

that Doe challenges in this lawsuit. The primary question is whether that process violated Title IX 

by discriminating against Doe on the basis of his sex.6

 Doe asserts three theories of Title IX 

liability: (1) TCU’s disciplinary tribunal reached an “erroneous conclusion,” (2) TCU selectively 

5

 ECF No. 40 at 1–6. 

6

 Doe also asserts a breach of contract claim against Defendants under the sexual harassment policy, student code 

of conduct, and student bill of rights. ECF No. 43 at ¶¶ 167–171. 

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PAGE 4

enforces sexual harassment policy violations, and (3) there is a plausible inference TCU 

discriminated against Doe on the basis of his sex.7

 To succeed on the first theory, Doe will have 

to establish an erroneous conclusion based “on the record before the disciplinary tribunal.”8 To 

succeed on the second theory, Doe will have to establish that “‘regardless of the student’s guilt or 

innocence,’ the severity of the penalty or the decision to initiate proceedings ‘was affected by the 

student’s gender.’”9 To succeed on the third theory, Doe will have to establish a “plausible 

inference” that TCU discriminated against him on the basis of his sex. Doe v. Purdue Univ., 928 

F.3d 652, 667–68 (7th Cir. 2019). 

III. ARGUMENT AND AUTHORITIES 

A. Legal standards under Federal Rules of Civil Procedure 26 and 45. 

Federal Rule of Civil Procedure 45 governs subpoenas and specifically instructs a party 

issuing and serving a subpoena to “take reasonable steps to avoid imposing undue burden or 

expense on a person subjected to the subpoena.” FED. R. CIV. P. 45(d)(1). Upon a timely motion, 

the Court must quash or modify a subpoena that, inter alia, subjects a person to undue burden. 

FED. R. CIV. P. 45(d)(3)(A)(iv). 

1. The test for showing undue burden under Rule 45. 

The test in the Fifth Circuit for whether a subpoena imposes an undue burden as 

contemplated by Rule 45 is a question of reasonableness that is determined by balancing the 

benefits and burdens of the requested discovery. See Advance Tech. Incubator, Inc. v. Sharp Corp., 

263 F.R.D. 395, 399 (W.D. Tex. 2009) (citing Positive Black Talk v. Cash Money Records, 394 

F.3d 357, 377 (5th Cir. 2004)). To conduct this balancing test, courts consider the factors 

7

 ECF No. 43 at ¶¶ 155-156. 

8

 ECF No. 40 at 8 (quoting Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019)). 

9

 Id. at 7 (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)). 

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articulated in Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812 (5th Cir. 2004). Those factors 

include: “(1) the relevance of the information requested; (2) the need of the party for the 

documents; (3) the breadth of the document request; (4) the time period covered by the request; 

(5) the particularity with which the party describes the requested documents; and (6) the burden 

imposed.” Edelson, P.C. v. Bandas Law Firm, P.C., No. 2:18-MC-980, 2018 WL 6588436, at *5 

(S.D. Tex. Dec. 14, 2018) (quoting Wiwa, 392 F.3d at 818). “On a motion asserting undue 

burden, ‘[t]he moving party has the burden of proof to demonstrate that compliance with the 

subpoena would be unreasonable and oppressive.’” MetroPCS v. Thomas, 327 F.R.D. 600, 609 

(N.D. Tex. 2018) (quoting Wiwa, 392 F.3d at 818). 

2. The subpoena must be relevant as defined by Rule 26, but it requires a 

stronger showing of relevance for non-party discovery. 

While Rule 45 “does not include relevance as an enumerated reason for quashing a 

subpoena[,] [i]t is well settled . . . that the scope of discovery under a subpoena is the same as the 

scope of discovery under Rule 26(b) and Rule 34.” Transcor, Inc. v. Furney Charters, Inc., 212 

F.R.D. 588, 591 (D. Kan. 2003); see also In re Venequip, S.A., No. MC 21-2090, 2022 WL 834780, 

at *11 (E.D. La. Mar. 21, 2022) (applying “the usual relevance and proportionality analysis 

required by Rule 26 and the undue burden analysis of Rule 45”); Hatcher v. Precoat Metals, 271 

F.R.D. 674, 675 (N.D. Ala. 2010) (“Rule 45 must be read in conjunction with Federal Rule of Civil 

Procedure 26 because the latter rule ‘clearly defines the scope of discovery for all discovery 

devices.’” (quoting 9 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE; CIVIL 3d § 2452 (3d 

ed. 2008)). Thus, “[i]n considering when a burden is undue, Rule 26 is relevant and should be 

considered.” Pegatron Tech. Serv., Inc. v. Zurich Am. Ins. Co., 377 F. Supp. 3d 1197, 1202 (D. 

Or. 2019). “Lack of relevance is a valid reason to quash a subpoena.” Furr v. Ridgewood Surgery 

& Endoscopy Ctr., LLC, No. 14-1011-RDR, 2014 WL 6472885, at *3 (D. Kan. Nov. 18, 2014). 

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Rule 26 grants parties the right to obtain discovery regarding any nonprivileged matter that 

is relevant to any claim or defense. See FED. R. CIV. P. 26(b)(1). Relevance is construed very 

broadly, but “the concept of relevance is not unlimited.” Doe v. Ohio State Univ., No. 2:16-CV171, 2018 WL 1373868 at *2 (S.D. Ohio Mar. 19, 2018). Indeed, numerous federal courts have 

recognized a stronger showing of relevance is required when seeking discovery from non-parties.

Wiwa, 392 F.3d at 818 (“[I]f the person to whom the document request is made is a non-party, the 

court may also consider the expense and inconvenience to the non-party.”); Castleberry v. Camden 

Cnty., 331 F.R.D. 559, 563 (S.D. Ga. 2019) (“Importantly, [n]on-party status is a factor courts may 

consider when analyzing whether a subpoena is unduly burdensome.”) (internal quotes omitted); 

Zukoski v. Philadelphia Elec. Co., No. CIV. A. 93-4780, 1994 WL 637345, at *3 (E.D. Pa. Nov. 

14, 1994) (“It is a generally accepted rule that standards for non-party discovery require a stronger 

showing of relevance than for party discovery.”); Stamy v. Packer, 138 F.R.D. 412, 419 (D. N.J. 

1990) (“[T]he standards for nonparty discovery require a stronger showing of relevance than for 

simple party discovery.”); Laxalt v. McClatchy, 116 F.R.D. 455 (D. Nev. 1986) (same). 

To satisfy the discoverability standard in the context of discovery from a non-party, the 

information sought must have more than minimal relevance to the claims or defenses. See Vaigasi 

v. Mgmt. Corp., No. 11 Civ. 5088, 2016 WL 616386, at *7 (S.D.N.Y. Feb. 16, 2016); Jenkins v. 

Pech, No. 8:14-CV-41, 2015 WL 728305, at *4 (D. Neb. Feb. 19, 2015). Information that is 

“negligibly relevant [or] minimally important to resolving the issues” does not satisfy the standard. 

Ohio State Univ., 2018 WL 1373868, at *2 (quoting VHT, Inc. v. Zillow Grp., Inc., No. C-15-

1096-JLR, 2016 WL 7077235, at *1 (W.D. Wash. Sept. 8, 2016)). When relevance is not facially 

apparent, it is the burden of the party issuing the subpoena to establish that the information 

subpoenaed is relevant. Transcor, Inc., 212 F.R.D. at 591. 

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NON-PARTY JANE ROE’S MOTION TO QUASH,

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PAGE 7

B. The Subpoena for Roe’s deposition should be quashed. 

The Subpoena for deposition testimony contains no limitations as to time and scope.10 

Based on the nature of Doe’s claims, Roe’s testimony is not germane to the relief sought, but 

instead is an effort to retry the underlying disciplinary proceedings, which the law prohibits. 

1. Roe could offer no non-duplicative relevant testimony. 

Doe’s allegations in the case are instructive as to why deposition testimony from Roe is 

not relevant. In Doe’s claims under Title IX, he mentions Roe only in the “erroneous outcome” 

section.11 Of the 17 “facts” that Doe claims “establish articulable doubt on the accuracy of the 

outcome of the disciplinary proceeding,” Doe identifies only 7 “facts” regarding Roe that appear 

to be entirely from the record of the underlying disciplinary proceeding.12 Indeed, in an earlier 

pleading, Doe described “the underlying dispute in this case” as TCU’s “handling of sexual assault 

accusations made against [him].”13 Doe further says he “did not commit sexual assault, however 

he was wrongfully suspended from TCU pursuant to unfair rules, procedures and institutional 

biases.”14 In further briefing to the Court to proceed under a pseudonym, Doe stated: 

Doe has never been charged with the crime of sexual assault, yet requiring him to 

litigate under his real name shifts the focus away from the conduct of TCU to the 

conduct of Doe. See Doe v. Princeton Univ., No. CV 20-4352 (BRM), 2020 WL 

3962268, at *3 (D.N.J. July 13, 2020) (noting, “the issue here is not whether 

Plaintiff committed a sexual act, but whether or not Princeton subjected Plaintiff to 

an unfair disciplinary proceeding” and granting plaintiff’s motion to proceed under 

a pseudonym).15

10 APP002 – 007. 

11 ECF No. 43, ¶ 155. 

12 Id.

13 ECF No. 4 at 1. 

14 Id. at 2. 

15 ECF No. 38 at 8 (emphasis supplied). 

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Permitting Doe to depose Roe has an analogous impact: it shifts the focus away from the conduct 

of TCU to the conduct of Roe. And just as the case Doe cites above states, “the issue here is not 

whether [Doe] committed a sexual act, but whether or not [TCU] subjected [Doe] to an unfair 

disciplinary proceeding.” Roe’s testimony will not alter the record that was part of TCU’s 

decision. Instead, Doe seeks a re-trial of the TCU disciplinary proceeding, which the law does not 

allow. “Ultimately, courts must focus on ‘ensuring the presence of ‘fundamentally fair procedures 

to determine whether the misconduct has occurred.’” Plummer v. Univ. of Houston, 860 F.3d 767, 

773 (5th Cir. 2017). Roe’s testimony now has no bearing on those procedures. While Doe claims 

that “[i]nstability, jealously and vengeance are the underpinnings of Roe’s motive to falsely accuse 

Doe of sexually assaulting her,” he exhibits his own vein of vengeance in seeking Roe’s 

deposition.16 

In similar Title IX cases, courts limit their review to the record before the disciplinary panel 

and information related to it, such as the school’s actions and procedures during the contested 

hearing, other hearings conducted by the school, school policies, and comments and publications 

made by school officials involved in the disciplinary hearing. See e.g., Doe v. Texas A&M Univ., 

No. H-20-4332, 2021 WL 257059 at *3–8 (S.D. Tex. Jan. 26, 2021) (reviewing the record before 

the tribunal and the tribunal’s procedures); Doe v. St. Joseph’s Univ., 832 F. App’x 770, 773–74 

(3rd Cir. 2020) (same); Doe v. Univ. of Denver, 1 F.4th 822, 830–35 (10th Cir. 2021) (same under 

the Purdue standard). For example, in Doe v. Texas A&M, Judge Rosenthal resolved a motion for 

preliminary injunction by examining the testimony from the investigation, whether the hearing 

officer addressed contradictory testimony, the length of time between the investigation and the 

16 ECF No. 43, ¶ 79. Further, the requested deposition and production of Roe would run afoul of Federal Rule of 

Evidence 412. 

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draft report, the length of time for which the appeal was considered, whether there were any 

procedural irregularities, whether there was disparate treatment between the sexes, and whether 

the university had been pressured by the Department of Education. 2021 WL 257059 at *3–7. This 

Court was in accord, finding that for Doe to show TCU’s Title IX panel reached an erroneous 

conclusion, Doe “must provide evidence ‘on the record before the disciplinary tribunal’ that casts 

‘articulable doubt’ on the panel’s decision.”17 

Therefore, the Subpoena for an unlimited deposition of Roe should be quashed because it 

fails the relevance standard for non-parties. See Amherst Coll., No. 2:16-CV-01296-JLR, ECF No. 

13, p. 6 (recognizing “Mr. Doe’s claims challenge the policies under which [the college] and its 

administrators in fact followed [the college’s] policies, and whether the process or policies 

discriminate against men, such as Mr. Doe” and concluding “the topics Mr. Doe seeks to take up 

in a deposition [of Ms. Jones] are not relevant to those claims”)18; Furr, 2014 WL 6472885, at *3 

(“Lack of relevance is a valid reason to quash a subpoena.”). 

2. A deposition in this case would cause Roe undue burden. 

Contrary to Rule 45’s mandate to “take reasonable steps to avoid imposing undue burden 

or expense,” Doe’s Subpoena imposes an impermissible burden to have Roe sit for a deposition, 

particularly without any limitations whatsoever. Courts have long noted the special need to protect 

nonparties from this type of harassment, inconvenience, and potential disclosure of confidential 

information. See Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980). 

In his complaint, Doe describes Roe as “fragile, insecure, unpredictable and immature. 

Even the smallest of slights or disagreements would destabilize Roe and could lead Roe to burning 

17 ECF No. 40 at 8 (emphasis added). 

18 APP021. 

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herself or forcing herself to purge.”19 Roe’s treating counselor, Kim Garrett, observed that Roe has 

posttraumatic stress disorder and—echoing Doe’s observations in part—is “in a very fragile 

emotional state.”20 Counselor Garrett has concluded that subjecting Roe to a deposition would 

cause Roe “significant emotional harm and trauma, and, among other things, exacerbate her PTSD 

and greatly increase the anxiety, hypervigilance, depression, and insomnia she regularly suffers.”21 

In Doe v. Amherst College,

22 the court was presented with a motion to quash a similar nonparty subpoena for testimony and production in a Title IX lawsuit. Just as here, the underlying 

dispute was between the student (also Doe) that had been disciplined for sexual assault and the 

university. That student sought testimony and documents from the person, a non-party, that made 

the sexual assault allegations (just as Roe did here). The court recognized that an in-person 

deposition would impose a substantial burden: “The deposition would force Ms. Jones to relive a 

night in which she asserts Mr. Doe sexually assaulted her. It would also reraise the subsequent 

investigation, hearing, and period of publicity that Ms. Jones has endured. It takes no leap of logic 

to reason that a live deposition would impose emotional and psychological trauma upon Ms. 

Jones.”23 The court balanced the obvious burden with the potential benefit to the plaintiff. But the 

court recognized that the case was not “litigating what happened on [the night of the alleged 

assault].”24 Because the plaintiff’s claims concerned the college’s policies and the conduct of its 

administrators in its disciplinary process, “[t]he majority of the topics that [the plaintiff] seeks to 

19 ECF No. 43, ¶ 48. 

20 APP010. 

21 Id. 

22 APP016 – 024. 

23 APP021. 

24 Id. 

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take up in a deposition are not relevant to those claims.”25 Among the topics were the decision to 

pursue the disciplinary process, her text messages, and communications between her and the 

college administrators.26 The only arguably relevant topic was communications between her and 

the administrators, but the court recognized that those could be obtained from the party college 

and administrators.27 Thus, the court concluded that balancing the potential relevance against the 

hardship of a “boundless, in-person deposition” did not outweigh the clear hardship on the witness, 

and the court quashed the deposition in its entirety.28

 “The moving party opposing discovery must show how the requested discovery was overly 

broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the 

nature of the burden.” Andra Group, LP v. JDA Software Group, Inc., 312 F.R.D. 444, 449 (N.D. 

Tex. 2015). Roe has done so here and set forth evidence establishing the burden of her compliance 

with the Subpoena would be unreasonable and oppressive. Just as Judge Robart reasoned, “[i]t 

takes no leap of logic to reason that a live deposition would impose emotional and psychological 

trauma upon Ms. Jones.”29 Therefore, the Court should find Roe has established that compliance 

with the Subpoena for deposition testimony would cause her undue burden, and that burden 

outweighs the benefit of Doe’s discovery of potentially relevant information. 

25 Id. 

26 Id. at APP021 – 022. 

27 Id. at APP022. 

28 Id. at APP023. 

29 Id. at APP021. 

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C. The Subpoena for production of documents should be quashed. 

The Subpoena seeks to compel Roe to produce the following categories of documents30

(paraphrased below) for a two-year time period31 (since August 1, 2020): 

1. Each communication between Roe and Doe, including (without limitation), all 

screenshots and archives of Snapchats and text messages. 

2. Each communication sent or received by Roe that mentions Doe, the Allegations,32

and/or the Proceedings.33 The scope of this request includes social media posts by 

Roe, and/or communications between Roe and TCU, Roe’s family, four named 

individuals and/or any law enforcement personnel (including police reports or 

complaints filed). 

3. Each communication sent or received by any of Roe’s lawyers, to or from a person 

other than Roe that mentions Doe, the Allegations, and/or any of the Proceedings. 

4. Each TikTok video posted by Roe that refers (directly or indirectly) to Doe. The 

scope of this request includes deleted TikTok videos. 

5. Communications between Roe and any person regarding a named individual. 

6. Each document evidencing questions, notes or scripts prepared for or by a named 

individual to testify at the Panel Hearing. 

7. Each document evidencing Snapchat conversations or photos between Roe and 

Doe. 

8. Each photograph and/or video that depicts Doe or records Doe’s voice. 

9. Each audio and video recording made of a conversation during which the 

Allegations, Doe or the Proceedings are mentioned. 

30 APP005 – 007. 

31 This time period alone is suspect. The TCU hearing occurred in January 2022, yet Doe seeks documents and 

communications for at least 7 months afterwards. 

32 As defined in the Subpoena, “The term ‘Allegations’ means and refers to the allegations of sexual misconduct 

made by [Jane Roe] against [John Doe], including those asserted during the January 28 and 29, 2022 Title IX Panel 

Hearing (the ‘Panel Hearing’) and those that are the subject of the February 2, 2022 Panel Hearing Deliberative 

Report.” APP005. 

33 As defined in the Subpoena, “The term ‘Proceeding’ means and refers to TCU’s Title IX proceeding involving 

[John Doe], beginning with the initial report [Jane Roe] filed with TCU on September 15, 2021 through the January 

28 and 29, 2022 Title IX Panel Hearing and the appeal of same. The Proceeding includes the reporting, complaint, 

investigation, hearing and appeal process.” APP006. 

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10. Each communication between TCU and Roe or Roe’s family or Roe’s lawyers that 

reference any text message between a named individual and Roe. 

11. All no-contact orders signed by Roe with respect to Doe. 

12. Journal entries, diaries or any form of notes made by Roe about Doe, the 

Allegations, and/or the Proceedings. 

The Court should also quash the Subpoena for document production because Roe 

establishes compliance would cause her undue burden and any relevance does not outweigh that 

undue burden. FED. R. CIV. P. 45(d)(3)(A)(iv). 

1. Lack of relevance is already established, but assuming arguendo the 

information would be relevant, its benefit would be marginal. 

As explained above, the deposition testimony sought from the Subpoena is not relevant 

given Doe’s claims or TCU’s defenses. Likewise, the Court’s limited review of the record before 

the disciplinary tribunal renders any document production by Roe as duplicative, burdensome and 

disproportionate to the needs of the case. 

To the extent the requests seek information in TCU’s possession—which would be the 

appropriate limit of relevance—Doe can seek them directly from TCU. “Courts have noted on 

numerous occasions that, ‘if documents are available from a party, it has been thought preferable 

to have them obtained pursuant to Rule 34 rather than subpoenaing them’ pursuant to Rule 45.” 

Thomas v. IEM, Inc., No. 06-886-B-M2, 2008 WL 695230, at *2 (M.D. La. Mar. 12, 2008) 

(quoting Burns v. Bank of Am., No. 03 Civ. 1685(RMB)(JCF), 2007 WL 1589437, at *14 

(S.D.N.Y. June 4, 2007)); see also Ntakirutimana v. CHS/Cmty. Health Sys., Inc., No. L-09-114, 

2011 WL 13135608, at *2 (S.D. Tex. June 28, 2011) (“Rule 45 subpoenas are not meant to 

circumvent the regular discovery process under Rules 26 and 34.”) (citing Burns, 2007 WL 

1589437, at *14)). The same logic applies to communications between Doe and Roe, which should 

either be in TCU’s possession (if submitted to the disciplinary tribunal) or in Doe’s possession. 

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As for the requests that plainly smack of a fishing expedition, none of that information, 

even if related to some aspect of the investigation or the disciplinary proceeding, has any bearing 

on the causes of action Doe’s claims present, which is whether TCU’s actions violated Title IX 

and TCU’s sexual harassment policy and TCU’s student code of conduct and bill of rights. To the 

extent the Court concludes the information would be relevant, it would at best be duplicative and 

thus weighs in favor of quashing these requests for documents. Roe will address each request in 

turn. 

a. Request #1: Each communication between Roe and Doe, including 

(without limitation), all screenshots and archives of Snapchats and text 

messages. 

Roe objects to this request because Doe necessarily has communications between he and 

Roe. To that point, Doe acknowledges reviewing “over 1,200 pages of text messages” between 

he and Roe that he “spent several weeks . . . gathering.”34 Imposing the burden on Roe to search 

for these, particularly considering the volume of material already in the record, is improper. 

Because Doe cannot establish a need for Roe to produce documents already in his possession, this 

request should be quashed. FED. R. CIV. P. 45(d); Wiwa, 392 F.3d at 818. 

b. Request #2: Each communication sent or received by Roe that 

mentions Doe, the Allegations, and/or the Proceedings. The scope of 

this request includes social media posts by Roe, and/or communications 

between Roe and TCU, Roe’s family, four named individuals and/or 

any law enforcement personnel (including police reports or complaints 

filed). 

Roe objects to this request because it is overbroad and would cause her undue burden. 

Assuming Roe had approximately 25 communications per day across all platforms, that would 

equate to 18,250 communications to review.35 Assuming it would require 5 minutes of attorney 

34 ECF No. 43, ¶ 69, n. 4; ¶ 94, n. 7. 

35 APP013 - 014. 

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time on average to review each communication, that would result in 1520 hours of attorney time 

to review the communications.36 Assuming a reviewing attorney billed out at $250/hour, that 

would equate to $380,208 in attorney time to review the requested documents and 

communications.37 Thus, having her search through these communications would cause her undue 

burden. FED. R. CIV. P. 45(d); Wiwa, 392 F.3d at 818. To the extent this request seeks 

communications between Roe and TCU, they can be requested from TCU (and likely already have 

been). Doe likewise can request police reports or complaints directly from those authorities. The 

remaining portions of this request are plainly a fishing expedition. This request should be quashed. 

c. Request #3: Each communication sent or received by any of Roe’s 

lawyers, to or from a person other than Roe that mentions Doe, the 

Allegations, and/or any of the Proceedings. 

Roe objects to this request because it is a fishing expedition and impermissibly overbroad. 

This would necessarily include communications between Roe’s lawyers and Doe’s lawyers, which 

would already be in the possession of Doe’s lawyers. To the extent communications between Roe’s 

lawyers and TCU are relevant, Doe can request them from TCU. Therefore, this request should be 

quashed because it would be unduly burdensome for Roe to comply. FED. R. CIV. P. 45(d); Wiwa, 

392 F.3d at 818. 

d. Request #4: Each TikTok video posted by Roe that refers (directly or 

indirectly) to Doe. The scope of this request includes deleted TikTok 

videos. 

Roe objects to this request because it is not relevant. If TikTok videos were part of the 

record before the disciplinary tribunal, Doe can request those from TCU. Otherwise, there is no 

relevance to any TikTok video Roe may have posted. Moreover, this request is facially overbroad 

36 Id. 

37 Id.

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and a fishing expedition. It is also vague and lacks particularity as Roe would have no way of 

knowing what videos “indirectly” referred to Doe. Therefore, this request should be quashed 

because it is not relevant, requests documents available to TCU, and compliance would cause Roe 

undue burden. FED. R. CIV. P. 45(d); Wiwa, 392 F.3d at 818. 

e. Request #5: Communications between Roe and any person regarding a 

named individual. 

Roe objects to this request because it lacks relevance, is overbroad, and lacks sufficient 

particularity. FED. R. CIV. P. 26(b), 45(d); Wiwa, 392 F.3d at 818. There is no indication from 

Doe’s pleadings that establish any relevance concerning communications between Roe regarding 

this third party. To the extent this request seeks communications between Roe and Doe regarding 

the named individual, those communications are already available to Doe and in his possession. 

Finally, Roe has set forth evidence establishing that compliance would cause her an undue burden 

given the expense of time and money to search her electronic communications.38 Therefore, this 

request should be quashed. 

f. Request #6: Each document evidencing questions, notes or scripts 

prepared for or by a named individual to testify at the Panel Hearing. 

Roe objects to this request because it lacks relevance, is overbroad, and lacks sufficient 

particularity. FED. R. CIV. P. 26(b), 45(d); Wiwa, 392 F.3d at 818. There is no indication from 

Doe’s pleadings that establish any relevance concerning questions, notes, or scripts prepared for 

or by this undefined third party for use at the Panel Hearing. Doe also cannot establish that these 

materials, even if relevant, are in Roe’s possession. To the extent these materials are relevant, they 

could be requested from the individual. This request should be quashed. 

38 Id.

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g. Request #7: Each document evidencing Snapchat conversations or 

photos between Roe and Doe. 

Roe objects to this request because it lacks relevance and would cause Roe undue burden. 

Roe has set forth evidence establishing that compliance would cause her an undue burden given 

the expense of time and money to search her electronic communications.39 Doe notes in his live 

complaint that he “engaged a professional to attempt to retrieve all of the Snapchats between Doe 

and Roe but the professional was unable to successfully retrieve the Snapchats without Roe’s 

cooperation.”40 But this assertion is not evidence, and it is not facially apparent why Roe should 

be tasked with providing conversations and photos between herself and Doe. Moreover, this 

request is overbroad. It requests conversations and photos long-after the Panel Hearing occurred, 

and regardless of whether these conversations and photos have any connection to the underlying 

dispute. Therefore, this request should be quashed. 

h. Request #8: Each photograph and/or video that depicts Doe or records 

Doe’s voice. 

Roe objects to this request because it is facially overbroad as there is no limit as to what 

photograph or video that Doe seeks to discover. FED. R. CIV. P. 45(d); Wiwa, 392 F.3d at 818. 

Moreover, Doe cannot establish the relevance of any photograph and/or video that depicts Doe or 

records his voice to the claims he asserts against Defendants in this case. FED. R. CIV. P. 26(b). 

Additionally, Roe has established the undue burden that she would be subjected to if she had to 

search all of her electronic communications for any related, attached, and/or forwarded photograph 

and/or video.41 Therefore, this request should be quashed. 

39 Id. 

40 ECF No. 43, ¶ 69, n. 5. 

41 APP013 – 014. 

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i. Request #9: Each audio and video recording made of a conversation 

during which the Allegations, Doe or the Proceedings are mentioned. 

Roe objects to this request because it is a fishing expedition with no relevance to Doe’s 

underlying claims. Doe cannot establish that any audio or video recording made by anyone 

(without limit) would be in Roe’s possession. To the extent Doe seeks audio or video recordings 

made by a specific individual, he should request such audio or video recordings from the individual 

directly. Finally, Roe has established the undue burden that she would be subjected to if she had 

to search for each audio and video recording mentioning the Allegations, Doe, or the Proceedings. 

Therefore, this request should be quashed. 

j. Request #10: Each communication between TCU and Roe or Roe’s 

family or Roe’s lawyers that reference any text message between a 

named individual and Roe. 

Roe objects to this request because it is a fishing expedition and impermissibly overbroad. 

This would necessarily include protected communications from Roe’s lawyers. To the extent 

communications between Roe’s lawyers and TCU exist and are relevant, they can be requested 

from TCU and likely have been. Finally, Doe cannot establish the relevance of any 

communications concerning/referencing a named individual who is a non-party, not referenced in 

Doe’s First Amended Complaint, and not defined in the Subpoena. FED. R. CIV. P. 26(b). 

Therefore, this request should be quashed because it would be unduly burdensome for Roe to 

comply. FED. R. CIV. P. 45(d); Wiwa, 392 F.3d at 818. 

k. Request #11: All no-contact orders signed by Roe with respect to Doe. 

Any “no-contact orders” would have been prepared and issued by TCU, and Doe can 

request such information from TCU (and likely has). Therefore, this request should be quashed. 

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l. Request #12: Journal entries, diaries or any form of notes made by Roe 

about Doe, the Allegations, and/or the Proceedings. 

Roe objects to this request because it seeks to discover her private diary and journal entries. 

This request invades Roe’s privacy by seeking her own diary and journal entries, intended to be a 

record of her private thoughts. HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 

307 (D.S.C. 2013) (reciting Federal Rules of Civil Procedure protect non-party from compliance 

with subpoena that would cause, inter alia, embarrassment and annoyance). Unless this material 

was before the disciplinary panel, it is irrelevant. Therefore, this request should be quashed because 

it would be oppressive and cause Roe undue burden. 

2. Burden Imposed 

As noted above, Roe’s counsel has submitted a declaration demonstrating the burden of 

Roe to comply with the Subpoena for documents. For collection of two devices and one e-mail 

account, a vendor has estimated approximately $3,110, exclusive of project manager time (billed 

at $195/hour) and monthly hosting fees. The vendor estimated the collection from one mobile 

phone and one email account to constitute an estimated 110 gigabytes of data.42 

The Subpoena requests text messages, Snapchat communications, photographs, video 

recordings, and TikTok videos for a period of two years.43 According to 

https://www.localproject.net/docs/texting-stats/ (last visited August 1, 2022), the average adult 

between 18 – 24 years old sends 128 texts every day.44 Doe indicated in his live complaint that he 

had reviewed over 1,200 pages of text messages before the TCU hearing in January 2022. It is 

highly probable that Roe has well in excess of 50,000 text messages (or in excess of 90,000 if the 

42 Id. 

43 APP007. 

44 APP013 

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aforementioned statistics are correct). This is not inclusive of emails, Snapchat communications, 

photographs, video recordings, and TikTok videos or other social media platform material that is 

requested in the Subpoena.45 

Assuming Roe had 25 communications per day across all platforms, that would equate to 

18,250 communications to review.46 Assuming it would require 5 minutes of attorney time on 

average to review each communication, that would result in 1520 hours of attorney time to review 

the communications.47 Assuming a reviewing attorney billed out at $250/hour, that would equate 

to $380,208 in attorney time to review the requested documents and communications.48 The 

Subpoena for documents should be quashed because it imposes a significant financial burden on 

Roe if she were forced to fully comply with the requests. 

In sum, the majority of the applicable Wiwa considerations establish that the Subpoena 

imposes an undue burden and should be quashed. As shown above, Doe has failed to demonstrate 

a need for the requested documents and that they are unavailable from less burdensome sources 

(including from Doe himself). Further, the Requests seek irrelevant information and are facially 

overbroad. In seeking documents from a number of non-parties not named in this lawsuit—and, 

indeed, not claimed to have played any role in this lawsuit—the Subpoena seeks a large amount 

of information that can have no possible relevance to this action. Finally, Roe has established that 

compliance with the subpoena would be oppressive and unreasonable and cause her undue burden. 

The Subpoena for documents should be quashed in its entirety. 

45 Id. 

46 APP014. 

47 Id. 

48 Id. 

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D. The Court should order cost-shifting if Roe is required to produce documents. 

“In the subpoena context, cost-shifting should occur when an order requiring compliance 

subjects a non-party to ‘significant expense.’” DeGeer v. Gillis, 755 F. Supp. 2d 909, 928 (N.D. 

Ill. 2010) (citing and quoting Rule 45(c)(2) for the proposition that “an order compelling 

production ‘must protect a person who is neither a party nor a party’s officer from significant 

expense resulting from compliance.’”). “In other words, Rule 45 requires a district court to shift a 

nonparty’s cost of complying with a subpoena if those costs are significant.” Leonard v. Martin, 

38 F.4th 481, 490 n.8 (5th Cir. 2022) (emphasis added). Commentators recognize Rule 45 

contemplates such cost shifting on the common-sense premise that “[t]hird parties should not be 

required to subsidize litigation to which they have no stake in the outcome.” Id. at 918 (quoting 

SEDONA COMMENTARY, 9 SEDCJ *198–99 (2008)). The Sedona Commentary specifically 

outlines best practices regarding the acquisition of information from non-parties, including the 

following factors to be considered in connection with cost-shifting discussions: “(a) the scope of 

the request; (b) the invasiveness of the request; (c) the need to separate privileged material; (d) the 

non-party’s interest in the litigation; (e) whether the party seeking production of documents 

ultimately prevails; (f) the relative resources of the party and the nonparty; (g) the reasonableness 

of the costs sought; and (h) the public importance of the litigation.” Id. at 928–29 (quoting SEDCJ 

at *202). 

As established above, compliance with the Subpoena for documents would present Roe 

with a significant expense.49 Legal Voice v. Storman’s, Inc., 738 F.3d 1178, 1185 (9th Cir. 

2013) (“[W]e have no trouble concluding that $20,000 is ‘significant’ ”); Linder CaleroProtocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001) (suggesting that even $9,000 may be sufficient 

49 APP013 - 014. 

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significant to justify shifting costs under Rule 45(d)(2)(B)(ii)). The 12 categories of requested 

documents are broad and invasive, and many are available from other sources, including parties to 

this case. Accordingly, should the Court order Roe comply with the Subpoena, it should likewise 

order costs of compliance to be shifted to Doe. 

E. Alternatively, the Court should impose strict limitations on any testimony. 

As stated above, the Subpoena should be quashed in its entirety. If, however, the Court is 

inclined to allow Doe to obtain discovery from Roe, it should consider a variety of limitations and 

exercise its “broad latitude” in a protective order. Pegatron Tech. Serv., Inc., 377 F. Supp. 3d at 

1202. 

In Pegatron, the district court was “called upon to balance the legitimate discovery needs 

of a defendant in a civil lawsuit...with the legitimate privacy needs of a nonparty witness...who 

seeks to avoid or minimize embarrassment, oppression, and undue burden arising from a 

deposition subpoena.” Id. at 1199. Pegatron was a dispute with an insurance company over 

coverage for the proposed witness’s claims that arose out the disclosure of private and sensitive 

information unlawfully obtained from her electronic device. Id. at 1199 – 1201. The court, in lieu 

of ordering the deposition, instead permitted the party seeking the testimony to submit written 

interrogatories that had to be answered within 14 days and encouraged the parties to agree that the 

answers would be treated as stipulated testimony. Id. at 1204. If the interrogatory process was not 

satisfactory, the court left open the possibility for a renewed request for her deposition, with 

conditions that “might include having the deposition taken in the Court’s conference room with 

the Court supervising the deposition.” Id. 

In lieu of a deposition, Roe submits that the same tools of discovery could be utilized: Roe 

could provide testimony through interrogatories as stipulated testimony, as in Pegatron. 

Alternatively, Doe could submit to a deposition on written questions that is strictly limited to Roe’s 

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involvement in the disciplinary proceedings and any related engagement with TCU personnel. If 

that process is not satisfactory, Doe could renew his request for a deposition at a later date. 

In another case with similar concerns, although concerning the deposition of the plaintiff 

(versus a non-party, as Roe is here), the court nonetheless imposed the following conditions: 

(1) the deposition shall be taken at a neutral site, the jury deliberation room of this 

court; (2) the deposition shall be scheduled in two-hour segments; (3) the deposition 

shall be taken in the presence of a magistrate judge who may use discretion to 

determine, among other things: (a) whether the deposition should be adjourned at 

any time during the two-hour period, (b) whether the questions are abusive or 

oppressive; and (c) whether all counsel are conducting themselves pursuant to Rule 

2:4:7, “in a temperate, dignified, and responsible manner”; and (4) if further 

sessions are needed to complete the deposition, these sessions must also be 

scheduled in two-hour segments as needed by agreement of counsel, after 

conferring with the magistrate judge. 

Schorr v. Briarwood Estates, Ltd. P’ship, 178 F.R.D. 488, 492 (N.D. Ohio 1998). 

 If this Court orders that the deposition proceed, Roe submits, at a minimum, the following 

conditions should be imposed: 

(1) the deposition should occur virtually or at a neutral site (preferably the 

courthouse with the Magistrate Judge present); 

(2) the deposition should be limited to 2 hours in total; 

(3) the subject matter should be limited to the record that was before the TCU 

disciplinary panel; 

(4) Doe should not be present, either virtually or in person; 

(5) no more than 2 attorneys for Doe should be present; 

(6) Roe should be entitled to have 1 additional person present aside from counsel; 

and 

(7) the deposition should not be videotaped or recorded other than by stenographic 

means. 

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IV. PRAYER 

WHEREFORE, non-party Jane Roe respectfully requests that, to the extent necessary, she 

be relieved of any obligation to comply with the Subpoena until such time as the Court has 

considered this Motion, that the Court grant this Motion in its entirety and quash the Subpoena; 

and alternatively, for a protective order limiting the scope, duration, and method of deposition, 

including individuals allowed to be present, that the deposition not be videotaped or recorded other 

than by stenographic means, and that any deposition transcript and exhibits, or documents 

produced, be required to be filed under seal, including any response to this motion that identifies 

Roe by name; and further in the alternative for the Court to find compliance would be a significant 

expense to Roe, so the cost of compliance to be shifted to Doe; and for all other relief at law and 

in equity to which Roe is justly entitled. 

Respectfully submitted, 

WICK PHILLIPS GOULD & MARTIN LLP 

/s/ David J. Drez III 

 David J. Drez III 

Texas Bar No. 24007127 

david.drez@wickphillips.com

Colin P. Benton 

Texas Bar No. 24095523 

colin.benton@wickphillips.com

100 Throckmorton Street, Suite 1500 

Fort Worth, Texas 76102 

Telephone: 817.332.7788 

Facsimile: 817.332.7789 

 ATTORNEYS FOR NON-PARTY JANE ROE 

 

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CERTIFICATE OF CONFERENCE 

Counsel for Roe and counsel for Doe have conferred in good faith regarding the issues 

contained in this Motion on August 1, 2022, in an effort to resolve the dispute without Court action. 

No agreement was reached, despite reasonable efforts. Therefore, this matter is submitted to the 

Court for consideration. 

/s/ David J. Drez III 

David J. Drez III 

CERTIFICATE OF SERVICE 

I hereby certify that on August 3, 2022, I electronically filed the foregoing with the Clerk 

of Court using the CM/ECF system which will electronically mail notification of such filing to all 

counsel of record who have appeared in this case. 

/s/ David J. Drez III 

David J. Drez III 

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