Bakhit et al v. Safety Markings, Inc. et al

Filing 89

RULING granting in part and denying in part 66 Plaintiff's Motion to Compel Defendants To Produce Documents Responsive To Discovery Requests; denying on the current record 81 Defendants' Motion to Compel Discovery Responses. Signed by Judge Holly B. Fitzsimmons on 9/9/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
YOSIF BAKHIT and
KIYADA MILES
v.
SAFETY MARKING, INC.,
MARK KELLY, RAY VEZINA,
PHIL BRININGER, JAMES CODY,
TOM HANRAHAN, and JEFF PERRA

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CIV. NO. 3:13CV1049 (JCH)

RULING ON PENDING DISCOVERY MOTIONS
Pending before the Court is a motion by plaintiffs Yosif
Bakhit and Kiyada Miles to compel defendants Safety Marking,
Inc., Mark Kelly, Ray Vezina, Phil Brininger, James Cody, Jeff
Perra, and Tom Hanrahan (collectively “defendants”) to provide
certain documents responsive to plaintiffs‟ first set of
interrogatories and requests for production. [Doc. #66].
Defendants oppose plaintiffs‟ motion. [Doc. #74]. Also pending
before the Court is a motion by defendants to compel plaintiffs
to provide discovery responses concerning their past employment
and plaintiff Bakhit‟s medical history. [Doc. #81]. Plaintiffs
oppose defendants‟ motion. [Doc. #88].

For the reasons that

follow, plaintiffs‟ motion to compel [Doc. #66] is GRANTED in
part and DENIED in part, and defendants‟ motion to compel [Doc.
#81] is DENIED on the current record.
A. BACKGROUND
Plaintiffs bring their complaint pursuant to 42 U.S.C.
§1981, alleging race discrimination and hostile work environment
on the basis of race. [Amended Compl., Doc. #78]. Plaintiff
Bakhit also alleges constructive discharge and retaliation.

[Id.] Plaintiffs each allege intentional infliction of emotional
distress and, also seek punitive damages. [Id.]. Defendants have
filed an answer and affirmative defenses. [Doc. #85]. The court
presumes familiarity with the factual background of this matter.
B. APPLICABLE LAW
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).
C. DISCUSSION
1. Plaintiffs’ Motion to Compel
Plaintiffs seek to compel the production of: (1) Safety
Marking‟s financial statements and profit and loss statements
2

from 2008 to the present; (2) insurance policy and declarations
sheets, for the individual defendants, including but not limited
to homeowners, renters, excess and/or umbrella insurance
policies; and (3) wage, salary, bonus and benefits records for
the individual defendants and Safety Marking employees in the
red and blue teams. The Court will address each request in turn.
a. Financial Statements
Plaintiff first seeks the production of defendant Safety
Marking‟s financial statements and profit and loss statements
from 2008 through the present. Defendant Safety Marking objected
on the grounds that the subject request “seeks documents that
are not relevant to any claim or defense and not reasonably
calculated to lead to the discovery of admissible evidence.”
Plaintiffs argue that the documents sought are discoverable to
support their claim of punitive damages. Defendants counter that
while a limited disclosure of a defendant‟s net worth may be
relevant to a punitive damages claim, courts in this Circuit
“have routinely deferred the requirement to produce such
information until after the punitive damages claims have been
tested on summary judgment.” [Doc. #74, 3]. Defendants represent
that they will seek summary judgment on all of the claims
relating to punitive damages.
The Court agrees that the information sought is generally
discoverable to support a punitive damages claim. Connors v.
Pinkerton‟s, Inc., No. 3:98 CV 699 (GLG), 1999 WL 66107, at *2
(D. Conn. Feb. 4, 1999). However, “Courts in this circuit are
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split on the issue of allowing pretrial disclosure of financial
information relevant to a determination of punitive damages.
Some permit it. Others have found that such disclosure is
premature.” McNamee v. Clemens, No. 09 CV 1647(SJ), 2013 WL
6572899, at *8 (E.D.N.Y. Sept. 18, 2013) (citing Pasternak v.
Dow Kim, 275 F.R.D. 461, 463 (S.D.N.Y 2011)). Recent cases in
this circuit have moreover found that “pre-trial discovery of
financial information is premature where the documents sought
are „highly sensitive and confidential‟ and where „the need for
disclosure may be abrogated by motion.‟” McNamee, 2013 WL
6572899, at *8 (citing Pasternak, 275 F.R.D. at 463; Copantitla
v. Fiskardo Estiatorio, Inc., 09 CV 1608, 2010 WL 1327921, at
*16 (S.D.N.Y. Apr. 5, 2010)); see also Connors, 1999 WL 66107,
at *2 (finding request for financial information premature, and
that defendant need not produce the same until the case is
trial-ready).
Here, defendants represent that the information sought is
highly confidential and sensitive, and that defendants intend to
file a motion for summary judgment on all counts relating to
punitive damages. Under the present circumstances, the Court is
persuaded by defendants‟ arguments and case law that plaintiff‟s
request for this information is premature. Accordingly,
plaintiffs‟ motion to compel production of defendant Safety
Marking‟s financial information is DENIED on the current record,
with leave to re-file after adjudication of defendants‟

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anticipated motion for summary judgment.1
b. Insurance Policy and Declarations Sheets
Plaintiffs next seek the identification and production of
the individual defendants‟ personal insurance policies.2
Defendants objected to these requests on the basis that they are
“irrelevant and not likely to lead to the discovery of
admissible evidence.” Plaintiffs argue that the information
sought is relevant and discoverable and, “routinely provided […]
so that the parties may make realistic appraisals of the case so
that settlement and litigation strategy are based upon knowledge
and not speculation.” [Doc. #66-1, 4-5]. Defendants argue
generally that plaintiffs seek the policies for an improper
purpose.
Muddying this dispute is the fact that neither plaintiffs
nor defendants know precisely what the subject insurance
policies cover. See Pls. Mt to Compel, Doc. #66-1, 4
(“Homeowner‟s Insurance, in addition to providing protection for
injury to one‟s home and property, also provides generalized
coverage for individual liability for non-vehicular torts… [a
personal umbrella insurance policy] may also provide potential
coverage of his tortious conduct in this case.”); Def. Opp. to
Mt. to Compel, Doc. #74 (“While the undersigned does not have
1

Defendants also argue that plaintiffs‟ request for financial statements is
overbroad, and that rather than producing financial statements, a financial
affidavit attesting to Safety Marking‟s present net worth is proper. The
Court defers ruling on this issue in light of its denial of plaintiffs‟
request without prejudice to re-filing.
2

Defendants Hanrahan, Perra, Vezina, and Cody confirmed at their respective
depositions that they are homeowners covered by insurance policies. Defendant
Cody further holds a personal umbrella insurance policy. [Doc. #66-1, 4].
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copies of any of the individual defendants‟ homeowners‟
policies[], it is notable that such policies typically provide
personal liability coverage for bodily injury or property damage
only, and that bodily injury usually excludes emotional harm or
mental anguish, unless such harm is caused by bodily injury.”).
The Court finds it significant that defendants fail to identify
a specific prejudice which would arise from the disclosure of
the policies. Moreover, defendants fail to make a representation
that the subject insurance policies do not provide coverage for
the claims at issue, but rather state the individual defendants
will be covered by the insurance policy under which the instant
claim has been tendered.3 In light of the relevance of the
information sought, the Court GRANTS plaintiffs‟ motion to
compel responses to interrogatories 13 and 14 and requests for
production 9 and 13. See, e.g., Yancey v. Hooten, 180 F.R.D.
203, 214 (D. Conn. 1998)(rejecting defendant‟s argument that
request for insurance agreements which may be liable to satisfy
all or part of a judgment is irrelevant); Moran v. Designet
Int‟l, 557 F. Supp. 2d 378, 380 (W.D.N.Y. 2008) (ordering
defendants to copy and produce all relevant insurance policies
to the extent such were not produced with initial Rule 26
materials).

Defendants will provide the information sought

within thirty (30) days of this ruling.4

3

Defendants have disclosed the insurance policy under which the instant
claims have been tendered.
4

The Court declines, on the current record, to award plaintiffs‟ their costs
for the motion to compel production of insurance information.
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c. Wage, Salary, Bonus and Benefits Records
Finally, plaintiffs seek the production of wage, salary,
bonus and benefits records for the individual defendants and
Safety Marking employees in the red and blue teams.
Specifically, plaintiffs note that defendants maintain an
objection as to documents concerning compensation for employees
in the red and blue teams, and as to the individually named
defendants on the red team. Defendants represent that they have
agreed to produce this information, and therefore plaintiffs‟
request is moot. See Doc. 74-6, June 6, 2014 Email from Attorney
Geoghegan to Attorney Quintner (“We agree to give you documents
containing this information [wage, salary, bonus and benefits
records] as it pertains to drivers and laborers (all colored
teams) for the years in review. That will include all defendants
except James Cody and Mark Kelly[…]).5 Accordingly, based on
defendants‟ representation, the Court DENIES plaintiffs‟ request
as moot.
Therefore, based on the foregoing, the Court GRANTS in part
and DENIES in part plaintiffs‟ motion to compel.
2. Defendants’ Motion to Compel
Defendants seek to compel the production of documents
relating to plaintiffs‟ past employment, and plaintiff Bakhit‟s

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Mark Kelly is the president of Safety Marking.
¶18]. James Cody was a Superintendent for Safety
Employees at the Blue level are considered “lead
Red level are considered “foremen.” [Doc. #66-1,
from the face of plaintiffs‟ motion that neither
encompassed within the relief requested.
7

[Am. Compl., Doc. #78, at
Marking. [Id. at 22].
men”, while employees at the
10]. Accordingly, it appears
Cody nor Kelly is

medical records for the term of his employment. The Court will
address each request in turn.
a. Employment Records
Defendants seek the production of information and documents
concerning plaintiffs‟ prior employment, claiming they should be
permitted to “explore fully Plaintiffs‟ employment history
during the decade prior to their tenure at Safety Marking.”
[Doc. #82, 6]. Defendants also seek executed “Wage and
Employment Authorization” consents for the release of records
from plaintiffs‟ prior employers.
Defendants argue, without citing any supporting case law,
that,
[Plaintiffs‟] work histories and experiences at their
previous employers may bear on [their claims of having
been improperly denied advancement and higher wages] at
Safety Marking. Their work histories and experiences at
their previous employers may bear on such claims and on
Safety Marking‟s defenses. If Plaintiffs have a history
of poor performance, discipline, or strained
relationships with coworkers or managements, such
evidence may relate to their claims that they were suited
to quick advancement through the ranks at Safety Marking.
Likewise, their historical wage records may be relevant
to claims that they deserve to be placed in higher-paying
positions now, as well as to Bakhit‟s claim for front
pay.

[Doc. #82, 6]. Plaintiffs object to defendants‟ request, and
note that defendants‟ arguments are speculative and assert no
good faith basis for believing such information exist.
As an initial matter, the Court notes that defendants‟
request to “explore fully” plaintiffs‟ prior employment history
is extremely overbroad and encompasses information that has no
relevance to the pending litigation, for example, benefit
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elections. Defendants‟ first argument, that if plaintiffs have a
history of poor performance, discipline, or strained
relationships with prior coworkers, then such evidence may
relate to claims that plaintiffs were illsuited for advancement
at Safety Marking, is speculative and not compelling. Defendants
fail to present any evidence suggesting this information may
exist. Further, plaintiffs‟ performance history with previous
employers is not relevant to the issues in this litigation. See
Chamberlain v. Farmington Sav. Bank, Civil No. 3:06CV01437(CFD),
2007 WL 2786421, at *3 (D. Conn. Sept. 25, 2007) (“[E]vidence of
plaintiff‟s performance history is neither relevant nor
admissible for the purpose of showing that the plaintiff
performed poorly in his position with the defendant[…] [] the
plaintiff‟s performance history is not relevant to the issues
involved in the current case; rather, at issue is the
plaintiff‟s performance in his position with the defendant.”).
Therefore, the Court will not compel plaintiffs to provide the
requested documents and/or execute the wage and employment
authorizations on the record before the Court.
Defendants‟ second argument, that plaintiffs‟ historical
wage records may be relevant to claims that they deserve to be
placed in higher-paying positions now, as well as to Bakhit‟s
claim for front pay, is similarly un-compelling. The Court does
not necessarily agree that the information sought will be
relevant to Bakhit‟s claim for front pay, or to plaintiffs‟
claims that they deserved placement in higher-paying positions.
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Nevertheless, even if this information is relevant, defendants
may obtain this information in a less obtrusive manner, for
example, by deposing plaintiffs.

Accordingly, the Court will

not compel plaintiffs to produce these documents and/or execute
the wage and employment authorizations on the record now before
the Court.
b. Medical Records
Defendants seek to “explore” plaintiff Bakhit‟s medical
history during his tenure at Safety Marking. [Doc. #82, 6].
Defendants seek this information as a result of deposition
testimony by defendant Brininger that plaintiff Bakhit
complained of injuries to his testicles that made it difficult
to perform physical labor. Brininger, however, was unable to
identify the year in which Bakhit made these complaints.
Defendants argue that Bakhit “may” have ceased pursuing physical
labor as a result of this injury, and such circumstances are
relevant to the defenses in this lawsuit. Plaintiffs respond
that Bakhit suffered a work-related injury to his testicles on
October 5, 2009, and returned to work ten days later on October
15. [Doc. #88, 3]. Plaintiffs further submit that Bakhit worked
all of 2012, and did not have any physical issue which would
have prevented him from working at the time of his allegedly
constructive discharged in 2013. [Id.]. Plaintiffs represent
that when defendants depose Bakhit, he will testify to this as
it relates to his injury. [Id. at n. 1].
The Court agrees with plaintiffs that there is no basis to
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seek additional medical records from Bakhit, where he has not
placed his physical condition at issue and all medical records
relating to his mental health treatment have been produced.
Moreover, on the current record, this request is largely
speculative and, based on plaintiffs‟ representations, will not
lead to the discovery of admissible evidence. The Court also
agrees that this is an area that may be further inquired into at
Bakhit‟s deposition, which has yet to occur. Accordingly, the
Court DENIES defendants‟ motion to compel medical records on the
current record, and without prejudice to re-filing should
additional information arise supporting defendants‟ theory that
Bakhit may have ceased pursuing strenuous physical labor in
light of a physical injury.
D. CONCLUSION
Accordingly, plaintiffs‟ motion to compel [Doc. #66] is
GRANTED IN PART AND DENIED IN PART. Defendants‟ motion to compel
[Doc. #82] is DENIED on the current record.

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 9th day of September 2014.
______/s/
______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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