                                                                                         06/26/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 May 22, 2019 Session

 G. G. EX REL. JACKIE JOHNSON ET AL. v. BOYD-BUCHANAN SCHOOL
                             ET AL.

        Interlocutory Appeal from the Chancery Court for Hamilton County
                 No. 17-0201       Jeffrey M. Atherton, Chancellor
                      ___________________________________

                           No. E2018-01912-COA-R9-CV
                       ___________________________________

This interlocutory appeal involves a discovery dispute. G.G., an eighth-grade student,
was expelled from Boyd-Buchanan School after he sent sexually explicit messages to a
female student on a social media platform. G.G. and his mother, Jackie Johnson, filed a
complaint against Boyd-Buchanan School and other school officials. The trial court
dismissed most of plaintiffs’ claims. The only remaining claim is plaintiffs’ breach of
contract claim against the school. During discovery, plaintiffs requested the employment
files of various school administrators and extensive information relating to the
disciplinary records of non-party students. The school filed a motion for a protective
order. The court granted the school’s motion in part and denied it in part. The school
then requested permission to file an interlocutory appeal. The trial court granted
permission to appeal, as did this Court. In this opinion, we clarify the appropriate legal
standard for analyzing discovery disputes. We also hold that the trial court abused its
discretion by entering an order that would allow plaintiffs to discover information that is
irrelevant to their breach of contract claim. Accordingly, we reverse the judgment of the
trial court and remand for the entry of an order granting Boyd-Buchanan School’s motion
for a protective order in its entirety.

     Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court
                             Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, J., joined. JOHN W. MCCLARTY, filed a dissenting opinion.

Jeffrey W. Maddux, Rosemarie L. Hill, and Andrew M. W. Mutter, Chattanooga,
Tennessee, for the appellant, Boyd-Buchanan School.

Charles P. Dupree, Chattanooga, Tennessee, for the appellees, G.G., by best friend and
mother Jackie Johnson, and Jackie Johnson, individually.
                                        OPINION

                                             I.

       Prior to this litigation, G.G. attended Boyd-Buchanan School, a private school in
Chattanooga. In January 2017, G.G. and a female student sent sexually explicit messages
to one another through a social media platform. The mother of the female student
notified the principal about G.G.’s inappropriate messages. School officials investigated.
Ultimately, G.G. was expelled.

       Plaintiffs filed a complaint in which they alleged that defendants were liable for
breach of contract, defamation, due process violations, and discrimination on the basis of
race, sex, and status as a recipient of financial aid. Plaintiffs’ complaint also requested
the entry of a “temporary restraining order” that would allow G.G. to return to school. In
April 2017, the trial court entered an order denying plaintiffs’ request for a temporary
restraining order, which the court construed as a request for a temporary injunction
pursuant to Tenn. R. Civ. P. 65.04. The court later dismissed all of plaintiffs’ claims with
prejudice, except plaintiffs’ breach of contract claim against the school.

       The following excerpt from plaintiffs’ third amended complaint represents the
entirety of their breach of contract claim:

              Petitioners allege that all the Defendants, including the Board
              of Directors, by their actions, are guilty of Breach of Contract
              to educate G G [sic]. They have expelled him without cause
              for the expulsion (Except to alleviate the cost the financial aid
              to a student) and acting differently toward him based upon his
              minority race and gender; his mother, Jackie Johnson, will be
              required to obtain additional funds for school tuition,
              educational materials and other expenses as the result of the
              actions of the President and the Principal. His treatment,
              under current information and belief, is not in legal parity
              with that of other students similarly situated.

              These actions also are in Breach of the School Handbook,
              Page 20, p. [sic].

Plaintiffs appear to argue that the Middle School Handbook (the handbook) constitutes a
written contract “to educate” G.G. Plaintiffs also seem to argue that the school breached
this alleged contract because G.G.’s conduct did not warrant expulsion under the school’s
sexual harassment policy (located on page 20 of the handbook). According to plaintiffs,
G.G.’s conduct did not constitute sexual harassment under that policy because his
conduct did not occur “on or off school premises at [a] school-sponsored activit[y]” and
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was not “unwanted or unwelcome.”

      During discovery, the school filed a motion for a protective order pursuant to
Tenn. R. Civ. P. 26.03. Specifically, the school requested an order protecting the school
from having to comply with the following discovery requests:

             INTERROGATORY NO. 5: Please list all students formally
             disciplined within the last three years to date, including their
             name, gender, age, race, Parents’ name and address, all
             charges placed against the student, action taken and what
             review of the action was made, and by what officials and the
             results of any review for each case.

             INTERROGATORY NO. 7: List any students that have been
             expelled within the last three years to date, stating name,
             gender, age, race. Parents’ name and address, initial charge,
             final charge for expulsion and factual basis for the behavior
             causing the expulsion. Also, please state the name, address
             and telephone number of all persons who investigated the
             charges.

             INTERROGATORY NO. 8: Have any students other than
             GG ever been expelled for violation of the school’s internet
             usage policy? If so, state the name, gender, age, race,
             Parents’ name and address, nature of the charges, what were
             the factual bases for the charges, name and address of
             investigating party, who directed the expulsion and when.

             INTERROGATORY NO. 9: Were any of the students listed
             in numbers 5, 7 and 8 above on financial aid to attend Boyd-
             Buchanan at the time of their discipline or expulsion? What
             was the effect of the disciplinary action on their financial aid
             package for the school?

             INTERROGATORY NO. 10: Have any of the students listed
             in your answer to number 7 and number 8 above been
             reinstated into school? If so, please state the name of the
             student, their race, name and address of the student’s parents,
             and the conditions of the reinstatement, including any change
             in financial aid status or increase in tuition.

             INTERROGATORY NO. 11: Of the students listed in
             numbers 7 and 8 above, how many have applied for
                                   -3-
             reinstatement to Boyd-Buchanan after expulsion and not been
             accepted back into school? Please list name, gender, age,
             race, Parents’ name and address, behavior that led to
             expulsion, and reason not re-admitted.

             INTERROGATORY NO. 12: Of the students listed in
             number 10 above, how many have not re-entered the school
             after being granted reinstatement? Please name the student,
             gender, age, race, parents’ names and address and reason not
             re-entered, if known.

             REQUEST NO. 1: Employment application, evaluation
             records and notes from date of employment to present date
             for Principal Jennifer Warnack.

             REQUEST NO. 2: Complete employment file, including
             evaluations, written job description and disciplinary records
             for Principal Jennifer Warnack from date of her employment
             to date.

             REQUEST NO. 3: All records, e-mails, internal records,
             notes and written materials relating to and covering the
             investigations, disciplinary decisions and the discipline to be
             taken, including all reviews of actions done and taken for the
             students listed in Interrogatories 5, 7 and 8 above.

             REQUEST NO. 4: All written materials, evaluations, e-mails
             and internal notes and/or background materials covering and
             dealing with all students listed in Interrogatories numbered 9,
             10 and 11 above.

             REQUEST NO. 5: All written materials referenced in
             Interrogatories numbered 3, 4 and 6 above.

             REQUEST NO. 6: The employment and administrative files
             of Jill C. Hartness, the President of the school, with her job
             description.

The school argued that the information sought by plaintiffs was irrelevant to their breach
of contract claim. The school also argued that “[t]he privacy interests of the non-parties
weigh heavily in favor of non-disclosure.”


                                          -4-
       The court entered an order granting the school’s motion in part and denying it in
part. The order stated that the school was not required to answer Interrogatory No. 9 or
Request Nos. 1, 3, 4, and 5. As to Interrogatory No. 5, the order provided that the school
was only required to disclose:

              the (a) first initial and last initial of the student; (b) age and
              grade level; (c) non-academic charges asserted; (d) discipline
              issued; (e) review engaged in; (f) by whom at Boyd-
              Buchanan; and (g) the results of the review for any non-
              academic disciplinary actions taken by Boyd-Buchanan
              Middle School within the prior three years (i.e. August 2014
              to July 2017).

The court’s order imposed these same limitations on Interrogatories Nos. 7, 8, 10, 11, and
12. The order still required the school to identify the number of students who were
expelled for academic reasons. The school was also required to disclose any conditions
that were required for reenrollment. Interrogatory No. 11 was limited to “students who
applied for reenrollment but were denied.” Interrogatory No. 12 was limited to “students
who were authorized for reenrollment but choose [sic] not to do so.” Request No. 2 was
limited “to employment files of Jennifer Warnack that reflect policies on how the
School’s handbook should be enforced in regards to student discipline.” Request No. 6
was limited “to employment files of Jill Hartness that reflect policies on how the School’s
behavioral code should be enforced in regards to student discipline.”

       The school requested permission to file an interlocutory appeal. The trial court
determined that it was necessary to grant the school’s request in order “to prevent
irreparable injury,” “to prevent needless, expensive, and protracted litigation,” and “to
develop a uniform body of law.” See Tenn. R. App. P. 9(a). This Court likewise granted
the school’s motion seeking permission to file an interlocutory appeal.

                                             II.

       The trial court certified the following issues for review:

              Whether a moving party must make a “compelling showing”
              of relevance and probative value to gain discovery of
              confidential, non-party, minor student information in the
              context of dispute between a former student and a private
              school.

              If not, what showing is required in such context?


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             Whether Plaintiffs in this case have made the required
             showing in a way that outweighs the privacy interests, legal
             obligations, and burdens at stake in compelling the production
             of such information.

                                          III.

        “The applicable standard of review for pretrial discovery decisions is abuse of
discretion.” West v. Schofield, 460 S.W.3d 113, 120 (Tenn. 2015) (citing Benton v.
Snyder, 825 S.W.2d 409, 416 (Tenn. 1992)). “An abuse of discretion occurs when the
trial court applies incorrect legal standards, reaches an illogical conclusion, bases its
decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party.” Id. (citing State v. Banks, 271 S.W.3d 90,
116 (Tenn. 2008)).

                                          IV.

                                           A.

       We begin by clarifying the appropriate legal standard for analyzing discovery
disputes. As a general rule,

             [p]arties may obtain discovery regarding any matter, not
             privileged, which is relevant to the subject matter involved in
             the pending action . . . .

Tenn. R. Civ. P. 26.02(1). “Thus, before a trial court may order matters divulged under
this Rule, it must make a threshold determination that the matters sought are (1) not
privileged and (2) relevant to the subject matter of the lawsuit.” West v. Schofield, 460
S.W.3d 113, 121 (Tenn. 2015).

       The Tennessee Rules of Evidence defines “[r]elevant evidence” as “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. However, “relevancy ‘is more loosely construed during
discovery than it is at trial.’ ” Schofield, 460 S.W.3d at 125 (quoting Boyd v. Comdata
Network, Inc., 88 S.W.3d 203, 220 n.25 (Tenn. Ct. App. 2002)). In the discovery
context, “[t]he phrase ‘relevant to the subject matter involved in the pending action’ is
synonymous with ‘germane’ or ‘bearing on the subject matter.’ ” Id. (citations omitted).
“Accordingly, before compelling discovery under Rule 26, a trial court first must
determine what is included in ‘the subject matter involved in the pending action.’ ” Id.
(quoting Tenn. R. Civ. P. 26.02(1)).

                                          -6-
       The subject matter of a case includes all facts that “relate[ ] to the claim or defense
of the party seeking discovery or to the claim or defense of any other party[.]” Tenn. R.
Civ. P. 26.02(1). The subject matter of a case also includes

              a variety of fact-oriented issues may arise during litigation
              that are not related to the merits. . . . Nevertheless, the
              information sought by a plaintiff through discovery must have
              some logical connection to proving his case and/or obtaining
              his prayed-for relief.

Schofield, 460 S.W.3d at 125 (internal quotations and citations omitted). “It is not
ground for objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of admissible
evidence.” Tenn. R. Civ. P. 26.02(1).

      After addressing the threshold issues of privilege and relevance, courts must also
conduct a balancing test:

              Even if a trial court determines that information sought
              pursuant to Rule 26 is not privileged and is relevant to the
              subject matter involved in the pending action, the trial court
              further should balance the specific need for the information
              against the harm that could result from disclosure of the
              information.

              Weighing the propriety of a discovery request for sensitive
              information involves not just determinations about privilege
              and relevance, but also the balancing of additional
              considerations, including the “ ‘protection of privacy,
              property and secret matters,’ ” and the “ ‘protection of parties
              or persons from annoyance, embarrassment, oppression, or
              undue burden or expense.’ ”

Id. at 127-28 (quoting Johnson v. Nissan N. America, Inc., 146 S.W.3d 600, 605 (Tenn.
Ct. App. 2004)).

       In the present case, the school argues that the trial court applied an incorrect legal
standard when ruling on the school’s motion for a protective order. Relying on this
Court’s decision in Johnson, the school argues that plaintiffs should have been required
to make a “compelling showing of relevance” in order to discover confidential
information of non-party students. See Johnson, 146 S.W.3d at 606. Although that
language does appear in Johnson, the Supreme Court’s decision in Schofield clearly
demonstrates that the issue of relevance is analytically distinct from the issue of privacy.
                                           -7-
The court must “make a threshold determination that the matters sought are (1) not
privileged and (2) relevant to the subject matter of the lawsuit.” 460 S.W.3d at 121
(emphasis added). If those requirements are met, then the court conducts a balancing test
to determine whether “the specific need for the information” outweighs “the harm that
could result from disclosure of the information.” Id. at 127-28. The court may consider
the parties’ privacy interests as part of that balancing test.

        This resolves the first two issues certified by the trial court. Tennessee law does
not require a “compelling showing of relevance” in order to discover the confidential
information of non-party, minor students. Instead, a party seeking this type of
information must show that the information is relevant to the subject matter of the case
and not privileged. It is only necessary to consider privacy interests when those threshold
requirements are met. There is no evidence that the trial court abused its discretion by
applying an incorrect legal standard when ruling on the school’s motion for a protective
order.1

                                                  B.

       The last issue certified by the trial court requires us to determine whether the court
abused its discretion by entering a protective order that “reache[d] an illogical
conclusion” or “employ[ed] reasoning that cause[d] an injustice” to the school.
Schofield, 460 S.W.3d at 120 (Tenn. 2015) (citing State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008)).

       As previously discussed, the court was required to determine whether the
information sought by plaintiffs was “(1) not privileged and (2) relevant to the subject
matter of the lawsuit.” Schofield, 460 S.W.3d at 121. Because the school does not claim
that any of the information was privileged, we focus on whether the court’s protective
order properly limited discovery to information “relevant to the subject matter of the
lawsuit.” Id.

       In order to prevail on a breach of contract claim, a plaintiff must prove “the
existence of a valid and enforceable contract, a deficiency in the performance amounting
to a breach, and damages caused by the breach.” Fed. Ins. Co. v. Winters, 354 S.W.3d
287, 291 (Tenn. 2011). Parol evidence is not admissible “to alter, vary, or qualify the
plain meaning of an unambiguous written contract.” Smith v. Hi–Speed, Inc., 536
S.W.3d 458, 470 (Tenn. Ct. App. 2016) (quoting GRW Enters., Inc. v. Davis, 797
S.W.2d 606, 610 (Tenn. Ct. App. 1990)). On the other hand, parol evidence is
admissible: (a) “to prove the existence of an independent or collateral agreement not in
conflict with the written agreement”; (b) “to demonstrate supplemental, consistent terms

        1
          Although the trial court’s order does not state which legal standard it applied, we assume the
court correctly applied the traditional relevance standard.
                                                 -8-
where the writing is not intended to be a complete and exclusive statement of the
agreement”; (c) “to prove that a written contract does not correctly embody the parties’
agreement”; and (d) to “prov[e] the existence of an agreement made after an earlier
written agreement.” Id. (citations omitted).

        In this case, plaintiffs sought to discover the employment files of school
administrators as well as extensive information relating to the disciplinary records of non-
party students. However, plaintiffs have failed to explain why any of that parol evidence
is relevant to the merits of their breach of contract claim. For example, plaintiffs do not
argue that the school’s sexual harassment policy – or any other provision of the handbook
– is ambiguous. According to plaintiffs’ complaint, “it is clear” that G.G.’s conduct does
not constitute sexual harassment, as defined in the handbook. Plaintiffs also do not argue
that parol evidence is necessary (a) “to prove the existence of an independent or collateral
agreement not in conflict with the written agreement”; (b) “to demonstrate supplemental,
consistent terms where the writing is not intended to be a complete and exclusive
statement of the agreement”; (c) “to prove that a written contract does not correctly
embody the parties’ agreement”; or (d) to “prov[e] the existence of an agreement made
after an earlier written agreement.” Smith, 536 S.W.3d at 470 (citations omitted). In
their brief, plaintiffs simply insist that discovery is “generally wide open” under
Tennessee law. Plaintiffs also vaguely assert that “a pattern or lack of same can only be
proven by the records in the possession of [the school.]”

        Although a pattern of selective enforcement might support a discrimination claim,
it is unclear what type of “pattern” would support plaintiffs’ breach of contract claim.
First, discovering a pattern of selective enforcement would not help plaintiffs prove that
the handbook constituted a valid and enforceable contract. Second, a pattern of selective
enforcement would not demonstrate that the school breached the alleged contract in this
specific instance. Cf. Steinkerchner v. Provident Life & Accident Ins. Co., No. 01A01–
9910–CH–00039, 1999 WL 734545, at *3 (Tenn. Ct. App., filed Sept. 22, 1999) (holding
that an insurer’s “conduct regarding the unique insurance claims of others is not relevant
to whether it properly handled the claim at issue.”). Third, a pattern of selective
enforcement would not help plaintiffs establish the existence of damages. Finally,
plaintiffs have failed to explain why discovery of such a “pattern” is “reasonably
calculated to lead to the discovery of admissible evidence.” See Tenn. R. Civ. P.
26.02(1).

       The trial court’s protective order did limit plaintiffs’ discovery requests in certain
respects. For example, the order protected the school from disclosing information
relating to other students’ race, sex, and financial aid status. The court correctly
concluded that this information was irrelevant because the court had dismissed plaintiffs’
discrimination claims. However, the protective order still required the school to disclose
some employment files and information relating to the disciplinary records of non-party
students. The court’s order does not explain why that parol evidence is relevant to
                                            -9-
plaintiffs’ breach of contract claim or how it could lead to the discovery of other
admissible evidence. For the reasons discussed above, we fail to see how any of the
information requested by plaintiffs is relevant to their breach of contract claim.
Accordingly, we hold that the trial court abused its discretion by entering a protective
order that “reache[d] an illogical conclusion” and “employ[ed] reasoning that cause[d] an
injustice” to the school. Schofield, 460 S.W.3d at 120 (Tenn. 2015) (citing State v.
Banks, 271 S.W.3d 90, 116 (Tenn. 2008)).

        Because we conclude that plaintiffs’ discovery requests seek information that is
not relevant to the subject matter of this case, we do not reach the question of whether
plaintiffs’ perceived need of the information outweighs the privacy interests of non-party
students. We also express no opinion on the merits of plaintiffs’ breach of contract
claim.

                                           V.

      The judgment of the trial court is reversed. The case is remanded for the entry of
an order granting Boyd-Buchanan School’s motion for a protective order in its entirety.
Costs on appeal are taxed to the appellees, G.G., by best friend and mother Jackie
Johnson, and Jackie Johnson, individually.




                                                   ________________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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