By Judy Clabes
NKyTribune Editor
A settlement conference has been ordered for Thursday morning in the Jane Doe vs. Northern Kentucky case. It will be heard by Magistrate Judge J. Gregory Wehrman.
Jane Doe, a pseudonym for a female student at NKU, who says she, as a freshman, was raped in a campus dorm. She claims the university did not respond appropriately to protect her after she went through the in-house hearing process.
A final pretrial conference date for the case has also been set for May 3 in Judge William O. Bertelsman’s U.S. District Court, Eastern District of Kentucky.
Depositions have been completed. NKU has now hired local attorney Jeffrey C. Mando. Jane Doe is represented by Kevin L. Murphy.
The settlement conference may have been driven by the most recent filing on behalf of Doe by Murphy — a “Rule 37 Motion for Sanctions” of NKU for “failing to comply” with the court’s October, 2016 order to produce to Doe and her counsel documents relevant to the case.
NKU has already been sanctioned for not turning over evidence and the court awarded Jane Doe legal fees in that instance.
Additionally the motion asks that the court not only sustain it but “strike NKU’s answer” or prevent NKU from “defending the case on liability.”
Murphy’s lengthy motion — 25 pages — claims that NKU has deliberately withheld “relevant evidence” that hampers his client’s case.
He says, in part that:
1. The university produced documents on the discovery cutoff deadline date — too late for the information to be used to inform depositions;
2. The university instructed a witness not to show up for a deposition;
3. The university failed to disclose that it had a computer database into which it recorded incidents of sexual misconduct — and that only after a former employee revealed it in a deposition;
4. The university employed numerous delay tactics, including a frivolous Motion to Enter Gag Order and to Seal; counsel instructing a witness not to answer a question (13 times) — it was this for which the university was sanctioned;
5. The 462 pages of documents — including emails — were produced at 3:51 p.m. on the “Very last of discovery,” which were relevant to depositions already taken; even more documents were produced 9 days after and 16 days after the close of discovery.
Murphy says in the motion, “NKU is still withholding relevant documents.”
The motion deals extensively with details related to the university’s FERPA (Family Educational Rights and Privacy Act) position and its Clery Act reporting. FERPA protects student privacy. The Clery Act requires federal reporting of “campus security policy and campus crime statistics.”
Murphy cites several specific incidences of non-reporting which are reflected in “NKU’s low amount of Clery Act reportable crimes.”
Regarding one incident, the Northern Kentucky Tribune spoke to the female student’s father who confirmed the incident in which his daughter was a victim. Though she called campus police to the dorm scene, no completed report is on file. The father, himself an attorney, and the daughter discovered that the record showed she “declined to prosecute” which, Murphy’s motion says, is “categorically false.”
“NKU withheld documents as they counted the days to the end of discovery, so their witnesses did not have to be questioned on them,” the motion argues.
It prevented the plaintiff from “inquiring about those documents in the depositions of Geoffrey Mearns, Leslie Fields, Gabby Dralle, Ann James, Kevin Schappel, Ken Bothoff and Jeffrey Waple, and the Plaintiff’s experts were unable to review key documents before their reports were issued.”
Murphy asks for severe sanctions: that NKU’s answer be stricken and that judgment on the issues of liability be granted.
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You may be interested in some of the Tribune’s other stories about Jane Doe vs. NKU:
https://nkytribune.com/2016/10/judges-order-in-doe-vs-nku-court-tells-university-to-turn-over-all-documents-about-sexual-assaults-on-campus/
https://nkytribune.com/2016/10/judge-william-bertlesman-rejects-nku-gag-order-motion-to-seal-documents-in-jane-doe-rape-case
https://nkytribune.com/2016/10/judge-sanctions-nku-awards-fees-for-issues-related-to-bothoffs-deposition-in-jane-doe-case/
Is this why Mearns is leaving?