Lewis v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION

Plaintiff

VERSUS NO. 21-198-SM-RLB

BOARD OF SUPERVISORS OF LOUISIANA

STATE UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE,

Defendant

ORDER AND REASONS

Before the Court is a Motion to Compel Deposition Testimony and Document

Production filed by Sharon Lewis (“Plaintiff”).1 The Board of Supervisors of Louisiana

State University and Agricultural and Mechanical College (the “Board”) filed an

opposition,2 Stanley Jacobs filed an opposition,3 and Robert Barton and Vicki Crochet

(“Dismissed TP Defendants”) filed a Motion for Protective Order, which the Court

construes as an opposition to the Motion to Compel.4 Plaintiff filed a reply.5 For the

reasons that follow, the Motion to Compel is GRANTED as stated herein.

1 R. Doc. 324.

2 R. Doc. 334.

3 R. Doc. 333.

4 R. Doc. 325. With respect to the Dismissed TP Defendants’ argument that the Court’s crime-fraud

exception ruling was in error, see R. Doc. 325-1 at pp. 1-24, the Court finds this is, in reality, a request for

reconsideration of the Court’s March 14, 2023 Order and Reasons under Rule 59(e), which the Dismissed

TP Defendants lack standing to make. The Court notes that, though the Dismissed TP Defendants attended

status conferences where the Court discussed the issue, see R. Docs. 297 and 307, the Dismissed TP

Defendants stood idly by while the Board and Plaintiff extensively litigated the crime-fraud exception issue.

At no point did the Dismissed TP Defendants file a motion for protective order or request an opportunity

to brief the issue (to fulfill their “ethical duty to preserve a [former] client’s confidences”) before the ruling

was issued on March 14, 2023. Under these circumstances, even if the Dismissed TP Defendants had

standing to seek reconsideration, to consider the Dismissed TP Defendants’ arguments questioning the

correctness of this Court’s ruling on the basis of new arguments or cleaned-up versions of already

considered arguments flies in the face of the Fifth Circuit’s prohibition on using a Rule 59(e) motion to

relitigate old matters and raise issues that “could, and should, have been made before [a ruling was] issued.”

See Advocare Intern. LP v. Horizon Laboratories, Inc., 524 F.3d 679, 691 (quoting Rosenzweig v. Azurix

Corp., 332 F.3d 854, 863 (5th Cir. 2003)). Thus, to the extent the Dismissed TP Defendants request

reconsideration, the request is denied. R. Doc. 325. Nevertheless, the Court will consider the Dismissed TP

Defendants’ arguments in opposition to the Motion to Compel based on relevance and proportionality

below. R. Doc. 325-1 at pp. 24-25.

BACKGROUND

The background of this case has been extensively laid out in the twelve opinions

issued by this Court since its inception.6 The Court will recite only the procedural

developments relevant to the instant discovery dispute. On October 28, 2022, the Board

filed a motion for protective order requesting “(1) [r]elief from noticed depositions and

written discovery having no bearing on Plaintiff’s Title IX and Title VII claims; and (2)

[r]elief from the noticed depositions of [the Board’s former] Attorneys (Vicki Crochet and

Bob Barton) who not only have no relevant testimony to provide [related to Plaintiff’s

Title IX and Title VII claims], but for whom [the Board] has asserted attorney client

privilege and work product doctrine/immunity, to the maximum extent allowable by

law.”7 Plaintiff filed three opposition briefs,8 and the Board filed two reply briefs.9

Plaintiff argued, to the extent she sought privileged communications or attorney work

product, the crime-fraud exception to privilege and work product should apply.

During a status conference with the parties on December 12, 2022, the parties

urged the Court to decide the crime-fraud exception issue before deciding any remaining

issues presented by the Board’s motion for protective order.10 The crime-fraud exception

issue was submitted for this Court’s consideration on December 19, 2022.11 On March 14,

2023, the Court issued its Order and Reasons finding the crime-fraud exception applies.12

Nevertheless, the Court granted the Board’s motion for protective order to the extent it

sought to prevent Plaintiff’s discovery of the redacted portions of the Student Complaint

6 See R. Docs. 107, 124, 165, 185, 254, 255, 280, 283, 284, 316, 332, and 335.

7 R. Doc. 289.

8 R. Docs. 295, 302, and 306.

9 R. Docs. 305 and 308.

10 R. Doc. 316 at p. 3.

11 R. Doc. 308.

Memo and the redacted Taylor Porter billing records,13 reasoning such redactions were

not reasonably related to the concealment described in the Court’s ruling.14 The Court

deferred ruling on Plaintiff’s request for unidentified documents underlying or associated

with the Memo to File, Student Complaint Memo, Attachments, and Taylor Porter billing

records.15

On March 15, 2023, the Court held a status conference with the parties to discuss

the status of the case and the March 14, 2023 Order and Reasons.16 During the conference,

the Court ordered the parties to prepare letters to the Court “setting forth in detail any

additional written discovery and depositions needed, as well as other discovery-related

issues.”17 The Court also set an additional status conference on March 28, 2023.18

On March 27, 2023, Plaintiff filed a motion for reconsideration of the March 14,

2023 Order and Reasons, requesting that the Court amend its ruling to find the Directive

Letter and attachments were also part of the concealment described therein.19 The Court

granted Plaintiff’s motion for reconsideration.20

13 See id. at p. 1 n.2 (“The documents in dispute stem from an investigation conducted by Taylor Porter, a

law firm, into allegations made by a student worker employed by Louisiana State University’s Athletic

Department against Leslie Miles. When the Plaintiff refers to the “Miles Report,” she is referring to the (1)

May 15, 2013 “memo to file” drafted by Vicki M. Crochet (hereinafter “Memo to File”); (2) eight-page

document titled “Student Complaint” dated May 15, 2013 (hereinafter “Student Complaint Memo”); and

(3)nine pages of attachments (hereinafter “Attachments”). The Board produced to Plaintiff an unredacted

version of the Memo to File (BOS-023945), a redacted version of the Student Complaint Memo

(BOS023946 – BOS023953), and an unredacted version of the Attachments (BOS023954 – BOS023962).

The Board also produced to Plaintiff an unredacted version of the written directive letter and attachments

(hereinafter “Directive Letter and attachments”) sent by Taylor Porter on behalf of the Board to Leslie Miles

and his counsel (BOS023963 – BOS023977). BOS023945 through BOS023977 are attached to this Order

and Reasons and made a part of the record. See R. Doc. 316-1.”).

14 Id. at p. 29. The Court conducted in-camera review to make this assessment.

15 Id.

16 R. Doc. 317.

17 Id. at p. 2.

18 Id.

19 R. Doc. 318 (asking for reconsideration of R. Doc. 316).

On March 28, 2023, the Court held a status conference with the parties to discuss,

inter alia, their letters sent to the Court.21 In light of those letters and the discussion with

the parties, the Court ordered Plaintiff to file the instant Motion to Compel the written

discovery and depositions sought in her letter and to respond to Board’s objections

expressed during the March 28, 2023 status conference.22

Consistent with the March 28, 2023 Order and Plaintiff’s letter,23 Plaintiff filed the

instant Motion to Compel on April 11, 2023, which was submitted for this Court’s

consideration on April 26, 2023.24 Plaintiff seeks to depose Stanley Jacobs, Leslie Miles,

Vicki Crochet, Robert Barton, Mary Leach Werner, Valencia Sarpy Jones, James

Williams, and Jimmie Woods. Plaintiff also seeks production from the Board of two

categories of documents. Broadly speaking, issues of discoverability and the application

of the Court’s March 14, 2023 Order and Reasons and April 25, 2023 Order and Reasons

are raised by Plaintiff’s Motion to Compel, which the Court will now address.

LEGAL STANDARD

“Parties may obtain discovery regarding any nonprivileged matter that is relevant

to any party’s claim or defense and proportional to the needs of the case.”25 “Information

within the scope of discovery need not be admissible in evidence to be discovered.”26 At

the discovery stage, relevant evidence includes “[a]ny matter that bears on, or that

reasonably could lead to other matters that could bear on, any issue that is or may be in

21 R. Doc. 321 (minute entry with letters attached thereto).

22 Id. at p. 2. The Court also ordered a status conference be set for May 10, 2023, to discuss any outstanding

discovery issues, to set a new trial date and pretrial deadlines, and to set a deadline for Plaintiff to issue a

Rule 30(b)(6) notice to the Board. Id. The Court continued this status conference until May 18, 2023. R.

Doc. 338.

23 See R. Doc. 321.

24 R. Doc. 324.

25 FED. R. CIV. PRO. 26(b); see also Miller v. Sam Houston Univ., 986 F.3d 880, 891 (5th Cir. 2021).

that case.”27 “[T]he threshold for relevance at the discovery stage [under Rule 26(b) of the

Federal Rules of Civil Procedure] is lower than at the trial stage” under Federal Rule of

Evidence 401.28 Discovery should be allowed unless the party opposing discovery

establishes that the information sought “can have no possible bearing on the claim or

defense of the party seeking discovery.”29 If relevance is in doubt, the court should be

permissive in allowing discovery.30 The Fifth Circuit recently has instructed the discovery

“standard is broad, especially when viewed in the context of Title VII” claims.31 This

broader scope is necessary given the nature of litigation, where determinations of

discoverability are made well in advance of trial.32 Likewise, “broad discretion is afforded

to the district court when deciding discovery matters,”33 and the Court must determine

the scope of discovery “in light of the relevant facts of the particular case.”34

A party seeking discovery must comply with Rule 26(b)(1)’s proportionality limits

on discovery requests.35 When considering whether discovery is proportional to the needs

of the case, courts consider “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

27 Stevenson v. Benjamin, 2022 WL 12309062, *1 (5th Cir. 10/21/2022) (quoting Coughlin v. Lee, 946 F.2d

1152, 1159 (5th Cir. 1991)); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978); Rangel v.

Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 4/11/2011).

28 Rangel, 274 F.R.D. at 590.

29 Dotson v. Edmonson, 2017 WL 11535244, at *2 (E.D. La. 11/21/2017) (citing Merrill v. Waffle House,

Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2/4/2005)).

30 E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 5/11/2010) (quoting Truswal

Sys. Corp. v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987)).

31 Miller v. Sam Hous. State Univ., 986 F.3d 880, 891 (5th Cir. 2021); see also Trevino v. Celanese Corp.,

701 F.2d 397, 405 (5th Cir. 1983) (“The imposition of unnecessary limitations on discovery is especially

frowned upon in Title VII cases.”).

32 Rangel, 274 F.R.D. at 590 n.5.

33 Miller, 986 F.3d at 891 (citing Crosby v. la. Health Serv. & Indemnity Co., 647 F.3d 258, 261 (5th Cir.

2011)).

34 See Conboy v. Edward D. Jones & Co., 140 F. App’x 510, 517 (5th Cir. 2005).

35 Muslow v. Bd. of Supervisors of La. State Univ., 2021 WL 4239102, *2 (E.D. La. 7/22/2021) (M.J.,

expense of the proposed discovery outweighs its likely burden.”36 If a party resists

discovery on grounds of proportionality, it bears the burden of making a specific objection

and showing that the discovery fails Rule 26(b)’s proportionality calculation by coming

forward with specific information to address the proportionality considerations.37

While the discovery rules are accorded broad and liberal treatment to achieve their

purpose of adequately informing litigants in civil trials,38 discovery does have “‘ultimate

and necessary boundaries.’”39 Rule 26(b)(2)(C) mandates that the Court limit the

frequency or extent of discovery otherwise allowed, if it determines: “(i) the discovery

sought is unreasonably cumulative or duplicative, or can be obtained from some other

source that is more convenient, less burdensome, or less expensive; (ii) the party seeking

discovery has had ample opportunity to obtain the information by discovery in the action;

or (iii) the proposed discovery is outside the scope of Rule 26(b)(1).”40 Further, Rule 26(b)

“has never been a license to engage in an unwieldy, burdensome, and speculative fishing

expedition.”41 While relevancy in the discovery context is broader than in the trial context,

that legal tenet should not be misapplied to allow fishing expeditions in discovery.42

“The party filing the motion to compel bears the burden of showing that the

materials and information sought are relevant to the action or will lead to the discovery

of admissible evidence.” 43 “Once the moving party establishes that the materials

requested are within the scope of permissible discovery, the burden shifts to the party

36 FED. R. CIV. PRO. 26(b).

37 Mir v. L–3 Commc'ns Integrated Sys., L.P., 319 F.R.D. 220, 226 (N.D. Tex. 8/22/2016).

38 Herbert v. Lando, 441 U.S. 153, 176 (1979) (citations omitted).

39 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495,

507 (1947)).

40 FED. R. CIV. PRO. 26(b)(2)(C)(i)–(iii).

41 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011).

42 Trident Mgmt. Grp., LLC v. GLF Constr. Corp., No. 16-17277, 2017 WL 3011144, at *4 (E.D. La.

7/14/2017) (citations omitted); see also Crosby, 647 F.3d at 264; Ganpat v. E. Pac. Shipping, PTE, Ltd.,

No. 18-13556, 2020 WL 1046336, at *3 (E.D. La. 3/4/2020) (Morgan, J.).

43 Summers v. Louisiana, 2021 WL 4392309, *3 (M.D. La. 9/24/2021) (internal quotations and citations

resisting discovery to show why the discovery is irrelevant, overly broad or unduly

burdensome or oppressive, and thus should not be permitted.”44

LAW AND ANALYSIS

In her Motion to Compel, Plaintiff seeks to compel the depositions of eight

individuals and the production of two categories of documents. The Court takes each

request in turn.

I. Plaintiff may depose Jacobs, Miles, Barton, Crochet, Werner, Jones,

Williams, and Woods.

A. A deposition of Stanley Jacobs is compelled.

Plaintiff requests she be allowed to depose Stanley Jacobs, a member of the Board

from 1997 to 2018,45 about three topics: (1) the Board’s knowledge of the alleged hostile

work environment in the LSU Athletics Department created by Leslie Miles; (2) the

identity of the relevant decisionmakers with respect to Plaintiff;46 and (3) the alleged

steps the Board took to conceal Leslie Miles’ conduct of sexual harassment and Title IX

violations from 2013 to 2016.47

For purposes of discovery, the Court finds the Board’s knowledge of the alleged

hostile work environment (topic 1) bears on Plaintiff’s Title VII hostile work environment

claim and the identity of the relevant decisionmakers (topic 2) bears on Plaintiff’s Title

VII and Title IX retaliation claims.48

To prevail on a Title VII hostile work environment claim, at trial, Plaintiff must

44 Id.

45 R. Doc. 333 at p. 5.

46 R. Doc. 336 at p. 3.

47 R. Doc. 324 at pp. 5-6. To be clear, the sexual harassment, Title IX violations, hostile work environment,

and discrimination described in this Order and Reasons are all alleged conduct lifted from Plaintiff’s second

amended complaint.

48 Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991). Because the deposition of Jacobs is not a Rule

30(b)(6) deposition of the Board, Jacobs, a former Board member, can only testify in his deposition about

his own knowledge of the incidents described in Plaintiff’s second amended complaint and his knowledge

prove: (1) she belongs to a protected group; (2) she was subjected to unwelcome

harassment; (3) the harassment complained of was based on her membership in the

protected group; (4) the harassment complained of affected a term, condition, or privilege

of employment; and (5) the employer knew or should have known of the harassment in

question and failed to take prompt remedial action.49 With respect to the fifth element,

an “employer” includes higher management or “someone who has power to take action to

remedy the problem.”50 As the Supreme Court has explained it, “[i]n determining whether

an actionable hostile work environment claim exists, we look to ‘all the circumstances,’

including ‘the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.”51 Likewise, to prevail on

her retaliation claims under Title VII and Title IX, Plaintiff must show, for example, the

relevant decisionmakers had knowledge of her protected activity at the time of any alleged

acts of retaliation.52

Plaintiff’s employer was the Board.53 Plainly, the knowledge of the Board regarding

the hostile work environment alleged by Plaintiff (topic 1) bears on her claim because

knowledge of her employer is a required element of a Title VII hostile work environment

claim.54 Plaintiff argues the Board controlled the day-to-day operations of the Athletics

Department.55 Stanley Jacobs was a member of the Board for a large part of the period

49 Johnson v. PRIDE Industries, Inc., 7 F.4th 392, 399-400 (5th Cir. 2021).

50 Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999).

51 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-17 (2002).

52 Collins v. Jackson Pub. Sch. Dist., 609 Fed.Appx. 792, 795 (5th Cir. 2015) (“The language of the anti-

retaliation provision of Title IX and Title VII are similar and ‘should be accorded a similar interpretation.’

. . . Unless a defendant knows that a plaintiff ‘engaged in any protected activity’ at the time of the alleged

retaliation, causation has not been shown.”).

53 Robertson v. Bd. of Sup’rs of Louisiana State University, 273 F.3d 1108 (5th Cir. 2001).

54 Johnson v. PRIDE Industries, Inc., 7 F.4th 392, 399-400 (5th Cir. 2021).

during which Plaintiff contends she was subject to a hostile work environment.56 The

Fifth Circuit holds, under certain circumstances, “higher management’s” knowledge “may

be imputed to the employer.”57 Said simply, Plaintiff may be able to impute individual

Board members’ knowledge to the Board to satisfy the “employer knowledge” element of

her Title VII hostile work environment claim. Thus, the Court is left with the firm

conviction that knowledge of the members of the Board, including Jacobs, regarding the

hostile work environment alleged by Plaintiff is a “matter that bears on, or that reasonably

could lead to other matters that could bear on, any issue that is or may be in that case,”

namely, the Plaintiff’s employer’s knowledge.58 Equally as apparent, the identity of the

relevant decisionmakers (topic 2), which the Court concludes is unclear at this stage of

the litigation, bears on Plaintiff’s retaliation claims as that information forms a part of a

required element as well.59 Plaintiff has carried her initial burden of showing the

information sought bears on a claim or defense.60 The Court will now consider objections

raised by the Board and Jacobs.

In opposition, the Board offers no specific argument with respect to Stanley Jacobs

being required to testify about these two topics.61 In one relevant part of its briefing, the

Board does contend “Plaintiff is not required to show that a [particular] member of the

Board was aware of the alleged retaliation and hostile environment.”62 Apparently, the

Board is arguing that a deposition of Jacobs and other Board members is not necessary

because the knowledge of any one Board member is not required. This argument misses

56 R. Doc. 333 at p. 5.

57 Sharp v. City of Houston, 164 F.3d 923, 929-30 (5th Cir. 1999).

58 Stevenson v. Benjamin, 2022 WL 12309062, *1 (5th Cir. 10/21/2022) (quoting Coughlin v. Lee, 946 F.2d

1152, 1159 (5th Cir. 1991)); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978); Rangel v.

Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 4/11/2011).

59 Collins v. Jackson Pub. Sch. Dist., 609 Fed.Appx. 792, 795 (5th Cir. 2015).

60 Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991).

61 See R. Doc. 334.

the mark. Plaintiff wishes to depose the identified individual Board members, including

Jacobs, to discover what these Board members or other decisionmakers knew because

what they knew may bear on what the Board knew.63 With respect to Plaintiff’s hostile

work environment claim, Plaintiff is required to show that her employer, the Board, had

knowledge of alleged discrimination. To the extent the Board argues only a 30(b)(6)

deposition of the Board is proportional to the needs of the case because only the testimony

of the representative of the Board is relevant, the Court disagrees. To discover the Board’s

knowledge of the alleged discrimination, Plaintiff is entitled to a 30(b)(6) deposition, as

well as depositions of the identified individual Board members, as a deposition pursuant

to Rule 30(b)(6) is substantially different from a witness’s deposition as an individual.64

Moreover, with respect to her retaliation claim, Plaintiff must show at trial, for example,

that the relevant decisionmakers had knowledge of her protected activities. At this stage

of the litigation it is unclear who the relevant decisionmakers were at all relevant times.

Some or all of the Board members to be deposed may have been decisionmakers or know

who the decisionmakers were. Thus, the Board’s argument fails for this reason also.

Elsewhere in its opposition, the Board generally argues “[t]o the extent Plaintiff is

attempting to base her hostile work environment claim on alleged conduct by Miles, any

such claim is prescribed” and thus, discovery of conduct related to Miles is irrelevant.65

The Court declines the Board’s invitation to rule on the merits of the prescription issue as

a predicate to ruling on a discovery matter. Moreover, separate and apart from the

prescription issue and the continuing violation doctrine, acts that “fall outside of the

statute of limitations[, though not actionable,] . . . may be used as relevant background

63 Sharp v. City of Houston, 164 F.3d 923, 929-30 (5th Cir. 1999).

64 See generally La. Pacific Corp. v. Money Mkt. 1 Inst’l Inv. Dealer, 285 F.R.D. 481, 486-89 (N.D. Calif.

9/10/2012) (explaining that “[t]he testimony of an individual . . . is distinct from the testimony of an

entity”); see also Golden v. Stein, 2020 WL 13553710, *4 (S.D. Iowa 4/14/2020).

evidence in support of a timely claim.”66

Moving to Stanley Jacobs’ opposition, he raises several specific concerns: (1)

“Jacobs has no knowledge of the circumstances of Lewis’ employment with LSU” because

Lewis “was not a member of the [Board] when Lewis was terminated in 2022;”67 and (2)

Jacobs was not Lewis’ employer.68 First, that Jacobs was not a member of the Board when

Lewis was terminated in 2022 does not ipso facto mean Jacobs has no knowledge of the

alleged hostile work environment and retaliation perpetrated by Leslie Miles and others

beginning in 2013. To the contrary, Plaintiff has provided evidence suggesting Jacobs is

knowledgeable about many of the accusations that strike at the core of Plaintiff’s

lawsuit.69 Thus, the Court finds Jacobs’ first argument unpersuasive.

Second, Jacobs offers no legal support for his contention that because he himself

was not Plaintiff’s employer he cannot be compelled to sit for a deposition in connection

with an employment lawsuit. For example, co-workers in an employment discrimination

case like the one sub judice regularly are required to sit for depositions even though they

personally are not the plaintiff’s employer. There is even greater justification for requiring

a member of the Board, which was Plaintiff’s employer, to sit for a deposition.

66 See Cesario v. Jewel Food Stores, Inc., 2020 WL 996498, *17 (N.D. Ill. 3/2/2020) (emphasis added); see

also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 116-17 (2002) (noting that an employee

may use “prior acts as background evidence in support of a timely claim”). The same rationale holds true

for untimely Title IX violations—though they are not actionable themselves, they may be used as relevant

background evidence in support of a timely claim.

67 Notably, Jacobs offers no declaration to accompany this representation. See Ronald A. Katz Technology

Licensing, L.P. v. Verizon Comm., Inc., 2002 WL 31356302 (E.D. Penn. 10/16/2002).

68 The remainder of Jacobs’ arguments are boilerplate objections or unsupported. See Weatherspoon v. 739

Iberville, LLC, 2022 WL 824618, *5-6 (E.D. La. 3/18/2022) (Roby, J.).

69 See R. Doc. 324-2. In her Motion to Compel, Plaintiff argues Stanley Jacobs waived the attorney-client

privilege of communications between Jacobs and Taylor Porter (the Board’s counsel) concerning the Miles

Investigation on account of a Sports Illustrated interview from 2021 in which Jacobs allegedly told the

publication he was “strongly encouraged by attorneys and the then-school president to keep the matter

secret.” This argument fails. The privilege belongs to the Board and it is well-settled that Jacobs, a former

member of the Board even in 2021, cannot unilaterally and individually waive the privilege that belongs to

the Board. See, e.g., In re PWK Timberland, LLC, 549 B.R. 366 (W.D. La. 105) (“Federal case law clearly

holds that a corporation’s attorney-client privilege belongs to the corporation, not the corporation’s officers

Accordingly, the Court finds this second argument meritless. For these reasons, Plaintiff

is entitled to depose Jacobs to ask about his knowledge of the alleged hostile work

environment in the LSU Athletics Department created by Leslie Miles and others and the

identities of the relevant decisionmakers with respect to Plaintiff.

Turning to the third topic identified by Plaintiff, the Court finds evidence of steps

the Board allegedly took to conceal Leslie Miles’ alleged sexual harassment and Title IX

violations from 2013 to 2016 (topic 3) is discoverable because this information may lead

to admissible evidence bearing on Plaintiff’s Title VII and Title IX claims.70 “‘When a

plaintiff must prove intentional discrimination, a district court can abuse its discretion by

limiting a plaintiff’s ability to show the atmosphere in which the plaintiff operated.’”71

“Evidence of other wrongs or acts may be admissible to prove, for example, defendant’s

motive, intent, plan, knowledge or absence of mistake in an employment discrimination

case.”72

As explained by Plaintiff’s briefing and statements made by counsel during the

March 28, 2023 status conference, Plaintiff’s argument is that a jury will be more willing

to believe she was retaliated against and subjected to a hostile work environment on

account of her reports of student complaints of sexual harassment and Title IX violations

by Leslie Miles if she is able to show the atmosphere in which she worked—that is, an

atmosphere in which efforts allegedly were made to conceal reports of sexual harassment

and Title IX violations perpetrated by Leslie Miles. The Court agrees with Plaintiff’s

argument. The Fifth Circuit has recognized “an atmosphere of condoned sexual

70 In so doing, the Court rejects the Board’s argument that this testimony fails the relevancy standard

employed at the discovery stage. R. Doc. 334 at pp. 4-6, 10.

71 Thompson v. UOP, LLC, 2021 WL 1669595, *3 (M.D. La. 4/28/2021) (quoting Kelly v. Boeing Petroleum

Servs., Inc., 61 F.3d 350, 358 (5th Cir. 1995)).

72 Marchese v. Secretary, Dep’t Interior, 2004 WL 2297465 *2 (E.D. La. 10/12/2004). And again, the

relevance standard is even broader in the discovery context than it is for admissibility purposes at trial, the

harassment in a workplace increases the likelihood of retaliation for complaints in

individual cases.”73 The Court will not deprive Plaintiff of the opportunity to discover the

nature of the underlying incidents and the alleged subsequent efforts at concealment.74

For these reasons, Plaintiff will be allowed to depose Jacobs about the nature of the

underlying incidents and the steps the Board allegedly took to conceal Leslie Miles’

conduct of sexual harassment and Title IX violations from 2013 to 2016.75

Consistent with Part I.F of this Order and Reasons, though Plaintiff is entitled to

depose Jacobs about the topics she has identified, to the extent any questions invade the

attorney-client relationship between the Board and Taylor Porter, Plaintiff’s counsel must

limit his examination to questions bearing a reasonable relationship between the

information sought and the Board’s concealment of the Memo to File, Student Complaint

Memo, Attachments, and Directive Letter and attachments.76 Moreover, Jacobs may

assert privilege to the extent Plaintiff seeks discovery of confidential communications

between Jacobs and his counsel, Jimmy Faircloth, Jr., Barbara Melton, and M. Katherine

Price.

B. A deposition of Leslie Miles is compelled.

Plaintiff requests she be allowed to depose Leslie Miles about two topics: (1)

whether Miles subjected Plaintiff to a hostile work environment and retaliation from 2012

and 2016 and (2) concealment of his alleged sexual harassment and Title IX violations

73 Kelly v. Boeing Petroleum Servs., Inc. 61 F.3d 350, 359 (quoting Hawkins v. Hennepin Technical Center,

900 F.2d 153, 156 (8th Cir.), cert. denied, 498 U.S. 854 (1990)) (internal alteration omitted).

74 Miller v. Sam Houston State Univ., 986 F.3d 880, 892 (5th Cir. 2021) (highlighting the dangers of

imposing discovery restrictions that “suffocate[]any chance for [the plaintiff] to present her claims”).

75 “Plaintiff asks the Court to address whether Plaintiff may question Jacobs about any conversation he had

with Taylor Porter Lawyers.” R. Doc. 324 at p. 7 n.30. The Court believes Plaintiff’s question is more

appropriately phrased, “Does the crime-fraud exception overcome all privileged communications between

Jacobs and Taylor Porter lawyers?” The answer to that question is obviously no, as the crime-fraud

exception only applies to communications reasonably related to the crime or fraud.

76 As a reminder, the Protective Order at R. Doc. 204 applies to information about “the identity of ‘Student

from 2013 to 2016 and in 2021. Obviously, the first topic bears on Plaintiff’s Title VII and

Title IX retaliation claims and Title VII hostile work environment claim, all three of which

involve alleged conduct by Leslie Miles. With respect to the second topic, the Court has

already found, supra, testimony about the steps the Board allegedly took to conceal Leslie

Miles’ alleged sexual harassment and Title IX violations from 2013 to 2016 bears on

Plaintiff’s claims. The Court’s reasoning applies equally to a finding that Miles’ own

knowledge of alleged concealment efforts from 2013 to 2016 and in 2021, as well

testimony about his involvement in that concealment, bears on Plaintiff’s hostile work

environment and retaliation claims. The Court rejects the Board’s objection based on

relevancy. Moreover, as previously explained, the Court declines the Board’s invitation to

rule on the merits of the prescription issue as a predicate to ruling on this discovery

matter.77

Plaintiff is entitled to depose Miles about the topics she has identified.

Nevertheless, Miles may assert privilege to the extent Plaintiff seeks discovery of

confidential communications between Miles and his counsel, Peter Ginsberg and

Christopher Zainey, Jr.

C. Depositions of Robert Barton and Vicki Crochet are compelled.

Plaintiff requests she be allowed to depose Taylor Porter lawyers Robert Barton

and Vicki Crochet about two topics: (1) the Board’s 2013 to 2021 concealment of

documents stemming from the Miles Investigation; and (2) alleged efforts of the Board

and the Board’s employees to cover-up complaints of sexual harassment and Title IX

violations during Plaintiff’s tenure at LSU. The Court has found, supra, these topics bear

77 It is worth mentioning that the Board does not object on the basis of privilege—this is likely because there

on Plaintiff’s Title IX and Title VII claims.78 The Court finds Barton and Crochet likely

have relevant testimony in light of the Court’s March 24, 2023 ruling.79

In opposition, the Board cites to Theriot v. Parish of Jefferson for the proposition

that “deposing an opposing party’s attorney is highly disfavored.”80 Theriot presented a

challenge to a redistricting plan in Jefferson Parish that a group of plaintiffs argued was

racially motivated and constituted illegal racial gerrymandering.81 During the course of

that litigation, the magistrate judge quashed the depositions of the defendants’ counsel,

which plaintiffs sought under the premise that defense counsel were “the only persons

with information about how or why redistricting . . . occurred.”82 The Fifth Circuit

affirmed, reasoning that “federal courts have disfavored the practice of taking the

deposition of a party’s attorney; instead, the practice should be employed only in limited

circumstances.”83 The Board ignores the context of the Fifth Circuit’s statement, which

was in reference to a larger discussion of concerns with allowing depositions of opposing

counsel on matters relating to a pending case.84 As federal district courts have recognized,

such concerns “are less pronounced when . . . the subject matter of the deposition of

opposing counsel is not his conduct in the pending case but his percipient knowledge of

the events surrounding a prior concluded litigation.”85 Here, Crochet and Barton are

78 Accordingly, the Court hereby rejects the Dismissed TP Defendants’ arguments about relevance. R. Doc.

325-1 at pp. 24-25. The remainder of the arguments raised in R. Doc. 325-1 at pp. 24-25 are boilerplate

objections, meaning they are not sufficient to prevent the discovery sought by Plaintiff.

79 R. Doc. 316.

80 R. Doc. 334 at p. 13 n.31.

81 185 F.3d 477, 491 (5th Cir. 1999).

82 Id.

83 Id.

84 Id. (citing Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) (a case in which the

Eighth Circuit explained deposing current opposing counsel is disfavored because it disrupts the adversarial

system, adds to the burdens and costs of litigation, and could chill candid communications)). The Eighth

Circuit has explained that its Shelton rule “was intended to protect against the ills of deposing opposing

counsel in a pending case which could potentially lead to the disclosure of the attorney’s litigation strategy.”

See Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729-30 (8th Cir. 2002).

85 ATS Products, Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 527, 532 (N.D. Calif. 9/14/2015) (emphasis

added).

former counsel, not current opposing counsel. Therefore, Barton and Crochet are simply

percipient witnesses, and Theriot is distinguishable.

Consistent with Part I.F of this Order and Reasons, though Plaintiff is entitled to

depose Barton and Crochet about the topics she has identified, to the extent any questions

invade the attorney-client relationship between the Board and Taylor Porter, Plaintiff’s

counsel must limit his examination to questions bearing a reasonable relationship

between the information sought and the Board’s concealment of the Memo to File,

Student Complaint Memo, Attachments, and Directive Letter and attachments.

Moreover, Barton and Crochet may assert privilege to the extent Plaintiff seeks discovery

of confidential communications between them and their own counsel, Joseph E. Cullens,

Jr., Avery Pardee, Brandon Black, John Guenard, Pauline Hardin, and Renee’ Crasto.

D. Depositions of Mary Leach Werner, Valencia Sarpy Jones,

James Williams, and Jimmie Woods are compelled.

Plaintiff requests she be allowed to depose current Board members Mary Leach

Werner, Valencia Sarpy Jones, James Williams, and Jimmie Woods about five topics: (1)

the Board’s knowledge of the hostile work environment and retaliation Plaintiff alleges

she suffered from 2012 to 2016 and in October 2020; (2) the Board’s knowledge of the

concealment of documents in 2013 and 2021 stemming from the Taylor Porter

investigation of Leslie Miles; (3) the Board’s knowledge in December 2020 of Wilson’s

past history or sexual harassment accusations against him; (4) the Board’s knowledge of

retaliation Plaintiff alleges she suffered because she reported Frank Wilson for sexual

harassment; and (5) investigations by the Board of Frank Wilson after it became aware

four women accused Frank Wilson of sexual harassment.86

86 Again, because the depositions of these individuals are not Rule 30(b)(6) depositions, they can only

With respect to topics 1 and 2, the Court already has found knowledge of the hostile

work environment and retaliation Plaintiff alleges she suffered bears on her Title IX and

Title VII claims (topic 1). The Court also has found knowledge of concealment of

documents in 2013 and 2021 stemming from the Taylor Porter investigation bears on

Plaintiff’s Title IX and Title VII claims (topic 2).

With respect to the third and fourth topics, the Court finds the Board’s knowledge

in December 2020 of Wilson’s past history of being accused of sexual harassment (topic

3) and the Board’s knowledge of retaliation that Plaintiff alleges she suffered on account

of her reports of sexual harassment by Frank Wilson (topic 4) bears on Plaintiff’s hostile

work environment and retaliation claims against the Board. In terms of her claims,

Plaintiff alleges “[s]ometime in 2013 Running Back Coach Frank Wilson came into

Plaintiff’s office, closed the door and pulled out his erect penis and asked her to touch

it,”87 which Plaintiff alleges she reported.88 Plaintiff alleges Frank Wilson sexually

harassed her and others from 2012 to 2016,89 conduct she reported.90 Plaintiff alleges

“[i]n December 2021[,] the [Board] approved the hiring of Frank Wilson as Associate

Head Coach.”91 On January 5, 2022, Plaintiff’s employment was terminated.92 She alleges

her termination was in violation of Title VII.93 As the Board notes, Plaintiff alleges her

termination was related to Wilson’s hiring because of her prior report of sexual

harassment allegations against Wilson.94

87 R. Doc. 219 at p. 18, ¶ 88.

88 Id.

89 Id. at p. 18, ¶ 90.

90 Id.

91 Id. at p. 18, ¶ 91.

92 Id.

93 Id.

The Court finds topics 3 and 4 are relevant to Plaintiff’s claims for retaliation and

hostile work environment, as stated in her second amended complaint,95 for two reasons.

First, to prevail on her hostile work environment claim at trial Plaintiff must prove, inter

alia, her employer knew or should have known of the harassment in question and failed

to take prompt remedial action.96 The Board’s knowledge in December 2020 of the

history of sexual harassment allegations against Wilson (topic 3) directly bears on the

knowledge element that is a hallmark of a hostile work environment claim.97 Second, to

prevail on her retaliation claims, Plaintiff must prove at trial, inter alia, the Board took an

adverse employment action against her. As a result, topic 4, the Board’s knowledge of

alleged acts of retaliation, i.e., adverse employment actions, bears on Plaintiff’s retaliation

claims.98

In opposition, the Board argues Plaintiff is not entitled to the discovery sought

because “Plaintiff does not have a Title IX claim for employment discrimination, so

Plaintiff cannot maintain a Title IX claim against Wilson” and because “Plaintiff did not

allege a Title VII claim for harassment by Frank Wilson, . . . Plaintiff did not file an EEOC

charge related to her Wilson allegations.”99 First, Plaintiff is not bringing, or attempting

to maintain, a Title IX claim against Wilson. Plaintiff brings a Title IX retaliation claim

and Title VII retaliation and hostile work environment claims against the Board. Likewise,

Plaintiff does not allege a Title VII claim for harassment by Frank Wilson; rather, she

95 In Count V of Plaintiff’s second amended complaint, titled “Hostile Work Environment,” Plaintiff “adopts

and incorporated by reference the previously plead factual allegations in the preceding paragraphs as if fully

pleaded herein.” See R. Doc. 219 at p. 67, ¶ 308. Likewise, in Count VI of Plaintiff’s second amended

complaint, titled Retaliation, “adopts and incorporated by reference the previously plead factual allegations

in the preceding paragraphs as if fully pleaded herein.” This captures Plaintiff’s allegations about Frank

Wilson.

96 Johnson v. PRIDE Industries, Inc., 7 F.4th 392, 399-400 (5th Cir. 2021).

97 And again, individual Board members knowledge may, under certain circumstances, be imputed to the

Board. See Sharp v. City of Houston, 164 F.3d 923, 929-30 (5th Cir. 1999).

98 Feist v. La. Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of Shreveport, 492

F.3d 551, 556-57 (5th Cir. 2007)).

brings a Title VII hostile work environment claim against the Board.100 To support that

claim, Plaintiff apparently intends to use evidence of alleged harassment by Frank Wilson.

To do so, she needs to be able to discover such evidence, to the extent it exists. Because

the Board’s two arguments are based on lack of relevance of the testimony to claims

Plaintiff failed to bring, the Court finds the arguments are without merit. Plaintiff is

entitled to discover the Board’s knowledge of reports of harassment allegedly perpetrated

by Frank Wilson and the Board’s knowledge of retaliation Plaintiff may have suffered on

account of her reporting Frank Wilson for sexual harassment (topics 3 and 4).

With respect to the fifth topic, the Court finds the investigations undertaken by the

Board after it became aware four women accused Frank Wilson of sexual harassment

bears on Plaintiff’s hostile work environment claim. The fifth element of a Title VII hostile

work environment claim is that the employer knew or should have known of the

harassment in question and failed to take prompt remedial action.101 Testimony from

Board members about remedial actions, including investigations of Frank Wilson, bears

on the inquiry of whether the Board “failed to take prompt remedial action.”102

Accordingly, all five topics identified by Plaintiff bear on her claims. Beyond this,

the Board argues “[s]eeking this testimony from non-decisionmakers is overly

burdensome, harassing, irrelevant, and not proportional to the needs of the case,”103 a

100 The Court finds the allegations in Plaintiff’s complaint with respect to Frank Wilson are reasonably

related to the allegations in Plaintiff’s Charge of Discrimination that (1) she was subjected to a “continuing

pattern of hostile work environment” and (2) she “engaged in protected activity by reporting sexist and

racist behavior among athletic officials and, from 2009 to present, [she was] subjected to retaliation and a

hostile work environment.” R. Doc. 219-8 at pp. 2, 3; see also Alfano v. Costello, 294 F.3d 365, 381 (2d Cir.

2002) (“jurisdiction exists over Title VII claims only if they have been included in an EEOC charge ‘or are

based on conduct subsequent to the EEOC charge which is “reasonably related” to that alleged in the EEOC

charge.”).

101 Johnson v. PRIDE Industries, Inc., 7 F.4th 392, 399-400 (5th Cir. 2021).

102 See, e.g., Goode v. Billington, 932 F.Supp.2d 75, 91 (D.D.C. 3/25/2021) (in the context of a Title VII

hostile work environment claim, finding it relevant to consider whether an employer took remedial action

“even after the Plaintiff’s termination”).

burden of proof the Board carries.104 However, the Board assumes, while citing no

evidence, that these Board members are non-decisionmakers, when, in the Court’s view,

the identity of the relevant decisionmakers has not been established at this stage of the

litigation.105 Moreover, to the extent the Board argues testimony from Werner, Jones,

Williams, and Woods is otherwise “overly burdensome, harassing, irrelevant, and not

proportional to the needs of the case,” the Board fails to specify how the discovery request

is overly burdensome and fails to specify how the Board will be harmed if it is forced to

respond to the request, meaning the objections are boilerplate. “Courts throughout the

country have long interpreted the rules to prohibit general, boilerplate objections.”106

Consistent with Part I.F of this Order and Reasons, though Plaintiff is entitled to

depose Werner, Jones, Williams, and Woods about the topics she has identified, to the

extent any questions invade the attorney-client relationship between the Board and

Taylor Porter, Plaintiff’s counsel must limit his examination to questions bearing a

reasonable relationship between the information sought and the Board’s concealment of

the Memo to File, Student Complaint Memo, Attachments, and Directive Letter and

attachments. Moreover, Werner, Jones, Williams, and Woods may assert privilege to the

extent Plaintiff seeks discovery of confidential communications between them and their

own counsel.

E. Plaintiff is granted leave to take over ten depositions.

In its opposition, the Board indicates that, “[b]ecause Plaintiff is seeking more than

ten depositions, she must seek and obtain leave of Court” for any deposition in excess of

ten.107 The Board is correct. Implicit in Plaintiff’s Motion to Compel is a request for, inter

104 Summers v. Louisiana, 2021 WL 4392309, *3 (M.D. La. 9/24/2021) (internal quotations and citations

omitted).

105 After all, Plaintiff seeks deposition testimony from Jacobs on this point.

106 Weatherspoon v. 739 Iberville, LLC, 2022 WL 824618, *5 (E.D. La. 3/18/2022).

alia, leave of Court to exceed the presumptive limit on the number of depositions

permitted under the Federal Rules of Civil Procedure. The Court will now consider that

request.

While the scope of discovery should “be accorded broad and liberal treatment,”

discovery “has ultimate and necessary boundaries.”108 Rule 30(a)(2)(A)(i) establishes a

default limitation on the number of depositions, providing in relevant part: “A party must

obtain leave of court, and the court must grant leave to the extent consistent with Rule

26(b)(1) and (2) . . . if the parties have not stipulated to the deposition and . . . the

deposition would result in more than 10 depositions being taken [by any party].”109 Rule

26(b)(2)(A) provides the Court with discretion to alter these limits.110

In light of the broad relevance standard in discovery,111 the Court has determined

the burden on the parties to participate in these additional depositions, and considering

the amount in controversy, the parties’ resources, the importance of the issues at stake

and the discovery, is not disproportionate to the needs of this case. Despite the Board’s,

Jacobs’, and the Dismissed TP Defendants’ contentions, this is not a simple employment

discrimination matter. Indeed, a review of the factual allegations underlying Plaintiff’s

second amended complaint, the multi-year scope of the allegations in question, and the

lengthy docket sheet, reveals very little about this case is simple.112 Moreover, no evidence

has been presented to show undue burden on account of the additional depositions.113

108 Michael G. Stag, L.L.C. v. Stuart H. Smith, L.L.C., 2021 WL 3809077, *2-3 (E.D. La. 8/26/2021)

(Currault, M.J.) (internal quotations omitted).

109 FED. R. CIV. PRO. 30(a)(2)(A)(i).

110 Michael G. Stag, L.L.C., 2021 WL 3809077 at *2.

111 Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2/4/2005) (citation omitted) (“Relevant

information need not be admissible at trial if the discovery appears reasonably calculated to lead to the

discovery of admissible evidence.”).

112 See Breuder v. Bd. Trustees, 2021 WL 1165089 (N.D. Ill. 3/25/2021).

113 This Order and Reasons does not grant any party unlimited leave to take more depositions over the

presumptive limit. Should any party seek to take additional depositions and the parties are unable to

stipulate to the same, that party must file a properly supported motion for leave setting forth the

F. The Court will attempt to employ a collaborative approach to

resolve the potential privilege issues.

At the outset, Plaintiff generally is not permitted to discover privileged

communications or attorney work product, unless the Court’s crime-fraud exception

rulings as applied overcome those protections.114 The Court’s crime-fraud exception

rulings extend only to the Board’s privileged communications and attorney work product

that are “reasonably related” to the Board’s concealment of the Memo to File, Student

Complaint Memo, Attachments, and Directive Letter and attachments.115 The Court’s

rulings do not apply to “all prior communications between the lawyer and the client” or

all attorney work product—“‘the breadth of the crime-fraud exception’s scope [] stands

for a sense of limitation or condition.’”116

There may be disputes during the depositions of these eight individuals about

privilege. In the context of the crime-fraud exception, the Fifth Circuit has provided little

guidance to district courts tasked with determining which attorney-client

communications are reasonably related to the crime or fraud. Obviously, it is difficult to

make such a determination before a deposition without knowing what the questions or

answers will be. During the May 18, 2023 status conference, the Court will discuss with

the parties possible options to facilitate the depositions, implement this Court’s crime-

fraud exception rulings, and prevent disclosure of communications that are protected by

the attorney-client privilege. The parties should be prepared to discuss this issue. Counsel

for deponents are invited to participate in the status conference and in this discussion.

114 See R. Docs. 316, 335.

115 R. Doc. 316 at pp. 26-29; see also R. Doc. 335 at p. 11.

II. The Court finds the document discovery sought by Plaintiff is

appropriate.

A. The Board is compelled to produce the 2021 Frank Wilson

background report.

Plaintiff argues the Board should be compelled to produce documents responsive

to the following requests, which relate to alleged sexual harassment by Frank Wilson:

 Frank Wilson Request No. 1: Request for documents, emails, or text

messages that were generated as a result of the Board’s investigation of

Frank Wilson after learning Sharon Lewis “and two other former LSU

employees” accused Frank Wilson of sexual harassment and sexual assault

in 2022.117

 Frank Wilson Request No. 2: Request for documents referencing any

investigation of Frank Wilson while he was employed at LSU.118

In opposition, the Board asserts, and it is uncontroverted, that the Board produced

all “non-privileged, relevant emails or ESI which were responsive to the requests” after

the parties “agreed on relevant search terms.”119 The Board, nevertheless, concedes Scott

Woodward testified in his deposition that in 2021 a background report was ordered on

Frank Wilson before he was re-hired,120 but the background report has not been produced

to Plaintiff.121 While the Board argues in a footnote that it is “not aware” of any Frank

Wilson background report,122 it does not detail any efforts it presumably made to search

for the background report referenced by Scott Woodward in his deposition before making

that representation in its briefing. The Court finds a 2021 background report on Frank

117 R. Doc. 324 at p. 12

118 Id.

119 R. Doc. 334 at p. 12.

120 Id.; see also R. Doc. 324-4 at pp. 80-81 (Woodward’s deposition testimony).

121 The Board acknowledges that Plaintiff can ask Rempe about the Frank Wilson background report, yet

there is no explanation offered about why Plaintiff can depose Rempe about this topic but not discover the

background report. R. Doc. 334 at p. 13. If the background report exists and the Board’s concern is

confidentiality, it may produce it subject to the protective order.

122 Id. at p. 13 n.29.

Wilson would bear on Plaintiff’s hostile work environment claim and retaliation claims

because it may reveal the Board’s knowledge of sexual harassment allegations made

against Frank Wilson. The Board will be ordered to produce either the 2021 Frank Wilson

background report to Plaintiff by May 25, 2023, or, if the Board maintains that the

background report does not exist after a diligent search, detail and report to Plaintiff the

efforts it made to locate the background report by the same date. From the briefing before

the Court, it appears this order resolves the discovery dispute with respect to Frank

Wilson.

B. The Board is compelled to produce documents related to

concealment as stated herein.

Plaintiff argues the Board should be compelled to produce documents responsive

to the following requests, which relate to alleged efforts by the Board to conceal sexual

harassment allegations made against Leslie Miles:

 Concealment Request No. 1: Request for emails between LSU General

Counsel offices, Taylor Porter, and the LSU BOS and administrators

discussing opposing the release of the Student Complaint Memo and

Directive Letter to Kenny Jacob in 2021.123

 Concealment Request No. 2: Request for unredacted Taylor Porter billing

records in the matter of Jacoby v. Galligan, case no. 703746

 Concealment Request No. 3: Request for emails and text messages between

Peter Ginsberg, Edward Hardin, Vicki Crochet, and Robert Barton

discussing the release of the Student Complaint Memo and Miles Directive

Letter after USA Today issued a public records request on December 14,

2020.

 Concealment Request No. 4: Request for emails and text messages between

Miles’ attorneys and Taylor Porter attorneys discussing USA Today writ of

mandamus in Jacoby v. Galligan, case no. 703746

123 “Plaintiff asks the Court to address whether . . . LSU must produce any emails between Jacobs and Taylor

Porter Lawyers discussing the Miles Investigation.” R. Doc. 324 at p. 7 n.30. The Court believes Plaintiff’s

question is more appropriately phrased, “Does the crime-fraud exception overcome all privileged

communications between Jacobs and Taylor Porter lawyers?” The answer to that question is obviously no,

 Concealment Request No. 5: Request for emails and text messages between

Vicki Crochet and Robert Barton discussing “settlement agreement with

LSU BOS and administrators in 2013 and 2021”

At the outset, the Court already has found, supra, evidence of the steps the Board

allegedly took to conceal Miles’ conduct of sexual harassment and Title IX violations from

2013 to 2016, and in 2021, bears a relationship to Plaintiff’s Title VII and Title IX claims

for purposes of discovery. For the reasons already expressed, and because these five

requests for production seek discovery of the same alleged concealment efforts, the

documents bear a relationship to Plaintiff’s claims.

To facilitate the production of emails and text messages included in the production,

the parties must meet and confer by no later than May 23, 2023, to identify

particularized search terms to be used to locate responsive documents. All production will

be completed as stated herein by no later than June 6, 2023. Production may be made

subject to the protective order, if justified.

Documents responsive to Concealment Request Nos. 1, 2, and 5, to be produced by

June 6, 2023, likely will yield what would be privileged attorney-client communications

and/or attorney work product were it not for the Court’s Orders and Reasons on the

crime-fraud exception. When the Board makes it production to Plaintiff, if any documents

are withheld, the Board must provide a privilege/attorney work product log. At the time

of the Board’s production to Plaintiff, any document listed on its privilege/attorney work

product log must be submitted for this Court’s in-camera review. At that point, the Court

will determine (1) whether any privilege and/or attorney work product protections apply

and (2) whether the Court’s crime-fraud exception rulings overcome those protections.

In the Court’s view, documents responsive to Concealment Request Nos. 3 and 4,

to be produced by June 6, 2023, are unlikely to yield privileged attorney-client

otherwise, when the Board makes its production to Plaintiff, it must provide a

privilege/attorney work product log. At the time of the Board’s production to Plaintiff,

any document listed on its privilege/attorney work product log must be submitted for this

Court’s in-camera review. At that point, the Court will determine (1) whether any privilege

and/or attorney work product protections apply and (2) whether the Court’s crime-fraud

exception rulings overcome those protections.

CONCLUSION

IT IS ORDERED that Plaintiff’s Motion to Compel124 is GRANTED as stated

herein. Plaintiff is granted leave of Court to take the additional depositions requested in

her Motion to Compel.125 Stanley Jacobs, Leslie Miles, Robert Barton, Vicki Crochet, Mary

Leach Werner, Valencia Sarpy Jones, James Williams, and Jimmie Woods shall appear

for depositions on a date that is mutually agreeable to the parties and deponents. The

scopes of the depositions are limited to the topics identified in this Order and Reasons.

IT IS FURTHER ORDERED that the Board produce the 2021 Frank Wilson

background report to Plaintiff by May 25, 2023, or, if the Board maintains that the

background report does not exist after a diligent search, detail and report to Plaintiff the

efforts it made to locate the background report by the same date.

IT IS FURTHER ORDERED that the parties meet and confer by no later than

May 23, 2023, to identify particularized search terms to be used to locate emails and

text messages responsive to Concealment Request Nos. 1, 3-5. The Board’s production to

Plaintiff of documents responsive to Concealment Request Nos. 1-5 shall be completed on

or before June 6, 2023. Any documents withheld on the basis of attorney-client privilege

or attorney work product doctrine must be identified on a log that is produced to Plaintiff

124 R. Doc. 324.

at the time of production. Those withheld documents, along with the log, must be

submitted for this Court’s in-camera review by June 6, 2023.

IT IS FURTHER ORDERED that the Board’s request for a protective order is

DENIED.!26

IT IS FURTHER ORDERED that Stanley Jacobs’ request for a protective order

is DENIED.27

IT IS FURTHER ORDERED that Stanley Jacobs’ request for an award of

reasonable expenses and attorney’s fees is DENIED.28

IT IS FURTHER ORDERED that the Dismissed TP Defendants’ request for a

protective order is DENIED.'29

New Orleans, Louisiana, this 17th day of May, 2023.

SUSIE MORGAN

UNITED STATES DISTRICT JUDGE

126 R, Doc. 334.

Doc. 333.

128 Td, at p. 2.

129 R. Doc. 325.

27