Orbovich v. Macalester College

In Orbovich v. Macalester College, 119 F.R.D. 411 (D. Minn. 1988), a federal district court rejected an assertion of privilege from discovery of academic peer review materials concerning denial of tenure.

In this widely cited decision, the court held that "the great weight of direct authority on the issue goes against defendant as does the relevant authority on the broader subjects of privilege and discovery." Id. at 413. The court relied on the:

recent Supreme Court decisions in EEOC v. Shell Oil Co., 466 U.S. 54, 80 L. Ed. 2d 41, 104 S. Ct. 1621 (1984) and Hishon v. King & Spalding, 467 U.S. 69, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). In Shell Oil, the Supreme Court dispensed with any notion that the EEOC must establish viability of the discrimination allegation as a prerequisite to enforcement of its subpoena. Such a requirement would impair the orderly progress of discovery by permitting threshold litigation about the adequacy of the proof of discrimination. Id. at 71, 81. In a private Title VII action, the same impediment to the intended self-execution of discovery under the rules would arise, embroiling the court in threshold decisions on the merits, prior to the time of trial. Such unusual treatment of a civil litigant is not warranted on the grounds that her adversary is an academic institution. "Exceptions to the demand for every man's evidence are not lightly created nor expansively construed." United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Although academia has an acknowledged higher interest in the unimpeded selection of those who are best qualified to educate, even this implied freedom of association is well understood to be limited by Congressional enactments barring discrimination. Hishon, at 80 n.4, J. Powell, concurring.

The rights of plaintiffs to obtain essential information in an effort to establish discrimination claims is a necessary infringement on the confidential peer review process. Rollins v. Farris, 108 F.R.D. 714 (E.D. Ark. 1985). After a thorough explication of the issue, Chief Judge Franklin Waters compelled the production of tenure files and deposition answers in a Title VII and § 1983 case, deciding to reject the approaches of Notre Dame and Gray, and choosing instead to follow Franklin & Marshall College. For the reasons set forth in his opinion, and above, the undersigned concludes that the Rollins approach is the correct one. As acknowledged by Judge Waters, not every discrimination case warrants such disclosure. Id. at 719. However, in this case, as in Rollins, the information sought does have an essential bearing on plaintiff's claims. Here, it is asserted that departmental members and faculty advisory committees recommended that plaintiff be tenured. Set against the assumption that peer review is at the heart of the tenure decision, the discovery sought by plaintiff is clearly within the scope of Rule 26(b), and goes to the issue of pretext. Interestingly, the Court in Gray, although employing a higher threshold for discovery, concluded that the contents of the tenure file were important to plaintiff's ability to prove his case, and ordered discovery.

The same reasoning has been used to order discovery of medical peer reviews over the objections of physicians and hospitals, even in some instances with statutes providing for confidentiality. Quinn v. Kent General Hospital, 617 F. Supp. 1226 (D. Del. 1985); Schafer v. Parkview Memorial Hospital, 593 F. Supp. 61 (N.D. Ind. 1984); Dorsten v. Lapeer County General Hospital, 88 F.R.D. 583 (E.D. Mich. 1980); and Feminist Women's Health Center v. Mohammad, 586 F.2d 530 (5th Cir. 1978), reh. denied, 591 F.2d 1343 (1979) and cert. denied, 444 U.S. 924, 62 L. Ed. 2d 180, 100 S. Ct. 262 (1979).

Id. at 414-15. The court did hold that there should be a protective order governing the production of the confidential discovery documents.