The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:20-CV-00481-BO
L.P., by and through her guardians, J.P
and K.P. & J.P. and K.P., individually,
Plaintiffs,
v. Order
Wake County Board of Education, et
al.,
Defendants.
J.P. and K.P., acting individually and on behalf of their daughter, L.P., have sued the Wake
County Board of Education, several of its administrators, and multiple teachers at Scotts Ridge
Elementary School. Plaintiffs allege that Defendants have violated myriad state and federal laws
in their treatment of L.P., who lives with various disabilities that impact her education. Am.
Compl., D.E. 28. Last December, Defendants subpoenaed Learn with the Best, the private school
that L.P. attended after leaving the Wake County school system, hoping to obtain documents
related to L.P.’s education since her transfer. See Subpoena at 4–5, D.E. 71–1. In mid-January
2023—after Learn with the Best’s responses were due—Plaintiffs moved to quash the subpoena,
alleging that it seeks irrelevant information and unduly burdens Learn with the Best. Mot. Quash,
D.E. 71. For the reasons set forth below, the court denies Plaintiffs’ motion.
I. Background
L.P. is a student who lives with several disabilities that impact her education. Am. Compl.
¶ 1. She began her time with the Wake County Public School System in 2017, when she enrolled
as a third grader. Id. ¶ 84. L.P. spent her third, fourth, and fifth grade years as a student at Scotts
Ridge Elementary School. Plaintiffs contend that, during these three school years, school staff
subjected her to unlawfully punitive seclusion and restraint that caused her severe mental distress
and hampered her educational achievement. Id. ¶ 3. L.P. and her parents originally sued in
September 2020, and their amended complaint seeks relief under Title II of the Americans with
Disabilities Act, the Rehabilitation Act, 42. U.S.C. § 1983, and North Carolina law. Plaintiffs’
state-law causes of action allege negligence, negligent infliction of emotional distress, and false
imprisonment.
Discovery began when the parties filed their Rule 26(f) report in September 2022. See Rule
26(f) Report, D.E. 58; Fed. R. Civ. P. 26(d) (“A party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f)[.]”). Discovery is set to close in April
2023, see Scheduling Order, D.E. 59, and the court recently entered a protective order that makes
current and former Wake County students’ records confidential, see Protective Order at 2, D.E.
77.
In December 2022, Defendants served a subpoena on Learn with the Best, the school that
L.P. began attending after she left the Wake County school system. Subpoena at 1. The subpoena
seeks 11 types of documents, ranging from cumulative records and individualized education plans
to intake and financial information. Id. at 4–5. Although Learn with the Best has not objected to
the subpoena, it did not provide any documents before the December 23, 2022 return date. Resp.
Opp’n Mot. Quash at 3, D.E. 72. Defendants attempted to follow up with Learn with the Best in
early January 2023, but this did not prompt the school to produce responsive documents. Id. at 1.
On January 12—roughly a week after Defendants reminded Learn with the Best about the
subpoena—Plaintiffs filed this motion to quash. In it, Plaintiffs argue that L.P.’s records with
Learn with the Best are irrelevant to their lawsuit and contend that the subpoena is overly broad
and unduly burdensome.1 Mot. Quash at 4. Defendants counter that the motion to quash is
untimely2 and that the subpoena seeks information relevant to calculating damages. Resp. Opp’n
Mot. Quash at 2, 4.
II. Discussion
Federal Rule of Civil Procedure 45 allows the court to quash a subpoena that “subjects a
person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). And Rule 26 enables a party to challenge
a subpoena that is overbroad or seeks irrelevant information. Id. 26(b)(1); see also U.S. Equal
Emp. Opportunity Comm’n v. Bojangles’ Rests., Inc., No. 5:16-CV-654-BO, 2017 WL 2889493,
at *4 (E.D.N.C. July 6, 2017). And while parties seldom have standing to challenge third-party
subpoenas, they may do so when they have a “personal right or privilege with respect to the
documents sought.” Id. at *3 (citing Jason’s Enter., Inc. v. Gen. Accident Ins. Co. of Am., Nos.
95–2553, 95–2554, 1996 WL 346515, at *5 (4th Cir. June 25, 1996)).3
Plaintiffs first claim that the court should quash the Learn with the Best subpoena because
it seeks documents that do not “pertain to the claims of discrimination, violations of L.P.’s
constitutional rights, [or] state tort actions committed by Defendants.” Mot. Quash at 5. But this
court has held that, when a student’s lawsuit places her own emotional status in issue, her student
1 Although they do not move to quash the subpoena on privacy grounds, Plaintiffs suggest that Defendants’ attempts
to obtain L.P.’s educational records without the consent of her parents should garner suspicion from the court. Mot.
Quash at 4. The court trusts that the protective order recently entered in this case will alleviate any concerns about
privacy. See Protective Order at 1.
2 Defendants are correct. “It is well settled that, to be timely, a motion to quash a subpoena must be made prior to
the return date of the subpoena.” Laschkewitsch v. Lincoln Life & Annuity Distribs., Inc., No. 5:13-CV-315-BO,
2014 WL 1159923, at *1 (E.D.N.C. Mar. 21, 2014) (quoting Est. of Ungar v. Palestinian Auth., 451 F. Supp. 2d
607, 610 (S.D.N.Y. 2006)). Defendants served the subpoena on Learn with the Best on December 9, 2022, with a
return date of December 23. Subpoena at 1. But Plaintiffs did not move to quash the subpoena until January 12,
2023. Thus, the court could deny Plaintiffs’ for untimeliness alone. But because the motion fails on non-procedural
grounds as well, the court will discuss its merits.
3 Defendants do not dispute that Plaintiffs have a personal right or privilege to L.P.’s educational records. And a
cursory search of caselaw suggests that Plaintiffs have standing. See, e.g., Primrose v. Castle Branch, Inc., No. 7:14-
CV-235-D, 2016 WL 917318, at *6 (E.D.N.C. Mar. 8, 2016).
file may be discovered. Primrose v. Castle Branch, Inc., No. 7:14-CV-235-D, 2016 WL 917318,
at *6 (E.D.N.C. Mar. 8, 2016).
In their amended complaint, Plaintiffs claim that Defendants caused L.P. severe mental and
emotional distress that led her to fear school, display symptoms associated with post-traumatic
stress disorder, and suffer increased school-related anxiety. Am. Compl. ¶ 256. In assessing the
damages that flowed from L.P.’s distress, the court will likely consider how she has fared since
she transferred to Learn with the Best. Cf. Primrose, 2016 WL 917318, at *6 (“Plaintiff’s
contention that defendant caused her emotional distress places her emotional status in issue.
Plaintiff’s student file . . . [is] relevant to such status.”). The subpoena served on Learn with the
Best requests information about L.P.’s scholastic records as well as the administrative and financial
measures Learn with the Best took to ensure that she had access to a meaningful education. See
Subpoena at 4–5. Because this information is relevant to Plaintiffs’ damages, the court will not
quash the subpoena for irrelevance.
Plaintiffs next contend that the subpoena should be quashed because it “imposes an undue
burden and expense on [Learn with the Best] to produce” the eleven categories of requested
records. Mot. Quash at 4. This argument is also unavailing. First, if Learn with the Best felt that
complying with Defendants’ subpoena would cause it undue burden, it could move to quash the
subpoena itself. Although Plaintiffs do have standing to challenge the subpoena, the court has no
reason to believe they are better situated than the subpoena’s target to assess the burden of
responding. Learn with the Best’s decision not to challenge the subpoena indicates that it does not
view the subpoena as unduly burdensome.
Second, and more importantly, the documents that Defendants seek from Learn with the
Best are, by and large, routine records that a school should have little difficulty producing.
Plaintiffs’ conclusory claims to the contrary—offered without any supporting evidence estimating
the cost of locating or producing these documents—provide no basis to quash. These documents
are relevant to Plaintiffs’ claim for damages; Defendants did not step outside the bounds of the
Federal Rules in pursuing them.
Conclusion
For the reasons discussed above, the court denies Plaintiffs’ motion to quash the subpoena
served on Learn with the Best (D.E. 71).
Dated: March 3, 2023 Le
Robert T. Numbers, II
United States Magistrate Judge