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Lawyers for both Washington and Lee University and the suspended Phi Zeta Delta fraternity were back in court last week to argue over motions related to discovery for the civil trial scheduled for December.
The fraternity is suing the university for an alleged violation of the lease on the fraternity house when the fraternity was suspended in May of 2023, following a ruling by the university’s Interfraternity Council (IFC) on an alleged hazing incident at the fraternity. The fraternity alleges that the university violated the lease by not following the proper disciplinary procedures as listed in the student handbook.
Attorneys for the university filed three motions in response to requests for discovery from Paul Beers, the attorney representing the fraternity.
In his request, Beers asked for communications related to the alleged hazing incident that resulted in the fraternity being suspended and its lease agreement with W&L terminated, and requested that several individuals involved in the hearing process for the incident – including two anonymous witnesses who came forward to the school’s Interfraternity Council – as well as several administrators, including university President William Dudley be deposed about the incident and the disciplinary process.
The defense filed a motion to exclude that evidence and an order of protection for the identities of the anonymous witnesses.
May Eckstein, one of the attorneys for the university, argued that whether or not hazing had occurred was not relevant to the suit regarding the alleged violation of the lease, and that a summary of the IFC’s ruling – with the identities of the anonymous witnesses removed – should be sufficient evidence.
Allowing the jury to hear arguments about whether hazing had occurred, she argued, would undermine the purpose of a student disciplinary process that had already been completed, and allowing the anonymous witnesses to be identified could discourage future witnesses from reporting on such matters in those processes.
She also argued that “what the victim or any witnesses may tell the jury is not relevant in determining the arbitrary and capricious standard” that is necessary to determine whether the university violated the fraternity’s lease.
Eckstein also noted that allowing Beers to depose the witnesses he has asked to – 24 individuals in total – would be difficult with the current deadlines on discovery for the trial, which is currently scheduled for December. She and Lewis Powell, another lawyer for the university, requested that the trial date be moved, especially if both motions were denied.
Beers argued that, since the fraternity is alleging that the university violated the lease by not following the disciplinary standards laid out in the student handbook, the procedures themselves were relevant to the arbitrary and capricious standard.
Judge Christopher Russell did not rule on the motions at last Thursday’s hearing, but indicated that he was “inclined to agree” that the details of the procedures of the disciplinary hearings were not relevant arguments toward the issue of an alleged violation of the lease. He also did not make a decision on moving the date of the trial, but did express skepticism that it would be able to go ahead as currently scheduled. -The university’s attorneys also filed a motion for an entry of confidentiality related to discovery evidence, particularly in regards to the fraternity’s house corporation, which is a party to the suit.
Three parents of W&L students who were members of the fraternity, and who are alumni of the fraternity, were recently elected to the board of the house corporation. Lewis Powell, who also represents the university, argued that these three individuals should not have access to evidence obtained in discovery related to the case due to their history of “attempting to try this case in the court of public opinion.” These individuals, Powell noted, had previously written letters to the university and other organizations, including the General’s Redoubt, discussing their dissatisfaction with how this matter was handled.
Beers argued that, since these individuals are members of the board of the house corporation, they have the same right to the information as the administrators of the university.
Russell granted an order that “restricts dissemination of information” to Ken Calhoun, the president of the house corporation, and to “one officer as designated by Mr. Calhoun.”
Another hearing will be scheduled for final ruling on the motion to exclude and the motion for the protective order, but as of Tuesday, the date had not been set.
