The Volokh Conspiracy
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From Judge Reed O'Connor's order today in Doe v. Texas Christian Univ. (N.D. Tex.):
[Non-party Jane] Roe's earlier reports of sexual assault by Plaintiff John Doe prompted Defendant TCU's institution of Title IX disciplinary proceedings against him and, in turn, gave rise to this suit…. [Doe subpoenaed Roe] to appear for deposition.
In September, the court held that Doe was entitled to take Roe's deposition:
Roe argues that requiring her to appear for an in-person deposition would produce only irrelevant, duplicative testimony, given that she has already testified exhaustively on the record produced in the Title IX disciplinary proceedings. She argues that any information she possesses has no bearing on any of Doe's claims—erroneous outcome, selective enforcement, or gender bias—and that the Court's consideration should be confined to the disciplinary record. Second, Roe claims that compelling her testimony would impose an undue burden in the form of "significant emotional harm and trauma" by forcing her to relive the experiences giving rise to her sexual assault allegations.
Doe argues that it is essential to depose Roe—who is designated as a key witness by both parties to the suit—because she has personal knowledge and information "relevant to the fairness and thoroughness of the process from its inception to its end," including information about the myriad interviews, meetings, and investigation that TCU conducted prior to and during the proceedings to which she was a party or witness; and information shedding light on her own credibility, including her motives for and manner of reporting. Doe also claims that Roe's evidence that compelling her testimony would impose an undue burden is insufficient and that she must therefore be deposed….
The Court finds that Doe's need to discover information about interviews, meetings with TCU officials, the investigation, the panel hearing, and the appeal in which she participated directly or as a witness are relevant to Doe's claims as it may shed light on both the accuracy of the outcome of the disciplinary proceeding (erroneous outcome) and TCU's potentially disparate treatment of Roe (a female) and Doe (a male) throughout the investigation and proceedings (gender bias; selective enforcement). Information reflecting on Roe's credibility—including potential motives to lie or to report, contradictory statements, and conversations with others throughout the process—is similarly relevant to Doe's claim of erroneous outcome.
Having considered her evidence, the Court recognizes that Roe's deposition will necessarily impose some hardship on her given the sensitive nature of the case. However, with the following limitations, the Court finds that allowing the deposition would not impose an undue burden and that it is justified in light of Doe's need to obtain the information.
Roe moved to reconsider, and yesterday the court adhered to its original decision:
In the intervening two weeks between the Court's first Order and her motion to reconsider, Roe obtained a second opinion from a treating professional that indicates requiring Roe to sit for a deposition "could be a trauma trigger," could cause Roe "distress," could "negatively impact her mental health," and "may cause her progress [made in counseling] to stall and fall behind." Primarily based on this treating professional's opinion, Roe asks the Court to reconsider its previous decision and to quash the deposition in its entirety….
[But w]hen considering Roe's initial motion to quash, the Court weighed Doe's need for Roe's testimony with the significant burden obtaining it would likely impose on her (according to her first treating professional, Kim Garrett). There the Court found that crafting parameters for the deposition, rather than completely quashing it, was an appropriate remedy in light of Doe's considerable need for information highly relevant to his dispute with TCU. The Court made this determination despite Ms. Garrett's unequivocal opinion that a deposition would, "to a reasonable degree of professional certainty," cause Roe "significant emotional harm and trauma." The declaration of Roe's second treating professional, which provides a more modest assessment that a deposition "may" or "could" be detrimental to Roe's well-being, does not alter the Court's undue burden analysis….
Again, the Court recognizes that permitting Roe's deposition to proceed will impose some degree of hardship on her given the sensitive nature of the instant dispute. The burden that necessarily comes with being deposed about one's allegations of sexual assault is not lost on the Court.
Still, the Court finds that the burden imposed is not so unreasonable and oppressive that it outweighs Doe's substantial need to obtain relevant information from Roe regarding the underlying allegations that gave rise to this lawsuit. And with the conditions previously imposed on the deposition—in addition to Doe's subsequent agreement not to appear in-person at the deposition—the Court finds that modifying the subpoena, rather than quashing it outright, is the appropriate remedy. Accordingly, the Court ORDERS that Roe's deposition be subject to the following conditions [which are similar to the ones in the original order -EV]:
- The single deposition shall occur at a neutral site (as agreed by the parties);
- The deposition shall be limited to 4 hours total;
- No more than two attorneys may be present for either party (as agreed by the parties);
- Roe shall be entitled to have one party present aside from counsel;
- Doe may not seek any information from Roe regarding her prior sexual history with anyone other than Doe and is ORDERED to refrain from seeking information for the purpose of embarrassment, harassment, or other improper means.