Equal Employment Opportunity Commission v. CollegeAmerica Denver, Inc.

Filing 63

ORDER granting 48 Defendant's Motion to Compel, as set forth in the order, by Magistrate Judge Michael J. Watanabe on 9/21/2015.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01232-LTB-MJW
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff(s),
v.
COLLEGEAMERICA DENVER, INC.,
n/k/a CENTER FOR EXCELLENCE IN HIGHER EDUCATION, INC.,
d/b/a COLLEGEAMERICA,
Defendant(s).

ORDER REGARDING DEFENDANT’S MOTION TO COMPEL
(DOCKET NO. 48)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Defendant’s Motion to Compel (docket no. 48).
The court has reviewed the subject motion (docket no. 48), the response (docket no.
52), and the reply (docket no. 61). In addition, the court has taken judicial notice of the
court’s file and has considered applicable Federal Rules of Civil Procedure and case
law. The court now being fully informed makes the following findings of fact,
conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That in this case, the Plaintiff EEOC’s [hereinafter ”EEOC”] only
remaining claim is a retaliation claim premised on the Participation
Clause of the anti-retaliation provision of the ADEA, 29 U.S.C. §
623(d), which mirrors the Participation Clause in Title VII, 42 U.S.C.
§ 2000e-3(a). In essence, the EEOC claims that Ms. Potts
participated in a statutorily-established right to file a charge of
discrimination and that Defendant retaliated against her for doing
so by filing and continuing to litigate the state lawsuit against her.

5.

That in the subject motion (docket no. 48), the Defendant is
requesting this court enter an Order compelling the EEOC to
respond fully and completely to Defendant’s Request for Production
of Documents (“RFP”) Nos. 8, 9, and 10. As to RFP Nos. 9 and 10,
the Defendant has limited the scope to information contained in Ms.
Potts’ (1) Facebook Messages and (2) LinkedIn Messages only. As
to RFP No. 8, the Defendant has limited the scope of the
responsive messages to a period of time between the dates of
September 1, 2012, to March 21, 2013. See pages 15 and 16 in
docket no. 48.

6.

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines
the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
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discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain
discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil
Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
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annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);
7.

That Plaintiff served Interrogatory 9 upon Defendant.
Interrogatory 9 states: “Identify all statements you contend Debbi
Potts made that disparaged the reputation of CollegeAmerica,
Denver, Inc., or any of its related entities. Your response should
include to whom each statement was made, and the means by
which Ms. Potts made each statement (email, verbal, etc.);”

8.

Defendant’s response to Interrogatory 9 was as follows:
“Defendant objects to Interrogatory No. 9 to the extent it
requests identification of the disparaging statements made
by Ms. Potts other than the statements Defendant knew
about when it filed the county court lawsuit against Ms.
Potts. Although Ms. Potts has made many additional
disparaging statements about Defendant after she signed
the non-disparagement agreement, because the only
remaining issue in this litigation is whether Defendant filed
the county court lawsuit in retaliation for the fact that Ms.
Potts filed her first charge of discrimination with the EEOC,
disparaging statements that Defendant learned about after
the filing of the lawsuit are irrelevant.

Subject to and without waiving these objections, the
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disparaging statements Defendant was aware of when it
made the decision to file the lawsuit are identified below. All
of these statements were made in LinkedIn communications
between Ms. Potts and Kenneth Barnhart which have
previously been produced by Defendant. (Bates
CEHE_00109-00111).
1.

”The Company is in trouble... deep trouble.”

2.

“The scholarship crap is a scam.”

3.

“I was directed by BT to lie during the ACCSC
visit.”

4.

Ms Potts referred to Carl Barney, Defendant’s
Chairman, as “crazy.”

5.

“Nathan is weak and inept” referring to the
Director of Defendant’s Denver campus.

6.

“Crazy stuff happened to me when I left the
company, they don’t like it when people leave
them... they get really mean.”“

9.

That Defendant first argues that the information requested in RFP
Nos. 8, 9, and 10 are relevant to EEOC’s remaining claim and
theory of EEOC’s case and may lead to the discovery of admissible
evidence. Second, Defendant argues that Ms. Potts’ emails and
other social media communications could address relevant issues
in this case. Such emails or social media communications could
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show: (1) that Ms. Potts had no intention when she signed the
Agreement to honor the commitments she made in the Agreement;
(2) Ms. Potts knew she was engaging in conduct that violated the
Agreement; (3) that Ms. Potts dared the College to sue her and
would claim discrimination if it did; (4) that Ms. Potts viewed the
Agreement as a joke and that the College would never discover
that she was not going to honor it; and (5) that Ms. Potts expressed
to her friends and former colleagues that she was going to file an
EEOC charge so that, when the College filed their lawsuit for
breach of the agreement, she could claim it was discriminatory.
Third, Defendant argues that such information requested is
relevant and discoverable for the purposes of cross examining and
impeachment of Ms. Potts as well, noting that Ms. Potts is likely a
key witness for the EEOC in this case. Fourth, Defendant argues
that it proposed to the EEOC that they retain jointly a computer
specialist, at Defendant’s expense, to conduct the search and
provide only responsive emails, thereby avoiding any cost to the
EEOC. The only burden remaining on the EEOC would be in
conducting a limited privilege review. Fifth, the Defendant
proposed that the parties enter into a Fed. R. Civ. P. 502(d) Order
to avoid any inadvertent waiver of privilege. Sixth, Defendant
agreed to narrow the time frame for Ms. Pott’s emails from
September 1, 2012 (the date of the Agreement), to March 21,
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2013 (the date Ms. Potts was served with the Larimer County
Court beach of contract [breach of the non-disparagement
clause of the Agreement] lawsuit, Case No. F13C31608,
Division 4D - ‘the State Lawsuit”);
10.

That the EEOC argues that the information requested in RFP Nos.
8, 9, and 10 are irrelevant, that Defendant is improperly seeking
discovery in this case for its pending state case [i.e., Larimer
County Court with limited discovery under County Court Procedure
Rule 316] against Ms. Potts to which it is not entitled, and that
Defendant is engaged in a “fishing expedition” for the purposes of
other contemplated retaliatory litigation. Furthermore, EEOC
argues that the only emails of Ms. Potts that are relevant to the
remaining retaliation claim in this case have already been provided
to Defendant. See above paragraph 7 in this Order. Further, the
EEOC argues that the requested information is disproportionate as
to the burden and costs it places on the EEOC, noting that as of the
date of the EEOC’s response (docket no. 52), the damages the
EEOC seeks in this case is limited to costs and attorney fees which
presently total less than $3,000. Lastly, the EEOC is not seeking to
recover back pay on behalf of Ms. Potts in this case and it cannot
seek compensatory or punitive damages on behalf of Ms. Potts
under the ADEA; and

11.

That the information sought by Defendant in RFP Nos. 8, 9, and 10
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is relevant, discoverable, and may lead admissible evidence at trial,
and the subject motion (docket no. 48) should be granted for those
reasons stated above.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Defendant’s Motion to Compel (docket no. 48) is GRANTED.
Plaintiff EEOC shall provide to Defendant full and complete responses to
Defendant’s RFP Nos. 8, 9, and 10 on or before October 23, 2015. The
responses to RFP Nos. 8, 9, and 10 shall be limited to Ms. Potts’
Facebook Messages and LinkedIn Messages only for the period of time
from September 1, 2012, to March 21, 2013. Responses to RFP Nos. 8,
9, and 10 are subject to the written Protective Order (docket no. 22-1)
entered in this case on February 9, 2015 (docket no. 27); and

2.

That each party shall pay their own attorney fees and costs for this motion.
Done this 21st day of September 2015.

BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE

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