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Bagley v. Yale University

United States District Court, D. Connecticut

March 24, 2016




Continuing disputes in this ongoing litigation have given rise to a number of discovery-related motions. Some motions were filed by Defendants. One motion was filed by Plaintiff. Two motions were filed in February or early March of this year of 2016. A third motion was filed as recently as yesterday (March 23). Briefings are not complete on some motions and they cannot be regarded as ripe for decision. Nonetheless, this review of pending motions is useful to a discernment of the present status of the case.

The pending motions may be summarized thus:

1. Defendants' motion to compel deposition of Plaintiff. Doc. 168 (filed February 9, 2016).

2. Plaintiff's "omnibus" motion to compel Defendant Yale University to produce in discovery documents and files falling within a number of specific categories. Doc. 172 (filed March 2, 2016).

3. Defendants' second motion to compel, seeking to direct Plaintiff to answer certain interrogatories, produce certain requested documents, and furnish certain specified information. Doc. 175 (filed March 23, 2016).

The first of these motions is fully briefed. I resolve it herewith.

A. Defendants' Motion to Compel the Deposition of Plaintiff

Plaintiff's counsel initially resisted Defendants' motion to compel Bagley's deposition on the ground that too much time had passed before Defendants demanded it. Plaintiff's most recent submissions cling to that position.

There is no substance to the contention. Given the nature of the case and Professor Bagley's current personal situation, one can understand her distress that the litigation is taking this long. But the passage of time comes with the particular territory staked out by the case: a multi-count complaint asserting an assortment of federal and state claims, followed by defendants' motion to dismiss the complaint and plaintiff's motion for a preliminary injunction, and the massive amount of discovery Plaintiff has demanded and Defendants have furnished, at least in substantial part (accompanied by an additional spate of motions). The motions to dismiss and for a preliminary injunction both failed, the first after voluminous briefing and oral argument, the second after an evidentiary hearing extending over several days. I do not criticize the making of those motions, which were appropriate to the case, not in the least frivolous, and presented by gifted attorneys. But they took time to submit and decide.

As for discovery to date, Defendants' counsel say [Doc. 170 at 3] without contradiction that counsel for Plaintiff have noticed and taken the depositions of 21 Yale employees, and that in response to Plaintiff's demands Yale has reviewed "the equivalent of 2.8 million pages of e-mails from which they have produced in excess of 58, 000 pages of documents." The Court need not accept the precise mathematical accuracy of these figures in order to conclude, as I do, that Yale has produced a lot of stuff in discovery. The process took time.

There is no scheduling order in place that requires discovery depositions to be completed by a set time. No trial date has been set. It would be contrary to the natural order of things to ask Defendants to go to trial in a case of this sort without having been able to depose the Plaintiff. Plaintiff has deposed 21 Yale employees, and there is no discernible merit to her contention that she need not be deposed herself. The Federal Rules of Civil Procedure do not confer upon Defendants an absolute right to depose Plaintiff: Rule 26(c)(1) gives a trial judge discretion to order that discovery not take place if the order is necessary to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." None of these circumstances applies to Bagley's situation, and in their absence the thrust of the discovery rules is that Defendants are entitled to depose her. A ruling that Plaintiff need not be deposed would be an abuse of discretion. Defendants' motion to compel Plaintiff to appear and testify at a pre-trial deposition will accordingly be granted in principle, subject to working out or decreeing the details.

Perhaps anticipating the possibility of that Ruling, the most recent submissions of Plaintiff's counsel have focused upon the dates when Plaintiff's deposition might be held, if there had to be one (and there does). There were further contentious exchanges about this, but from the fog of war the date of April 28, 2016, emerges as a date acceptable to all individuals involved. In consequence, the Court will order that Plaintiff be deposed on that date, at a place to be agreed upon by the parties or decreed by the Court, with each party to bear its own expenses and fees.

The Court anticipates and hopes that this deposition will be completed in one full day. Whether that will be accomplished may depend upon the resolution of the other motions of the same vintage, discussed in Part B, supra. An Order with respect to Plaintiff's April ...

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