Doe v. Loyola University Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN DOE,

Plaintiff,

No. 18 CV 7335

v.

Jeffrey T. Gilbert

LOYOLA UNIVERSITY CHICAGO, Magistrate Judge

Defendant.

MEMORANDUM OPINION AND ORDER

This case is before the Court on Plaintiff's Motion to Compel Production of Documents.

[ECF No. 60]. For the reasons discussed below, Plaintiff's Motion is granted.

Plaintiff John Doe (“Doe”) filed suit against Defendant Loyola University of Chicago

(“Loyola”) after Doe was expelled from the school following a hearing concerning sexual assault

allegations against him by a female student, Jane Roe (“Roe”). As detailed in Doe’s amended

complaint, Doe accuses Loyola, among other things, of adopting a “gender-biased system for

investigating and adjudicating accusations of sexual misconduct made by female complainants

against males” in response to the United States Department of Education’s 2011 “Dear Colleague”

Letter and its subsequent 2014 “Questions and Answers.” Amended Complaint [ECF No. 19] at

{| 1. Loyola, according to Doe, applied policies inherently biased against males and in favor of

females during its investigation and hearing process regarding the allegations against him.!

' Roe and another female student filed contemporaneous complaints of sexual assault against Doe in 2016.

Although Doe was found not responsible after a hearing on the second accuser’s allegations, the existence

of a second accuser is relevant to this case in some respects.

Amended Complaint [ECF No. 19] at § 1. These biased policies, Doe contends, ultimately led to

his expulsion from the university.

Discovery is ongoing in this case. As part of his first set of document requests directed at

Loyola, Doe sought the following two categories of information:

“17. All documents, for each academic year from 2009-10 through the present, that refer

or relate to reports, audits, compilations, graphs, and statistics prepared by or for the

University regarding disciplinary proceedings related to violations of the Sexual

Misconduct Policy, including but not limited to such data as (a) the number of sexual

harassment, sexual misconduct (including sexual assault), dating violence, domestic

violence, and stalking incidents reported each year, (b) the type of alleged misconduct or

violation, (c) the charge(s) brought against the accused, if any, (d) the date of the Hearing,

if a Hearing was held, (e) the names of the Hearing Board members, (f) the findings of the

Hearing Boards, (g) the sanction(s) imposed, (h) the appeal, if any, (1) the name of the

Appellate Officer, and (j) the outcome of the appeal — with the names of all involved

students redacted, but the gender of the students indicated.

18. All hearing board opinions and decisions of appellate officers relating to proceedings

held pursuant to the Sexual Misconduct Policy, from academic year 2009-10 to the present,

with the names of all involved students redacted, but the gender of the students indicated.”

Plaintiffs Motion to Compel [ECF No. 60-1] at 9-10.

The academic hearing process in this case took place in 2016 and 2017. Loyola produced

documents responsive to the above requests from 2013 to the present. Loyola objects, however, to

any production of documents from 2009 to 2013, as the files for those years are, in its opinion,

irrelevant to Doe’s gender bias claims. Specifically, Loyola argues that even if it changed the

process by which it handled sexual assault allegations in response to the 2011 Dear Colleague

Letter, that change is irrelevant to whether gender bias permeated Doe’s disciplinary proceeding

five years later. Loyola further highlights that the “Decision Makers” — a group which encompasses

the two investigators, three hearing board members, one appellate officer, and one Title IX

coordinator involved when a sexual assault complaint is lodged — in Doe’s disciplinary proceeding

were not involved in the investigation or resolution of any sexual misconduct complaints prior to

2013. Decisions by different Decision Makers, in Loyola’s view, therefore have no bearing on

whether gender bias infected the process conducted by the Decision Makers in Doe’s case. Loyola

further warns that the production of these additional documents could jeopardize confidential

information about other students. Doe maintains the documents are not only demonstrably relevant

under recent Seventh Circuit precedent, including John Doe v. Purdue Univ., 928 F.3d 652, 668

(7th Cir. 2019), but production of the documents he seeks also is proportional to the needs of this

case based on the broad language of his complaint. The Court agrees the issue is properly framed

as turning initially on the asserted relevance of the material Doe is requesting under Rule 26(b)(1)

and then on whether production of those documents is proportional to the needs of this case.

A. General Principles

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the

claim or defense of any party. FED.R.CIv.P. 26(b)(1). Because the purpose of discovery is to help

“define and clarify the issues,” relevance is to be construed broadly. Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978); see also, Tice v. American Airlines, Inc., 192 F.R.D. 270, 272

(N.D. Ill. 2000) (“the scope of discovery should be broad in order to aid in the search for truth.”).

“If relevance is in doubt, courts should err on the side of permissive discovery.” Wiginton v. CB

Richard Ellis, Inc., 229 F.R.D. 568, 577 (N.D. Ill. 2004). If discovery appears relevant, the burden

is on the party objecting to a discovery request to establish the request is improper. Eternity Mart,

Inc. v. Nature’s Sources, LLC, 2019 WL 6052366, at *2 (N.D. Ill. 2019); Sanyo Laser Prod. Inc.

v. Arista Records, Inc., 214 F.R.D. 496, 499 (S.D. Ind. 2003).

Relevance, though, is not the end of the inquiry under Rule 26. The 2015 amendments to

Rule 26(b)(1) expressly inserted the concept of “proportionality” into the Rule by adding language

that discovery not only must be relevant to a claim or defense but also “proportional to the needs

of the case, considering the importance of the issues at stake in the action, the amount in

controversy, the parties relative access to relevant information, the parties resources, the

importance of the discovery in resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.” FED. R. Crv. P. 26(b)(1).

The discovery Doe seeks in response to Document Requests 17 and 18 appears directly

relevant to the allegations contained in Doe’s complaint. Indeed, the first sentence of Doe’s

complaint reads: “Ja response to the United States Department of Education's “Dear Colleague”

letter and 2014 Questions and Answers, Loyola adopted a gender-biased system for investigating

and adjudicating accusations of sexual misconduct made by female complainants against males.”

Amended Complaint [ECF No. 19] at § 1 (emphasis added). As Doe’s discovery requests appear

relevant to the claims and defenses in this case, Loyola bears the burden, as the party resisting

discovery and in light of the ordinary presumption in favor of broad disclosure, to establish the

documents are not relevant and should not be produced. See, e.g., Sanyo Laser Prod. Inc., 214

F.R.D. at 499. Loyola has not met that burden here. In so finding, the Court has weighed the

importance of the issues at stake in this litigation —- which implicate both personal and public

interests — as well as Doe’s relative access to the information requested, the importance of this

particular discovery to the litigation, and the burden on Loyola in producing the information

requested. The Court also has taken into account the confidentiality interests of non-party students.

After considering the totality of the circumstances and in the exercise of its broad discretion over

discovery matters, Matter of Ingram Barge Co., 306 F.R.D. 184, 185 (N.D. Ill. 2014), the Court

finds Loyola has not shown Doe’s discovery requests are improper and, in fact, the requests are

both relevant and proportional to the needs of the case. Loyola must therefore produce responsive

documents from 2009 to 2013.

B. Relevance

The information Doe seeks through Document Requests 17 and 18 is directly relevant to

Doe’s claims that Loyola’s disciplinary process became infected by gender bias in response to the

2011 Dear Colleague Letter; gender bias which, in turn, Doe alleges led to his expulsion from

Loyola. Indeed, just as in Doe v. Purdue Univ., Doe’s complaint in this case does not exist in a

vacuum. 928 F.3d 652. It is cast against the “backdrop” of the 2011 “Dear Colleague” Letter,

which as the Seventh Circuit explained, “ushered in a more rigorous approach to campus sexual

misconduct allegations by, among other things, defining ‘sexual harassment’ more broadly than in

comparable contexts, mandating that schools prioritize the investigation and resolution of

harassment claims, and requiring them to adopt a lenient ‘more likely than not’ burden of proof

when adjudicating claims against alleged perpetrators.” Doe v. Purdue Univ., 928 F.3d at 668

(citing United States Department of Education, Office of the Assistant Secretary for Civil Rights,

Dear Colleague Letter (2011), https:/www2.ed.gov/print/about/offices/list/ocr/letters/colleague-

201104.html) (internal citations omitted).

Under the facts of Doe’s broadly pled complaint, whether and how Loyola overhauled its

disciplinary procedures in response to the 2011 Dear Colleague Letter is relevant as a discovery

matter. If Loyola, to protect its federal funding, skewed the disciplinary and investigative process

against men to demonstrate its compliance with the federal mandate outlined in the letter, as Doe

alleges it did, this may contribute to an inference of gender discrimination. At the very least, Doe

is entitled to discovery on this issue, as the scope of discovery must be broad enough to effectuate

the primary purpose of discovery: to define and clarify the issues. Tice, 192 F.R.D. at 272.

Whether the documents Doe seeks from 2009 to 2013 — or those that Loyola already

produced from 2013 to the present, for that matter — ultimately will be admissible at trial is a

separate question the Court need not, and cannot, decide at this early stage. “Because discovery is

concerned with ‘relevant information’ — not ‘relevant evidence’ — the scope of relevance for

discovery purposes is necessarily broader than it is for trial evidence under Federal Rule of

Evidence 401.” Martinez v. Cook Cty., 2012 WL 6186601, at *2 (N.D. Ill. 2012). While Doe

ultimately must allege and prove facts sufficient to establish Loyola acted, at least partly, on the

basis of sex in his particular disciplinary proceeding, Doe’s burden in the context of this discovery

dispute is lower than his burden of proof at trial. In this context, Doe must show the information

he seeks is relevant and proportional to a claim or defense under Rule 26(b)(1). In the Court’s

view, he has met that burden.

Recent precedent supports the Court’s conclusion and suggests the nature and extent of the

impact of the 2011 Dear Colleague Letter on an academic institution is relevant to evaluating the

plausibility of a Title IX claim against that institution. Doe v. Purdue Univ., 928 F.3d at 669 (“[t]he

letter and accompanying pressure gives [the plaintiff] a story about why [the institution] might

have been motivated to discriminate against males accused of sexual assault.”); Doe v. Miami

Univ., 882 F.3d 579, 594 (6th Cir. 2018) (training and educational materials adopted in response

to federal government pressure were relevant to establishing gender-biased conduct); Doe v.

Columbia Univ., 831 F.3d 46, 58 (2d Cir. 2016); Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018)

(plaintiff stated a plausible complaint of gender bias through combined external pressure and

empirical evidence of alleged gender-biased conduct by his adjudicator). And while asserted

pressure resulting from the 2011 Dear Colleague Letter “alone is not enough to state a claim that

the university acted with bias in this particular case,” Baum, 903 F.3d at 586, it is one piece of the

puzzle: a piece that Doe is entitled to explore through discovery. While the cited cases addressed

motions to dismiss or for summary judgment, the language and rationale of those decisions support

the Court’s analysis for purposes of this discovery motion.

As summarized above, other courts, including the Seventh Circuit, have indicated that the

2011 Dear Colleague Letter provides a relevant “backdrop” to a Title [IX gender bias claim under

certain circumstances. And while it is certainly possible that Loyola’s attempts to comply with the

Department of Education’s guidance will not help Doe prove his claims that anti-male institutional

bias tainted his disciplinary proceeding, these facts only can be flushed out through discovery. See,

e.g., Doe v. Miami Univ., 882 F.3d at 594 (“Discovery may reveal that the alleged patterns of

gender-based decision-making do not, in fact, exist. That information, however, is currently

controlled by the defendants, and [the plaintiff] has sufficiently pleaded circumstantial evidence

of gender discrimination.”). At this stage, Doe’s allegations that Loyola implemented anti-male

policies to demonstrate its compliance with the 2011 Dear Colleague Letter and protect its federal

funding are sufficient to obtain discovery on the issue. Whether Doe ultimately can prove-up facts

particular to his case and survive a different standard of review, such as on summary judgment, is

another question for another time. See, e.g., Doe v. Vanderbilt Univ., 2019 WL 4748310, at *7

(M.D. Tenn. 2019) (“when courts consider allegations of external pressure, they look to see if a

plaintiff has alleged facts demonstrating that it was pressure not only to aggressively pursue sexual

assault cases, but to do so in a manner biased against males.”) (internal quotations omitted); Doe

v. Columbia Coll. Chicago, 933 F.3d 849, 855 (7th Cir. 2019) (where plaintiff failed to allege any

particularized facts that could lead to a reasonable inference that Columbia denied him an

educational benefit because of his sex, broad allegations of pressure from the Dear Colleague

Letter and Office of Civil Rights investigations were insufficient to sustain plaintiff's Title □□

claims at a motion to dismiss);

Loyola advances two principal arguments in its effort to resist discovery relating to

Document Requests 17 and 18. First, Loyola asserts that this case turns on “how the particular

personnel involved with this particular plaintiff's case applied the institution’s internal procedures

to him, as compared to how those same personnel applied those same procedures to women.” [ECF

No. 67] at 4 (emphasis added). In support of that statement, Loyola cites Doe v. Purdue Univ., 928

F. 3d at 669 (to state a claim of gender bias in his internal proceeding, male student must allege

“facts raising the inference that [university] acted at least partly on the basis of sex in his particular

case”). In this case, Doe has particularized his allegations of discrimination with reference to his

individual case, and Loyola has filed an answer to Doe’s Complaint. [ECF No. 26]. Evidence that

Doe says he wants to use to show that the individual participants in the process, i.e. the Decision

Makers at the time of Doe’s disciplinary proceeding, implemented inherently biased institutional

policies strikes at the heart of Doe’s Title [X claims. As Doe points out, his claim is against Loyola,

not the individual Decision Makers. Evidence regarding Loyola’s pattern and practice in handling

sexual assault allegations over time is relevant here. See, e.g., Doe v. Ohio State University, 2015

WL6082606 (S.D. Ohio 2015) (“Stated simply, if The Ohio State University has a pattern and

practice that treats males unfairly in sexual misconduct investigations, then the school has a

significant problem in this litigation. Determining whether such a problem exists necessitates

looking at the data and the context surrounding that data.”’); Doe v. Trustees of the Univ. of Pa.,

270 F. Supp. 3d 799 (E.D. Pa. 2017).

Second, Loyola urges the Court to limit the scope of recent precedent in Purdue, Baum,

and Columbia College and find that general pressure exerted by the 2011 Dear Colleague Letter is

irrelevant unless acute pressure from an OCR Investigation or media coverage simultaneously

exists. The Court does not read these cases so narrowly, and the opinions cited by both Doe and

Loyola, frankly, suggest the opposite reading is more accurate. The existence of acute pressure is

simply an additional factor courts have considered at the motion to dismiss or summary judgment

stage in determining whether the plaintiff stated a plausible claim for gender bias. See, e.g.,

Purdue, 928 F.3d at 668; Baum, 903 F.3d at 586. Certainly, evidence that an institution had its

feet to the fire, so to speak, in the form of active student protests or ongoing civil rights

investigations may carry more weight in evaluating the plausibility of a plaintiff's claim than the

mere existence of general pressure from the federal government and threats to an institution’s

federal funding. But this does not mean that the latter factors do not bear consideration in

evaluating the plausibility or the ultimate merit of a plaintiff's Title IX claim.

Whether or not “acute pressure” is necessary to establish a plausible claim for gender bias,

it bears noting that Doe does allege Loyola was dealing with student “outrage” and negative media

coverage contemporaneous with Doe’s hearing. Specifically, Doe alleges in his Amended

Complaint that in December of 2016, Loyola was facing “severe public criticism” for its handling

of sexual assault allegations. Amended Complaint [ECF No. 19] at § 117. “A petition demanding

an apology from the University ‘for its lack of transparency’ and failure to educate ‘the Loyola

community about rape culture and sexual violence’” was circulating among the student body.

Amended Complaint [ECF No. 19] at § 118. Doe cites several newspaper articles that, at first

blush, suggest Loyola may in fact have been facing “acute pressure” to crack down on individuals

—or just men, if Doe’s allegations are borne out — accused of sexual misconduct, as was the case

in Purdue and Baum. Amended Complaint [ECF No. 19] at 117-20. These allegations in Doe’s

Amended Complaint also weigh in favor of the Court’s relevance finding here.

The information Doe seeks may, in fact, reveal specific facts in support of the very pattern

or practice of gender bias Loyola disclaims. Or it may not; but Doe is entitled to the information

nonetheless. Doe’s complaint is not so devoid of facts in support of an alleged pattern or practice

of gender bias that Doe should be foreclosed from the discovery currently sought on this issue.

Doe has alleged specifically that Loyola adopted a gender biased, ““‘survivor-centered approach’

to sexual misconduct allegations that overtly protected and favored female complainants,

presumed a violation of University policy had occurred, placed upon accused male students the

burden of proving their innocence, and accorded special treatment, including legal assistance, to

one party, the female “complainant’/“‘survivor,” but not to the other party, the accused male

student.” Amended Complaint [ECF No. 19] at § 59. These gender biased policies, Doe claims,

manifested in several ways during his hearing. For example, Doe alleges Loyola’s Interim Title

IX Coordinator warned Doe that he may be subject to inappropriate bias during the hearing if the

Hearing Board learned he was under investigation for two complaints at the same time. Amended

Complaint [ECF No. 19] at § 96. Doe then alleges that the Interim Title IX Coordinator informed

the chairperson of Roe’s Hearing Board that Doe was the subject of another complaint — a

complaint for which Doe ultimately was found not responsible. Amended Complaint [ECF No.

19] at 9] 96-97, 145.

Doe further claims that the Board refused to interview his suggested witnesses and consider

exculpatory evidence he, 4 man, presented, yet did interview witnesses and consider evidence

suggested by Roe, a woman. Amended Complaint [ECF No. 19] at §§ 114-15. Similarly, Doe

alleges Loyola repeatedly told him incorrect information regarding the procedure for the

investigation and hearing, including that he was not entitled to have an advisor at his interview

with investigators, even though the Community Standards allowed him to have an advisor present.

Amended Complaint [ECF No. 19] at § 89, 102. Doe further asserts that the University applied

two sets of rules for evaluating facts presented by his female accuser versus those presented by

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Doe; for example, that Roe was applauded for correcting a mistaken fact in the record, whereas

Doe claims he was found to be not credible for the same behavior. Amended Complaint [ECF No. □

19] at 9] 1, 6.

The facts Doe has alleged — though certainly only allegations at his time — provide enough

specificity and context for Doe’s gender bias claim to entitle him to relevant and proportional

discovery on these issues, consistent with the Court’s order here.

C. Proportionality

The information sought by Document Requests 17 and 18 is, as discussed above, relevant

within the meaning of Rule 26(b)(1). The question then becomes whether it is proportional to the

needs of the case. Taking each factor in turn, Doe’s relative access to the information requested is

limited. The case files and hearing opinions at issue are controlled exclusively by Loyola, and

absent production as part of discovery in this case, Doe has no recourse or ability to access the

information on his own. As stated above, the particular information Doe is seeking goes to the

heart of Doe’s complaint, as Doe expressly frames his Title IX claims against the backdrop of the

2011 Dear Colleague Letter and the alleged gender biased impact it had on Loyola’s disciplinary

proceedings. The comparable data at issue in this motion will help to establish, or refute, Doe’s

contention that Loyola has a pattern and practice of handling sexual assault allegations in a gender

biased manner. The importance of this information in the scheme of this case, therefore, weighs in

favor of disclosure here.

The Court also has evaluated the likely burden on Loyola to produce the responsive

documents. Loyola complains that the production would be unduly burdensome and estimates that

it would need to produce approximately 52 more cases, although perhaps slightly less given that

Loyola has since produced documents from 2013 to 2014 previously included in the estimate.

I]

Loyola specifies that this production would include about 1,000 additional pages of documents (or

again, perhaps somewhat less than that number). In the Court’s view, this volume is not unduly

burdensome in a case such as this.

Protecting the confidentiality and privacy interests of all individuals involved in allegations

of sexual assault, especially those of non-party students, is important to the Court. These interests

are also important to both Loyola and Doe, who current enjoys the benefit of that very

confidentiality for purposes of this lawsuit. While important, these privacy interests do not prevent

discovery of the documents requested here any more than they prevented Loyola from producing

documents with identical privacy concerns related to hearings from 2013 to 2019. It is clear to the

Court, based on Loyola’s previous document production, that the parties have a workable protocol

in place that satisfies both Doe’s right to obtain responsive documents and the privacy interests

Loyola has raised. The Court is confident the parties will implement their previously agreed-upon

protocol for similar document production and do so in a manner that continues to safeguard the

confidentiality of all parties and non-parties involved.

As the Seventh Circuit has emphasized, “there is a strong public policy in favor of

disclosure of relevant materials.” Patterson vy. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.

2002). That public policy applies equally to this discovery dispute. The materials requested here

are not only relevant to Doe’s claims but proportional to the needs of the case considering the

totality of the circumstances and specific factors discussed above.

For all these reasons, Plaintiff's Motion to Compel Production of Documents [ECF No.

60] is granted. Loyola shall produce by February 7, 2020 the documents that are responsive to

Doe’s Document Requests 17 and 18. The Court set this date on the assumption that Loyola already

has searched for and assembled the documents that are the subject of Doe’s motion because it

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knows the production will involve about 1,000 pages. If that is not true, then the parties can meet

and confer and suggest a different, agreed date consistent with the approaching close of fact

discovery.

It is so ordered.

7, ¢ he

J y T. Gilbert

United States Magistrate Judge

Dated: January 24, 2020

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