A. KATHLEEN TOMLINSON, United States Magistrate Judge.
Plaintiff, a high school mathematics teacher, commenced this action seeking damages based on Defendants' alleged (1) discrimination based upon her disability, age, and national origin, including Defendants' decision to deny Plaintiff tenure, and (2) failure to accommodate Plaintiffs disability, in violation of federal and state law [DE 1].
II. PARTIES' ARGUMENTS
Plaintiff argues that the requested records are relevant to this action because they will allow Plaintiff to "show that the reasons Defendants gave for their actions are a mere pretext for discrimination." Pl. Mem. at 3. Specifically, Plaintiff wishes to use these records "to show that (1) her class assignments showed an increase in the number of special education students, especially those students with BIPs [Behavior Intervention Plans] that might affect classroom discipline; and (2) that students reached their IEP [Individual Education Plan] goals under her tutelage." Id. Plaintiff also requests "other students' scores and records so that a comparison can be made between those students assigned to [Plaintiff] and those assigned to other teachers in the math department." Id. at 4. Plaintiff notes that her "classroom observations are based on her interactions with students. If her students have special needs, then their education and behavior plans are particularly relevant as to whether the observer properly evaluated [Plaintiff's] interactions with her students, especially after her brain surgery."
Plaintiff asserts that any privacy concerns that may attach to the requested student records may be disposed of, as "[t]his information may be redacted in a manner sufficient to distinguish each student without disclosing complete identifiable personal information." Pl. Mem. at 5; Reply Mem. at 3.
Defendants argue that the requested documents are not relevant to this action because they will not "go toward meeting [Plaintiffs] burden" to establish that Defendants' articulated legitimate non-discriminatory reasons for denying Plaintiff tenure were merely a pretext for unlawful discrimination. Def. Mem. at 1.
Defendants further argue that the requested records "are private and are protected by the Family Educational Rights and Privacy Act (FERPA)," 20 U.S.C.
STANDARD OF REVIEW
A motion to compel is entrusted to the sound discretion of the district court. Am. Sav. Bank, FSB v. UBS Paine Webber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 108 (2d Cir.2003); United States v. Sanders, 211 F.3d 711, 720 (2d Cir.2000). The Second Circuit has noted that a "trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion." DG Corp. v. Dabah (In re DG Acquisition Corp.), 151 F.3d 75, 79 (2d Cir.1998) (citing Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir.1992)). A district court is considered to have abused its discretion only "if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
A. Relevant FERPA Provisions and Framework
The Family Educational Rights and Privacy Act of 1974 ("FERPA") provides in relevant part as follows:
20 U.S.C. § 1232g(b)(2).
The purpose of FERPA is to "assure parents of students ... access to their education records and to protect such individuals' right to privacy by limiting the transferability (and disclosure) of their records without their consent." Rios v. Read, 73 F.R.D. 589, 597 (E.D.N.Y.1977) (quoting 120 Cong. Rec. S21497 (daily ed. Dec. 13, 1974) (joint remarks of Sen. Buckley and Sen. Pell)). FERPA does, not provide a privilege that prevents the disclosure of student records. Id. at 598. "Rather, by threatening financial sanctions, it seeks to deter schools from adopting policies of releasing student records." Id.
Under the provisions of the statute, a school would not be subject to sanctions for disclosure of education records covered
Accordingly, a party seeking disclosure of education records protected by FERPA bears "a significantly heavier burden... to justify disclosure than exists with respect to discovery of other kinds of information, such as business records." Rios, 73 F.R.D. at 598. Courts, both within and outside this Circuit, have demonstrated a willingness to allow the disclosure of protected education records when the moving party has met its "significantly heavier burden" to show that its interests in obtaining the records outweighed the students' privacy interests. See, e.g., Nastasia v. New Fairfield Sch. Dist., No. 3:04 CV 925(TPS), 2006 WL 1699599, *1-2 (D.Conn. June 19, 2006) (issuing judicial order compelling disclosure of (1) the identification of another student who had made complaints similar to the plaintiffs, which was "arguably relevant" to plaintiffs claims and was "in the exclusive control of the defendant," and (2) records of similar complaints when the information was "clearly relevant" to plaintiffs claims and the defendant's burden of production was "minimal"); Davids v. Cedar Falls Cmty. Sch., No. C96-2071, 1998 WL 34112767, *3 (N.D.Iowa Oct. 28, 1998) (finding plaintiff's need for disclosure of education records, which would help him attempt to prove his allegations that his school "engaged in a practice of disparate discipline of minority and non-minority students," outweighed the students' privacy interests); Rios, 73 F.R.D. at 599 (determining that plaintiff demonstrated sufficient need for students' academic records and test results when it would be "impossible to prove" the alleged Title VI violations without such records).
B. Application to Plaintiffs Motion to Compel
Although Defendants' obligations and concerns regarding FERPA are wellgrounded, Defendants' arguments in resisting disclosure of the requested information seek to narrow the scope of discovery to a restrictive interpretation of the brief statements contained in the Superintendent's April 20, 2005 letter setting forth three reasons for the denial of tenure [DE 1, Ex. D]. The crux of Plaintiffs Complaint, however, is that these reasons (which Defendants allege are supported by the classroom observation documents) are a pretext for discrimination [see, e.g., DE 1 at ¶ 39]. Contrary to Defendants' assertions, Plaintiff is not required to prove these allegations (or "disprove" Defendants' articulated reasons for the denial of tenure) at this juncture. Rather, Plaintiff has the right to test Defendants' proffered defenses.
In determining this issue, I have reviewed and considered, among other things, the following documents and allegations that are relevant to the issue of pretext as well as to Defendants' position that Plaintiff was denied tenure for legitimate, non-discriminatory reasons:
(1) Complaint, especially paragraphs 2, 22, 23, 25, 33-36, 39-42 [DE 1]
(2) Exhibits D, L, M, N, O, and P annexed to the Complaint [DE 1]
(4) The assignment of five of seven special education students in Grade 6 to Plaintiff [DE 1, Ex. A]
(5) Classroom observation reports for Plaintiff both prior to and after Plaintiffs January 26, 2003 brain surgery [Exhibit B to Declaration of Brian S. Sokoloff, dated September 17, 2007, submitted in connection with Defendants' Opposition to Plaintiffs Motion to Compel Discovery, DE 20]. In addition, I have thoroughly reviewed the arguments by counsel for both sides, including the supporting citations to case law and the FERPA statute itself.
Having considered these authorities, as well as the Code of Federal Regulations, I find that the information sought by Plaintiffs counsel is protected by FERPA. The requested documents relating to students' grades, evaluations, and academic performance are undoubtedly "education records" within the meaning of FERPA, see 34 C.F.R. § 99.3, and the requested records contain personally identifiable information about students. See id. This conclusion, however, does not end the analysis, for two reasons. First, there is nothing in FERPA that would prohibit Defendants from releasing education records that had all "personally identifiable information" redacted. See U.S. v. Miami Univ., 294 F.3d 797, 824 (6th Cir.2002) (noting that parties "may still request student disciplinary records that do not contain personally identifiable information. Nothing in the FERPA would prevent the Universities from releasing properly redacted records."); Bd. of Tr., Cut Bank Pub. Sch. v. Cut Bank Pioneer Press, 337 Mont. 229, 160 P.3d 482, 487 (2007) (noting that "other jurisdictions have held that once a record is redacted, it no longer contains `information relating directly to a student' and is therefore not an educational record under FERPA") (collecting cases).
Second, FERPA permits Defendants to disclose students' education records to comply with a judicial order. See 34 CFR 99.31(a)(9)(i). In this case, Plaintiff has demonstrated a need for the requested education records — she has shown that these records are relevant at least to some degree in that they may aid her in an attempt to demonstrate that Defendants' articulated reasons for the denial of tenure were a pretext for unlawful discrimination. "Relevance" under Rule 26 "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir.1989) (holding that "the broad scope of discovery delimited by the Federal Rules of Civil Procedure is designed to achieve disclosure of all the evidence relevant to the merits of a controversy"). This Court has held that the "rights of litigants to discover and present relevant evidence in civil litigations is given great weight in federal courts," and that the "liberal" discovery rules tend "toward admitting as much evidence as possible so that the facts may be accurately determined." Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 82 (E.D.N.Y.1975). Furthermore, this Court has made clear that the scope of a Rule 34 request is governed by the liberal standards of Rule 26. See United States v. 50.34 Acres of Land in East Hills, 13 F.R.D. 19, 21 (E.D.N.Y.1952).
I find that the records requested by Plaintiff are relevant on the issue of pretext, whether or not Plaintiff is ultimately able to establish such pretext. Plaintiffs allegations at this stage in the proceedings
Plaintiff has demonstrated that the requested documents are relevant to aid her attempts to prove pretext, and her need for these records sufficiently outweighs the students' privacy interest, particularly since the records can be produced in redacted form with all personally identifiable information removed. See Rios, 73 F.R.D. at 598-99.
Accordingly, I find that an order requiring disclosure of the requested education records is appropriate here because the information Plaintiff seeks is arguably relevant to her claims and is in the exclusive control of Defendants. See Nastasia, 2006 WL 1699599, at * 1. In order to temper the privacy concerns raised under FERPA, all the requested education records sought here must be produced in redacted form and subject to a protective order, as outlined below. While the Court is mindful of the privacy interest of the students involved, such interest is outweighed by Plaintiffs need to obtain the information contained in those records.
The disclosure of the education records shall adhere to the following conditions:
Defendants are directed to serve the redacted records upon Plaintiffs counsel within thirty (30) days of the date of this Order.