Smiley v. Hologic, Inc. et al

Filing 30

ORDER granting in part and denying in part 27 Joint MOTION for Discovery Determination of Discovery Dispute. As provided herein, Plaintiff must supplement her responses to Interrogatories 4, 7, 8, and 10, and produce her medical records in response to Requests for Production 16-19, all no later than September 30, 2016. Each party's motion for sanctions is DENIED. Signed by Magistrate Judge Mitchell D. Dembin on 9/16/16. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 16cv158-WQH-MDD

KARMEN SMILEY,
v.

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HOLOGIC, INC.,
Defendant.

ORDER ON JOINT MOTION FOR
DETERMINATION OF
DISCOVERY DISPUTE:
DEFENDANT’S MOTION TO
COMPEL FURTHER RESPONSES
TO CERTAIN
INTERROGATORIES AND
REQUESTS FOR PRODUCTION
[ECF NO. 27]

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Before the Court is the Joint Motion of the parties reflecting

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Defendant’s Motion to Compel further responses to certain interrogatories

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and requests for production filed on September 9, 2016. (ECF No. 27).

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LEGAL STANDARD
The Federal Rules of Civil Procedure generally allow for broad
discovery, authorizing parties to obtain discovery of “any nonprivileged
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matter that is relevant to any party’s claim or defense and proportional to the

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needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). “Information within the

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scope of discovery need not be admissible in evidence to be discoverable.” Id.

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District courts have broad discretion to determine relevancy for discovery

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purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

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Similarly, district courts have broad discretion to limit discovery where the

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discovery sought is “unreasonably cumulative or duplicative, or can be

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obtained from some other source that is more convenient, less burdensome, or

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less expensive.” Fed. R. Civ. P. 26(b)(2)(C).

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An interrogatory may relate to any matter that may be inquired under

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Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must answer each

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interrogatory by stating the appropriate objection(s) with specificity or by

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“answer[ing] separately and fully in writing under oath.” Id. at 33(b). The

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responding party has the option in certain circumstances to answer an

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interrogatory by specifying responsive records and making those records

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available to the interrogating party. Id. at 33(d).

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Similarly, a party may request the production of any document within

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the scope of Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the

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response must either state that inspection and related activities will be

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permitted as requested or state an objection to the request, including the

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reasons.” Id. at 34(b)(2)(B). If the responding party chooses to produce

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responsive information, rather than allow for inspection, the production must

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be completed no later than the time specified in the request or another

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reasonable time specified in the response. Id. An objection must state

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whether any responsive materials are being withheld on the basis of that

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objection. Id. at 34(b)(2)(C). An objection to part of a request must specify
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the part and permit inspection or production of the rest. Id. The responding

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party is responsible for all items in “the responding party s possession,

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custody, or control.” Id. at 34(a)(1). Actual possession, custody or control is

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not required. Rather, “[a] party may be ordered to produce a document in the

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possession of a non-party entity if that party has a legal right to obtain the

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document or has control over the entity who is in possession of the

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document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).

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DISCUSSION
According to Defendant, there is a “true dispute” regarding

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Interrogatories 1, 2, 4, and 10. (ECF No. 27 at 4 (the Court will refer to ECF

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pagination throughout)). Regarding Interrogatories 7 and 8 and Requests for

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Production 16-19, Defendant offers that it seeks relief because Plaintiff has

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agreed to supplement those responses but has not done so. (Id.). Each of the

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challenged responses will be addressed below.

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Interrogatories 1 and 2

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The Court finds that the issues pertaining to these interrogatories are

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similar enough to be addressed together. Interrogatory 1 seeks the total

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amount of income, benefits and earning capacity lost to Plaintiff as a result of

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the termination of her employment by Defendant to date and how the amount

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was calculated. Interrogatory 2 seeks identical information regarding

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Plaintiff’s claims of future losses.

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Plaintiff’s original responses were identical:

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Projected past and future losses of $587,612.38 in salary,
prescriptions, and insurance premiums. This was calculated by taking
[Plaintiff’s] salary and including a 2% annual increase, her annual bonus,
and employee stock options. Additionally, [Plaintiff] was supposed to
receive a bonus from [Defendant] in November 2015, but did not receive

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that bonus as she was terminated prior to November. [Plaintiff] was
further entitled to five paid weeks of vacation per year, seven days paid
sick time, one personal holiday, and ten paid holidays.

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(ECF No. 27 at 4, 5-6). Perhaps recognizing the non-responsiveness of these
answers, or because of the meet and confer efforts, Plaintiff produced a
document, identified as KS-0128, providing additional detail regarding her

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claimed losses. (ECF No. 27-2 at 3).
Defendant remains unsatisfied with these responses asserting that
Plaintiff should be required to state whether her claim for lost benefits is

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limited to those presented in KS-0128 and that Plaintiff must provide a more
detailed response regarding how she calculated the lost benefits. Defendant
asserts that the current responses have not been answered “fully in writing”

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as required by Rule 33(b)(3), Fed. R. Civ. P.
The Court finds that with the additional of KS-0128, Plaintiff has
responded adequately to Interrogatories 1 and 2. Defendant easily can

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determine the claims of lost benefits to date and future benefits. And,
although the ultimate decision on this issue would be by the trial judge, this
Court finds that Plaintiff would be hard-pressed to assert additional lost

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benefits, beyond those claimed in the response, including KS-0128, at any
trial of this action. The motion to compel further responses to Interrogatories

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1 and 2 is DENIED.
Interrogatory 4

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This interrogatory requires Plaintiff to state the cost of any benefit,
defined as any benefit from an employer including any welfare benefit or
pension benefit plan, she has had to purchase to replace any benefit to which

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she would have been entitled but for the termination. Plaintiff responded by
listing benefits she apparently received as an employee but does not identify
whether she has purchased replacement benefits and, if so, the cost of those

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purchases. Plaintiff asserts that she has not yet calculated those costs.
Plaintiff’s response is inadequate and her objections are OVERRULED.
Plaintiff must respond fully.

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Interrogatories 7 and 8
These interrogatories present similar issues and will be addressed
together. For any consultation, examination or treatment from any health

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care provider for any injury Plaintiff attributes to her termination,
Interrogatory 7 calls for Plaintiff to identify the provider, the type of
treatment provided, the dates of treatment and charges. Interrogatory 8
requires similar information regarding any medications taken as a result of
injuries Plaintiff attributes to her termination. (ECF No. 27 at 8, 10).

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In response to Interrogatory 7, Plaintiff identified two providers, a
primary care physician and a mental health care provider. For the primary

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care physician, Plaintiff failed to identify the type of consultation,
examination or treatment provided, failed to provide the dates of treatment
(saying only that that she has seen the doctor “periodically since

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termination”) and failed to state the costs of treatment (stating that she is in
the process of obtaining her medical records and will supplement on receipt).
For the mental health provider, Plaintiff identified the provider but failed to

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identify the type of consultation, examination or treatment provided.
Plaintiff disclosed that she started seeing this provider in early June 2016
and is seeing her biweekly since. As with Interrogatory 7, Plaintiff did not

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disclose the costs of treatment, asserting that she will supplement her
response upon receipt of her medical records.
In response to Interrogatory 8, Plaintiff identified medications and the

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provider but failed to state the date the medications were prescribed or
furnished and the date she started taking the medications. She did disclose
that she is still taking the medications and disclosed her estimate of the costs

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of the medications.
The Court finds that Plaintiff’s responses were deficient as follows:

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1. In response to Interrogatory 7, Plaintiff must supplement her
answers to include the type of consultation, examination or

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treatment provided by each provider, must supplement her response
regarding dates of treatment by her primary care physician and
must provide the cost of treatment for each provider.

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2. In response to Interrogatory 8, Plaintiff must supplement her answer
to provide the date that each medication was prescribed or furnished
and the date she started taking each medication.

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Interrogatory 10
Regarding any other damages, this interrogatory requires Plaintiff to
state the nature of the damage, the date it occurred, the amount and

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witnesses. In response, Plaintiff identified “civil damages; humiliation;
emotional distress and upset; punitive damages for malicious termination”
starting on the date of termination, in an unknown amount “to be determined

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at trial,” and identified Plaintiff’s health care providers, herself, her husband
and her son as witnesses. (ECF No. 27 at 11-12). Defendant asserts that this
response provides no useful information and contends that Plaintiff should be
required to provide a response presenting each item of damage in a
meaningful way.

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The Court finds Plaintiff’s response mostly to be adequate. Plaintiff
responded in the format identified by Defendant in the interrogatory. While

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it is true that “civil damages” is meaningless, Plaintiff is entitled, absent a
contrary order of the trial judge, to seek damages for emotional distress.
Plaintiff also may be entitled to seek punitive damages for wrongful

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termination. The real question is whether Plaintiff must disclose the
amounts of these damages that she seeks.
Rule 26(a)(1)(A)(iii), Fed. R. Civ. P., requires a party, as part of its

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initial disclosures and without awaiting a discovery request, to disclose:
A computation of each category of damages claimed by the disclosing
party – who must also make available for inspection and copying as under
Rule 34 the documents or other evidentiary material, unless privileged
or protected from disclosure, on which each computation is based,
including materials bearing on the nature and extent of injuries suffered.
A literal reading of the rule suggests that Plaintiff must provide a
computation of her damages and any documents supporting the computation.

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If only it were so easy.
Courts have split on the question of whether emotional distress
damages must be disclosed under Rule 26(a)(1)(A)(iii) or, “‘because of their

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vague and unspecific nature, are oftentimes not readily amenable to
computation.’” Compare First v. Kia of El Cajon, No. 10-cv-536-DMS-BGS,

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2010 WL 3069215 *1 (S.D. Cal. Aug. 4, 2010) citing Creswell v. HCAL Corp.,
No. 04cv388 BTM (RBB), 2007 WL 628036 *2 (S.D. Cal. Feb. 12, 2007) with

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Dixon v. Bankhead, No. 4:00cv344-WS, 2000 WL 33175440 *1 (N.D. Fla. Dec.
20, 2000). Other courts have found that based upon Plaintiff’s representation
that she will not suggest a specific amount of money for these damages, no

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computation need be provided. See Merrill v. Waffle House, Inc., 227 F.R.D.
467, 470 (N.D. Tex. 2005).
This Court will follow the lead provided in Sandoval v. American

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Building Maintenance Industries, Inc., 267 F.R.D. 257, 282 (D. Minn. 2007),
and require Plaintiff to disclose its computation of emotional distress
damages to Defendant only if Plaintiff intends to suggest a specific amount of

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such damages to the jury. This Court finds that there is no reason not to
consider the request for punitive damages for wrongful termination in the
same manner.

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As in Sandoval, this Court also will not allow Plaintiff to wait until the
eve of trial to provide Defendant with her computations of emotional distress
and punitive damages. “[I]t would be unfair to [Defendant] if [Plaintiff] could

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submit a specific dollar amount for damages to the jury without [Defendant]
having the opportunity to discover the basis for the claim and the opportunity

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before trial to rebut that claim.” Sandoval v. American Building Maintenance
Industries, Inc., 267 F.R.D. at 282.

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Accordingly, Plaintiff must state unequivocally to Defendant, no later
than September 30, 2016, whether she will suggest a specific number to the
jury for emotional distress and punitive damages and, if so, simultaneously

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disclose the number(s) and disclose the basis and evidentiary support for the
numbers to Defendant. If Plaintiff does choose this path, Defendant may
promptly seek leave of court to obtain limited additional discovery regarding

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the disclosures.
Requests for Production 16-19
These requests present similar issues and will be addressed together.

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Essentially, Defendant requires Plaintiff to produce her medical records in
support of her claims of economic and non-economic losses. Plaintiff
presented boilerplate objections which are OVERRULED and agreed to

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produce Plaintiff’s medical records. Defendant seeks an order providing
Plaintiff with a deadline for production.
This should not be necessary. As amended in December 2015, Rule
34(b)(2)(B), Fed. R. Civ. P., requires a responding party to produce documents
requested no later than the due date of the response or “another reasonable

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time specified in the response.” Id. Having failed to comply with the rule by
providing a reasonable date by which the documents would be produced,

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Plaintiff must provide the responsive documents no later than September 30,
2016.
CONCLUSION AND ORDER

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Plaintiff is ORDERED:
1. To supplement her responses to Interrogatories 4, 7 and 8, as
required herein, no later than September 30, 2016.

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2. To provide the medical records responsive to Requests for Production
16-19 no later than September 30, 2016.
3. Regarding Interrogatory 10, Plaintiff is to state unequivocally to

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Defendant, no later than September 30, 2016, whether she will
suggest a specific number to the jury for emotional distress and
punitive damages and, if so, simultaneously disclose the number(s)
and disclose the basis and evidentiary support for the numbers to
Defendant. If Plaintiff does choose this path, Defendant may
promptly seek leave of court to obtain limited additional discovery
regarding the disclosures.

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Each party’s motion for sanctions is DENIED.
IT IS SO ORDERED:

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Dated: September 16, 2016

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