THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KATHLEEN BOWERS,

Plaintiff,

v.

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, et al.,

Defendants.

HON. JEROME B. SIMANDLE

Civil Action 

No. 97-2600 (JBS)

OPINION

APPEARANCES:

Barbara E. Ransom, Esq.

PUBLIC INTEREST LAW CENTER OF PHILADELPHIA

125 South Ninth Street, Suite 700

Philadelphia, PA 19107

and

Richard L. Bazelon, Esq.

Penelope A. Boyd, Esq.

Noah H. Charlson, Esq.

BAZELON, LESS & FELDMAN, P.C.

Sagemore Corporate Center

10000 Sagemore Drive, Suite 10202

Marlton, NJ 08053-3944

Attorneys for Plaintiff

J. Freedley Hunsicker, Jr., Esq.

Daniel H. Aiken, Esq. 

Kathryn Elizabeth Bisordi, Esq.

DRINKER, BIDDLE & REATH, LLP

One Logan Square

18th and Cherry Streets

Philadelphia, PA 19103-6996

Attorneys for Defendant National Collegiate Athletic

Association

John B. Langel, Esq.

BALLARD, SPAHR, ANDREWS & INGERSOLL, LLP

Plaza 1000

Main Street, Suite 500

Voorhees, NJ 08043-4636

Attorney for Defendant Temple University

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Jack Jay Wind, Esq.

Robert E. Marguiles, Esq.

MARGULIES, WIND, HERRINGTON & KNOPF

15 Exchange Place, Suite 510

Jersey City, NJ 07302-3912

Attorneys for Defendant University of Iowa

SIMANDLE, District Judge: 

This extensively litigated case arises out of Plaintiff’s

allegation that during the 1995-1996 academic year, Defendants

subjected her son to unlawful discrimination on account of his

learning disability. Presently before the Court is Plaintiff’s

motion [Docket Item 377] to compel the deposition testimony of a

Rule 30(b)(6) witness from the National Collegiate Athletic

Association (“NCAA”) and the production of related discovery

materials. As the Court explains in greater detail below,

Plaintiff’s motion comes after more than a decade of litigation

and two discovery periods, and is directed at obtaining evidence

with marginal relevance to the issues underlying this action. 

For the reasons explained below, therefore, the Court will deny

Plaintiff’s motion to compel.

I. BACKGROUND

The facts and procedural history of this case have been

discussed in detail in numerous opinions issued by this Court and

the Court of Appeals, and so the Court will summarize only those

facts that pertain to the instant motion. At issue in this

action are the policies of the NCAA pertaining to the initial

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 Plaintiff Kathleen Bowers’ son, Michael, was the initial 1

plaintiff in this case. Michael Bowers died in June 2002 and his

mother has been substituted as Plaintiff. 

 Plaintiff amended the Complaint to assert additional 2

claims based on the New Jersey Law Against Discrimination

(“NJLAD”), N.J. Stat. Ann. §§ 10:5-1, et seq., and to name Temple

University, the University of Iowa, and the American

International College as defendants.

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eligibility of student athletes as they existed in 1995-1996,

when Plaintiff’s son, Michael Bowers, submitted an application 1

to the NCAA Initial-Eligibility Clearinghouse (the

“Clearinghouse”), the organization responsible for assessing the

eligibility of potential student athletes to participate in

college sports. At the time of the 1995-1996 school year, the

Clearinghouse reviewed students’ applications and placed

applicants into one of three categories: qualifier, partial

qualifier, or nonqualifier. In brief, Plaintiff alleges that her

son was designated as a nonqualifier largely on account of his

high school special education curriculum, that such a designation

discriminated against him on account of his learning disability,

and that the designation negatively impacted his opportunity to

receive an athletic scholarship. 

Michael Bowers filed the original Complaint in this case on

May 23, 1997 [Docket Item 1], alleging that the NCAA and the

Clearinghouse had violated Titles II and III of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132, 12182, and

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).2

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Since the initiation of this action, in addition to engaging in

extensive motion practice, the parties participated in two rounds

of discovery – one between August 1997 and April 1999, and

another following the initial remand from the Court of Appeals in

August 2003 through the summer of 2004. In addition to a largescale exchange of documents during these rounds of discovery,

Plaintiff conducted various depositions that are relevant to the

instant motion. On February 2, 1999 and March 2, 1999, Plaintiff

deposed then-vice-president of NCAA member services Kevin Lennon,

who testified about, inter alia, the organization’s initial

eligibility requirements as they existed during the 1995-1996

school year and afterward. (Def.’s Opp’n Br. Ex. 3.) Also in

March 1999, Plaintiff deposed the NCAA’s then-president Cedric

Dempsey, who likewise testified about the organization’s initial

eligibility requirements. (Def.’s Opp’n Br. Ex. 4.) Finally, on

April 7, 1999, Plaintiff deposed the NCAA’s director of research,

Todd Petr, whose testimony discussed the organization’s research

into its initial eligibility requirements between 1995 and 1999. 

(Def.’s Opp’n Br. Ex. 5.) 

On March 21, 2005, the Court issued an Opinion and Order

[Docket Items 319 and 320], which, inter alia, granted

Defendants’ motion for summary judgment. Plaintiff appealed this

decision to the Court of Appeals, which, on February 1, 2007,

reversed the March 21, 2005 summary judgment Order but affirmed

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various discovery sanctions against Plaintiff Bowers. See Bowers

v. National Collegiate Athletic Ass’n, 475 F.3d 524 (3d Cir.

2007). After the case was remanded by the Court of Appeals, the

parties agreed to participate in Court-annexed mediation pursuant

to Local Civil Rule 301.1 and Appendix Q [Docket Item 365], and

after efforts to mediate the case failed, the Court issued an

Order [Docket Item 374] reopening the case. The motion to compel

presently before the Court was filed shortly thereafter. At a

February 25, 2008 hearing, the Court heard oral argument from the

parties regarding the merits of Plaintiff’s motion and reserved

decision. 

II. DISCUSSION

A. The Parties’ Arguments

1. Plaintiff’s Motion

In her motion to compel, Plaintiff requests that the Court

order the NCAA to produce a witness to testify about the changes

in the organization’s initial eligibility bylaws and policies

relating to high school students with learning disabilities that

have occurred since the 1995-1996 academic year. Relatedly,

Plaintiff’s motion seeks to have Defendants produce four

categories of documents at least fourteen days prior to the

requested deposition:

1. All documents concerning the changes in the NCAA’s

bylaws, policies, rules and practices in place to

determine the initial eligibility of

student-athletes with learning disabilities who

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seek qualifier status to the NCAA’s Division I and

Division II member institutions, 1995-96 to the

present.

2. All documents concerning the research, data,

analysis, reports, and other information concerning

the reasons for the changes in the NCAA’s bylaws,

policies, rules, and practices concerning initial

eligibility for students with learning disabilities

and the impact on their academic success and

graduation rates, from 1995-96 up to and including

the present, including all communications with DOJ

concerning initial eligibility for students with

learning disabilities.

3. All documents concerning the research, data,

analysis and other information concerning the

effects of the changes in the NCAA’s bylaws,

policies, rules, and practices concerning initial

eligibility for students with learning

disabilities, from 1995-96 up to and including the

present, including the effect of these changes on

academic success and graduation rates, and

including all communications with DOJ concerning

initial eligibility for students with learning

disabilities.

4. Data, analysis, reports and other information from

the NCAA’s Clearinghouse and its

Academics/Eligibility/ Compliance Cabinet on the

rules, policies and practices concerning the

initial eligibility for students with learning

disabilities from 1995-96 up to and including the

present, including the certification of special

education courses as core courses, the acceptance

of untimed SAT and ACT scores and the waiver

process for students with disabilities.

(Pl.’s Br. 6-7.)

In support of her motion, Plaintiff argues that the

requested discovery is relevant to Defendants’ potential defense

at trial that the initial eligibility requirements were necessary

in 1995-1996 in order for the NCAA to achieve its goal of

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 Plaintiff also argues that the NCAA’s “anticipated Rule 3

407 objection” to her motion does not provide a basis for denying

the motion to compel. (Pl.’s Br. 14.) Because the NCAA does not

raise an objection to the instant motion based on Federal Rule of

Evidence 407, the Court does not address Plaintiff’s argument on

this issue. 

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ensuring that student athletes succeeded academically in

college. Specifically, Plaintiff notes that in its November 2, 3

2000 Opinion denying Defendants’ motion for summary judgment on

Plaintiff’s ADA claim, the Court, through former Judge Orlofsky,

reasoned that “[e]ligibility criteria that ‘screen out’ or ‘tend

to screen out’ disabled individuals violate the ADA unless the

proponent of the eligibility criteria can show that the

eligibility requirements are necessary.” Bowers v. National

Collegiate Athletic Ass’n, 118 F. Supp. 2d 494, 518 (D.N.J. 2000)

(quoting 42 U.S.C. § 12182(b)(2)(A)(i)). Plaintiff thus argues

that a central issue in this case turns on whether the 1995

initial eligibility requirements were necessary in order for

Defendants to achieve a legitimate objective. 

Plaintiff notes that the eligibility requirements that were

in place in 1995 have since been altered, which, she argues,

suggests that the 1995 policies were not necessary to the

achievement of the NCAA’s purposes. Plaintiff points

specifically to a March 26, 1998 Consent Decree entered into

between the NCAA and the Department of Justice (“DOJ”), under

which the NCAA agreed to modify its initial eligibility

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requirements. (Pl.’s Br. Ex. 2.) The Consent Decree remained in

effect until May 1, 2003. (Id.) Plaintiff argues that she does

not know “the full extent and timing of the changes in the NCAA’s

Bylaws and practices as a result of the Consent Decree, and after

the Consent Decree expired,” (Pl.’s Br. 12), and reasons that

because such information bears on the NCAA’s necessity defense,

the Court should authorize the discovery requested in Plaintiff’s

motion.

2. NCAA’s Opposition

The NCAA argues that the Court should deny Plaintiff’s

motion on all of the grounds set out in Federal Rule of Procedure

26(b)(2)(C). That Rule provides that

the court must limit the frequency or extent of discovery

otherwise allowed by these rules or by local rule if it

determines that:

(i) the discovery sought is unreasonably cumulative

or duplicative, or can be obtained from some other

source that is more convenient, less burdensome, or

less expensive;

(ii) the party seeking discovery has had ample

opportunity to obtain the information by discovery

in the action; or

(iii) the burden or expense of the proposed

discovery outweighs its likely benefit, considering

the needs of the case, the amount in controversy,

the parties’ resources, the importance of the

issues at stake in the action, and the importance

of the discovery in resolving the issues.

F. R. Civ. P. 26(b)(2)(C). 

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With regard to Rule 26(b)(2)(C)’s first consideration – the

cumulative or duplicative nature of the discovery sought – the

NCAA argues that Plaintiff has already had, and exercised, the

opportunity to obtain the very evidence she seeks in her motion

to compel. The NCAA points to Plaintiff’s 1999 depositions of

Mr. Lennon, Mr. Dempsey, and Mr. Petr, at which Plaintiff

questioned the witnesses not only about the NCAA’s eligibility

bylaws during the 1995-1996 school year, but also about the

changes in the organization’s policies undertaken as a result of

the DOJ Consent Decree. Compelling the NCAA to produce more

documents and more deponents on this same subject, it argues,

would not only be duplicative of prior discovery, but the

evidence produced would be less relevant than that which was

initially produced, given that more than twelve years have

elapsed since Plaintiff’s son was allegedly injured as a result

of the eligibility requirements.

Next, with regard to Plaintiff’s “ample opportunity to

obtain the information by [prior] discovery,” id., the NCAA draws

the Court’s attention to multiple cases in this Circuit finding

that parties with less time and fewer discovery opportunities

than Plaintiff had been given ample discovery opportunities and

were not entitled to pursue further avenues of discovery. See,

e.g., FLOORgraphics, Inc. v. News America Marketing In-Store

Services, Inc., No. 04-3500, 2007 WL 1613217 (D.N.J. June 1,

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2007); Maertin v. Armstrong World Industries, Inc., No. 01-5321,

2007 WL 758073 (D.N.J. Mar. 8, 2007). The NCAA argues that over

more than a decade of litigation and two discovery periods,

Plaintiff has had ample discovery opportunities and should not be

permitted another by means of the instant motion. 

Finally, the NCAA argues that “the burden or expense of the

proposed discovery outweighs its likely benefit.” F. R. Civ. P.

26(b)(2)(C)(iii). In highlighting the burdens of the proposed

discovery, the NCAA emphasizes Plaintiff’s request for documents

in advance of the proposed deposition(s), which the NCAA argues

would require it to produce “all documents that relate in any way

to NCAA rules for a nearly 13[-]year time frame spanning 1995 to

2008.” (Def.’s Opp’n Br. 9.) Such burdensome production is not

warranted by the likely benefit of the proposed discovery,

according to the NCAA, because the facts in this case focus on

the organization’s policies in 1995-1996. As the NCAA reasons,

because there is no claim for ongoing injunctive relief regarding

the NCAA’s post-1996 policies, to the extent that any of the

proposed discovery is not duplicative of evidence Plaintiff

already has, such evidence is likely to be of minimal relevance

to Plaintiff’s claims given its temporal remoteness to the issues

in this case. 

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B. Analysis

The Court agrees with the NCAA that Plaintiff’s proposed

discovery is not proportional to the needs of this case and will

deny Plaintiff’s motion to compel. As the Court of Appeals for

the Third Circuit has explained, while “the scope of discovery

under the Federal Rules is unquestionably broad, this right is

not unlimited and may be circumscribed.” Bayer AG v. Betachem,

Inc., 173 F.3d 188, 191 (3d Cir. 1999). This Court has “broad

discretion to tailor discovery narrowly” to meet the needs of

each particular case. Crawford-El v. Britton, 523 U.S. 574, 598

(1998). Such discretion is evident in Rule 26(b)(2)(C)’s

direction that courts should “limit the frequency or extent of

discovery” where the proposed discovery is unreasonably

duplicative, where the discovering party has already had an ample

opportunity to obtain the information in question, or where the

burden of the discovery would outweigh its likely benefit. F. R.

Civ. P. 26(b)(2)(C). This rule of proportionality “is intended

to guard against redundant or disproportionate discovery by

giving the court authority to reduce the amount of discovery that

may be directed to matters that are otherwise proper subjects of

inquiry.” Leksi, Inc. v. Federal Ins. Co., 129 F.R.D. 99, 105

(D.N.J. 1989) (quoting Fed. R. Civ. P. 26 advisory committee

note) (internal quotations omitted); see also Public Service

Enterprise Group, Inc. v. Philadelphia Elec. Co., 130 F.R.D. 543,

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 At the outset, although not argued by the parties, the 4

Court is satisfied that this discovery sought by Plaintiffs is

not within the NCAA’s duty of supplementation of previous

responses under Rule 26(e)(1), F. R. Civ. P. That rule requires

that a party must correct or supplement its prior disclosure or

response “if the party learns that in some material respect the

disclosure or response is incomplete or incorrect, and if the

additional or corrective information has not otherwise been made

known to the other parties during the discovery process or in

writing . . . .” F. R. Civ. P. 26(e)(1)(A). In this case,

defense counsel have indicated that the prior discovery responses

involving the policies in effect through 2001 were correct and

complete, and that they are aware of their duty to supplement if

they become aware of new materials that would provide additional

or corrective information. The discovery at issue herein, on the

other hand, seeks to enlarge the scope of prior discovery to the

present time, regarding practices and policies having no

application to this Plaintiff. Moreover, even if the duty of

supplementation were held to apply to new matters that somehow

relate to the historic facts at issue in the case, the duty of

supplementation itself is subject to the rule of proportionality

under F. R. Civ. P. 26(b)(2)(C), which forms the overall

limitations on the scope and extent of discovery that is

otherwise permitted under Rules 26-36, F. R. Civ. P.

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551 (D.N.J. 1990) (employing the rule of proportionality to

exclude “marginally relevant evidence” from the scope of

discovery). 

4

The discovery sought by Plaintiff in the instant motion to

compel is disproportionate to the needs of the case for two

reasons. First, the Court agrees with the NCAA that Plaintiff

has had more than “ample opportunity” to explore the issues she

seeks to probe in the proposed deposition. F. R. Civ. P.

26(b)(2)(C)(ii). Plaintiff seeks to depose an NCAA witness in

order to update the evidence she has collected regarding the

organization’s initial eligibility requirements and the fact that

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those requirements have changed since the 1995-1996 academic

year. When Plaintiff initially deposed Mr. Lennon, Mr. Dempsey,

and Mr. Petr in 1999, however, she had the opportunity to ask

about the evolution of the eligibility requirements over the

course of three years, and, in fact, took advantage of this

opportunity. Indeed, the NCAA policy of 1995-96 at issue here

had been superseded by the new policy reflected in the 1998

Consent Order. Plaintiff could and did inquire into all the

reasons why the 1995-96 policy was implemented, how it affected

Plaintiff’s son, and how the new improved mechanism worked for

applicants from a special education background. In Plaintiff’s

deposition of Mr. Lennon in 1999, for example, Mr. Lennon was

asked “[a]nd today, the process that the NCAA uses to make a

determination about the eligibility for students with learning

disabilities, how does it differ from the process that was in

place in 1996?” (Def.’s Opp’n Br. Ex. 3.) By the time Mr.

Lennon was deposed, the 1998 Consent Decree that Plaintiff points

to as evidence of the NCAA’s changing eligibility policies had

been in place for nearly a year. Plaintiff’s observation that

the terms of the Consent Decree expired in 2003 and that she does

not know the current state of the NCAA’s eligibility policies

does not diminish the opportunities she had to depose witnesses

about the changes in such policies that occurred in the years

following her son’s alleged injury. Plaintiff has no standing to

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challenge the current policies, nor is the NCAA obliged in this

case to explain or defend those policies, whatever they may be.

Moreover, Plaintiff’s prior opportunities to discover the

changes that have taken place in the NCAA’s policies regarding

initial eligibility determinations were not limited to these

depositions. As the NCAA explained at the February 25, 2008

hearing, over the course of two full discovery periods it has

produced approximately 18,000 documents pertaining to the

adoption of its eligibility bylaws, its policies concerning core

course requirements and eligibility waivers, and the 1998 Consent

Decree. At the same hearing, Plaintiff acknowledged having

received documents pertaining to the changes in the NCAA’s

eligibility policies through July 2001, five years after the

alleged act of discrimination underlying this case took place. 

In short, these discovery periods, depositions, and document

production have afforded Plaintiff an “ample opportunity” to

discover information pertaining to the NCAA’s eligibility

policies in 1995-1996 and the changes in those policies that

occurred over the following years. F. R. Civ. P.

26(b)(2)(C)(ii).

The second reason for the Court’s determination that the

proposed discovery is disproportionate to the legitimate needs of

this case is the fact that evidence pertaining to the evolution

of the NCAA’s eligibility policies beyond that which Plaintiff

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has already discovered is at best only “marginally relevant” to

Plaintiff’s stated need for the evidence. Public Service

Enterprise Group, Inc., 130 F.R.D. at 551; see also F. R. Civ. P.

26(b)(2)(C)(iii) (the court should limit discovery where “the

burden or expense of the proposed discovery outweighs its likely

benefit” considering, inter alia, “the importance of the

discovery in resolving the issues” in the case). Plaintiff’s

case concerns the application of the NCAA’s eligibility policies

to her son in 1995-1996. While the Court agrees with Plaintiff

that evidence regarding subsequent changes in those policies

could be relevant to the question of how necessary the policies

as applied to Michael Bowers were to the NCAA’s ability to

achieve its goals, the changes in those policies in the years

immediately following the alleged discrimination are considerably

more relevant to Plaintiff’s claims than is the fact that those

policies continued to evolve more than a decade after the 1995-

1996 academic year. The NCAA’s practices through the time of

Michael Bowers’ death were governed by the terms of the Consent

Decree, which Plaintiff has had every opportunity to discover and

did discover through depositions and the NCAA’s truly voluminous

document production. How those practices evolved after the

Consent Decree expired is of such minimal relevance to the issues

in this case that to require an additional round of discovery

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 It must also be remembered that Plaintiff has been 5

adjudicated to have committed extremely aggravated discovery

abuse, extending over the years of Michael Bowers’ drug use and

addiction for at least four years leading to his death in 2002,

which facts were concealed by Michael Bowers when he was alive,

and not revealed until 2004, as found in Bowers v. National

Collegiate Athletic Ass’n., No. 97-2600, 2005 WL 5155198, *12

(D.N.J. Mar. 21, 2005), aff’d in part, rev’d on other grounds,

475 F.3d 524, supra. A party that has behaved so inequitably in

discovery at a cost of untold hours of time and years of

unnecessary struggle, can hardly claim that even more discovery

must be provided now. 

16

would violate the considerations of proportionality that Rule

26(b)(2)(C) invokes. 

It bears noting that Plaintiff’s remaining claims attack

solely the creation and implementation of the 1995-96 NCAA

Division 1 and 2 athletic scholarship eligibility rules as it

affected the late Michael Bowers’ hopes for a college

scholarship. This is not a situation where Michael Bowers was

denied admission to college, as he indeed matriculated at Temple

University. This is not a class action, nor is injunctive relief

available to Plaintiff. If Plaintiff succeeds in proving

actionable discrimination, monetary relief is sought. The costs

of litigating this case over these ten years, in this Court and

the Court of Appeals, has surely dwarfed the financial stakes

that remain at issue. It is for just such circumstances that 5

the rule of proportionality was adopted. 

Furthermore, it is not insignificant that the NCAA concedes

that its policies changed between 1996 and 1999 and have

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continued to change in succeeding years. See Boody v. Township

of Cherry Hill, 997 F. Supp. 562, 574 (D.N.J. 1997) (noting that

the fact that defendant conceded the existence of purportedly

discoverable information “and [had] already produced documents

consistent with this admission” impacts the balance between

burdens and benefits of proposed discovery). Plaintiff has had

ten years to gather support for the claims filed in 1997. In

short, the Court finds that Plaintiff has had more than an “ample

opportunity” to discover information bearing on the issues in

this case, and that the burden of embarking on yet another round

of discovery at this point in the case considerably outweighs any

marginal benefit that such efforts might yield. The Court will

thus deny Plaintiff’s motion to compel additional discovery. 

III. CONCLUSION

For the reasons discussed above, the Court will deny

Plaintiff’s motion to compel. The accompanying Order will be

entered.

February 27, 2008 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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