New and Noteworthy
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Doe v. Amherst College, No. C16-1296JLR (W.D. Wash. Nov. 16, 2016) (order granting motion to quash)
Following a campus sexual assault misconduct hearing at Amherst College, a student (Doe), was expelled after being found responsible for sexually assaulting another student (the victim). Doe filed a civil suit in the District of Massachusetts asserting ten claims against the College, including violations of Title IX, breach of contract, and defamation. As part of the lawsuit, Doe served a subpoena on the victim—a non-party—to testify at a deposition and to produce certain documents. The subpoena did not specify the scope of the deposition and requested 13 categories of documents, including “all documents and communications concerning the issue of sexual misconduct, sexual assault, rape, or rape culture, including but not limited to, all emails, text messages, posts on social media, articles, and blogs.” The victim moved to quash the subpoena. The United States District Court for the Western District of Washington found that an in-person deposition of boundless scope would impose a substantial burden on the victim. The court reasoned that it would “force [the victim] to relive a night in which she asserts [Doe] sexually assaulted her[,]” and that “[i]t takes no leap of logic to reason that a live deposition would impose emotion and psychological harm upon [the victim].” The court concluded that the heavy burden was not justified in this case where the subjects of litigation were the processes and policies involved in sexual assault misconduct hearings. The court further noted that the majority of the topics to be covered in the deposition were not relevant to the claims and any arguably relevant information was available from other sources, such as the College and its administrators. In addressing the subpoena’s request for documents, the court explained that as with the deposition request, it appeared to be an attempt to relitigate the merits of the sexual assault charge and was not relevant to the claims in the civil suit. In addition, all arguably relevant materials could be obtained from other sources and it had not been shown that Doe could get this information only from the victim. Because of the hardship to the victim, the marginal relevance of the requests for production, and the availability from other sources, the court granted the victim’s motion to quash the subpoena in its entirety. The court noted that because it was quashing the deposition and requests for production as unduly burdensome, it was unnecessary to consider whether the requests were precluded under Federal Rule of Evidence 412.
United States v. Kaplan, — F.3d —, Nos. 15-30213, 2016 WL 5859856 (9th Cir. Oct. 7, 2016)
Defendants pled guilty to several charges stemming from an explosion caused by the manufacture of hash oil, a controlled substance, in their apartment. The explosion destroyed a portion of the apartment complex and injured five victims, killing another. The district court ordered defendants to pay $2,771,929 in restitution for destroyed property that included clothes, furniture, and appliances. Defendants appealed the restitution award arguing that the district court erred in calculating the value of the lost property using the property’s replacement value rather than fair market value; the difference between the two measurements was $40,000. The appellate court, looking to the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. §3663A, explained that although the statute requires a court to order restitution in the full amount of the destroyed property’s value, it does not specify how a court is to calculate the value, and that how to calculate value for destroyed property under the MVRA was an issue of first impression for the Ninth Circuit. The court reasoned that the statute’s remedial purpose and the legislature’s desire that victims be restored to the position they occupied before the crime necessitated giving district courts flexibility in how they calculate value. The court then looked to other federal circuits that have addressed the issue and found cases that upheld replacement cost value and none prohibiting it. Based on these considerations, the court concluded that fair market value is generally the best measure for calculating restitution, however, replacement cost valuation is appropriate where the fair market value is either difficult to determine or is an inadequate or inferior measure of the property’s value. Applying this holding to the case before it, the court noted that the district court found that various pieces of the destroyed property were personal types of items and that awarding fair market value—which was the equivalent of purchasing someone else’s used items—would not make the victims whole. For these reasons, the appellate court held that the district court did not abuse its discretion in awarding the higher amount based on replacement value and upheld the restitution award.