1 2 6 7 ELIZABETH SINCLAIR, et al., Case No. 20-cv-02798-LHK (VKD)
8 Plaintiffs, ORDER RE JULY 12, 2021 9 v. DISCOVERY DISPUTE
10 SAN JOSE UNIFIED SCHOOL DISTRICT Re: Dkt. No. 89 BOARD OF EDUCATION, et al., 11 Defendants.
12 The parties ask the Court to resolve a dispute concerning plaintiffs’ efforts to obtain 13 discovery regarding defendant San Jose Unified School District’s investigations, if any, of 14 defendant Peter Glasser’s alleged misconduct. Dkt. No. 89. The Court finds the matter suitable 15 for resolution without oral argument. Civil L.R. 7-1(b). 16 For the reasons explained below, the Court concludes that the disputed discovery is 17 relevant and proportionate to the needs of the case and properly may be produced subject to an 18 appropriate protective order. 20 Plaintiffs Fellowship of Christian Athletes and one of its local chapters (collectively, 21 “FCA”) and two former student members of the local chapter, Elizabeth Sinclair and Charlotte 22 Klarke, allege that defendants San Jose Unified School District (“District”) and several of its 23 employees discriminated against FCA and its members based on their religious viewpoints, in 24 violation of the Equal Access Act, 20 U.S.C. §§ 4071 et seq., and the First and Fourteenth 25 Amendments. Dkt. No. 92. 26 As relevant to this discovery dispute, plaintiffs allege in the third amended complaint that 27 on April 23, 2019, defendant Peter Glasser, a teacher at Pioneer High School, posted a copy of an 1 beneath it: “I am deeply saddened that a club on Pioneer’s campus asks its members to affirm 2 these statements. How do you feel?” Id. ¶ 7. The referenced statements included those 3 describing “heterosexual sex outside of marriage” and “any homosexual acts” as “alternative 4 lifestyles[s]” that are not “acceptable to God.” Id. In addition, the statements included a 5 requirement that any FCA student leader found to have engaged in extramarital sex or any 6 homosexual act must “step down” from his or her leadership position. Id. 7 On May 2, 2019, Pioneer High School advised Ms. Sinclair and Ms. Klarke that the FCA 8 club would no longer be recognized by the school, citing the District’s nondiscrimination policies. 9 Id. ¶¶ 9, 106; Dkt. No. 49 at 4. Thereafter, the District determined that other FCA clubs at other 10 schools within the District also would not be recognized. Dkt. No. 92 ¶ 9. 11 Plaintiffs say that Mr. Glasser’s posting of and commentary on FCA’s statements 12 disparaged their religious beliefs. Id.¶ 7. They dispute as pretextual the District’s reliance on its 13 nondiscrimination policies in deciding to derecognize the FCA clubs. Id.¶ 106. Plaintiffs also 14 allege that Mr. Glasser and other defendants coordinated with other students and student 15 organizations to harass FCA student members and that the District permitted this harassment, even 16 though the harassment violated District policies. Id. ¶ 22. 17 In the joint discovery dispute submission, plaintiffs refer to other alleged misconduct by 18 Mr. Glasser that is not described in the third amended complaint, including that Mr. Glasser 19 referred to plaintiffs’ religious beliefs as “bullshit” and that he suggested that the FCA “faith” and 20 “sexual purity” statements amounted to sexual harassment and justified removing FCA clubs from 21 the District’s schools—a suggestion plaintiffs believe is evidence of pretext. Dkt. No. 89 at 5. 22 Plaintiffs say that they and others complained to Pioneer High School principal Herbert Espiritu 23 about Mr. Glasser’s conduct and that they believe these complaints led to an investigation of the 24 conduct by Mr. Espiritu and/or the District. Id. 25 Plaintiffs seek discovery of “all findings and conclusions from any District investigations 26 into Peter Glasser’s misconduct concerning the matters at issue in this case and any documents 27 and information used to develop such findings.” Id. at 7. Defendants object that such discovery is 1 of Mr. Glasser is an undue invasion of his right of privacy. Id. at 8, 10.1 3 Plaintiffs may obtain discovery of any matter that is relevant to a claim or defense and that 4 is “proportional to the needs of case, considering the importance of the issues at stake in the 5 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 6 resources, the importance of the discovery in resolving the issues, and whether the burden or 7 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 8 As plaintiffs’ claims arise under federal law, federal law governs whether a privilege or 9 protection from discovery applies. See Fed. R. Evid. 501 (evidentiary privilege); Fed. R. Civ. P. 10 26(c)(1) (protective order); see also Heathman v. U.S. Dist. Ct. for Cent. Dist. of California, 503 11 F.2d 1032, 1034 (9th Cir. 1974) (“[I]n federal question cases the clear weight of authority and 12 logic supports reference to federal law on the issue of the existence and scope of an asserted 13 privilege.”). 15 The Court first considers whether the information plaintiffs seek is relevant and, if so, 16 whether it is protected from discovery because of privacy considerations. 17 A. Relevance 18 Plaintiffs argue that discovery of the District’s investigations of Mr. Glasser’s conduct 19 relating to the FCA club is relevant because it will reveal whether the District uncovered evidence 20 regarding what occurred and whether Mr. Glasser acted with animus towards plaintiffs’ religious 21 beliefs. In addition, plaintiffs say that such discovery will also reveal whether other defendants 22 discouraged, encouraged, or ratified Mr. Glasser’s alleged misconduct. See Dkt. No. 89 at 5-6. 23 Defendants suggest that because any such investigations occurred after the events at issue in the 24 case and because defendants have agreed to provide direct discovery concerning the events 25 themselves, discovery of the District’s investigations is unnecessary. See id. at 9, 11. 26 1 In presenting this dispute, plaintiffs refer specifically to their Interrogatories Nos. 9 and 10, 27 Requests for Production Nos. 33, 36, 39 and 42, and deposition questions that Mr. Espiritu and 1 Defendants’ arguments are not persuasive. The District’s own contemporaneous 2 investigation of the events at issue is likely to be highly relevant to plaintiffs’ claims of 3 discrimination. Indeed, defendants appear to agree that this discovery is relevant. Id. at 9 4 (“. . . Defendants’ counsel advised during meet and confer efforts that Defendants did not object to 5 discovery about the District’s investigations into Plaintiffs’ complaints or alleged facts of the 6 case.”). Although defendants argue that this discovery will be cumulative of other discovery, they 7 have not shown why this is necessarily so. Rather, defendants’ principal objection appears to be 8 that “privacy protections exist for personnel actions and records.” Id. The Court considers this 9 objection next. 10 B. Privacy of Personnel Records 11 Defendants say that Mr. Glasser has a right of privacy protected by the California 12 constitution that precludes discovery of his personnel records. Id. at 10. It is not clear whether 13 defendants intend to invoke an evidentiary privilege or some other form of protection, but they 14 appear to rely exclusively on California law, specifically the California constitution and other 15 California state law.
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1 2 6 7 ELIZABETH SINCLAIR, et al., Case No. 20-cv-02798-LHK (VKD)
8 Plaintiffs, ORDER RE JULY 12, 2021 9 v. DISCOVERY DISPUTE
10 SAN JOSE UNIFIED SCHOOL DISTRICT Re: Dkt. No. 89 BOARD OF EDUCATION, et al., 11 Defendants.
12 The parties ask the Court to resolve a dispute concerning plaintiffs’ efforts to obtain 13 discovery regarding defendant San Jose Unified School District’s investigations, if any, of 14 defendant Peter Glasser’s alleged misconduct. Dkt. No. 89. The Court finds the matter suitable 15 for resolution without oral argument. Civil L.R. 7-1(b). 16 For the reasons explained below, the Court concludes that the disputed discovery is 17 relevant and proportionate to the needs of the case and properly may be produced subject to an 18 appropriate protective order. 20 Plaintiffs Fellowship of Christian Athletes and one of its local chapters (collectively, 21 “FCA”) and two former student members of the local chapter, Elizabeth Sinclair and Charlotte 22 Klarke, allege that defendants San Jose Unified School District (“District”) and several of its 23 employees discriminated against FCA and its members based on their religious viewpoints, in 24 violation of the Equal Access Act, 20 U.S.C. §§ 4071 et seq., and the First and Fourteenth 25 Amendments. Dkt. No. 92. 26 As relevant to this discovery dispute, plaintiffs allege in the third amended complaint that 27 on April 23, 2019, defendant Peter Glasser, a teacher at Pioneer High School, posted a copy of an 1 beneath it: “I am deeply saddened that a club on Pioneer’s campus asks its members to affirm 2 these statements. How do you feel?” Id. ¶ 7. The referenced statements included those 3 describing “heterosexual sex outside of marriage” and “any homosexual acts” as “alternative 4 lifestyles[s]” that are not “acceptable to God.” Id. In addition, the statements included a 5 requirement that any FCA student leader found to have engaged in extramarital sex or any 6 homosexual act must “step down” from his or her leadership position. Id. 7 On May 2, 2019, Pioneer High School advised Ms. Sinclair and Ms. Klarke that the FCA 8 club would no longer be recognized by the school, citing the District’s nondiscrimination policies. 9 Id. ¶¶ 9, 106; Dkt. No. 49 at 4. Thereafter, the District determined that other FCA clubs at other 10 schools within the District also would not be recognized. Dkt. No. 92 ¶ 9. 11 Plaintiffs say that Mr. Glasser’s posting of and commentary on FCA’s statements 12 disparaged their religious beliefs. Id.¶ 7. They dispute as pretextual the District’s reliance on its 13 nondiscrimination policies in deciding to derecognize the FCA clubs. Id.¶ 106. Plaintiffs also 14 allege that Mr. Glasser and other defendants coordinated with other students and student 15 organizations to harass FCA student members and that the District permitted this harassment, even 16 though the harassment violated District policies. Id. ¶ 22. 17 In the joint discovery dispute submission, plaintiffs refer to other alleged misconduct by 18 Mr. Glasser that is not described in the third amended complaint, including that Mr. Glasser 19 referred to plaintiffs’ religious beliefs as “bullshit” and that he suggested that the FCA “faith” and 20 “sexual purity” statements amounted to sexual harassment and justified removing FCA clubs from 21 the District’s schools—a suggestion plaintiffs believe is evidence of pretext. Dkt. No. 89 at 5. 22 Plaintiffs say that they and others complained to Pioneer High School principal Herbert Espiritu 23 about Mr. Glasser’s conduct and that they believe these complaints led to an investigation of the 24 conduct by Mr. Espiritu and/or the District. Id. 25 Plaintiffs seek discovery of “all findings and conclusions from any District investigations 26 into Peter Glasser’s misconduct concerning the matters at issue in this case and any documents 27 and information used to develop such findings.” Id. at 7. Defendants object that such discovery is 1 of Mr. Glasser is an undue invasion of his right of privacy. Id. at 8, 10.1 3 Plaintiffs may obtain discovery of any matter that is relevant to a claim or defense and that 4 is “proportional to the needs of case, considering the importance of the issues at stake in the 5 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 6 resources, the importance of the discovery in resolving the issues, and whether the burden or 7 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 8 As plaintiffs’ claims arise under federal law, federal law governs whether a privilege or 9 protection from discovery applies. See Fed. R. Evid. 501 (evidentiary privilege); Fed. R. Civ. P. 10 26(c)(1) (protective order); see also Heathman v. U.S. Dist. Ct. for Cent. Dist. of California, 503 11 F.2d 1032, 1034 (9th Cir. 1974) (“[I]n federal question cases the clear weight of authority and 12 logic supports reference to federal law on the issue of the existence and scope of an asserted 13 privilege.”). 15 The Court first considers whether the information plaintiffs seek is relevant and, if so, 16 whether it is protected from discovery because of privacy considerations. 17 A. Relevance 18 Plaintiffs argue that discovery of the District’s investigations of Mr. Glasser’s conduct 19 relating to the FCA club is relevant because it will reveal whether the District uncovered evidence 20 regarding what occurred and whether Mr. Glasser acted with animus towards plaintiffs’ religious 21 beliefs. In addition, plaintiffs say that such discovery will also reveal whether other defendants 22 discouraged, encouraged, or ratified Mr. Glasser’s alleged misconduct. See Dkt. No. 89 at 5-6. 23 Defendants suggest that because any such investigations occurred after the events at issue in the 24 case and because defendants have agreed to provide direct discovery concerning the events 25 themselves, discovery of the District’s investigations is unnecessary. See id. at 9, 11. 26 1 In presenting this dispute, plaintiffs refer specifically to their Interrogatories Nos. 9 and 10, 27 Requests for Production Nos. 33, 36, 39 and 42, and deposition questions that Mr. Espiritu and 1 Defendants’ arguments are not persuasive. The District’s own contemporaneous 2 investigation of the events at issue is likely to be highly relevant to plaintiffs’ claims of 3 discrimination. Indeed, defendants appear to agree that this discovery is relevant. Id. at 9 4 (“. . . Defendants’ counsel advised during meet and confer efforts that Defendants did not object to 5 discovery about the District’s investigations into Plaintiffs’ complaints or alleged facts of the 6 case.”). Although defendants argue that this discovery will be cumulative of other discovery, they 7 have not shown why this is necessarily so. Rather, defendants’ principal objection appears to be 8 that “privacy protections exist for personnel actions and records.” Id. The Court considers this 9 objection next. 10 B. Privacy of Personnel Records 11 Defendants say that Mr. Glasser has a right of privacy protected by the California 12 constitution that precludes discovery of his personnel records. Id. at 10. It is not clear whether 13 defendants intend to invoke an evidentiary privilege or some other form of protection, but they 14 appear to rely exclusively on California law, specifically the California constitution and other 15 California state law. Defendants do not explain why California law should govern discovery in 16 federal court with respect to claims arising under federal law. 17 Defendants cite Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984) and Breed v. 18 USDC, Northern District, 542 F.2d 1114, 1116 (9th Cir. 1976) for the proposition that “[f]ederal 19 courts have expressly recognized that the constitutional right to privacy is a valid objection that 20 may be raised in response to discovery requests.” Dkt. No. 89 at 10. Neither case refers to a right 21 of privacy arising under the California constitution or California state law. Certainly, the Supreme 22 Court has recognized privacy interests protected by the federal Constitution. See, e.g., Whalen v. 23 Roe, 429 U.S. 589, 598–600 (1977) (discussing different kinds of constitutionally-protected 24 privacy interests). However, defendants do not explain how discovery of information that may be 25 contained in Mr. Glasser’s personnel records implicates any such constitutional rights. 26 Rule 26 provides that a court “may, for good cause, issue an order to protect a party or 27 person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 1 interests that may be implicated, such matters are implicit in the broad purpose and language of 2 the Rule.” Seattle Times, 467 U.S. at 35 n.21. Defendants do not describe what information they 3 || believe implicates Mr. Glasser’s privacy interests, making it difficult for the Court to find good 4 || cause for a protective order precluding the discovery at issue or limiting the manner in which it 5 || may be disclosed. However, the Court infers from defendants’ extended discussion of California 6 || state law that they believe Mr. Glasser’s personnel records may contain confidential personal 7 information and/or information that is damaging to his reputation. See, e.g., Associated Chino 8 Tchrs. v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 541 (2018) (describing privacy 9 || interests in teacher’s personnel records protected from disclosure by state law). Giving defendants 10 || the benefit of the doubt on this point, the Court finds that to the extent the discovery plaintiffs seek 11 encompasses materials properly characterized as Mr. Glasser’s personnel records, a protective || order is warranted to protect such records and their contents from public dissemination.
13 || IV. CONCLUSION
v 14 For the reasons explained above, the Court concludes that the discovery plaintiffs seek—
15 || Le., “all findings and conclusions from any District investigations into Peter Glasser’s misconduct 16 || concerning the matters at issue in this case and any documents and information used to develop
= 17 such findings”—is relevant and proportionate to the needs of the case and must be produced if
18 responsive to plaintiffs’ discovery requests. Because such discovery may implicate Mr. Glasser’s 19 interest in maintaining the contents of his personnel records in confidence, the District may 20 || produce responsive documents and information on an outside counsel’s eyes only basis or with 21 other appropriate restrictions.” 23 Dated: July 26, 2021 24 25 VIRGINIA K. DEMARCHI United States Magistrate Judge 26 07 > The Court encourages the parties to discuss and file a proposed protective order that will govern discovery of confidential information in this action. See Judge DeMarchi’s Standing Order for 28 Civil Cases, sec. 4 (stipulated protective orders) available at https://cand.uscourts.gov/judges/demarchi-virginia-vkd/.