UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

In Re Subpoena Issued to the United States Miscellaneous Case 2:18-mc-18 

Department of Education. Judge George C. Smith 

 Magistrate Judge Chelsey M. Vascura 

 

OPINION AND ORDER

 

 The United States Department of Education initiated this miscellaneous action in this 

Court by filing a Motion to Quash Subpoena (ECF No. 1). Aaron Farrer, the plaintiff in the 

underlying action, sued the University of Indiana and various University officials under Title IX 

of the Educational Amendments of 1972, 20 U.S.C. §§ 1681, et seq., and 42 U.S.C. § 1983. He 

alleges, inter alia, that Defendants expelled him from Indiana University in response to pressure 

exerted on the University from The United States Department of Education to aggressively 

pursue disciplinary actions against male students for alleged sexual misconduct. Plaintiff further 

alleges that pressure from the Department of Education resulted in an erroneous outcome in his 

case. 

 As part of his attempt to show that the Department of Education exerted such pressure, 

Plaintiff issued a subpoena to the Department of Education’s Office for Civil Rights on 

December 27, 2017. The subpoena listed five categories of documents; however, Plaintiff 

subsequently narrowed the request to the following two categories: 

(1) All document(s) and communication(s) created between April 4, 2011 and 

August 7, 2015 – which DOE neither provided to IU nor received from IU – that 

related to any sexual misconduct investigations(s) DOE conducted regarding IU’s 

implementation of Title IX, and 

(2) All document(s) and communication(s) created between April 4, 2011 and 
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August 7, 2015 – which DOE neither provided to IU nor received from IU – that 

related to any sexual misconduct complaint the Department received regarding 

IU’s implementation of Title IX. 

 On January 31, 2018, the Department of Education moved to quash the subpoena. 

Plaintiff opposes the Department’s motion and has moved to compel production of documents in 

the two above-described categories. This matter is now before the Court on the parties’ motions 

(ECF Nos. 1 and 4). 

 The Department of Education refused to provide documents in response to the subpoena 

on the ground that Department regulations, enacted pursuant to the Supreme Court’s decision in 

United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), permit it to withhold requested 

documents at the discretion of the Secretary of Education or her designee. Candice Jackson, 

Acting Assistant Secretary for Civil Rights, is the Secretary’s designee. Ms. Jackson determined 

that production of the documents requested by Plaintiff would be contrary to the interests of the 

Department of Education and the United States. The Department of Education asks the Court to 

quash the subpoena on that basis. 

 Plaintiff opposes the Department’s motion to quash and asks the Court to compel 

production on the ground that Touhy regulations do not supplant the Federal Rules of Civil 

Procedure or wrest authority from this Court to compel production under Rule 26(b). The 

Department of Education opposes Plaintiff’s motion to compel on the same Touhy regulation 

ground that it asserts in support of its motion to quash. It also argues, in its memorandum in 

opposition to Plaintiff’s motion to compel, that documents in the two above-described categories 

are not relevant to Plaintiff’s allegation that Defendants imposed discipline on him as a result of 

pressure from the Department of Education. 

 
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 The Federal Rules of Civil Procedure grant parties the right to “obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. 

P. 26(b)(1). Relevance is construed very broadly for discovery purposes. See Lewis v. ACB Bus. 

Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). However, the concept of relevance is not 

unlimited. Averett v. Honda of Am. Mfg., Inc., No. 2:07-cv-1167, 2009 WL 799638, at *2 (S.D. 

Ohio March 24, 2009). The burden of demonstrating relevance is on the party issuing the 

subpoena. Am. Electric Power Co., Inc. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999) 

(citing Katz v. Batavia Marine & Sporting Supplies, 984 F.2d 422, 424-25 (Fed. Cir. 1993)). See 

also Berryman v. Supervalu Holdings, Inc., No. 3:05-cv-169, 2008 WL 4934007, at *9 (S.D. 

Ohio 2008) (“At least when the relevance of a discovery request has been challenged the burden 

is on the requestor to show the relevance of the requested information”) (internal citation 

omitted)). 

To satisfy the discoverability standard, the information sought must have more than 

minimal relevance to the claims or defenses. Vaigasi v. Mgmt. Corp., No. 11 Civ. 5088, 2016 

WL 616386, at *7 (S.D.N.Y. Feb. 16, 2016). See also Jenkins v. Pech, No. 8:14CV41, 2015 WL 

728305, at *4 (D. Neb. Feb. 19, 2015) (minimal relevance insufficient to support issuance of 

subpoena). Information that is “negligibly relevant [ or] minimally important in resolving the 

issues” does not satisfy the standard. See VHT, Inc. v. Zillow Grp., Inc., No. C15-1096JLR, 2016 

WL 7077235, at *1 (W.D. Wash. Sept. 8, 2016). 

Under Rule 45 of the Federal Rules of Civil Procedure, a party may command a nonparty 

to produce documents. Fed. R. Civ. P. 45(a)(1). Rule 45 permits the Court to quash a subpoena 

that subjects a non-party to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv). Although Rule 

45 does not specifically include irrelevance as a basis for quashing a subpoena, “the scope of 
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discovery under a subpoena is the same as the scope if discovery under Rule 26.” Hendricks v. 

Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (internal citation and 

quotation marks omitted). When a nonparty challenges a subpoena on grounds that the request is 

over-burdensome, the party seeking the discovery must establish that the information sought is 

relevant. See Spartanburg Reg. Healthcare Sys. v. Hillenbrand Indus., No. 1:05-mc-107, 2005 

WL 2045818, at *4 (W.D. Mich. Aug. 24, 2005). Courts will balance the need for the discovery 

against the burden imposed on the person ordered to produce documents, and that person’s status 

as a nonparty is a factor weighing against disclosure. See Katz, 984 F.2d at 424. 

 The Department of Education’s primary basis for resisting the subpoena in this case is 

that its designated official has declined to permit production under its Touhy regulations. 

Plaintiff counters that the Touhy regulations do not permit the Department to evade discovery 

requests that comply with the Federal Rules of Civil Procedure. See, e.g., United States v. Blue 

Cross/Blue Shield of Mich., No. 10-14155, 2012 WL 4513600, at *5 (E.D. Mich. Oct. 1, 2012). 

Even if Plaintiff is correct in his formulation of the applicable law, however, he must still 

demonstrate that the requested documents are more than minimally relevant in order to gain 

production. He has not done so. 

 The theory of relevance under which Plaintiff seeks the two categories of documents 

identified above is that they will help him to prove that Defendants “unlawfully expelled Farrer 

in part to prove to [the Department of Education] that IU was correcting its alleged past failure to 

discipline male students accused of sexual misconduct.” (Mot. to Compel 1, ECF No. 4 at 

PAGEID #382). In other words, Plaintiff alleges that Defendants succumbed to pressure from 

the Department of Education to find him guilty of sexual misconduct. So, to be relevant, the 

documents must have some tendency to support that theory. 
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 Plaintiff has described the categories he seeks as explicitly excluding documents of which 

Defendants would have known. Both categories include only documents “which DOE neither 

provided to IU nor received from IU.” So, responsive documents relate to the Department’s 

investigation of Indiana University and to communications the Department received about sexual 

misconduct complaints related to that investigation but only to the extent that those documents 

were not shared with Defendants or received from Defendants. 

 Plaintiff is certainly correct in asserting that the requested documents may illuminate the 

Department’s motivations as they relate to the University. The Department is not a party, 

however, and its motivations are not at issue. They are not relevant. Its actions directed at the 

University and its interactions with the University are relevant to the extent that they may 

support Plaintiff’s theory that Defendants acted in response to those actions and not solely on the 

basis of the evidence sexual misconduct by Plaintiff. The problem with the subpoena is that it 

explicitly excludes documents that would tend to illustrate those actions and interactions. It 

requests only documents that could not have motivated Defendants because they were unknown. 

Although the requested documents may serve to demonstrate a motivation within the Department 

to apply pressure to the University, the documents are only negligibly relevant to Plaintiff’s 

claims because they do not serve to clarify Defendants’ motivations, which are at issue. Any 

documents or communications from the Department of Education to the University or from the 

University to the Department that may bear on the factors motivating Defendants should be in 

the University’s possession and obtainable from Defendants. 

 For that reason, the Court concludes that the two categories of subpoenaed documents 

described above are not relevant to Plaintiff’s claims. The Department of Education’s Motion to 

Quash Subpoenas (ECF No. 1) is GRANTED. Plaintiff’s Motion to Compel a Subset of 
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Documents Sought in Plaintiff’s Subpoena to the United States Department of Education (ECF 

No. 4) is DENIED WITHOUT PREJUDICE. 

 

 IT IS SO ORDERED. 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE