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Ludwig v. Elk-Point Jefferson School District 61-7

United States District Court, D. South Dakota, Southern Division

August 1, 2019

ADDISON LUDWIG, Plaintiff,
v.
ELK-POINT JEFFERSON SCHOOL DISTRICT 61-7, TRAVIS ASLESEN, SHERI HARDMAN, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL DOCKET NO. 19

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         This matter is pending before the court on plaintiff Addison Ludwig's complaint alleging defendants, her former high school, its principal (Mr. Travis Aslesen), and superintendent (Ms. Sheri Hardman), violated her rights under the First and Fourteenth Amendments and under Title IX. See Docket No. 1. She also asserts various state-law torts. Id. Defendants filed a motion to compel Ms. Ludwig to produce certain discovery, Docket No. 19, and the district court, the Honorable Lawrence L. Piersol, referred that motion to this magistrate judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 22.

         FACTS

         The following facts are drawn from Ms. Ludwig's complaint. This is not to suggest any imprimatur of veracity from the court as to those allegations. The allegations are simply reproduced here to provide context for the motion under consideration.

         During the 2017-2018 school year, Ms. Ludwig was a senior high school student at defendant school district. The school newspaper, “The Husky, ” featured a section called “Senior Spotlights” in which different seniors at the school were interviewed and the interview was printed in The Husky. On September 7, 2017, Ms. Ludwig was interviewed for a Senior Spotlights feature. Asked what her hobbies were, she responded she liked to “Netflix n' Chill with my boyfriend, ” among other activities.

         The complaint asserts that the phrase “Netflix n' Chill” has more than one meaning. One meaning is, literally, to watch Netflix and relax. Another meaning is a euphemism for having sex, a meaning Ms. Ludwig claims she was innocent of.

         Ms. Ludwig asserts a male senior student from the 2016-2017 school year also said “Netflix n' Chill” was one of his hobbies, it was reported as part of the male's Senior Spotlight interview with The Husky, and there were no repercussions. She also asserts a male student wore to school a shirt with the phrase “Netflix n' Chill” printed on it and there were no repercussions for him.

         Ms. Ludwig alleges she was penalized, punished and disciplined for stating in her Senior Spotlight interview that one of her hobbies was “Netflix n' Chill.” Furthermore, she alleges on September 13, 2017, Mr. Aslesen confronted Ms. Ludwig about the Netflix statement alone in his office, in violation of school policy which indicates all students should have a same-gender staff member present when gender-sensitive interrogations are conducted. She alleges Mr. Aslesen made her look up the definition of “Netflix n' Chill” on her laptop and read the definition out loud, which included the definition of a euphemism for sex. She alleges Mr. Aslesen accused her of broadcasting through her Senior Spotlight interview that she made a hobby of having sex with her boyfriend. Ms. Ludwig alleges this episode alone with Mr. Aslesen in his office was humiliating, uncomfortable, shaming and embarrassing for her.

         As a result of this incident, Mr. Aslesen revoked Ms. Ludwig's senior privileges and honor study hall, removed her as editor of The Husky, moved her to a new home room, and required her to write a retraction and apology to be printed in both The Husky and the local newspaper of general circulation.

         Ms. Ludwig alleges after this meeting, Mr. Aslesen did indeed contact the local newspaper, the “Leader-Courier, ”[1] and shared federally-protected school information about her with the paper as well as made defamatory comments about her to the editor. Ms. Ludwig alleges Mr. Aslesen likewise shared private information about her with a fellow student.

         Ms. Ludwig alleges her mother complained about Mr. Aslesen's conduct and a “sham” investigation was conducted, which exonerated him. She alleges the school district was on notice of Mr. Aslesen's questionable sexual misconduct because two girls had made a report in January, 2013, that Mr. Aslesen had made inappropriate sexual comments to them and looked them “up and down.”

         Defendants filed the instant motion to compel, asserting Ms. Ludwig had not provided them with her initial disclosures as required by Fed.R.Civ.P. 26(a)(1). See Docket No. 20. They also assert Ms. Ludwig failed to provide discovery responses to interrogatories and requests for production served on her. Id. In defendants' reply brief, they indicate Ms. Ludwig provided many of the requested items of discovery after the instant motion was filed. See Docket No. 24.[2] The court discusses the remaining outstanding discovery disputes below.

         DISCUSSION

         A. Interrogatory No. 5

         Defendants served Ms. Ludwig with the following interrogatory:

INTERROGATORY NO. 5
Identify and describe any and all handwritten or typewritten notes, reports, texts, diaries, calendars, messages, letters, photographs, videos, inquiries, statements, or other communication by you or on your behalf, from August 1, 2014, through the conclusion of high school and to the date of these interrogatories, regarding any issue or claim raised in your Complaint, including but not limited to email, text, instant messenger, Facebook, Twitter, Instagram, or any other digital platform where communication may take place, and any other communication by you or on your behalf, and for each, state:
(a) Name address [sic] of person making or providing the statement, communication, or taking the photograph or video;
(b) Date the statement, photograph, or video was made;
(c) If the statement is oral, the substance of such statement and the name and present address of each individual who heard it made;
(d) If the statement is written, the substance of such statement, the name and present address of the person who took the statement, and the custodian of the statement;
(e) Manner in which such statement was recorded;
(f) Name and address of person who has control or custody of such statement, communication, photograph, or video;
(g) Subject matter of such statement, communication, photograph, or video; and
(h) Description of what each statement, communication, photograph, or video contains.

See Docket No. 23-9 at p. 5.[3]

         Ms. Ludwig provided the following responses to Interrogatory No. 5:

ANSWER: Plaintiff objects to this interrogatory on the grounds that it is overly broad and unduly burdensome. Plaintiff further objects to this interrogatory on the grounds it inquires of information protected by the attorney-client privilege and/or work-product doctrine.
SUPPLEMENTAL ANSWER: Plaintiff objects to this interrogatory on the grounds that it is overly broad and unduly burdensome. Plaintiff further objects to this interrogatory on the grounds it inquires of information protected by the attorney-client privilege and/or work-product doctrine. Plaintiff's Privilege Log is attached herewith.

See Docket No. 23-9 at pp. 5-6.

         Defendants seek an order compelling Ms. Ludwig to provide the names of individuals providing or making the statement, the date of the statement, the substance of the statement, and the name of the custodian of the document. Also, while defendants admit Ms. Ludwig provided a privilege log, they assert the log does not comply with Rule 26(b)(5) and defendants seek this court's order compelling Ms. Ludwig to produce a log that does comply with the rule.

         Ms. Ludwig's response to defendants' motion to compel does not elaborate on her written objections that the discovery is “overly broad and unduly burdensome.” See Docket No. 23. Instead, Ms. Ludwig's only response is to allege she has repeatedly, both ...


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