Hannah v. Walmart

Filing 154

RULING granting in part and denying in part 130 Motion to Compel; denying without prejudice to refiling 130 Motion for Sanctions. See attached ruling for details. Signed by Judge Holly B. Fitzsimmons on 6/3/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KIM HANNAH, TOM IRVING, and
MICHAEL BARHAM
v.
WAL-MART STORES, INC., and
WAL-MART STORES EAST, L.P.

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CIV. NO. 3:12CV1361 (JCH)

RULING ON DEFENDANTS‟ MOTION TO COMPEL
AND MOTION FOR SANCTIONS [DOC. #130]
Pending before the Court is a motion by defendants Wal-Mart
Stores, Inc. and Wal-Mart Stores East, L.P. (“defendants” or
“Walmart”), to compel rule compliant responses from plaintiffs
Kim Hannah, Tom Irving, and Michael Barham (collectively the
“plaintiffs”) to written discovery, to compel Mr. Irving‟s
deposition, and for the imposition of sanctions. [Doc. #130].
For the reasons that follow, the Court GRANTS IN PART AND DENIES
IN PART defendants‟ motion to compel, and DENIES without
prejudice to re-filing defendants‟ motion for sanctions.
I.

BACKGROUND
Plaintiffs bring this employment discrimination action

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§2000e, et seq., and the Connecticut Fair Employment Practices
Act (“CFEPA”) for race discrimination, retaliation, and wrongful
discharge under Connecticut common law. [Amend. Compl., Doc. #6,
at ¶1].1

Plaintiffs, all African Americans, allege they were

managers at Connecticut Walmarts, when their employment was
1

On August 30, 2013, Judge Hall granted defendants‟ motion for partial
judgment on the pleadings as to plaintiffs‟ CFEPA and retaliation
(Connecticut General Statutes section 31-51m) claims. [Doc. #79].

1

terminated in 2010 as a result of restructuring. [Id. at ¶¶2-3].
Plaintiffs Hannah and Irving were allegedly employed as Market
Human Resources Mangers, and plaintiff Barham as a Market Asset
Protection Manager. [Id. at ¶¶5-7].

Plaintiffs further allege

that the restructuring was merely a subterfuge or pretext for
racial discrimination. [Id. at ¶3].
The Court presumes familiarity with the procedural
background and the parties‟ prior discovery obstacles, which are
detailed at length in the Court‟s previous rulings and orders.
See Doc. ## 87, 118, 127. The present dispute involves
plaintiffs‟ responses to defendants‟ requests for production,
which seek the same forty seven (47) categories of documents
from each plaintiff. Plaintiffs objected to each of the document
requests, but did produce documents.

Defendants generally

contend that the objections and responses fail to comply with
the basic requirements of Rule 34 of the Federal Rules of Civil
Procedure.
On May 23, 2014, the Court held an in-person discovery
conference on the record to address the matters raised in
defendants‟ motion to compel, and other unresolved discovery
issues.
II.

MOTION TO COMPEL
Defendants seek an order compelling plaintiffs to “properly

respond” to defendants‟ written discovery or, in the
alternative, an order barring plaintiffs from submitting any
responsive material in support of their claims. Defendants also

2

seek to compel the deposition of plaintiff Irving.

Plaintiffs

generally argue that defendants‟ motion to compel is moot.
A. Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery.
Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party.

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 trial if the
discovery appears reasonably calculated to lead to the discovery
of admissible evidence. Fed. R. Civ. P. 26(b)(1).

Information

that is reasonably calculated to lead to the discovery of
admissible evidence is considered relevant for the purposes of
discovery.

See Daval Steel Prods. v. M/V Fakredine, 951 F.2d

1357, 1367 (2d Cir. 1991); Morse/Diesel, Inc. v. Fidelity &
Deposit Co., 122 F.R.D. 447, 449 (S.D.N.Y. 1988). “The party
resisting discovery bears the burden of showing why discovery
should be denied.” Cole v. Towers Perrin Forster & Crosby, 256
F.R.D. 79, 80 (D. Conn. 2009).
B. Discussion
Defendants argue that plaintiffs‟ untimely and boilerplate
objections should be overruled, and that plaintiffs should be
ordered to provide rule compliant responses to defendants‟
requests for production. Plaintiffs respond that their
objections/production are not untimely, and are complete.

3

1. Responses to Written Discovery
Leaving aside plaintiffs‟ objections, which the Court will
later discuss, defendants take issue with plaintiffs‟ responses
that, “Without waiving said objection, see documents produced.”
[Doc. #131, 8]. Defendants state that plaintiffs produced a
single set of documents without delineating which plaintiffs
produced which documents, or to which request the documents were
responsive. [Id. at 8-9]. Rule 34(b)(2)(E)(i) mandates that, “A
party must produce documents as they are kept in the usual
course of business or must organize and label them to the
categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i).
“This provision was added to Rule 34(b) to prevent parties from
„deliberately… mix[ing] critical documents with other in the
hope of obscuring significance.‟” Johnson v. Kraft Foods N.
America, 236 F.R.D. 535, 540 (D. Kan. 2006) (citing See Advisory
Committee Note for 1980 Amendment to Rule 34 (quoting Report of
the Special Committee for the Study of Discovery Abuse, Section
of Litigation of the American Bar Association (1977))).
Plaintiffs have not argued, nor have they presented any evidence
suggesting, that they produced the documents as kept in the
usual course of business. See Pass & Seymour, Inc. v. Hubbell
Inc., 255 F.R.D. 331, 334 (N.D.N.Y. 2008) (citations omitted)
(noting that a party selecting to produce documents as they are
maintained in the usual course of business “bears the burden of
demonstrating that the documents made available were in fact
produced consistent with that mandate.”).

Therefore, plaintiffs

were required to organize and label the documents to correspond
4

to each request. Plaintiffs have not done so. Because the
documents have already been provided, within thirty (30) days of
this Ruling each plaintiff shall serve amended discovery
responses identifying by bates number which documents are
responsive to each request. If a plaintiff does not have any
documents responsive to a request, that plaintiff shall provide
a sworn statement that despite a diligent search, no responsive
documents were found. Alternatively, if documents have been
produced in response to a request, each plaintiff shall provide
a sworn statement that after a diligent search, all responsive
documents have been produced. See Vazquez-Fernandez v. Cambridge
College, Inc., 269 F.R.D. 150, 154 (D.P.R. 2010) (supplemental
response to request for production, which stated that all
documents had been produced, was “an answer” that required
signature under oath by party).
2. Objections
As to plaintiffs‟ “boilerplate objections”, the Court will
not individually rule on each of the forty seven (47) objections
asserted, but instead will categorize the objections into
groups, as appropriate.
As previously recognized in this district,
The party resisting discovery bears the burden of
demonstrating that its objections should be sustained,
and pat, generic, non-specific objections, intoning
the same boilerplate language, are inconsistent with
both the letter and the spirit of the Federal Rules of
Civil Procedure. An objection to a document request
must clearly set forth the specifics of the objection
and how that objection relates to the documents being
demanded. The objecting party must do more than
simply intone the familiar litany that the [requests]
are burdensome, oppressive or overly broad. Instead,
5

the objecting party must show specifically how,
despite the broad and liberal construction afforded
the federal discovery rules, each request is not
relevant or how each question is overly broad,
burdensome or oppressive by submitting affidavits or
offering evidence revealing the nature of the burden.

In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 83, 85 (D.
Conn. 2005) (citations omitted). With this legal framework in
mind, the Court turns to plaintiffs‟ objections.
a. Boilerplate Objections
i.

Attorney-Client and Work Product Objections

Plaintiffs assert numerous objections on the grounds of
attorney client privilege and work product production.
Defendants state that plaintiffs have failed to produce a
privilege log listing the documents withheld on this basis. To
the extent that plaintiffs have withheld an otherwise
discoverable document on the basis of privilege or work product,
Rule 26(b)(5) requires that plaintiffs “describe the nature of
the documents, communications, or tangible things not produced
or disclosed […].” Fed. R. Civ. P. 26(b)(5)(A)(ii); see also

D.

Conn. L. Civ. R. 26(e). (“[W]hen a claim of privilege or work
product protection is asserted in response to a discovery
request […] the party asserting the privilege or protection
shall provide […] a privilege log.”).

At the May 23, 2014

discovery conference, plaintiffs‟ counsel stated on the record
that no privilege log had been produced pursuant to an
understanding between counsel. Specifically, plaintiffs‟ counsel
represented that the only responsive and privileged documents in
plaintiffs‟ possession are those with Attorney Peters-Hamlin,

6

which defense counsel does not seek. Plaintiffs‟ counsel stated
that “everything else” had been produced.

Therefore, based on

this understanding, and consistent with the directives set forth
in section II(B)(1), supra, for those requests objected to on
the basis of attorney-client privilege and/or work product
protection, each plaintiff shall provide a sworn statement in
their supplemental responses to defendants‟ requests for
production that after a diligent search, all responsive
documents have been produced or that no responsive documents
have been found.
ii.

Relevancy Objections

Plaintiffs repeatedly object2 that certain requests are
“either irrelevant, or not reasonably calculated to lead to
admissible evidence.” The Court OVERRULES these objections in
light of plaintiffs‟ failure to demonstrate how these requests
are irrelevant despite the broad and liberal construction
afforded by the federal discovery rules.
iii. Objections re: documents in defendants’ control
Plaintiffs also object to numerous requests3 on the grounds
that the request “calls for plaintiff to produce documents that
are unduly burdensome because they are, or should be, already in
defendants‟ control and/or possession or which is or are
obtainable from some other source that is more convenient, less
burdensome, or less expensive.” Defendants argue that these

2

See, e.g., Doc. #131-2, Ex. 6, responses to requests 8, 9, 12-22, and 37.

3

See, e.g., Doc. #131-2, Ex. 6, responses to requests 2-22, 24-26, 28, 31-34,
38-47.

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objections are deficient because, “Plaintiffs do not specify in
what way the requests are unduly burdensome, they do not
adequately describe the documents to enable Walmart to find them
elsewhere, and they do not specify where or how Walmart can
secure the documents in a fashion that is „more convenient, less
burdensome, or less expensive.” [Doc. #131, 7]. Plaintiffs
respond that their explanations are sufficient and, further,
that the parties discussed and resolved these objections.4 [Doc.
#137, 5]. Defendants, however, maintain that they are
“particularly concerned with Plaintiffs‟ continued assertion
that they are not required to produce documents they claim are
already in Walmart‟s possession.” [Doc. #139, 2].
The Court agrees that plaintiffs‟ objections on this ground
are generally insufficient. However, rather than overrule the
objections, the Court will permit plaintiffs to serve amended
objections that specify the responsive documents that are or
should be in defendants‟ control, and/or specify where and how
defendants may obtain such documents.

Plaintiffs shall also

indicate any agreements reached on these objections, as is
referenced in their response to the motion to compel. If after
receiving plaintiffs‟ amended objections defendant still has

4

Plaintiffs‟ response states that “in subsequent email dialogues about the
nature and substance of the objections (regarding over breadth and burden),
the parties discussed in more detail the nature of plaintiffs‟ objections and
were able to work out those objections.” [Doc. #137, 5]. It is unclear from
the parties‟ written submissions and discussions during the conference
exactly which objections were worked out. Accordingly, to the extent that any
agreements have been reached regarding plaintiffs‟ objections, the parties
may adhere to, and proceed according with, such agreements. The Court does
not intend to supersede any agreements between the parties by virtue of this
Ruling.

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concerns, the parties may contact the Court for a telephone
conference.
iv.

Objections re: scope and burden

Plaintiffs also assert numerous objections5 that the
requests are “overly broad, unduly burdensome, harassing,
unreasonably cumulative, [and] duplicative…” Plaintiffs have
failed to meet their burden of showing how the subject requests
are overly broad, unduly burdensome, harassing, unreasonably
cumulative, or duplicative.

Therefore, the Court OVERRULES

these objections.
b. Assertion of Doctor-Patient Privilege
Plaintiffs assert objections to two requests6 on the grounds
of doctor-patient privilege. Defendants argue that plaintiffs
have waived the privilege in light of plaintiffs‟ claims of
irreparable injury and monetary damages for “mental anguish and
humiliation” arising from defendants‟ alleged conduct. [Doc.
#131, 13]. Plaintiffs respond that they have not been able to
seek psychological treatment, and other medical information is
irrelevant because plaintiffs have not claimed any physical
injury. [Doc. #137, 7-8]. Unfortunately, both counsel miss the
mark with respect to their arguments. The parties do not
differentiate between the doctor-patient privilege, and the
5

See, e.g., Doc. #131-2, Ex. 6, responses to requests 7-12, 14-16, 18-22, 2426, 28, 31-34, 38-47.
6

See Doc. #131-2, Ex. 6, 7, and 8, responses to requests 27 (“All
documents that support, refer, or relate to your claim that you
suffered emotional distress as a result of Defendant‟s alleged
conduct.”) and 29 (“All documents that relate or refer to the
elements, determination and computation of your claim for damages in
this case, including… all medical bills…”). It bears noting that
plaintiffs did not assert relevancy objections to these requests.
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psychoanalyst-patient privilege.

For example, defendant argues

waiver of the psychotherapist-patient privilege, while
plaintiffs‟ objections are premised on the doctor-patient
privilege.

Therefore, the Court will address the difference

between the two privileges, as well as whether federal common
law or Connecticut law applies to the privilege(s) asserted.
In Jaffee v. Redmond, the Supreme Court held that
“confidential communications between a licensed psychotherapist
and her patients in the course of diagnosis or treatment are
protected from compelled disclosure under Rule 501 of the
Federal Rules of Evidence.” 518 U.S. 1, 15 (1996).

In

recognizing this privilege, the Jaffee Court “explicitly
distinguished between treatment by a psychotherapist and
treatment by a medical, non-mental health provider.” E.E.O.C. v.
Nichols Gas & Oil, Inc., 256 F.R.D. 114, 119 (W.D.N.Y. 2009).
“Indeed, a physician-patient privilege was not one of the nine
privileges recognized in an earlier draft of Rule 501 and has
not traditionally been recognized at common law.” Id. (citing
Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977) (“[t]he physicianpatient evidentiary privilege is unknown to the common law”);
Northwestern Mem‟l Hosp. v. Ashcroft, 362 F.3d 923, 925-26 (7th
Cir. 2004) (noting absence of federal medical records
privilege); Kunstler v. City of New York, No.
04CIV1145(RWS)(MHD), 2006 WL 2516625, at *6 n. 7 (S.D.N.Y.

Aug.

29, 2006) (noting federal courts‟ rejection of the physicianpatient privilege)).

The Second Circuit has likewise recognized

a difference between a physician-patient and psychotherapist10

patient privilege. See Nichols, 256 F.R.D. at 119-20 (declining
to read Sims v. Blot, 534 F.3d 117 (2d Cir. 2008), “as expanding
the scope of the psychotherapist-patient privilege recognized in
Jaffee to include medical providers who are not
psychotherapists, even if the treatment sought from the medical
provider was a referral to a mental health professional or a
prescription for medication to treat anxiety or depression.”).
After a careful review of the Nichols decision, the Court is
persuaded that the psychotherapist-patient privilege does not
extend to medical providers who are not licensed
psychotherapists.
That said, plaintiffs represent that they have not been
able to afford mental health treatment and, therefore, no
documents from mental health practitioners exist. [Doc. #140, 56].7 Thus, whether the psychotherapist-patient privilege applies
or has otherwise been waived is moot.

The question next becomes

whether the physician-patient privilege protects the medical
records sought. The Court finds that it does not.
“Federal Rule of Evidence 501 dictates that, in general,
„privilege‟, is interpreted pursuant to federal common law
except that „in a civil case, state law governs privilege
regarding a claim or defense for which state law supplies the
rule of decision.‟” Tavares v. Lawrence Mem‟l Hosp., No. 3:11CV0770(CSH), 2012 WL 4321961, at *3 (D. Conn. Sept. 20, 2012)
(quoting Fed. R. Evid. 501). Although the state of Connecticut
7

Plaintiff Irving also admitted in deposition testimony that he did not see
any kind of psychological care provider. [Doc. # 139-2, Ex. 13, Pl. Irving
Dep. Tr., Apr. 19, 2014, 293:9-17].

11

has legislated a physician-patient privilege, see C.G.S.A. §521460, “state privilege laws do not govern in federal question
cases.” Nichols, 256 F.R.D. at 122 (compiling cases).
Accordingly the Court must determine whether federal common law
or the Connecticut state statute applies to the doctor-patient
privilege asserted. “To do so, a district court in a federal
proceeding must examine the claims for which the discovery is
sought and the basis for the Court‟s jurisdiction.” Tavares,
2012 WL 4321961, at *5.
Plaintiffs invoke the subject matter of the Court pursuant
to 28 U.S.C. § 1331, “federal claim” jurisdiction with respect
to their Title VII claims. [Doc. #6, ¶10].8 Plaintiffs allege
damages for “mental anguish and humiliation”, for which
defendants seek discovery, in both their federal claims.
“[T]he Second Circuit has held that where there is federal
question jurisdiction and the evidence sought is relevant to
both the federal and state claims, „courts consistently have
held that the asserted privileges are governed by the principles
of federal law.‟” Tavares, 2012 WL 4321961, at *6 (compiling
cases).

Accordingly, where plaintiffs have filed federal claims

for violation of Title VII, and can no longer pursue the alleged
state law claims, the asserted privilege is governed by the
federal common law. Therefore, the Connecticut physician-patient
privilege does not control here, and plaintiffs cannot claim
protection under it.

See Nichols, 256 F.R.D. at 122 (“[Where

Plaintiffs also invoked supplemental jurisdiction over the now
dismissed Connecticut state law claims. [Doc. #6, ¶11].
8

12

the claims arise under federal law, the claimants cannot claim
protection under the New York physician-patient privilege.”).
Accordingly, based on the foregoing, the Court OVERRULES
plaintiffs‟ objections on the basis of physician-patient
privilege. Nevertheless, the plaintiffs‟ “do maintain a privacy
interest in their medical records due to the sensitive nature of
the information contained therein.” Nichols, 256 F.R.D. at 122.
Like the defendants in the Nichols matter, here defendants argue
that they are entitled to plaintiffs‟ medical records “to
explore any alternate source of Plaintiff‟s alleged emotional
distress.” [Doc. #131, 14]. However, this does not give
defendants “an unfettered right to pursue discovery into [the
plaintiffs‟] entire medical history.” Manessis v. New York City
Dep‟t of Trans., No. 02 CIV. 359SASDF, 2002 WL 31115032, at *2
(S.D.N.Y. Sept. 24, 2002).

Accordingly, while the disclosure of

some medical records may be appropriate, the wholesale
disclosure of records is not.
Deposition testimony elicited from plaintiff Irving
indicates that he suffered mental anguish, stress, weight loss,
sleep disruption, and other consequences as a result of
Walmart‟s conduct.
Dep. Tr.,

[See, e.g., Doc. # 139-2, Ex. 13, Pl. Irving

Apr. 19, 2014, 289:21-290:1; 293:18-294:15; 297:2-8;

300:23-302:5; 307:13-18]. Defendants represent that
“[p]laintiffs Barham and Hannah are expected to testify
similarly.” [Doc. #139, 4]. To the extent that plaintiffs Barham
and Hannah have so testified, then defendants should be entitled
to examine their medical records that reflect “any consultation
13

with or treatment by a medical provider for complaints for
mental anguish regardless of the cause, or reflect medical
conditions the symptoms of or treatment for which could have
resulted in the same type of physical symptoms the plaintiffs
have described.” Nichols, 256 F.R.D. at 123.

Therefore,

plaintiffs are directed to provide defendants with signed HIPAA
releases within fourteen (14) days of this order.9
Finally, to assure that the plaintiffs‟ privacy interests
are adequately protected, the parties are directed to confer and
submit a proposed joint protective order governing the
production and use of the medical information and records to be
disclosed. Alternatively, the plaintiffs may designate the
medical records pursuant to Judge Hall‟s standing protective
order.
c. Mitigation Documents
Defendants next take issue with plaintiffs‟ objections to
document requests regarding plaintiffs‟ efforts to secure
employment, the results of those efforts, and any related income
information.

In addition to the boilerplate objections noted

above, plaintiffs also object to the following requests on the

9

At the May 23, 2014 discovery conference, plaintiffs‟ counsel asserted that
production of plaintiffs‟ medical records were not warranted in light of
plaintiffs waiving damages for physical injuries. Counsel‟s argument again
misses the mark. As defense counsel noted, production of the medical records
are warranted so that defendants may test plaintiffs‟ claims of mental
anguish. Specifically, defendants are entitled to these records to see
whether plaintiffs ever complained of mental anguish to a medical provider in
relation to their terminations, and whether any other matters contributed to
or caused plaintiffs‟ alleged mental anguish.

14

basis they are “about a matter that is better addressed through
a deposition,”10
Request No. 12: All documents that relate or refer to all
positions for which you applied since the termination of
your employment with Defendant, including positions with
companies other than Defendant, and written authorization
in the form attached hereto to obtain copies of said
records.
Request No. 30: Your federal income tax returns, including
all schedules and W-2 forms, filed for the tax year 2009 to
the time of trial, and written authorization in the form
attached hereto to obtain copies of said federal income tax
returns.
Request No. 31: Any and all documents that refer or relate
to the efforts that you made to find employment after April
9, 2010.
Request No. 32: All documents, which relate or refer to any
claim(s) you made for any type of government (federal,
state, or local) benefits assistance during or subsequent
to your employment with Defendant, and written
authorization in the forms attached hereto to obtain copies
of said records.
Request No. 33: All documents reflecting, concerning or
evidencing your income, salary, pay or any remuneration
from any source, other than Defendant, from January 1, 2008
to the present.
Request No. 34: Any documents which relate or refer to your
employment concurrent with or subsequent to your employment
with Defendant, including but not limited to, job
applications, personnel policies, employee handbooks,
benefit plans, job evaluations, pay stubs, and job
descriptions.
Request No. 37: All documents evidencing the agreement
between you and your lawyer for payment of your lawyer‟s
fees, costs and disbursements in connection with this
Action.

In their opposition, plaintiffs assert that they have produced
“substantial mitigation evidence [] after the parties discussed
plaintiffs‟ objection and the defense arguments to the contrary,
and the parties came to an agreement about additional
production… Thus this issue is now moot.” [Doc. #137, 6]. In
10

See, e.g., Doc. #131-2, Ex. 6, responses to requests 12, 30-34, and 37.

15

their reply, defendants submit that plaintiffs have failed to
produce all mitigation evidence, and that production of selfprepared lists of job search efforts is insufficient. [Doc.
#139]. In a sur-reply, plaintiffs again argue that defendants‟
statements are false, and that this issue is now moot in light
of additional discovery efforts undertaken.
Plaintiffs‟ objection that the information sought is best
left for questioning at deposition is improper and OVERRULED as
to requests 12, 31-34, and 37. At the May 23, 2014 discovery
conference, plaintiffs‟ counsel represented that plaintiffs
Irving and Hannah were in the process of gathering, or had
already provided counsel with, with additional documents
responsive to these requests. Plaintiffs shall produce these
documents, as further discussed during the conference, within
fourteen days of this order. Plaintiffs‟ counsel further
represented that plaintiff Barham has produced all mitigation
related evidence.

Therefore, consistent with the directives set

forth in section II(B)(1), supra, for the above mitigationrelated requests, each plaintiff shall provide a sworn statement
in their supplemental responses to defendants‟ requests for
production that after a diligent search, all responsive
documents have been produced or that no responsive documents
have been found.
Defendants also seek the production of plaintiffs‟ tax
returns in response to request 30. Defendants argue that the tax
returns are relevant because they are likely to reveal
information bearing on the issues of damage and mitigation.
16

[Doc. #131, 17-18]. Plaintiffs indicate that defense counsel had
an opportunity to inspect the tax returns at plaintiffs‟
counsel‟s office, and that this issue is now moot. [Doc. #137,
6-7]. Plaintiffs also state that they had represented that the
tax returns would be produced, if defendants agreed to a
confidentiality stipulation regarding the documents‟ use. [Id.].
Defendants reply that their inspection of the tax returns does
not excuse plaintiffs from their production obligations.11
From the parties‟ filings, and after further discussion at
the discovery conference, it appears that plaintiffs were
willing to produce their tax returns, albeit subject to a
confidentiality designation and a stipulation restricting
defendants‟ ability to challenge the designation. The Court will
order that plaintiffs produce copies of their tax returns within
thirty (30) days of this Ruling, subject to a confidentiality
designation pursuant to Judge Hall‟s standing protective order.

11

At the May 23, 2014 discovery conference, plaintiffs argued that they
fulfilled their production obligations under Rule 34 by permitting defense
counsel to inspect plaintiffs‟ tax returns. Indeed, in their opposition to
the motion to compel, plaintiffs assert that defense counsel was permitted to
“review the tax information in plaintiffs‟ counsel‟s office”, and therefore
defendants‟ motion to compel on this issue is moot. [Doc. #138, 6-7].
Defendants disagreed that plaintiffs satisfied their production obligations
by merely permitting inspection. The Court agrees that under the present
circumstances, inspection of the documents alone does not fulfill plaintiffs‟
production obligations. To do so, plaintiffs were also required to permit
copying of the tax returns. See Clever View Inv., Ltd. v. Oshatz, 233 F.R.D.
393, 394 (S.D.N.Y. 2006) (citation omitted) (“[A] party need only make
requested documents available for inspection and copying; it need not pay
copying costs.”); Hoth v. Lantz, No. 3:10cv1081(WWE), 2012 WL 3648764, at *1
(D. Conn. Aug. 24, 2012) (“Rule 34(a), Fed. R. Civ. P., permits any party to
serve a request that documents be produced for inspection and copying.”).
Simms v. Ctr. for Corr. Health and Policy Studies, 272 F.R.D. 36, 39-40
(D.D.C. 2011) (plaintiff complied with production obligations by allowing
defendant to inspect and copy documents at plaintiff‟s counsel‟s office); 7
JAMES WM. MOORE, ET AL., MOORE‟S FEDERAL PRACTICE §34.13[2][a] (3d ed. 2013) (citing
Sims, 272 F.R.D. at 39-40)(“In lieu of actual production of documents, a
party may respond to a request for production by allowing the requesting
party to inspect and copy the documents at a place designated by the
responding party.”).

17

In light of plaintiffs‟ privacy concerns, plaintiffs may produce
versions that redact plaintiffs‟ social security numbers and any
other sensitive personal information. Plaintiffs may also redact
information that has no bearing on their claims for damages,
such as information pertinent to a spouse‟s income.
3. Deposition of Plaintiff Irving
At the discovery conference, the parties agreed to close
Mr. Irving‟s deposition. Plaintiffs‟ counsel stated that she
intends to supplement Mr. Irving‟s testimony with an affidavit.
Plaintiff Irving will produce any such affidavit within thirty
(30) days of this Ruling. In light of the parties‟ agreement,
defendants‟ motion to compel the deposition of Mr. Irving is
DENIED AS MOOT.
III. Motion for Sanctions
Defendants also seek the imposition of sanctions pursuant
to Rule 26(g) and Rules 37(a)(5), (b)(2)(A), (b)(2)(C), (d)(1),
and (d)(3).

At the conclusion of all proceedings in this case,

on application, the Court will consider whether attorney‟s fees
should be awarded and if so, in what amount.

Accordingly, the

Court DENIES defendant‟s motion for sanctions without prejudice
to renewal on conclusion of this case with respect to
defendants‟ request for the imposition of reasonable costs and
fees.
Defendants seek additional sanctions in the form of an
order: (1) prohibiting plaintiffs from introducing any material
they have not yet produced in opposition to any motion for
summary judgment or in support of any claims pursued at trial;
18

(2) dismissing plaintiffs‟ claims for compensatory damages; (3)
entering a ruling that plaintiffs have failed to mitigate their
damages; and/or (4) entering a default judgment on plaintiffs‟
remaining claims.

The Court DENIES the relief requested on the

current record, without prejudice to re-filing.

For example,

the relief sought by the first order is better reserved for a
future motion in limine and/or motion to strike. As to the other
relief sought, these are matters that are better dealt with in
evidentiary rulings taken in connection with a motion for
summary judgment or at trial. Therefore, on the current record,
the Court likewise declines to enter the remaining requested
relief.
VI.

Conclusion
Therefore, for the reasons stated, defendants‟ motion to

compel is GRANTED IN PART AND DENIED IN PART. The Court DENIES
defendant‟s motion for sanctions without prejudice to re-filing.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
ENTERED at Bridgeport, this 3rd day of June 2014.

________/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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