1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAYLOR ANDERS, et al., Case No. 1:21-cv-00179-AWI-BAM 12 Plaintiffs, ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND 13 v. TO STAY DISCOVERY PENDING RULING ON MOTION TO DISMISS 14 CALIFORNIA STATE UNIVERSITY, FRESNO, et al., (Doc. 51) 15 Defendants. 16
17 18 Currently before the Court is a motion for protective order and to stay discovery filed by 19 Defendant Board of Trustees of California State University and Defendant California State 20 University, Fresno (collectively “Defendant”). (Doc. 51.) The Court found the motion suitable 21 for decision without oral argument and vacated the hearing set for July 9, 2021. L.R. 230(g). For 22 the reasons outlined below, Defendant’s motion for protective order and to stay discovery 23 pending the Court’s ruling on Defendant’s motion to dismiss (Doc. 42) is GRANTED. 24 I. Background1 25 On February 12, 2021, five current members of Fresno State’s women’s lacrosse team 26
27 1 The background is derived from the Court’s Order Granting in Part and Denying in Part Plaintiffs’ Motion for Preliminary Injunction (Doc. 35), the Court’s docket and the parties’ Joint 28 Statement Re: Defendant’s Motion for Protective Order and to Stay Discovery (Doc. 53). 1 (“Plaintiffs”) filed this putative class action against California State University, Fresno (“Fresno 2 State”), and certain of its officials, alleging that they discriminated against female student-athletes 3 and potential student-athletes in violation Title IX of the Education Amendments of 1972 and 4 implementing regulations by failing to provide female students an equal opportunity to participate 5 in varsity athletics; failing to provide female athletes with an equal allocation of financial aid; 6 failing to provide female athletes with benefits comparable to those provided to male athletes; 7 announcing the varsity women’s lacrosse team would be eliminated at the end of the 2020-21 8 academic year; and treating the women’s lacrosse team far worse than other varsity intercollegiate 9 athletic teams since they made that announcement. (Doc. 1.) Plaintiffs also filed a motion 10 seeking a preliminary injunction barring Fresno State from cutting women’s lacrosse—or any 11 other women’s team—and a preliminary injunction requiring Fresno State “to treat the women’s 12 lacrosse team and its members fairly” during the pendency of this litigation. (Doc. 2-1 at 6.) 13 On April 19, 2021, Defendants moved to dismiss Plaintiffs’ complaint. (Doc. 33.) 14 On April 21, 2021, the Court granted Plaintiffs’ motion for preliminary injunction as to 15 Plaintiffs’ equal treatment claim under 34 C.F.R. § 106.41(c)(2)-(10) and denied without 16 prejudice Plaintiffs’ motion for preliminary injunction as to Plaintiffs’ effective accommodation 17 claim under 34 C.F.R. § 106.41(c)(1). (Doc. 35.) The Court ordered that “[f]or the remainder of 18 the 2020-21 academic year, Defendants shall provide a dedicated locker room and practice space 19 for the women’s lacrosse team; equip the women’s lacrosse team for competition; and provide the 20 women’s lacrosse team with funding and benefits on par with the average in each respect 21 provided to Fresno State’s existing varsity teams.” (Id. at 34.) Plaintiffs have moved for 22 reconsideration of the Court’s order partially denying their motion for preliminary injunction. 23 (Doc. 39.) 24 On May 3, 2021, following the Court’s ruling, Plaintiffs filed a First Amended Complaint 25 (Doc. 36), which rendered Defendants’ motion to dismiss the original complaint moot (see Doc. 26 41). Defendants have now moved to dismiss Plaintiffs’ First Amended Complaint with prejudice. 27 (Doc. 42.) Plaintiffs’ motion for reconsideration and Defendants’ motion to dismiss are currently 28 under submission with the District Court. (Doc. 47.) 1 On July 16, 2021, Defendant filed the instant motion requesting that the Court issue a 2 protective order and stay discovery until the Court’s ruling on Defendants’ motion to dismiss the 3 amended complaint. (Doc. 51.) 4 Pursuant to Local Rule 251, the parties filed a Joint Statement Re: Defendant’s Motion for 5 Protective Order and to Stay Discovery. (Doc. 53.) In the Joint Statement, Defendant generally 6 argues that a stay of discovery is necessary pending a ruling on its dispositive motion and a 7 protective order is necessary considering the overbroad and burdensome nature of Plaintiffs’ 8 discovery demands. In particular, Defendant contends that a stay of discovery is justified because 9 the pending motion to dismiss is potentially dispositive of the entire case and no additional 10 discovery is necessary for the Court to rule on the motion. Defendant points to the district court’s 11 decision largely denying Plaintiffs’ motion for injunctive relief, indicating that the district court 12 found that Plaintiffs did not have a likelihood of success on the merits as to their primary equal 13 participation opportunity claim and that Plaintiffs had not raised any “serious questions” about 14 Defendant’s compliance with Title IX requirements concerning equal participation opportunities. 15 (Doc. 53 at 6, 14.) 16 Defendant further contends that a stay will avoid the expense and burden of responding to 17 Plaintiffs’ discovery requests prior to a ruling on the motion to dismiss. However, if discovery is 18 permitted to commence, Defendant argues that a protective order is necessary because Plaintiffs’ 19 discovery requests, which were served on May 17, 2021, are overbroad, unnecessarily 20 burdensome, outside the relevant statute of limitations period and seek irrelevant discovery not 21 proportional to the needs of this case. Although Defendant served objections to the request, 22 Defendant asserts that the burden and expense of substantively responding to Plaintiffs’ initial 23 requests is significant. According to Defendant, the requests seek “information for almost a ten- 24 year period, concerning its entire athletic department, every student-athlete, every varsity team, 25 all athletic budgets, all communications with coaches related to Title IX, all scholarships provided 26 to athletes, and various other categories of information that are overbroad and irrelevant to 27 Plaintiffs’ claims.” (Doc. 53 at 17.) 28 /// 1 As an example of overbreadth, Defendant cites Request for Production No. 20, which 2 seeks “all documents maintained for the purpose of monitoring Fresno State’s compliance with 3 Title IX including, but not limited to, all policies, standard operating procedures, trainings, 4 compliance plans and implementation plans” from 2012 to the present. (Id. at 18.) Defendant 5 contends that this request arguably includes nearly every document related to women’s athletics 6 in its possession and extends beyond the temporal scope imposed by the two-year statute of 7 limitations for Title IX actions. (Id.) 8 Defendant also raises concerns that Plaintiffs’ requests demand production of records 9 protected under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), which 10 generally prevents Defendant from releasing student records without written consent or, in limited 11 circumstances, “where ‘such information is furnished in compliance with judicial order, or 12 pursuant to any lawfully issued subpoena, upon condition that parents and the students are 13 notified of all such orders or subpoenas in advance of the compliance therewith by the 14 educational institution or agency.’” (Id. at 18) (citing 20 U.S.C. § 1232g
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAYLOR ANDERS, et al., Case No. 1:21-cv-00179-AWI-BAM 12 Plaintiffs, ORDER GRANTING DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND 13 v. TO STAY DISCOVERY PENDING RULING ON MOTION TO DISMISS 14 CALIFORNIA STATE UNIVERSITY, FRESNO, et al., (Doc. 51) 15 Defendants. 16
17 18 Currently before the Court is a motion for protective order and to stay discovery filed by 19 Defendant Board of Trustees of California State University and Defendant California State 20 University, Fresno (collectively “Defendant”). (Doc. 51.) The Court found the motion suitable 21 for decision without oral argument and vacated the hearing set for July 9, 2021. L.R. 230(g). For 22 the reasons outlined below, Defendant’s motion for protective order and to stay discovery 23 pending the Court’s ruling on Defendant’s motion to dismiss (Doc. 42) is GRANTED. 24 I. Background1 25 On February 12, 2021, five current members of Fresno State’s women’s lacrosse team 26
27 1 The background is derived from the Court’s Order Granting in Part and Denying in Part Plaintiffs’ Motion for Preliminary Injunction (Doc. 35), the Court’s docket and the parties’ Joint 28 Statement Re: Defendant’s Motion for Protective Order and to Stay Discovery (Doc. 53). 1 (“Plaintiffs”) filed this putative class action against California State University, Fresno (“Fresno 2 State”), and certain of its officials, alleging that they discriminated against female student-athletes 3 and potential student-athletes in violation Title IX of the Education Amendments of 1972 and 4 implementing regulations by failing to provide female students an equal opportunity to participate 5 in varsity athletics; failing to provide female athletes with an equal allocation of financial aid; 6 failing to provide female athletes with benefits comparable to those provided to male athletes; 7 announcing the varsity women’s lacrosse team would be eliminated at the end of the 2020-21 8 academic year; and treating the women’s lacrosse team far worse than other varsity intercollegiate 9 athletic teams since they made that announcement. (Doc. 1.) Plaintiffs also filed a motion 10 seeking a preliminary injunction barring Fresno State from cutting women’s lacrosse—or any 11 other women’s team—and a preliminary injunction requiring Fresno State “to treat the women’s 12 lacrosse team and its members fairly” during the pendency of this litigation. (Doc. 2-1 at 6.) 13 On April 19, 2021, Defendants moved to dismiss Plaintiffs’ complaint. (Doc. 33.) 14 On April 21, 2021, the Court granted Plaintiffs’ motion for preliminary injunction as to 15 Plaintiffs’ equal treatment claim under 34 C.F.R. § 106.41(c)(2)-(10) and denied without 16 prejudice Plaintiffs’ motion for preliminary injunction as to Plaintiffs’ effective accommodation 17 claim under 34 C.F.R. § 106.41(c)(1). (Doc. 35.) The Court ordered that “[f]or the remainder of 18 the 2020-21 academic year, Defendants shall provide a dedicated locker room and practice space 19 for the women’s lacrosse team; equip the women’s lacrosse team for competition; and provide the 20 women’s lacrosse team with funding and benefits on par with the average in each respect 21 provided to Fresno State’s existing varsity teams.” (Id. at 34.) Plaintiffs have moved for 22 reconsideration of the Court’s order partially denying their motion for preliminary injunction. 23 (Doc. 39.) 24 On May 3, 2021, following the Court’s ruling, Plaintiffs filed a First Amended Complaint 25 (Doc. 36), which rendered Defendants’ motion to dismiss the original complaint moot (see Doc. 26 41). Defendants have now moved to dismiss Plaintiffs’ First Amended Complaint with prejudice. 27 (Doc. 42.) Plaintiffs’ motion for reconsideration and Defendants’ motion to dismiss are currently 28 under submission with the District Court. (Doc. 47.) 1 On July 16, 2021, Defendant filed the instant motion requesting that the Court issue a 2 protective order and stay discovery until the Court’s ruling on Defendants’ motion to dismiss the 3 amended complaint. (Doc. 51.) 4 Pursuant to Local Rule 251, the parties filed a Joint Statement Re: Defendant’s Motion for 5 Protective Order and to Stay Discovery. (Doc. 53.) In the Joint Statement, Defendant generally 6 argues that a stay of discovery is necessary pending a ruling on its dispositive motion and a 7 protective order is necessary considering the overbroad and burdensome nature of Plaintiffs’ 8 discovery demands. In particular, Defendant contends that a stay of discovery is justified because 9 the pending motion to dismiss is potentially dispositive of the entire case and no additional 10 discovery is necessary for the Court to rule on the motion. Defendant points to the district court’s 11 decision largely denying Plaintiffs’ motion for injunctive relief, indicating that the district court 12 found that Plaintiffs did not have a likelihood of success on the merits as to their primary equal 13 participation opportunity claim and that Plaintiffs had not raised any “serious questions” about 14 Defendant’s compliance with Title IX requirements concerning equal participation opportunities. 15 (Doc. 53 at 6, 14.) 16 Defendant further contends that a stay will avoid the expense and burden of responding to 17 Plaintiffs’ discovery requests prior to a ruling on the motion to dismiss. However, if discovery is 18 permitted to commence, Defendant argues that a protective order is necessary because Plaintiffs’ 19 discovery requests, which were served on May 17, 2021, are overbroad, unnecessarily 20 burdensome, outside the relevant statute of limitations period and seek irrelevant discovery not 21 proportional to the needs of this case. Although Defendant served objections to the request, 22 Defendant asserts that the burden and expense of substantively responding to Plaintiffs’ initial 23 requests is significant. According to Defendant, the requests seek “information for almost a ten- 24 year period, concerning its entire athletic department, every student-athlete, every varsity team, 25 all athletic budgets, all communications with coaches related to Title IX, all scholarships provided 26 to athletes, and various other categories of information that are overbroad and irrelevant to 27 Plaintiffs’ claims.” (Doc. 53 at 17.) 28 /// 1 As an example of overbreadth, Defendant cites Request for Production No. 20, which 2 seeks “all documents maintained for the purpose of monitoring Fresno State’s compliance with 3 Title IX including, but not limited to, all policies, standard operating procedures, trainings, 4 compliance plans and implementation plans” from 2012 to the present. (Id. at 18.) Defendant 5 contends that this request arguably includes nearly every document related to women’s athletics 6 in its possession and extends beyond the temporal scope imposed by the two-year statute of 7 limitations for Title IX actions. (Id.) 8 Defendant also raises concerns that Plaintiffs’ requests demand production of records 9 protected under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), which 10 generally prevents Defendant from releasing student records without written consent or, in limited 11 circumstances, “where ‘such information is furnished in compliance with judicial order, or 12 pursuant to any lawfully issued subpoena, upon condition that parents and the students are 13 notified of all such orders or subpoenas in advance of the compliance therewith by the 14 educational institution or agency.’” (Id. at 18) (citing 20 U.S.C. § 1232g(b)(2)(B).) Defendant 15 asserts that prior to the production of any FERPA-protected records, it “would be required to 16 contact thousands of student-athletes, seeking their consent, or to provide them notice of 17 disclosure (if an order requiring disclosure is issued).” (Id. at 19) (emphasis in original.) 18 Plaintiffs counter with several arguments in opposition to the proposed stay of discovery 19 and the issuance of a protective order. First, Plaintiffs argue that discovery commenced in this 20 action following the parties’ discovery conference pursuant to Federal Rule of Civil Procedure 21 26(f) on April 20, 2021, and that Defendants have never attempted to confer with Plaintiffs 22 regarding the content, breadth or onerousness of the discovery requests. (Doc. 53 at 4-5.) 23 Plaintiffs assert that any further delay will cause extreme prejudice to Plaintiffs and their ability to 24 prosecute this action. 25 Second, Plaintiffs contend that the pending motion to dismiss does not justify a stay of 26 discovery based solely on Defendant’s conclusory statements about the likelihood of success on 27 their motion to dismiss. Rather, Plaintiffs contend that the motion to dismiss is without merit, 28 taking issue with Defendant’s assertion that the district court’s decision on the motion for 1 preliminary injunction supports a stay. Plaintiffs argue that the district court held that the “then- 2 existing record was insufficient to establish a likelihood of success on the merits” and “denied 3 Plaintiffs’ motion for a preliminary injunction without prejudice, expressly contemplating that 4 Plaintiffs could renew the motion on the basis of new data and information.” (Id. at 10-11) 5 (emphasis in original.) Plaintiffs assert that it is the new data and information they seek through 6 the discovery requests. Further, Plaintiffs contend that the requested discovery is relevant to the 7 motion to dismiss, noting that Defendants argue in the dismissal motion that Plaintiffs do not 8 have the proper Title IX numbers to support a claim for violation of Plaintiffs’ rights under the 9 statute. Yet, through the instant motion for a stay of discovery, Defendant seeks to prevent 10 Plaintiffs from obtaining those numbers. 11 Third, Plaintiffs argue that the discovery requests are not overbroad, as historical 12 information beyond the two-year statute of limitations period is highly relevant to show 13 intentional discrimination and to establish reasonable inferences about the school’s current and 14 future conduct. Plaintiffs also argue that this production will not require Defendant to expend 15 inordinate resources because “Fresno State must maintain this information so that it can prepare 16 its own official Title IX counts.” (Id. at 28.) 17 II. Legal Standard 18 A district court “has wide discretion in controlling discovery.” Little v. City of Seattle, 19 863 F.2d 681, 685 (9th Cir. 1988). A motion to stay discovery pending resolution of a potentially 20 dispositive motion may be granted for good cause. See Body Xchange Sports Club, LLC v. Zurich 21 Am. Ins. Co., No. 1:20-cv-01518-NONE-JLT, 2021 WL 2457482, at *2 (E.D. Cal. June 16, 2021) 22 (“Though the Ninth Circuit has not provided a clear standard for evaluating a motion to stay 23 discovery pending resolution of a potentially dispositive motion, it has affirmed that district 24 courts may grant such a motion for good cause.”) (citations omitted). Similarly, Federal Rule of 25 Civil Procedure 26 states that “[t]he court may, for good cause, issue an order to protect a party or 26 person from annoyance, embarrassment, oppression, or undue burden or expense,” including 27 forbidding discovery. Fed. R. Civ. P. 26(c)(1). The party seeking a protective order has the 28 burden “to ‘show good cause’ by demonstrating harm or prejudice that will result from the 1 discovery.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). 2 “[T]he Federal Rules of Civil Procedure does [sic] not provide for automatic or blanket 3 stays of discovery when a potentially dispositive motion is pending.” Mlejnecky v. Olympus 4 Imaging Am. Inc., 2011 WL 489743, at *6 (E.D. Cal. 2011). “Indeed, district courts look 5 unfavorably upon such blanket stays of discovery, because delaying or prolonging discovery can 6 create unnecessary litigation expenses and case management problems.” Salazar v. Honest Tea, 7 Inc., No. 2:13-cv-02318-KJM-EFB, 2015 WL 6537813, at *1 (E.D. Cal. 2015) (internal citations 8 and quotations omitted). “In evaluating a motion to stay, a court inevitably must balance the 9 harm produced by a delay in discovery against the possibility that the motion will be granted and 10 entirely eliminate the need for such discovery.” Id. (internal citations and quotation marks 11 omitted); see also ColfaxNet, LLC v. City of Colfax, No. 2:19-cv-02167-WBS-CKD, 2020 WL 12 4818895, at *4 (E.D. Cal. Aug. 19, 2020), reconsideration denied sub nom. ColfaxNet, LLC v. 13 Colfax, No. 2:19-CV-2167 WBS-CKD, 2020 WL 5518397 (E.D. Cal. Sept. 14, 2020). 14 A two-part test is used to determine whether to grant a stay of discovery pending the 15 resolution of a potentially dispositive motion. See ColfaxNet, 2020 WL 4818895, at *4. First, the 16 pending motion “must be potentially dispositive of the entire case, or at least dispositive on the 17 issue at which discovery is directed.” Id. (citation omitted). Second, the court must determine 18 “whether the pending dispositive motion can be decided absent discovery.” Id. 19 III. Discussion 20 Here, a stay is warranted under the two-part test. As to the first part, Defendant asserts 21 that the motion to dismiss seeks dismissal of Plaintiffs’ amended complaint in its entirety on the 22 grounds that (1) Plaintiffs lack standing due to lack of injury, and (2) Plaintiffs have not, and 23 cannot, plead facts sufficient to state a claim. (Id. at 15.) Plaintiffs’ First Amended Complaint 24 includes three separate counts: (1) Unequal Allocation of Athletic Participation Opportunities in 25 violation of Title IX; (2) Unequal Allocation of Athletic Financial Assistance in violation of Title 26 IX; and (3) Unequal Allocation of Athletic Treatment and Benefits in violation of Title IX. (See 27 generally Doc. 36, First Amended Complaint.) Defendants’ motion to dismiss challenges all 28 three counts, arguing that Plaintiffs do not plausibly plead claims for unequal allocation of 1 participation opportunities, unequal financial assistance or unequal allocation of athletic treatment 2 and benefits. (See generally Doc. 42.) Defendants also contend in their motion that Plaintiffs lack 3 standing to pursue claims for unequal financial assistance and that Plaintiffs’ claims are barred to 4 the extent they allege historical violations of Title XI beyond the two-year statute of limitations 5 period. (Id.) 6 Having considered the motion to dismiss, if the district court were to find that Plaintiffs 7 failed to plead plausible claims and lacked standing to pursue claims for unequal financial 8 assistance, then Defendants’ motion would dispose of Plaintiffs’ entire case. The Court therefore 9 finds that the motion to dismiss is potentially dispositive of the entire case, satisfying the first part 10 of the two-part test for a discovery stay. 11 As to the second part of the test, it does not appear that any discovery is necessary to 12 resolve the pending motion to dismiss. The motion to dismiss is fully briefed and has been taken 13 under submission by the district court. (Docs. 42, 46, 48, 47.) Moreover, Plaintiffs’ opposition to 14 the motion to dismiss makes no assertion that any discovery is necessary to withstand 15 Defendants’ motion to dismiss. (See Doc. 46.) Instead, Plaintiffs aver in their opposition to the 16 motion to dismiss that they “do not have to put forth any evidence to survive a motion to dismiss” 17 and there “is no evidence at issue, just allegations.” (Id. at 9.) Given that no discovery appears to 18 be required for the district court to rule on the motion to dismiss, the second part of the two-part 19 test for a discovery stay is satisfied. 20 In addition to satisfying the two-part test warranting a discovery stay, the Court finds 21 persuasive Defendant’s arguments concerning the overbroad and burdensome nature of Plaintiffs’ 22 pending discovery requests. Also, as the Court previously indicated in its order denying 23 Plaintiffs’ motion for expedited discovery, it is of concern that production of the requested 24 information implicates FERPA and the privacy of student-athletes. Plaintiffs assert that their 25 request for historical information is relevant and the requested information is readily available to 26 Defendants. However, Plaintiffs fail to address the breadth of the requests or the potential 27 privacy issues, suggesting only that the parties “can meet and confer as contemplated under the 28 rules, narrow initial requests, if necessary, [and] address any confidentiality issues.” (Doc. 53 at 1 11.) 2 IV. Conclusion 3 For the reasons stated, IT IS HEREBY ORDERED as follows: (1) Defendant’s motion 4 for a protective order and to stay discovery is GRANTED; (2) discovery in this case is STAYED 5 pending an order resolving Defendants’ motion to dismiss; and (3) the Court will set a status 6 conference, if necessary and appropriate, as soon as practicable following resolution of 7 Defendants’ motion to dismiss. 8 IT IS SO ORDERED. 9
10 Dated: July 16, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11
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