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9/6/2017: UO lawyers want to out anonymous plaintiff in sexual misconduct case
I’m posting this for the record, I don’t pretend to understand it all. Like many universities, UO’s GCO pulls out FERPA when they want to avoid disclosing unpleasant info, for example when athletes are accused of assaults. But in this case UO’s hired attorneys are in favor of transparency and naming names.
The gist is that UO is being sued by John Doe, a student who was suspended by UO for alleged sexual misconduct with student Jane Roe. He prevailed in Lane County court on the argument that UO didn’t follow its student discipline procedures and/or that those procedures were flawed. Now it’s a federal case.
There’s something about herpes too. He wants a protective order from the court allowing him to sue UO anonymously. UO lawyers Amanda M. Walkup and Lillian Marshall-Bass have responded with this argument, which if accepted by the court will obviously make that more difficult, and discourage other such lawsuits:
On August 22, 2017, Plaintiff John Doe filed his Motion to Proceed Under Pseudonym and Incorporated Memorandum of Law (“Motion”). To the extent Plaintiff’s Motion also “seeks a protective order in aid of the Court’s ruling that would prohibit Defendants and their agents from disclosing the identities of John Doe or Jane Roe, except as may be necessary to defend this lawsuit[,]” (Motion at 2.)
Defendants respond that Plaintiff must file an appropriate motion for protective order pursuant to Fed. R. Civ. P. 26(c) and Local Rule 26-4 “show[ing] with respect to each particular material or category of materials that specific prejudice or harm will result if no order is granted” (LR 26-4). Further, a protective order “that would prohibit defendants from disclosing John Doe’s or Jane Roe’s identities to third parties, except as may be necessary to defend this suit” (Motion at 10) would be overly broad to the extent it purports to restrict Defendants’ lawful disclosures of information outside the context of this lawsuit. See, e.g., 34 C.F.R. 99.31 (certain disclosures exempt from FERPA consent requirements).
The docket with links to the complaint and arguments etc is here.
And for contrast, in the unrelated federal case filed by former UO Ed School Professor Chixapkaid Donald Michael Pavel against UO, where he alleges UO didn’t follow its faculty discipline procedures regarding his employment termination for alleged sexual misconduct, and/or that those procedures were flawed, Amanda M. Walkup’s successful argument in favor of a protective order for the student is here, with the complete docket here.
There’s also Jane Doe’s successful lawsuit against Duck basketball coach Dana Altman, docket here. Her lawyers also asked for a protective order allowing her to proceed anonymously. Apparently UO lawyers on that case did not object, and federal Judge Michael McShane approved the order the next day. As I recall one of Altman’s players’ attorneys did disclose Jane Doe’s identity during their sequent lawsuit against UO, but that was quickly purged from the record, with the cooperation of UO.