Perkins et al v. Federal Fruit & Produce Company, Inc. et al
ORDER granting in part 210 Defendants' Motion for Additional Discovery. The discovery permitted by this Order shall be completed on or before April 15, 2014. By Magistrate Judge Kristen L. Mix on 1/6/14.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00542-JAP-KLM
RICHARD PERKINS, individually, and
RICHARD MILLER, individually,
FEDERAL FRUIT & PRODUCE COMPANY, INC., a Colorado corporation, and
MICHAEL MARTELLI, individually,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Additional Discovery
[#210]1 (the “Motion”). Plaintiffs filed a Response to Motion for Additional Discovery
[#214] and Defendants filed a Reply in Support of Their Motion for Additional
Discovery [#221]. The Court has reviewed the case file and applicable law and is fully
advised in the premises. For the reasons discussed below, the Motion [#210] is GRANTED
in part, as explained below.
I. Procedural History
Plaintiffs Richard Perkins (“Perkins”) and Richard Miller (“Miller”) were employed by
Defendant Federal Fruit & Produce Company, Inc. (“Federal Fruit”) as truck drivers.
“[#210]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
Defendant Michael Martelli (“Martelli”) is one of the owners of Federal Fruit. [#76] at 16-17.
Plaintiffs asserted a variety of claims against Defendants relating to termination of Mr.
Perkins’ employment and the alleged constructive discharge of Mr. Miller. [#7]
The Motion requests post-trial discovery relating to new evidence presented by
Plaintiffs at trial. The case was tried to a jury in May of 2012. After entry of verdicts in
favor of Plaintiffs, the District Judge granted Defendants’ motion for new trial as to Mr.
Perkins’ retaliatory discharge claim against Mr. Martelli, Mr. Perkins’ damages (lost wages
and benefits only) on his unlawful discharge claim against both Defendants, Mr. Perkins’
damages (compensatory and punitive) on his disparate impact claim against both
Defendants, and Mr. Miller’s damages (compensatory and punitive) on his retaliatory
discharge claim against both Defendants. In a lengthy Order on Defendants’ requests for
post-trial relief [#194] , the District Judge made the following findings regarding the need
for a new trial which are relevant to the discovery issues now before the Court:
“Perkins’ contradictory testimony about the date he began post
discharge employment with GT Express affected Perkins’ expert’s
calculation of Perkins [sic] net loss of wages and benefits related to
Perkins [sic] retaliation claims. Thus, the jury’s determination of lost
wages and benefits was based on speculation.” Id. at 2.
“At trial, Defendants were surprised and unfairly prejudiced by
testimony that Perkins prepared an additional Union grievance but the
grievance was then misplaced by the Union. This missing grievance
was important evidence of Perkins’ protected activity supporting his
retaliation claim against Martelli.” Id.
“Prior to trial, Miller failed to reveal that he had been convicted for a
crime involving fraud. Miller also failed to inform [Federal Fruit] that
Miller knew that his [commercial driver’s license] was suspended three
days after Miller began working for [Federal Fruit]. And, Miller failed
to explain his testimony that he had been married for 27 years while
at the same time Miller owed child support to his wife. These three
areas of evidence would have been admissible primarily to prove that
Miller did not suffer emotional distress due to his discharge from
[Federal Fruit]. The evidence would also have been admissible to
attack Miller’s credibility.” Id. at 3.
“In sum, [at trial] Perkins affirmed or proved the protected activity
outlined in Perkins’ EEOC charge described in paragraphs 1), 2), 6),
and 7) [ ], but Perkins recanted the protected activity outlined in
Perkins’ EEOC charge described in paragraphs 3), 4), and 5) [ ]. In
addition, two of Perkins’ protected activities proven at trial were not
mentioned in Perkins’ EEOC charge. First, Perkins’ EEOC charge
failed to mention the March 23, 2009 grievance complaining about
race discrimination that allegedly occurred on March 19, 2009. . . .
Second, Perkins’ EEOC charge failed to mention the controversial
grievance brought up for the first time at trial in which Perkins
specifically complained about Martelli’s use of the term ‘nigger’ on
March 11, 2009. According to Perkins’ and [Union business
representative] Medina’s testimony, the Union misplaced this
grievance. To explain the discrepancies between his EEOC charge
and the trial evidence, Perkins testified that his [former] attorney,
Paula Greisen, drafted the EEOC charge, and Perkins signed it
without reading it.” Id. at 26-27.
“Perkins’ grievance (Ex. D FFP 00171) complaining about the write up
Perkins received on March 11, 2009, was very important to
Defendants not for what it stated but for what it did not state. In that
grievance, Perkins did not specifically complain about Martelli’s use
of the epithet ‘nigger,’ arguably the most significant event supporting
Perkins’ claims.” Id. at 37.
“At trial, testimony about the ‘missing’ grievance was important
evidence of protected activity that supported Perkins’ retaliation claim
against Martelli. The testimony about the grievance also bolstered
Perkins’ version of events that occurred on March 11, 2009, which
were [sic] vigorously contested by Defendants. . . . Significantly, only
one of Perkins’ protected activities was specifically directed at Martelli;
the missing March 11, 2009 grievance complaining about Martelli’s
use of a racial epithet on March 11, 2009. . . .Thus, the Court
concludes that Perkins’ failure to inform Defendants about this
significant piece of evidence caused Defendants to be unfairly
prejudiced in their defense of Perkins’ retaliation claim against Martelli.
. . . Perkins had a duty to inform Defendants that Perkins and Medina
would testify that Perkins prepared the grievance and the Union lost
it. . . . Perkins did not merely fail to produce a document, he failed to
inform Defendants of the existence of a critical document about which
he intended to present testimony. . . . Hence, the Court will vacate the
judgment against Martelli on Perkins’ retaliation claim and will grant a
new trial on that claim under Rule 60(b)(1) and Rule 60(b)(3) [relief
from judgment based on “surprise” and “fraud, misrepresentation, or
misconduct by an opposing party].” Id. at 43-44, 47-51.
“Importantly, the discrepancies in evidence at trial [about when Mr.
Perkins began working for his subsequent employer, GT Express] left
the jury with no solid basis on which to award lost wages and benefits
because the jury had no way to calculate the amount of Perkins’
actual wages that would be subtracted from the amount of wages that
Perkins would have earned at [Federal Fruit] if he had not been fired.
. . . The inaccurate information given to Defendants prior to trial, on
which [Plaintiffs’ damages expert] Dr. Pacey based her calculations,
justifies setting aside not only the jury’s award of damages for Perkins’
lost wages and benefits but also the Court’s Judgment imposing joint
and several liability on [Federal Fruit] and Martelli for those damages.
. . . Perkins failed to supplement his discovery responses in which he
told Defendants he began working for GT Express full time in May
2011, whereas at trial, Perkins claimed for the first time that he began
working part time for GT Express in October 2010. This ruling
recognizes Perkins’ lack of candor in discovery on this and other
subjects as the basis on which to order a new trial.” Id. at 64, 69 n.
“The Court finds that under Rule 60(b)(2), the new evidence regarding
Miller’s criminal history and about Miller’s knowledge that his
[commercial driver’s license] was suspended four days after he began
work for [Federal Fruit] warrants a new trial on damages with respect
to Miller’s retaliation claim against [Federal Fruit]. First, the evidence
about Miller’s notice that his license would be suspended and about
Miller’s criminal convictions was not discovered until after trial. And
although the evidence was technically available to Defendants, the
Court finds that Defendants did not lack diligence because they relied
on Miller’s pretrial representations. . . . The new evidence about
Miller’s conviction for criminal simulation is also sufficient to meet the
requirements for a new trial under Rule 60(b)(2) because the evidence
is not only relevant to Miller’s credibility but the evidence is also
relevant to rebut Miller’s evidence that he suffered emotional distress
as a result of being fired by [Federal Fruit]. . . . In conclusion, the jury
was given an incomplete picture on which to find that Miller suffered
emotional distress damages. The evidence about Miller’s conviction
for criminal simulation and the evidence that Miller received a warning
letter prior to his employment with [Federal Fruit] that his [commercial
driver’s license] was scheduled to be suspended could have affected
the jury’s award of compensatory damages for emotional pain and
mental anguish. Evidence that in 1995 and 1996 Miller claimed to be
single, but in 2012 Miller claimed to have been married for 27 years,
whether by common law or statutorily, is important evidence regarding
both Miller’s credibility and Miller’s claim that after he was fired from
[Federal Fruit] he experienced emotional distress because he was
unable to support his wife and children. Even the evidence that Miller
had an obligation for child support, either to his wife or to the state,
might be admissible at a new trial if Miller’s marriage status is not fully
explained.” Id. at 81-83 (citation omitted).
Defendants seek the following additional discovery: 1) a deposition of Mr. Perkins
regarding the “alleged ‘nigger’ grievance;” 2) one or more depositions of Union
representatives regarding the “alleged ‘nigger’ grievance;” 3) unspecified discovery from
Plaintiffs’ counsel about the “alleged ‘nigger’ grievance,” Mr. Miller’s marital status, criminal
record and commercial driver’s license; 4) unspecified discovery from Plaintiffs’ former
attorney about the “recanted EEOC charge allegations;” 5) subpoena duces tecum to GT
Express and deposition of GT Express about Mr. Perkins’ “dates and scope of
employment;” 6) deposition of Plaintiffs’ economic expert (if proffered for new trial); 7)
deposition of Mr. Miller about his alleged marriage, child support obligations, emotional
distress claims, and knowledge of driving record; 8) subpoena and/or request for production
of documents about Mr. Miller’s child support obligations and knowledge of driving record;
and 9) deposition of Mr. Miller’s alleged wife. Motion [#210] at 1-7.
Plaintiffs argue that discovery should be limited to: 1) a one-hour deposition of Mr.
Perkins about the “alleged ‘nigger’ grievance;” 2) leave for Dr. Pacey to amend her report
on damages and a two-hour deposition of Dr. Pacey about the amended report; and 3) a
subpoena duces tecum to GT Express relating to Mr. Perkins’ dates and scope of
employment. Response [#214] at 1-5. Plaintiffs argue that depositions of their present and
former attorneys would violate the attorney-client privilege, and that depositions of Mr.
Miller and/or his wife would violate the spousal privilege. Id. at 2-4. They assert that
discovery into Mr. Miller’s marriage should not be permitted “in order to protect the Miller
family from unnecessary annoyance and embarrassment” and that information regarding
his marriage, commercial driver’s license and child support obligations is not relevant. Id.
The language of the District Judge’s Order granting a new trial as to certain claims
and issues makes clear that evidence regarding Mr. Perkins’ “alleged ‘nigger’ grievance”
(topic A), the content, drafting and execution of Mr. Perkins’ EEOC charge of
discrimination (topic B), Mr. Perkins’ employment with GT Express (topic C), Dr. Pacey’s
expert opinion about Mr. Perkins’ wage and benefit losses (topic D), Mr. Miller’s conviction
of a crime involving fraud (topic E), Mr. Miller’s alleged marriage (topic F), Mr. Miller’s child
support obligations (topic G) and the suspension of Mr. Miller’s commercial driver’s license
(topic H) is not only relevant, but important, to the second trial.
In addition, the Court finds that Plaintiffs’ objection to the deposition of their former
attorney, Paula Greisen, regarding Mr. Perkins’ EEOC charge of discrimination lacks merit.
The Colorado courts have consistently held that
the attorney-client privilege is not an absolute privilege and may be waived
by the client. Any waiver must be demonstrated by evidence that the client,
by words or conduct, has expressly or impliedly forsaken his or her claim of
confidentiality with respect to the information in question and, thus, has
consented to its disclosure.
People v. Sickich, 935 P.2d 70, 73 (Colo. App. 1996). As noted by the Colorado Supreme
Court, “by placing in issue a confidential communication going directly to the claim or
defense, a party impliedly waives the attorney-client privilege with respect to that
communication.” Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 543 (Colo.
1989). The rationale for implied “at-issue” waiver of the attorney-client privilege is based
on the fact that the party himself places an allegedly privileged communication at issue in
the litigation, “because any other rule would enable the client to use as a sword the
protection which is awarded him as a shield.” People v. Madera, 112 P. 3d 688, 691 (Colo.
2005). A three-part test is used to determine whether there has been an implied waiver of
the attorney-client privilege by putting a matter in issue:
[I]mplied waiver of a privilege is appropriate where the following factors are
present: (1) assertion of the privilege was a result of some affirmative act,
such as filing suit, by the asserting party; (2) through this affirmative act, the
asserting party put the protected information at issue by making it relevant
to the case; and (3) application of the privilege would have denied the
opposing party access to information vital to his defense.
DiFede, 780 P.2d at 543-44; accord Madera, 112 P.3d at 691-92. Finally, in analyzing
whether an implied waiver has occurred, a court must determine:
(1) as precisely as possible, the information sought to be discovered; (2)
whether the information is relevant to a matter at issue; (3) whether the
information could be obtained by any other means; (4) whether the
information is privileged; (5) if it is privileged, whether the privilege has been
waived; (6) if it is privileged, but has been waived, either explicitly or
impliedly, the scope of the waiver.
Madera, 112 P. 3d at 691.
Application of the Madera and DiFede tests results in the conclusion that Mr. Perkins
impliedly waived his attorney-client privilege regarding communications with Ms. Greisen
about the EEOC charge of discrimination. Under the six-part Madera test, the information
sought to be discovered by Defendants relates to what Mr. Perkins told Ms. Greisen about
his alleged protected activities, whether he mentioned the “alleged ‘nigger’ grievance,” who
drafted the charge of discrimination, and whether Mr. Perkins read it or was aware of its
contents before signing it. Motion [#210] at 1-6. This information is relevant to Mr. Perkins’
claim for retaliatory discharge against Mr. Martelli, which will be retried at the second trial,
and to Mr. Perkins’ credibility. The information sought cannot be obtained by any other
means. Although the information is privileged, the privilege has been impliedly waived by
Mr. Perkins’ filing of the lawsuit as well as his testimony under oath that the EEOC charge
was inaccurate, was drafted by his attorney, and that he did not read it before signing it,
which put into issue his communications with Ms. Greisen relating to the charge.
Moreover, application of the privilege would deny Defendants access to information vital
to their defense of the retaliatory discharge claim. The scope of the waiver relates to all
information communicated by Mr. Perkins to Ms. Greisen regarding his alleged protected
activities, communications between Ms. Greisen and Mr. Perkins regarding drafting and the
content of the EEOC charge, information regarding Mr. Perkins’ knowledge of the content
of the EEOC charge prior to its execution by him, and who drafted the EEOC charge.
Madera, supra; DiFede, supra.
The Court further finds that the spousal privilege does not apply to information about
Mr. Miller’s marital status or child support obligations, as that information does not implicate
examination of Mr. Miller “for or against his wife” or “any communications made by one to
the other during the marriage.” Colo. Rev. Stat. § 13-90-107(1)(a)(I); see also People v.
Inman, 950 P.2d 640, 642 (Colo. App. 1997) (“[I]f there is no valid marriage, the privilege
against adverse spousal testimony does not apply.” (Internal quotation marks omitted)).
It is therefore clear that discovery should be permitted on each of these topics.
Accordingly, the Motion [#210] is GRANTED.
In order to protect against unnecessary expense and delay and to discourage
discovery abuses, see Fed. R. Civ. Pro. 26(c), the Court orders the following regarding the
methods Defendants may use to obtain discovery on the topics set forth above.
Defendants may not use these methods to obtain discovery on any topics other than topics
(A) through (H) above. Accordingly, IT IS ORDERED as follows:
Defendants may take no more than two hours of deposition testimony from
Defendants may take no more than three hours of deposition testimony from
Defendants may take no more than one hour of deposition testimony from a
Union representative or representatives.
Defendants may take no more than one hour of deposition testimony from
Paula Griesen, Esq., on a date and at a time and location mutually
convenient to all counsel and the parties, but no later than March 31, 2014.
Defendants may issue subpoenas duces tecums to GT Express, any third
party responsible for maintenance and/or in possession of child support
records regarding Mr. Miller, and any third party responsible for maintenance
and/or in possession of records relating to Mr. Miller’s commercial driver’s
Defendants may propound up to ten interrogatories and/or requests for
production of documents to Plaintiffs regarding topics (A) through (H).
Plaintiffs shall provide a supplemental report of Dr. Pacey, in accordance with
Fed. R. Civ. P. 26(a)(2), on or before February 28, 2014. Defendants may
take no more than two hours of deposition testimony from Dr. Pacey about
her supplemental report.
IT IS FURTHER ORDERED that the discovery permitted by this Order shall be
completed on or before April 15, 2014. The parties shall follow my discovery dispute
procedures regarding any disputes relating to the permitted discovery.
Dated: January 6, 2014
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