The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-14215-CIV-SMM
(Consent Case)
GABRIELLE D’ELIA, and MEGAN D’ELIA,
and ANTHONY D’ELIA, as natural parents
and guardians of minor child, D.D.,
Plaintiffs,
v.
INDIAN RIVER COUNTY SCHOOL BOARD,
DAVID MOORE, SHAWN O’KEEFE, GREG
AHRENS, LENNY JANKOWSKI and
DAN DICKENS,
Defendants.
__________________________________________/
ORDER ON MOTION TO COMPEL
DEFENDANT INDIAN RIVER COUNTY SCHOOL BOARD’S DISCOVERY
RESPONSES (DE 33)
THIS CAUSE is before me upon Plaintiffs’ Motion to Compel Defendant Indian River
County School Board’s (“IRCSB”) Discovery Responses (“Motion to Compel”) (DE 33). Having
reviewed the Motion to Compel, the Response (DE 34) and record in this case, the Motion to
Compel is GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
BACKGROUND
This case arises from Plaintiff Gabrielle D’Elia’s allegations of injuries stemming from
Defendant Soccer Coach Dan Dickens’ gender bias in removing her from the last two minutes of
a high school soccer game on February 12, 2019. DE 12 at ¶14. Plaintiff Gabrielle D’Elia also
alleges that school administration failed to properly address the incident and added to her injuries
by, among other things, suspending her from the soccer team. Id. at ¶¶18-23. Plaintiffs further
allege injuries stemming from the school administration’s retaliatory conduct involving both
Plaintiff Gabrielle D’Elia and her younger sister, Plaintiff D.D., who was also a member of the
Vero Beach High School girls’ female soccer team. Id. at ¶¶28-29. Both were denied participation
in the year-end soccer banquet. Id. at ¶28. Also, in April 2019, both learned that they were cut
from being featured in an interview in the school yearbook after their previous selection for
interviews. Id. at ¶29.
Plaintiffs additionally recount prior alleged incidents of abusive and discriminatory
conduct and sexual harassment and misconduct against females by the high school’s teachers and
administrators from 2012 to 2021. DE 12 at 9-25. Plaintiffs further allege disparate treatment of
Plaintiff Gabrielle D’Elia by citing the more favorable treatment of male athletes in matters of
discipline. Id. at 22-27. As a result, Plaintiffs bring the following seventeen claims:
Count Claim By Plaintiff Against
I Title IX Violations Based on Gender/Sex Gabrielle D’Elia IRCSB
Discrimination
II Title IX Violations Based on Gender/Sex D.D. IRCSB
Discrimination
III Equal Protection Clause Violations Based Upon Gabrielle D’Elia IRCSB
Sex Discrimination pursuant to Fourteenth
Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
IV Equal Protection Clause Violations Based Upon D.D. IRCSB
Sex Discrimination pursuant to Fourteenth
Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
V Equal Protection Clause Violations Based Upon D.D. Moore
Sex Discrimination pursuant to Fourteenth
Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
VI Equal Protection Clause Violations Based Upon Gabrielle D’Elia O’Keefe
Sex Discrimination pursuant to Fourteenth
Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
VII Equal Protection Clause Violations Based Upon Gabrielle D’Elia Ahrens
Sex Discrimination pursuant to Fourteenth
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Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
VIII Equal Protection Clause Violations Based Upon Gabrielle D’Elia Jankowski
Sex Discrimination pursuant to Fourteenth
Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
IX Equal Protection Clause Violations Based Upon Gabrielle D’Elia Dickens
Sex Discrimination pursuant to Fourteenth
Amendment of the U.S. Constitution and Title
42 U.S.C. § 1983 and § 1988
X Gross Negligence Gabrielle D’Elia IRCSB
XI Negligence Gabrielle D’Elia IRCSB
XII Negligence D.D. IRCSB
XIII Breach of Contract Gabrielle D’Elia IRCSB
XIV Negligent Infliction of Emotional Distress Gabrielle D’Elia IRCSB
XV Intentional Infliction of Emotional Distress Gabrielle D’Elia IRCSB
XVI Intentional Infliction of Emotional Distress Gabrielle D’Elia Ahrens
XVII Intentional Infliction of Emotional Distress Gabrielle D’Elia Dickens
DE 12.
Plaintiffs’ Motion to Compel seeks better responses to three interrogatories (Interrog. Nos.
11, 12, and 15) and two requests for production (RFP Nos. 3 and 5). DE 33. Plaintiffs also seek
an award of attorneys’ fees associated with making the motion. Id. at 1. Defendant IRCSB’s
Response indicates that amended answers to Interrog. Nos. 11, 12, and 15 were served
simultaneous with the Response. DE 34 at 2. Listed below are the discovery requests and
responses at issues:
Interrog. No. 11
Plaintiffs’ REQUEST: Please list any disciplinary measures taken against any male
athlete or male coach and/or assistant coach from 2014 through today's date for any
reason, including the name of the person, any address, phone number, or email, and
a detailed description of the incident, date of the incident, and the disciplinary
measures imposed. See Exh. A.
Defendant’s ANSWER: It is impossible for the district to fully respond to this
interrogatory question due to the overbreadth of this question. Athletes within the
school district undergo many forms of discipline due to very minor incidences such
as being late to a practice to more serious incidences. Forms of discipline range
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from the student athlete being required to do extra work such as running laps to
being suspended from the team to suspension from school. The school district
cannot provide names. See Exh. B.
Plaintiffs’ RESPONSE: Plaintiff[s] will limit the request to 2015 through the date
of the service of the interrogatory, and will request a response as to the suspension
and/or permanent removal from an athletic team of any male athlete that: used
profanity against a coach and/or used inappropriate language and made
inappropriate comments to a coach, male athletes suspended from a team for any
reason, and male athletes removed from an athletic team for any reason; any male
athlete subjected to a criminal investigation, FHSAA investigation, and/or any
other type of investigation and/or and any male athlete that was accused of
committing a crime and/or that failed a drug screening. Moreover, Mr. O’Keefe
was able to respond to the same interrogatory without issue. (Excerpt from Prior
Correspondence to Defendant). See Exhibit C.
DE 33.
Defendant’s AMENDED ANSWER: Pursuant to Plaintiff's narrowing of this
request, as to the use of profanity, none. As to the remainder of this interrogatory,
all responsive information that the School Board is in possession of regarding
VBHS has been previously produced to Plaintiff.
DE 34-1.
Interrog. No. 12
Plaintiff’s REQUEST: Please provide any information related to any other female
student, coach, assistant coach, employee, and/or administrator who has made of
sexual assault, sexual harassment, sexual battery, allegations of gender
discrimination, allegations of Title IX violations, allegations of Equal Protection
Clause violations against any Defendant Indian River County School Board
employee, administrator, student, and/or coach, and/or assistant coach, whether or
not said allegations were substantiated and/or unsubstantiated, and whether or not
said allegations were investigated from 2014-today's date including:
a. Name of the reporting party, and identify whether said person is an
employee, administrator, student, and/or coach, and/or assistant coach.
b. Name of the accused/accused and identify whether said person is an
employee, administrator, student, and/or coach, and/or assistant coach.
c. Date of the incident.
d. Factual details regarding the allegations.
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e. Whether any investigation, administrative investigation, and/or criminal
investigation, was conducted and the findings and/or conclusions of said
investigation, and name the agency(ies) that conducted said
investigation(s). See Exh. A.
Defendant’s ANSWER: The school district objects to this interrogatory being over
broad and unduly burdensome. The school district does not maintain a database that
would allow it to provide the information as phrased. To the extent law suits have
been filed against the district under such allegations, such would be public record
equally available to the plaintiffs.
The costs to investigate to determine each and every allegation that may have been
made would be impossible for the district to complete. Plaintiff’s counsel is willing
to have a conference call with Defendant’s counsel to discuss specific search issues
and in an attempt to limit the scope to the extent possible. See Exh. B.
Plaintiff’s RESPONSE: Defendant’s response is inadequate and Plaintiff will move
to compel as the evidence is clearly relevant to the case at hand, in many instances
if not all Defendant’s have statutory obligations to maintain records and to report
said misconduct, and Defendant’s lack of organized files is not a sufficient reason
not to produce said information or even attempt to enter the interrogatory.
Plaintiff’s counsel is willing to have a conference call with Defendant’s counsel to
discuss specific search issues and in an attempt to limit the scope to the extent
possible. Moreover, Mr. O’Keefe was able to respond to the same interrogatory
without issue. See Exh. C.
DE 33.
Defendant’s AMENDED ANSWER: The Defendant has since provided to Plaintiff
a spreadsheet containing a list of incidents reportable to the Department of
Education.
DE 34-1.
Interrog. No. 15
Plaintiff’s REQUEST: Please describe the factual circumstances and decision
making that led to the removal of Plaintiff Gabrielle D'Elia and D.D. 's feature from
the yearbook, and the decision not to invite them to the end of the year soccer
banquet. If you do not know that information, please provide the name, position,
phone number, email, and job title of the person that has that information.
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Defendant’s ANSWER: It is believed that a picture involving the plaintiffs was
removed during the editing process. This was done because Mr. D'Elia was also in
the photograph. It was believed inappropriate for him to be included as he was
arrested at a school function following an assault and battery of a school district
employee.
Plaintiff’s RESPONSE: Defendant’s response is insufficient as it does not
address…why Plaintiffs were not invited to the soccer banquet. See Exh. C.
DE 33.
Defendant’s AMENDED ANSWER: It is believed that a picture involving the
plaintiffs was removed during the editing process. This was done because Mr.
D’Elia was also in the photograph. It was believed inappropriate for him to be
included as he was arrested at a school function following an assault and battery of
a school district employee. This Defendant does not have knowledge as to why the
Plaintiffs were not invited to the soccer banquet, as that event is run by a third party
booster club. The contact person for the booster club during the pertinent
timeframe would be Allison Barkett, and for the yearbook would be Jennifer Potter.
DE 34-1.
RFP No. 3
Plaintiffs’ REQUEST: Please provide any and all documents, reports, audio
recordings, videos, photographs and/or any and all evidence related to prior
reports/investigations of sexual assault, sexual harassment, sexual battery,
allegations of gender discrimination, allegations of Title IX violations, allegations
of Equal Protection Clause violations against any Defendant Indian River County
School Board employee, administrator, student, and/or coach, whether or not said
allegations were substantiated and/or unsubstantiated, from 2014-today’s date.
Defendant’s RESPONSE: School Environmental Safety Incident Reports are being
provided to Plaintiffs. The District does not maintain files or database under this
particular subject. While an individual’s personnel file or a student’s cumulative
file may possibly contain information under these topics, each file would need to
be searched independently. It is noted that by the due nature of the information
being sought, such documents would quite likely be exempt due to the nature of
sexual abuse or sexual crimes alleged. Further, student files are protected for
privacy reasons. Should there be a determination that such information should be
produced, the Plaintiffs will be given access to employee personnel files where they
are maintained in their normal course of business, for the opportunity to search for
any such information.
DE 33.
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RFP No. 5
Plaintiffs’ REQUEST: Any and all documents and/or evidence in your possession
related to any disciplinary measure taken against any male athlete or male coach
and/or assistant coach from 2014 through today’s date for any reason. See Exh. A.
Defendant’s RESPONSE: Due to student privacy, this Defendant is unable to
produce documents relative to student disciplinary files. None as to coaches. This
Defendant, however, continues its search. See Exh. B.
DE 33.
Defendant IRCSB argues in its Response to the Motion to Compel that its amended
answers to the Interrogatories are sufficient in light of Plaintiff’s narrowing of the requests. DE 34.
Relative to the RFPs, Defendant argues that student records are protected from disclosure by State
and Federal law. Id. Defendant also argues that it has responded fully to RFP No. 3 with all
documents that it has been able to locate and that, with respect to RFP No. 5, it has responded
“none” as to coaches. Id. at 2-3. Defendant further notes that student disciplinary records are only
maintained for three years. Id. at 3.
DISCUSSION
“The Federal Rules of Civil Procedure strongly favor full discovery whenever possible.”
Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (citing Fed. R. Civ.
P. 26(b)(1)). In 2015, Rule 26 was amended. See Fed. R. Civ. P. 26(b)(1), advisory committee’s
note to 2015 amendment. “Information is discoverable under revised Rule 26(b)(1) if it is relevant
to any party's claim or defense and is proportional to the needs of the case.” Id. “In evaluating
proportionality, the Court looks to (1) the importance of the issues at stake in the action, (2) the
amount in controversy, (3) the parties' relative access to the relevant information, (4) the parties'
resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden
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or expense of the proposed discovery outweighs the likely benefit.” In re Zantac (Ranitidine)
Prod. Liab. Litig., No. 20-MD-2924, 2021 WL 5299847, at *2 (S.D. Fla. Nov. 15, 2021) (Reinhart,
J.) (citing Fed. R. Civ. P. 26(b)(1)). Additionally, Rule 1 applies, which was also amended in 2015
“to emphasize [that the Federal Rules of Civil Procedure are intended to] secure the just, speedy,
and inexpensive determination of every action.” Fed. R. Civ. P. 1. Furthermore, Rule 37(a)(5)
governs payment of expenses, including attorney’s fees, when a court grants a motion to compel
discovery. Fed. R. Civ. P. 37(a)(5). The court is required to order the payment of the moving
party’s expenses unless “the opposing party’s nondisclosure, response or objection was
substantially justified” or “other circumstances make an award of expenses unjust.” Id. at
37(a)(5)(A)(ii) and (iii). Moreover, “[a] court has wide latitude in imposing sanctions for failure
to comply with discovery.” Whitwam v. JetCard Plus, Inc., 304 F.R.D. 664, 667 (S.D. Fla. 2015)
(citation omitted).
Applying the above principles, I find that Defendant IRCSB has sufficiently responded to
Interrog. Nos. 11 and 15 but has not yet completely satisfied its obligations with respect to Interrog.
No. 12 and the RFPs. As to Interrog. Nos. 11 and 15, Defendant IRCSB’s amended answers—
that it has provided all the information that it has to provide based upon Plaintiffs’ narrowing of
the requests—are sufficient. See Myeress v. Gonzalez, No. 17-61260-CIV, 2018 WL 3881355, at
*1 (S.D. Fla. June 20, 2018) (finding “none” a sufficient answer to an interrogatory and noting that
Plaintiff could later seek sanctions if a response proved to be false). Therefore, Plaintiffs’ Motion
to Compel is denied with respect to Interrog. Nos. 11 and 15.
With respect to Interrog. No. 12, Defendant IRCSB’s amended answer states only that it
has provided a list of incidents “reportable” to the Department of Education. Defendant, however,
does not provide support for its objection that a broader search, beyond what is reportable, presents
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an undue burden. Doe v. Rollins Coll., No. 618CV1069ORL37LRH, 2019 WL 11703979, at *1
(M.D. Fla. Apr. 10, 2019) (“The responding party must show specifically how the requested
discovery is burdensome, overbroad, or oppressive by submitting detailed affidavits or other
evidence establishing the undue burden.”). Therefore, Plaintiffs’ Motion to Compel is granted
with respect to Interrog. No. 12, and the parties shall confer about how a search of Defendant
IRCSB’s records and inquiry of pertinent IRCSB personnel will be accomplished for purposes of
answering the interrogatory. Defendant IRCSB shall serve a second amended answer to Interrog.
No. 12 by February 18, 2022.
As to RFP No. 3, Defendant IRCSB initially responded that it would make employee
personnel files available for Plaintiffs’ inspection (DE 33-2 at 2); however, it now responds that it
has supplied “all documentation [it] has been able to locate” except with respect to student records.
DE 34 at 2-3. Defendant argues that student records are protected from disclosure by federal and
state privacy laws. DE 34 at 2-3. Specifically, Defendant IRCSB cites the Family Educational
Rights and Privacy Act (“FERPA), 20 U.S.C. § 1232g; 34 CFR Part 99 and Fla. Stat. 1002.22 as
providing such protection. Id. Defendant also notes that student disciplinary records are only
maintained for three years. Id. at 3.
Florida Statute 1002.22 refers to FERPA. Fla. Stat. 2002.22 (“The rights of students and
their parents with respect to education records . . . shall be protected in accordance with
[FERPA]”). FERPA, however, does not prevent disclosure of the student records subject to
disclosure under the Federal Rules of Civil Procedure. Stanislaus v. Emory Univ., No. 1:05-CV-
1496-RWS, 2006 WL 8432146, at *8 (N.D. Ga. July 28, 2006) (“[W]hile the protections against
the unauthorized disclosure of educational records FERPA affords are broad, the Act does not
absolutely prohibit the disclosure of educational records, or otherwise prevent discovery of
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relevant records under the Federal Rules of Civil Procedure.”); Cafra v. RLI Ins. Co., No. 8:14-
CV-843-T-17EAJ, 2015 WL 12844288, at *2 (M.D. Fla. Feb. 5, 2015) (“FERPA does not create
a privilege which protects against the disclosure of student information.”). Rather, FERPA
requires the Court to “balance the student’s privacy interest against the plaintiffs’ need for the
information and order disclosure only if the plaintiffs’ need for the information outweighs the
student’s privacy interest.” Doe, 2019 WL 11703979, at *5 (noting also that “FERPA does not
prohibit the release of records so long as the student's identifying information is redacted”). See
also Alig-Mielcarek v. Jackson, 286 F.R.D. 521, 526 (N.D. Ga. 2012) (collecting cases where
courts allowed discovery when the information was relevant to a plaintiff’s claims but noting that
“courts have permitted discovery only when the party requesting the records has met a
‘significantly heavier burden’ to show that its interests in obtaining the records outweighs the
significant privacy interest of the students”).
Here, the information that Plaintiffs seek in RFP No. 3 is directly relevant to their claims.
Defendant IRCSB responds that it has provided all documentation it has been able to locate except
with respect to student records. DE 34. Because student records are also subject to disclosure,
however, Plaintiffs’ Motion to Compel is granted insofar as Plaintiffs seek student records
responsive to the request. I find, though, that Defendant IRSCB should redact personally
identifiable information pertaining to individual students prior to making the records available for
inspection. See Doe, 2019 WL 11703979, at *5. Therefore, Defendant shall make such responsive
and redacted student records as it has available for inspection and copying by Plaintiffs no later
than February 18, 2022. Additionally, because the information sought is sensitive in nature as to
both employees and students, the parties shall confer and jointly move this Court for an appropriate
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protective order by February 9, 2022 to govern Plaintiffs’ use of information disclosed pursuant to
RFP No. 3.
Regarding RFP No. 5, there are two issues. First, Plaintiffs move the Court to compel
further response from Defendant IRCSB as to coaches. DE 33. I decline to do so. Defendant
IRCSB has answered “none,” which is sufficient. Myeress, 2018 WL 3881355, at *1. Second,
Plaintiffs move the Court to compel Defendant IRCSB to produce records regarding male student
athlete discipline. Defendant repeats the argument it made in response to RFP No. 3 that privacy
protection is afforded to student records under Fla. Stat. 1022.22 and FERPA. For the reasons
stated previously, I find that the referenced statutes do not preclude disclosure of appropriately
redacted student records. Male student athlete disciplinary records are directly relevant to
Plaintiffs’ claims. Therefore, Defendant shall make redacted and responsive student records
available for inspection and copying by Plaintiffs no later than February 18, 2022. Furthermore,
the parties shall confer and jointly move this Court for an appropriate protective order by February
9, 2022 to govern Plaintiff’s use of the information disclosed pursuant to RFP No. 5.
As to fees, I find that Defendants were substantially justified in their position. Therefore,
I decline to award attorney’s fees under Rule 37 as a sanction.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion to Compel
(DE 33) is GRANTED IN PART AND DENIED IN PART as follows:
(1) As to Interrog. Nos. 11 and 15, the Motion to Compel is DENIED;
(2) As to Interrog. No. 12, the Motion to Compel is GRANTED; the parties shall confer
about how a search of Defendant IRCSB’s records and an inquiry of pertinent IRCSB
personnel will be accomplished for purposes of answering the interrogatory. Defendant
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IRCSB shall serve a second amended answer to Interrog. No. 12 by February 18,
2022;
(3) As to RFP No. 3, the Motion to Compel is GRANTED to the extent that Plaintiffs seek
student records responsive to the request. Defendant IRCSB shall redact personally
identifiable information from responsive student records and make such responsive
records available to Plaintiffs for inspection and copying by no later than February 18,
2022. Furthermore, the parties shall confer and jointly move this Court for an
appropriate protective order, by February 9, 2022, to govern Plaintiffs’ use of
information disclosed pursuant to RFP No. 3;
(4) As to RFP No. 5, the Motion to Compel is GRANTED to the extent that Plaintiffs seek
student records responsive to the request. Defendant IRCSB shall redact personally
identifiable information from responsive student records and make such responsive
records available to Plaintiffs for inspection and copying by no later than February 18,
2022. Furthermore, the parties shall confer and jointly move this Court for an
appropriate protective order, by February 9, 2022, to govern Plaintiffs’ use of
information disclosed pursuant to RFP No. 5.
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 2nd day of February,
2022.
Seana
SHANIEKM.MAYNARD
UNITED STATES MAGISTRATE JUDGE
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