Education Comparator' discovery Title IX.

Byline: R.I. Lawyers Weekly Staff

Where (1) a plaintiff alleging that he was wrongly accused of sexual assault and improperly disciplined based on gender filed a Title IX complaint challenging numerous aspects of the defendant university's internal investigation process and (2) the plaintiff has moved to compel discovery related to six prior cases in which the university adjudicated allegations of nonconsensual sexual activity involving other students, that motion should be allowed because the plaintiff's discovery request is relevant and proportional, while the requested material can be disclosed in compliance with the Family Educational Rights and Privacy Act.

"Plaintiff David Smith has moved to compel discovery from Defendant Brown University ('Brown') related to six prior cases in which Brown adjudicated allegations of nonconsensual sexual activity involving other students. He is seeking third-party 'education records' as defined by the Family Educational Rights and Privacy Act,20 U.S.C. 1232g('FERPA') and34 C.F.R. 99.3. Because the Court finds that the request is relevant and proportional and can be disclosed in compliance with FERPA pursuant to34 C.F.R. 99.31(a)(9)(i)and (ii), the Court grants the motion subject to a stipulated agreement as to third-party notice.

"Mr. Smith alleges that he was wrongly accused of sexual assault and improperly disciplined based on gender. ... He has filed a Title IX claim challenging numerous aspects of Brown's internal investigation process. ... Mr. Smith served an interrogatory request seeking 'comparator discovery' regarding other sexual misconduct cases to which Brownobjected, stating that disclosure would violate the privacy of third parties under FERPA.

"Of thirty total cases, six were deemed by Brown to be responsive to his request. ... Brown objected to disclosing this information, citing relevance, proportionality, and privacy obligations under FERPA.

"Privilege is not at issue in this case. As such, the Court will evaluate relevance, proportionality, and the statutory requirements of disclosure under FERPA's 'litigation exception.'

"The requested discovery is broadly relevant to Mr. Smith's Title IX claim, which proceeds under twin theories of 'erroneous outcome' and 'selectiveenforcement.'

"Brown argues that every student-on-student misconduct claim involves 'unique events and circumstances' and that these records are not relevant because they involved different decision-makers under Title IX...