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Heyman v. State ex rel. Board of Regents of Nevada System of Higher Education

United States District Court, D. Nevada

November 16, 2017




         This matter is before the Court on Plaintiff's Third Motion to Compel Defendant State of Nevada ex rel. Board of Regents of the Nevada System of Higher Education on behalf of University of Nevada, Las Vegas (“UNLV”) (ECF No. 189), Defendant Phillip Burns (ECF No. 190), Defendant Lisa Moll-Cain (ECF No. 191), Defendant Curtis Love (ECF No. 192), Defendant Kristin Malek (ECF No. 193), Defendant Stowe Shoemaker (ECF No. 194), Defendant Donald Snyder (ECF No. 195), and Defendant Sarah Tanford (ECF No. 196) to Further Respond to Plaintiff's Discovery Requests, filed on September 27, 2017. Defendants filed their Responses (ECF Nos. 207, 208, 209, 210, 211, 212, 213, 214, 215) on October 11, 2017. Plaintiff filed his Replies (ECF Nos. 217, 218, 219, 220, 221, 222, 223, 224) on October 18, 2017.

         Plaintiff filed eight separate motions to compel against eight Defendants, but provided identical substantive arguments in each motion for information sought by Plaintiff that is substantially similar for each Defendant. The Court will address the eight separate motions to compel including discovery requests that are particular to specific Defendants in this omnibus order. . . .


         Plaintiff Darren Heyman (“Heyman”) filed his first amended complaint (ECF No. 28) on April 13, 2016. Heyman alleges a variety of causes of action against Defendants UNLV, former University President Neal Smatresk, Snyder, Shoemaker, Burns, Montgomery, Love, Tanford, Malek and Moll-Cain, arising from a false accusation of cheating and subsequent investigation, including defamation, false light, conspiracy, concert of action, intentional infliction of emotional distress, breach of contract based on violations of UNLV's Code of Conduct, contractual and tortious breach of the covenant of good faith and fair dealing, constructive fraud, deceit and misrepresentation, fraudulent inducement, fraud/intentional misrepresentation, negligence, and negligent hiring, training and retention. Id. at ¶¶ 292-812.

         Heyman alleges that in 2013, he was enrolled in the Ph.D. program in the Hotel College at the University of Nevada Las Vegas (“UNLV”). As part of that program, he was required to pass the “Q-Exam.” Heyman alleges that on May 3, 2013, he was informed that Defendants Kristin Malek and Lisa Moll-Cain, who were also Ph.D. students, and “faculty who they had aligned themselves with, ” were going to try to have Heyman “separated” from UNLV if he failed the Q-Exam on his first try. On May 13, 2013, Heyman met with Dean Busser who was the head of the Ph.D. program. Dean Busser asked Heyman if he planned to cheat on the Q-Exam. He informed Heyman that Professors Rhonda Montgomery and Curtis Love, and Defendant Malek, had accused him of planning to cheat on the exam. Heyman stated that the accusation was false. First Amended Complaint, at ¶¶ 102-125.

         On May 13, 2013, Heyman sent an email to Defendant Donald Snyder, Dean of the Hotel College, regarding the accusation made against him. Snyder informed Heyman that he had just learned of the accusation and that it would be investigated. On May 16, 2013, one day before the Q-Exam, Snyder sent Heyman an email stating that the accusation was a student based rumor and was “clearly not the thinking or belief of the College or University.” Snyder stated that an investigation into the rumor would be conducted. Snyder also offered Heyman up to one month to take the Q-Exam. Heyman took the examination on May 23-24, 2013 and passed it. Id. at ¶¶ 173-187.

         Snyder referred Heyman to Defendant Phillip Burns, the Director of the Office of Student Conduct. Heyman met with Burns on May 31, 2013. He asked Burns if he was friendly with Montgomery, Love, Malek or Moll-Cain. Burns stated he was not. Burns indicated that he did not know any of these individuals by name. Heyman spent over two hours with Burns providing him with information about the sequence of events. He also sent Burns a detailed written account of names, dates, e-mails, times, and events. Heyman alleges that Burns purposefully did not inform him that he may have a Title IX claim against UNLV or the individuals involved in making the false accusation. Id. at ¶¶ 195-207. Heyman sent Burns several emails inquiring about the investigation. Burns informed Heyman that he could not question students or faculty who were not enrolled or present in school during the summer. Burns met with Heyman in September 2013 and informed him that he had completed the investigation. Burns stated that he only had authority over students and did not have authority over faculty. He indicated that he had determined that the investigation of the students was a “he-said, she-said” situation, and he recommended that no action be taken against any student. Burns also told Heyman that he was largely to blame for the accusation made against him. Burns refused to tell Heyman whom he had questioned and refused to provide Heyman with the investigation report. Id. at ¶¶ 211-227.

         In June 2014, Heyman became aware that Burns actually did know Montgomery prior to his first meeting with Heyman, and that Burns had spoken to Montgomery's classes multiple times over the years and had also socialized with her. Heyman sent an email to Snyder informing him that Burns had failed to disclose his relationship with Montgomery. Snyder informed Heyman that he would no longer discuss the accusation with him. Heyman was notified by UNLV's in-house counsel that any further discussion about the accusation should go through counsel. Heyman met with UNLV's general counsel and recounted what had transpired. He requested that UNLV hire an outside investigator. However, no independent investigation was ever done. No one was disciplined for making the false accusation. Instead, Defendant Tanford received tenure, Defendant Montgomery was promoted, and Defendant Love retired with a full pension. Id. at ¶¶ 239-256.

         Heyman alleges that on September 1, 2015, he filed a request for a leave of absence from UNLV until the fall of 2016 or 2017. On March 10, 2016, the UNLV Graduate College notified Heyman that he was being separated from the graduate program based on his failure to return from his leave of absence. On March 21, 2016, Heyman's leave of absence was reinstated and UNLV apologized for any undue stress that the notice of separation caused him. Heyman's twenty-sixth through thirtieth claims for relief allege claims against UNLV for intentional infliction of emotional distress, negligence, breach of contract, and contractual and tortious breach of the covenant of good faith and fair dealing relating to the letter of separation. His thirty-first claim for relief alleges a claim for civil conspiracy against UNLV and several individual Defendants including Montgomery, apparently on the grounds that they were involved in the decision to issue the separation letter. First Amended Complaint, at ¶¶ 1009-1096.

         Heyman also alleged causes of action for sexual harassment against UNLV, Montgomery, Love, Tanford, Burns, Malek and Moll-Cain. These claims were dismissed by the Court on March 31, 2017. The Court also dismissed Heyman's claims against Defendant Smatresk and it dismissed Heyman's eighteenth through twenty-fifth claims for relief which were based on the allegation that UNLV's in-house counsel had filed a meritless complaint with the Nevada State Bar that Heyman was practicing law without a license. Order (ECF No. 225); see also First Amended Complaint. at ¶¶ 622-685. As a result of the Court's partial dismissal order, Plaintiff's complaint boils down to the following factual claims: First, Heyman alleges that he was falsely accused of intending to cheat on the Q-Exam in May 2013. Second, he alleges that UNLV and its administrators failed to conduct an impartial investigation and properly discipline the faculty members and students responsible for making the false accusation. Third, he alleges that Defendant improperly terminated him from the Ph.D. program for failing to return from his leave of absence.

         On July 28, 2017, Plaintiff filed his supplemental motion for extension of time for discovery plan deadlines and for leave to enlarge deposition limit (ECF No. 159). On July 28, 2017, Defendants filed their supplemental brief or motion for protective order (ECF No. 160) and Plaintiff filed an additional supplemental brief (ECF No. 162). The Court granted, in part, Defendants' motion for protective order and set forth provisions on discovery topics related to criminal convictions, civil or administrative proceedings, sexual conduct, alcohol or controlled substance use, physical or mental health, the investigation into the cheating accusation, the institutional review board, and other students' leaves of absences. See ECF No. 188. On August 4, 2017, Plaintiff filed his second motion to compel (ECF No. 165) Defendant Montgomery to further respond to Plaintiff's discovery requests. On September 27, 2017, the Court granted, in part, Plaintiff's second motion to compel and instructed Defendant Montgomery to respond to specific interrogatories, requests for production, and requests for admission that were reasonably limited to relevant and discoverable information as discussed in the Order.


         Rule 26(b)(1) of the Federal Rules of Civil Procedure, as amended in 2015, provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, and the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.”

         The intent of the 2015 amendments to Rule 26(b) was to encourage trial courts to exercise their broad discretion to limit and tailor discovery to avoid abuse and overuse, and to actively manage discovery to accomplish the goal of Rule 1 “‘to secure the just, speedy, and inexpensive determination of every action and proceeding.'” Roberts v. Clark County School District, 312 ...

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