Torcasio v. New Canaan Board of Education et al
Filing
76
RULING. For the reasons set forth in the attached Ruling, the Court GRANTS, in part, and DENIES, in part, plaintiff's Motions for Order Compelling Discovery as to defendants Gluck (Doc. # 55 ), Town (Doc. # 56 ) and Board of Education (Doc. # 57 ). Signed by Judge Sarah A. L. Merriam on 1/25/2016. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ANTONIA TORCASIO
:
:
v.
:
:
NEW CANAAN BOARD OF ED.,
:
et al.
:
:
------------------------------x
Civil No. 3:15CV00053(AWT)
January 25, 2016
RULING ON MOTIONS TO COMPEL [DOC. ##55, 56, 57]
Pending before the Court are three motions filed by
plaintiff Antonia Torcasio (“plaintiff”), seeking to compel
discovery from defendants, Bruce Gluck (“Gluck”), the Town of
New Canaan (the “Town”) and the New Canaan Board of Education
(“BOE”) (Gluck, the Town and the BOE are hereinafter sometimes
collectively referred to as the “defendants”). [Doc. ##55, 56,
57]. Each defendant has filed an objection to the pending
motions to compel. [Doc. ##71, 72, 73]. Plaintiff has also filed
a supplement to her motions to compel. [Doc. #70]. For the
reasons articulated below, the Court GRANTS, in part, and
DENIES, in part, plaintiff‟s Motions for Order Compelling
Discovery. [Doc. ##55, 56, 57].
BACKGROUND
Plaintiff, a female, was formerly employed as a “lunch
person” by the food services division of the BOE. [Doc. #1,
1
Compl., at ¶9]. Defendant Gluck was the Director of Food
Services for the BOE, and at all relevant times, plaintiff‟s
supervisor. Id. at ¶¶8, 12. Plaintiff alleges that she was
subjected to adverse employment actions and a hostile work
environment due to her gender, by defendant Gluck. See generally
id. at ¶¶13-30. Plaintiff alleges the following causes of
action: (1) Violation of Title VII, Disparate Treatment Based on
Gender (versus the BOE); (2) Violation of Title VII, Disparate
Treatment Based on Gender (versus the Town); (3) Violation of
Title VII, Hostile Work Environment, Sexual Harassment (versus
the BOE); (4) Violation of Title VII, Hostile Work Environment,
Sexual Harassment (versus the Town); (5) Intentional Infliction
of Emotional Distress (versus Gluck); (6) “CGS 10-235”
(Indemnification of teachers, board members, employees and
certain volunteers and students in damage suits) (versus the
BOE); (7) Negligent Supervision (versus the BOE); and (8)
Negligent Supervision (versus the Town). On November 25, 2015,
Judge Alvin W. Thompson granted defendants‟ motion to dismiss as
to the negligent supervision counts (seven and eight) of the
Complaint. [Doc. #54]. On December 28, 2015, defendants filed
their answer and asserted the following affirmative defenses:
failure to state a claim upon which relief can be granted;
failure to mitigate damages; setoff to account for health
insurance premiums paid on plaintiff‟s behalf; governmental
2
immunity; and lack of adverse employment action. [Doc. #74 at 67].
DISCUSSION
Plaintiff has filed three motions seeking to compel
discovery from each defendant. [Doc. ##55, 56, 57]. On December
15, 2015, the Court held a telephonic status conference to
address the issues raised in the motions to compel. [Doc. ##61,
65]. At the Court‟s direction, on December 23, 2015, defendants
filed their objections to the motions to compel. [Doc. ##71, 72,
73]. Plaintiff also filed a supplement to her motions. [Doc.
#70]. The Court will address each motion in turn.
I.
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
nonprivileged matter that is relevant to any party‟s
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties‟ relative access to relevant information, the
parties‟ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “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).
3
II.
Motion to Compel – Defendant Gluck [Doc. #55]
As to defendant Gluck, plaintiff seeks to compel answers to
five interrogatories, and the production of documents in
response to five requests for production.
A.
Interrogatories 5 & 11
Plaintiff seeks to compel an answer to Interrogatory 5, to
which defendant Gluck has objected:
Interrogatory 5: State whether you have ever pled
guilty to or been convicted of any misdemeanor (other
than minor traffic offenses) or felony and, if so,
state the offense for which your pled guilty or were
convicted, the court in which you pled guilty or were
convicted, the date of the plea or conviction, and the
penalty imposed.
OBJECTION: Defendant objects to this interrogatory on
the grounds that it not reasonably calculated to lead
to the discovery of admissible evidence. See Fed. R.
Evid. 609.
[Doc. #71 at 1]. In her motion to compel, plaintiff states only
that she should be “allowed” access to this information because
she “seeks to learn about any convictions for a crime related to
honesty.” [Doc. #55-2 at 5]. Gluck responds that as stated,
Interrogatory 5 requests irrelevant and inadmissible
information. [Doc. #71 at 2]. Gluck agrees to answer “whether he
has been convicted in the last ten years of a crime involving a
„dishonest act or false statement.‟” Id. (quoting Fed. R. Evid.
609(a)(2) and (b)).
4
Rule 609 provides, in relevant part, that a criminal
conviction for any felony and for “any crime regardless of the
punishment” that involves “a dishonest act or false statement”
by the convicted person shall be admitted for purposes of
attacking a witness‟s character for truthfulness. Fed. R. Evid.
609(a). If “more than 10 years have passed since the witness‟s
conviction or release from confinement,” the conviction may be
admissible, subject to certain limitations. Fed. R. Evid.
609(b). Thus, information relating to convictions for any felony
and for any offense involving dishonesty or false statement may
be admissible, under certain circumstances, regardless of the
age of the conviction.
Gluck‟s proposed limitation on the interrogatory is overly
restrictive and would not encompass information that could well
lead to the discovery of admissible evidence. Accordingly, the
Court GRANTS, in part, plaintiff‟s motion to compel with respect
to Interrogatory 5. Gluck shall provide an answer to
Interrogatory 5, limited to any felony offense or any offense
involving dishonesty or false statements, as contemplated by
Rule 609. Should the parties disagree as to whether any
convictions disclosed are admissible at trial, appropriate
motions in limine may be filed. The defendant shall provide his
answer to Interrogatory 5 on or before February 24, 2016.
5
Plaintiff next seeks to compel an answer to Interrogatory
11,1 to which defendant Gluck has objected:
Interrogatory 11: Identify the full name, home and
business addresses, and home and business telephone
numbers of each individual (other than your attorneys)
with whom you have discussed or consulted with
regarding any of the facts or allegations set forth in
your Complaint against you and the dates of each such
discussion.
OBJECTION: Defendant objects to this interrogatory on
the grounds that it exceeds the number of permissible
interrogatories pursuant to Fed. R. Civ. P. 33 (a)(1)
and the scheduling order entered in this action (25
interrogatories including sub parts).
[Doc. #71 at 2]. In his response to plaintiff‟s motion to
compel, defendant Gluck represents that following the meet and
confer between counsel, he has responded to Interrogatory 11 as
part of his supplemental compliance, and has identified the
persons with whom he has discussed the facts or allegations in
the Complaint. [Doc. #71 at 3]. Although plaintiff claims no
further agreement has been reached with respect to this
Interrogatory [Doc. #70 at 2], she does not elaborate how
Gluck‟s response is deficient. However, in a footnote, Gluck
further states that the only persons “not specifically
1
Although plaintiff seeks to compel an answer to Interrogatory
11, plaintiff‟s counsel also stated in his affidavit supporting
the motion to compel that counsel had reached an agreement as to
this interrogatory. [Doc. #55-1 at ¶4]. The Court will
nevertheless address the arguments raised because the Court
finds that the parties have not fully resolved the issues.
6
identified were Mr. Gluck‟s doctors,” whose identities Gluck
contends are privileged. [Doc. #71 at 3, n.2].
The Court disagrees that the identities of Gluck‟s
physicians with whom he discussed the allegations of the
Complaint are privileged. As an initial matter, the doctorpatient privilege is not applicable to this federal question
case. “[Q]uestions about privilege in federal question cases are
resolved by the federal common law.” Woodward Governor Co. v.
Curtiss Wright Flight Sys., Inc., 164 F.3d 123, 126 (2d Cir.
1999); see also Vidal v. Metro-N. Commuter Ry. Co., No.
3:12CV0248(MPS)(WIG), 2014 WL 413952, at *3 (D. Conn. Feb. 4,
2014) (“Where the district court‟s subject matter jurisdiction
is based on a federal question, privilege issues are governed by
federal common law.”). “[T]here was no physician-patient
privilege at common law[.]” Fitzgerald v. A. L. Burbank & Co.,
451 F.2d 670, 682 (2d Cir. 1971); see also Nw. Mem‟l Hosp. v.
Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004) (“[T]he evidentiary
privileges that are applicable to federal-question suits are
given not by state law but by federal law, Fed. R. Evid. 501,
which does not recognize a physician-patient (or hospitalpatient) privilege.”).
The Supreme Court has recognized a federal common law
psychotherapist-patient privilege, but has not extended this to
medical doctors. See Jaffee v. Redmond, 518 U.S. 1, 10 (1996).
7
“Treatment by a physician for physical ailments can often
proceed successfully on the basis of a physical examination,
objective information supplied by the patient, and the results
of diagnostic tests. Effective psychotherapy, by contrast,
depends upon an atmosphere of confidence and trust in which the
patient is willing to make a frank and complete disclosure of
facts, emotions, memories, and fears.” Id.; see also E.E.O.C. v.
Nichols Gas & Oil, Inc., 256 F.R.D. 114, 119 (W.D.N.Y. 2009).
The privilege applicable to psychotherapist-patient
communications covers “confidential communications” made to
psychiatrists, psychologists and others providing psychotherapy.
Jaffee, 518 U.S. at 15. The names of the providers are not
protected, however. “The psychotherapist-patient privilege does
not prevent disclosure of the dates of [a patient‟s] treatment
or the identity of [the] psychotherapists.” Kiermeier v.
Woodfield Nissan, Inc., No. 98CV3260, 1999 WL 759485, at *1
(N.D. Ill. Sept. 8, 1999); see also Merrill v. Waffle House,
Inc., 227 F.R.D. 467, 471 (N.D. Tex. 2005) (“The names of mental
health care providers, including psychiatrists, psychologists,
counselors, and therapists, and dates of treatment are not
subject to the privilege.”). To the extent defendant Gluck
relies on the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”), this serves to protect the privacy of
patient medical records, not the identity of the patient‟s
8
physician. See U.S. v. Boston Sci. Neuromodulation Corp., No.
2:11CV1210(SDW)(MCA), 2013 WL 2404816, at *8 (D.N.J. May 31,
2013) (“While patients should not be identifiable, there is no
specific [HIPAA] requirement to remove the name of physicians or
providers from the records.”); see also N.W. Mem‟l Hosp., 362
F.3d at 925 (noting that HIPAA is procedural and not substantive
in nature).
Accordingly, plaintiff‟s motion to compel with respect to
Interrogatory 11 is GRANTED. On or before February 24, 2016,
Gluck shall provide a supplemental answer to Interrogatory 11
which identifies the names and addresses of any physicians or
others not previously identified with whom he has discussed the
facts or allegations of the Complaint.
B.
Interrogatories 19, 20 & 21; Request for Production 3
Plaintiff also seeks to compel answers to Interrogatories
19, 20, and 21 and a response to Request for Production 3, all
of which relate to Gluck‟s medical information, and to which
Gluck has objected:
Interrogatory 19: Please state the name, business
address and telephone number of any physician you
visited with to discuss your medications and their
possible impact on you behavior at the workplace in
the aftermath of the Wilson Meeting.
OBJECTION: Defendant objects to this interrogatory on
the
grounds
that
it
exceeds
the
number
of
interrogatories permitted under Fed. R. Civ. P. 33
(a)(1) and the scheduling order entered in this action
(25 interrogatories including sub parts). Defendant
9
also objects to this interrogatory on the grounds that
it is not reasonably calculated to lead to the
discovery
of
admissible
evidence.
Furthermore,
Defendant objects to this interrogatory on the grounds
that it seeks the disclosure of confidential health
information pertaining to the plaintiff. The Defendant
has not put his health at issue in the subject case.
Interrogatory 20: Please state the name of any
medication you were taking during period of time of
the Wilson Meeting and how long you had been taking
such medication.
OBJECTION: Defendant objects to this interrogatory on
the
grounds
that
it
exceeds
the
number
of
interrogatories permitted under Fed. R. Civ. P. 33
(a)(1) and the scheduling order entered in this action
(25 interrogatories including sub parts). Defendant
also objects to this interrogatory on the grounds that
it is overly broad, unduly burdensome and not
reasonably calculated to lead to the discovery of
admissible evidence. Furthermore, Defendant objects to
this interrogatory on the grounds that it seeks the
disclosure
of
confidential
health
information
pertaining to plaintiff. The Defendant has not put his
health at issue in the subject case.
Interrogatory 21: Please state whether any medication
referenced in interrogatory no. 20 was discontinued
after visiting with any physician (subsequent to the 9
Wilson Meeting), and if so, the name of any new
medication, if any, intended to replace discontinued
medication.
OBJECTION: Defendant objects to this interrogatory on
the
grounds
that
it
exceeds
the
number
of
interrogatories permitted under Fed. R. Civ. P. 33
(a)(1) and the scheduling order entered in this action
(25 interrogatories including sub parts). Defendant
also objects to this interrogatory on the grounds that
it is overly broad and not reasonably calculated to
lead
to
the
discovery
of
admissible
evidence.
Furthermore, defendant objects to this interrogatory
on the grounds that it seeks the disclosure of
confidential health information pertaining to the
plaintiff. The Defendant has not put his health at
issue in the subject case.
10
REQUEST 3: Please execute the attached Authorization
for Release of Medical and/or Records, sufficient to
comply with the provisions of the Health Insurance
Portability and Accountability Act, to inspect and
make copies of said all records relating to treatment
received as a result of the matters to which reference
is
made
in
answers
to
interrogatories
#19-21.
Information obtained pursuant to the provisions of
HIPAA shall not be used or disclosed by the parties
for
any
purpose
other
than
the
litigation
or
proceeding for which such information was requested.
OBJECTION: Defendant objects to this request on the
grounds that it is overly broad, unduly burdensome and
not reasonably calculated to lead to the discovery of
admissible evidence.
[Doc. #71 at 3-4, 8] [sic]. Plaintiff argues that these
interrogatories “should be allowed” because Gluck put his health
conditions at issue in the case when he testified that his
misconduct at work resulted from prescribed medication. [Doc.
#55-2 at 4]. Plaintiff further contends that “Gluck offered his
medical condition as justification for any harassment – hostile
work environment related conduct.” Id. Gluck responds that
plaintiff‟s argument fails to show that he has put his medical
history at issue in this case. [Doc. #71 at 4].
On the current record, the Court sustains Gluck‟s objection
that Interrogatories 19, 20 and 21 are not reasonably calculated
to lead to the discovery of admissible information. In her
supplement to the motions to compel, plaintiff argues that the
medication issue is “akin to a defense” and that she needs to
discover the accuracy of Gluck‟s contentions. [Doc. #70 at 3-4].
11
This argument fails for two reasons. First, Gluck has not raised
this as a defense. To the contrary, he specifically represents
that “he is not suggesting a medical condition provides him a
basis for defending against this case, nor has he advanced a
claim on the basis of a medical condition.” [Doc. #71 at 6]. The
record establishes that Gluck raised the issue of his medication
in a single meeting with his superiors. Second, it is unclear
how this alleged medical condition could serve as a defense to
the claims asserted in this matter in light of the timeframe of
the alleged misconduct.
Plaintiff alleges: “During her employ with the BOE,
especially during the period starting in January 2010 and ending
in September 2013, Mrs. Torcasio and many other female employees
were the subject of Mr. Gluck‟s persistent misconduct.” [Doc.
#1, Compl., at ¶13]. She further alleges: “Currently, Mr.
Gluck‟s misconduct continues[.]” Id. at ¶28. Deposition
testimony establishes that the meeting concerning the alleged
medication issue occurred in 2010. See, e.g., Doc. #70-1, July
7, 2014, Gluck Depo. at 41:23-42:5; Doc. #70-2, Nov. 19, 2015,
Michael Lagas Depo. at 31:7-13, 43:24-44:25, 46:7-47:25.
Approximately a week later, Gluck‟s medication dosage was
changed, and he felt that relations with his employees improved
and the problem “was fixed.” See Doc. #70-2, Lagas Depo. at
70:19-71:21; Doc. #70-1, Gluck Depo. at 43:17-45:16. This
12
testimony, provided under oath, establishes that Gluck only
asserts that his medication was relevant to his conduct during a
one-week period of time in 2010. According to the Complaint,
Gluck‟s misconduct occurred primarily after his medication was
adjusted. Accordingly, the issues surrounding Gluck‟s medication
during that one week period are not material.
Weighed against the privacy concerns implicated by delving
into Gluck‟s mental health treatment history, the potential
relevance of information related to a possible medication
adjustment which Gluck asserts affected his behavior for one
week out of several years is minimal. The Court is empowered to
limit discovery so as to protect a party from “annoyance,
embarrassment, oppression, or undue burden[.]” Fed. R. Civ. P.
26(c)(1)(D). Here, such a limitation is appropriate.
Accordingly, on the record before the Court, plaintiff‟s motion
to compel with respect to Interrogatories 19, 20 and 21 is
DENIED. For the same reasons, plaintiff‟s motion to compel with
respect to Request for Production 3 is also DENIED.
C.
Request for Production 4
Plaintiff next seeks to compel the production of documents
in response to Request for Production 4,2 to which defendant
Gluck has objected:
2
Although plaintiff seeks to compel an answer to Request for
13
REQUEST 4: All documents (including but not limited to
e-mails), notes, diaries, or other tangible evidence
indicating, reflecting or relating to any allegations
in and or defense to the Complaint.
OBJECTION: Defendant objects to this request on the
grounds that it is overly broad, unduly burdensome and
not reasonably calculated to lead to the discovery of
admissible evidence. Defendant also objects to this
request on the grounds that it is vague and/or
ambiguous. Furthermore, defendant objects to this
request
to
the
extent
it
seeks
disclosure
of
information protected by the attorney client privilege
and/or the attorney work product doctrine. Finally,
the defendant objects to the request on the grounds
that it is vague and/or ambiguous.
[Doc. #71 at 8]. Defendant Gluck represents that following
counsel‟s meet and confer, he reported in his supplemental
discovery responses that he does not have any non-privileged
documents responsive to this request. [Doc. #71 at 9]. Plaintiff
fails to articulate the basis for her motion to compel. For
example, she does not suggest that Gluck is impermissibly
withholding documents, or that he has failed to undertake a
diligent search. To the extent that plaintiff challenges any
claims of privilege or work product protection, this is not
raised in her motion to compel. Accordingly, the Court DENIES
plaintiff‟s motion to compel as to Request for Production 4.
Production 4, plaintiff‟s counsel noted in his affidavit
supporting the motion to compel that counsel had reached an
agreement as to this request. [Doc. #55-1 at ¶4]. The Court will
nevertheless address the arguments raised because the Court
finds the parties have not fully resolved the issues.
14
Nevertheless, if Gluck has not produced a privilege log, he will
do so on or before February 24, 2016.
D.
Requests for Production 6 & 8
Plaintiff next seeks to compel the production of documents
in response to Requests for Production 6 and 8, to which
defendant Gluck has objected and responded:
REQUEST 6: All documents (including but not limited to
e-mails)
or
other
tangible
evidence
indicating,
reflecting,
consisting
of,
or
relating
to
correspondence from your current employer to you in
connection with any complaint made by employees under
your supervision.
OBJECTION: Defendant objects to this request on the
grounds that it is overly broad insofar as “complaint”
is not defined. Defendant objects to this request on
the grounds that the phrase “other tangible evidence”
is vague and/or ambiguous.
RESPONSE: Subject to and without waiving the foregoing
objections, defendant has no documents responsive to
this request.
REQUEST 8: Any and all documents, correspondence or
communications, (including but not limited to e-mails
and web postings) provided, delivered, posted, sent,
or transmitted between you and anyone other than your
current employer, including but not limited to your
spouse (if any), family members, friends, associates,
previous
employers,
current
employers,
potential
employers, or former or current co-workers, relating
to the facts, circumstances or allegations contained
in the Complaint.
OBJECTION: Defendant objects to this request on the
grounds that it seeks the disclosure of information
protected by the attorney client privilege, the
attorney work product doctrine and/or the spousal
privilege. Defendant also objects to this request on
the grounds that it is overly broad and not reasonably
15
calculated
evidence.
to
lead
to
the
discovery
of
admissible
RESPONSE: Subject to and without waiving the foregoing
objections, defendant does not have any non-privileged
documents responsive to this request.
[Doc. #71 at 9-10]. Again, plaintiff fails to articulate the
basis for her motion to compel. Accordingly, the Court DENIES
plaintiff‟s motion to compel as to Requests for Production 6 and
8 for the same reasons articulated above with respect to Request
for Production 4. Nevertheless, if Gluck has not produced a
privilege log as to these requests, he will do so on or before
February 24, 2016.3
E.
Request for Production 12
Last, plaintiff seeks to compel the production of documents
in response to Request for Production 12, to which Gluck has
objected:
REQUEST 12: All documents or other tangible evidence
relating to any lawsuit or any other court or
administrative proceeding to which you have been a
party, other than this lawsuit, including but not
limited to
(a) any pleadings,
(b) deposition transcripts,
(c) transcripts of any testimony, or
3
Gluck also contends that “anything responsive to this request
would be encompassed by the Defendants‟ initial disclosures[.]”
[Doc. #71 at 10]. To the extent that any documents provided in
the initial disclosures are responsive to this request, on or
before February 24, 2016, Gluck shall amend his response to this
request to identify the Bates numbers of the responsive
documents previously disclosed.
16
(d) any other documents which set forth the name and
address of any attorney who represented Plaintiff, the
date of the incident which gave rise to such lawsuit
or administrative proceeding, the court or agency in
which such proceeding or lawsuit was filed, the
factual basis on which the proceeding or lawsuit was
based, or the disposition of such proceeding or
lawsuit.
OBJECTION: Defendant objects to this request on the
grounds that it is overly broad, unduly burdensome and
not reasonably calculated to lead to the discovery of
admissible evidence. Defendant also objects to this
request on the grounds that it seeks the disclosure of
information protected by the attorney client privilege
and/or the attorney work product doctrine.
[Doc. #71 at 10-11]. Plaintiff contends that “Gluck claims to
have lost memory function as a result of a motor vehicle
collision[,]” that this collision is the subject of pending
litigation, and that plaintiff requires this information to
verify Gluck‟s claims of memory loss. [Doc. #55-2 at 8-9].
Plaintiff further “anticipates that memory loss may be offered
as a reason for Gluck‟s lack of recall during deposition or at
an eventual trial in this matter.” Id. Gluck responds that he
has brought a lawsuit arising out of a motor vehicle accident,
and that he claims injuries, including memory loss. [Doc. #71 at
11]. He further represents that he is not a party to any other
lawsuit or administrative proceeding. Id. Gluck further contends
that his claimed memory loss refers only to “his ability to do
certain calculations and quick thinking, not simply not being
able to remember things from the past.” [Doc. #71 at 12].
17
Plaintiff‟s represented need for these documents is wholly
speculative, and plaintiff admits as much in her motion to
compel. [Doc. #55-2 at 8]. Further, defendant Gluck represents
that he did not “testify regarding any alleged loss of memory at
his deposition in the Plaintiff‟s state court action against Ms.
Wilson nor did he do so at his deposition in this matter.” [Doc
#71 at 12]. Accordingly, on the record before it, the Court
DENIES plaintiff‟s motion to compel as to Request for Production
12.
Therefore, as stated above, the Court GRANTS, in part, and
DENIES, in part, plaintiff‟s Motion for Order Compelling
Discovery as to defendant Gluck. [Doc. #55].
III. Motion to Compel – Defendant Town of New Canaan [Doc. #56]
A.
Interrogatories 5 & 6
Plaintiff seeks to compel answers to the following
interrogatories, to which defendant Town has asserted the same
objection:
Interrogatory 5: Describe every lawsuit filed in
federal or state court against TOWN involving claims
of discrimination in employment or infliction of
emotional distress since 1995, including the nature of
the claims, the names of parties, the date of
complaint and the nature of its disposition.
Interrogatory 6: State the charge caption, charge
number, nature of the charge, administrative agency,
person or entity charged, and disposition of any and
all charges of discrimination or harassment filed
against TOWN since 1995 to present, with the Equal
Employment Opportunity Commission (“EEOC”) and/or any
18
other
organization
or
government
agency
(e.g.,
Connecticut
Commission
on
Human
Rights
and
Opportunities) responsible for the enforcement of laws
prohibiting discrimination in employment or otherwise.
Objection: Defendant objects to this interrogatory on
the grounds that it exceeds the number of permissible
interrogatories pursuant to Fed. R. Civ. P. 33(a)(1)
and the scheduling order entered in this action (15
interrogatories including sub parts). Defendant also
objects to this interrogatory on the grounds that it
is overly broad, unduly burdensome insofar as it seeks
the disclosure of lawsuits filed over a twenty year
period. Since Mr. Gluck is not an employee of the Town
of New Canaan, this interrogatory is also not
reasonably calculated to lead to the discovery of
admissible evidence.
[Doc. #72 at 1-2]. With respect to the temporal scope of these
interrogatories, plaintiff and defendant Town have agreed to
limit the request to the period of 2003 to 2013. [Doc. #72 at 1
n.1; Doc. #70 at 4]. Substantively, plaintiff argues that this
information is relevant to liability and damages, and to
“discovering if and why Town has failed to remedy discrimination
issues.” [Doc. #56-2 at 4-5 (sic)]. Defendant Town argues that
this information is not relevant because plaintiff and her
supervisor, defendant Gluck, were employed by the BOE and not
the Town. Defendant Town further represents that there is no
employment relationship between the Town and plaintiff or
between the Town and Gluck.
As an initial matter, Interrogatory 5 is substantively
overbroad to the extent that it seeks information regarding any
and all lawsuits filed against the Town for claims of infliction
19
of emotional distress. As the Court informed plaintiff‟s counsel
during the December 15, 2015, telephone conference, such a
request would inevitably encompass a broad array of information
that is not relevant to the pending lawsuit. Further, there are
no claims pending against the Town in this case for intentional
infliction of emotional distress or negligent supervision.
Although defendant Town argues that plaintiff and Gluck are not
employees of the Town, the Court credits the argument made by
plaintiff during the December 15, 2015, telephone conference
that the Town remains a defendant in this matter, and she is
entitled to discovery from this defendant.4 Nevertheless, as
phrased, Interrogatories 5 and 6 are substantively overbroad.
Therefore, on or before February 24, 2016, defendant Town shall
provide answers to Interrogatories 5 and 6 as limited to claims
of discrimination on the basis of gender and/or hostile work
environment on the basis of sexual harassment, and claims for
intentional infliction of emotional distress arising out of the
same, for the time period agreed to by counsel. Accordingly, the
Court GRANTS, in part, and DENIES, in part, plaintiff‟s motion
to compel with respect to Interrogatories 5 and 6.
4
The Court notes that the defendants filed a motion to dismiss
in this case, but did not raise the claim that the Town is not a
proper defendant because the Town is not the plaintiff‟s
employer except in their argument as to Count Eight, which has
been dismissed. [See Doc. #21]. Counts Two and Four against the
Town remain in the case.
20
B.
Requests for Production 15 & 16
Plaintiff also seeks to compel the production of documents
in response to Requests for Production 15 and 16, to which
defendant Town has asserted the same objection:
Request 15: All documents or other tangible evidence
relating to any lawsuit or any other court or
administrative proceeding based on discrimination and
infliction of emotional distress to which TOWN has
been a party, other than this lawsuit, including but
not limited to
(a) Any pleadings,
(b) Deposition transcripts,
(c) Transcripts of any testimony, or
(d) any other documents which set forth the name and
address of any attorney who represented Plaintiff, the
date of the incident which gave rise to such lawsuit
or administrative proceeding, the court or agency in
which such proceeding or lawsuit was filed, the
factual basis on which the proceeding or lawsuit was
based, or the disposition of such proceeding or
lawsuit.
Request 16: All documents or other tangible evidence
relating to any charge or allegation of discrimination
filed against you with the EEOC or any other
organization or government agency (e.g., Connecticut
Commission
on
Human
Rights
and
Opportunities)
responsible for the enforcement of laws prohibiting
discrimination in employment or otherwise, or which
you have been a party to, including but not limited to
(a) the charge,
(b) position statements,
(c) reply or response to the position statement,
(d) all documents submitted to the EEOC and/or any
other
organization
or
government
agency...
responsible for the enforcement of laws prohibiting
discrimination in employment or otherwise,
(e) the disposition of the charge, or
(f) any other documents which set forth the name and
address of any attorney who represented Plaintiff,
the date of the incident which gave rise to such
charge of discrimination, the agency in which such
21
charge was filed, the factual
basis on which the
charge was based, or the disposition of such charge.
Objection: Defendant objects to this request on the
grounds that it seeks the disclosure of information
protected by the attorney-client privilege and/or the
attorney work product doctrine. In addition, defendant
objects to this request on the grounds that it is
overly broad, unduly burdensome and not reasonably
calculated to lead to the discovery of admissible
evidence insofar as neither the plaintiff nor the
defendant Gluck have ever been employed by the Town of
New Canaan. Furthermore, the defendant objects to the
request on the grounds that it is not reasonably
limited as to time.
[Doc. #72 at 3-4]. The parties reassert their arguments with
respect to Interrogatories 5 and 6 to Requests for Production 15
and 16. Although the Court has ordered defendant Town to provide
answers to Interrogatories 5 and 6, as narrowed by the Court, it
will not order that the Town produce documents in response to
Requests for Production 15 and 16 in light of the newly enacted
proportionality factors set forth in Rule 26(b)(1) of the
Federal Rules of Civil Procedure. Rule 26 provides in relevant
part that parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party‟s claim or defense and proportional to the
needs of the case, considering the importance of the
issues at stake in the action, the amount in
controversy, the parties‟ relative access to relevant
information, the parties‟ resources, the importance of
the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs
its likely benefit.
Fed. R. Civ. P. 26(b)(1).
22
The majority of documents sought in these requests appear
to be of minimal importance in resolving the issues in this
case. Materials filed in previously filed court cases are likely
accessible through public information sources to the plaintiff.
The burden of obtaining, reviewing, redacting, and most likely
sealing some of the other materials sought, such as third-party
depositions in unrelated cases, would be substantial. Therefore,
on the current record, the Court sustains defendant Town‟s
objections to Requests for Production 15 and 16.
Accordingly, for the reasons stated, the Court GRANTS, in
part, and DENIES, in part, plaintiff‟s Motion for Order
Compelling Discovery as to defendant Town. [Doc. #56].
IV.
Motion to Compel – Defendant BOE [Doc. #57]
Plaintiff seeks to compel the BOE‟s answers to four
interrogatories and ten requests for production.
A.
Interrogatories 8, 9, 10 & 115
Plaintiff seeks to compel answers to the following
interrogatories, to which defendant BOE has asserted the same
objection:
5
Although plaintiff seeks to compel answers to these
interrogatories, plaintiff‟s counsel stated in his affidavit
supporting the motion to compel that counsel had reached an
agreement as to Interrogatories 8, 9, 10 and 11. [Doc. #57-1 at
¶4]. Nevertheless, the Court will address the arguments raised
because the Court finds the parties have not fully resolved the
issues.
23
Interrogatory 8: Describe every lawsuit filed
federal or state court against BOE involving claims
discrimination
in
employment
or
infliction
emotional distress since 1995, including the nature
the claims, the names of parties, the date
complaint and the nature of its disposition.
in
of
of
of
of
Interrogatory 9: State the charge caption, charge
number, nature of the charge, administrative agency,
person or entity charged, and disposition of any and
all charges of discrimination or harassment filed
against BOE since 1995 to present, with the Equal
Employment Opportunity Commission (“EEOC”) and/or any
other
organization
or
government
agency
(e.g.,
Connecticut
Commission
on
Human
Rights
and
Opportunities) responsible for the enforcement of laws
prohibiting discrimination in employment or otherwise.
Interrogatory 10: State whether you are aware of any
written or oral complaint(s) concerning Bruce Gluck,
made/submitted to (1) Bruce Gluck, and or (2) BOE, and
or (3) the employee union representative and or its
president and or the labor relations representative,
by any BOE employee or respective spouse or respective
legal counsel.
Interrogatory 11: For each complaint identified in the
response to 10, state the following:
(a) the maker of the complaint;
(b) the nature of the complaint;
(c) the date of the complaint;
(d) the disposition of the complaint;
(e) to whom the complaint was made or submitted;
(f) who has possession of complaint, if a written
complaint;
(g) who gave BOE complaint.
[Doc. #57-2 at 3-4]. Plaintiff represents that these four
interrogatories seek “information regarding lawsuits and
administrative complaints regarding discrimination and
infliction of emotional distress, previously filed against the
BOE ... [and] also requests information regarding internal
24
complaints filed against the BOE‟s agent ... Bruce Gluck.” [Doc.
#57-2 at 3]. Defendant BOE objects to these interrogatories on a
number of grounds, including, inter alia, that the
interrogatories exceed the number permissible under Federal Rule
of Civil Procedure 33(a)(1), and that two of the interrogatories
(8 and 9) are overly broad, unduly burdensome and not reasonably
calculated to lead to the discovery of admissible information.
In its response to the motion to compel, the BOE reports
that it “has agreed to supplement its initial discovery
compliance and answer these interrogatories, subject to certain
limitations.” [Doc. #73 at 3]. With respect to Interrogatories 8
and 9, the BOE “has agreed that it will respond to these
interrogatories with respect to lawsuits and administrative
charges filed against the BOE pertaining to the food services
department going back to 2003.” Id. Plaintiff agrees to a
temporal limitation of ten years, namely from 2003 to 2013, but
does not agree to the substantive limitation proposed by
defendant. See Doc. #70 at 4.
Interrogatory 8 is substantively overbroad to the extent
that it seeks information regarding all lawsuits filed against
the BOE for claims of infliction of emotional distress, rather
than only those related to similar harassment or employment
claims. The Court further finds that as currently phrased,
Interrogatories 8 and 9 remain substantively overbroad.
25
Therefore, on or before February 24, 2016, in addition to the
information the BOE agrees to provide, the BOE shall
additionally provide answers to Interrogatories 8 and 9 as
limited to claims of discrimination on the basis of gender or
hostile work environment on the basis of sexual harassment, and
claims for intentional infliction of emotional distress arising
out of the same, for the time period agreed to by counsel.
Accordingly, with respect to Interrogatories 8 and 9, the Court
GRANTS, in part, plaintiff‟s motion to compel.
With respect to Interrogatories 10 and 11, the only
objection raised is that these interrogatories, by virtue of
their subparts, exceed the limitations set by the Court. [See
Doc. #73 at 2]. The Court disagrees. Rule 33 sets a limit of 25
interrogatories “including all discrete subparts.” Fed. R. Civ.
P. 33(a)(1). That provision was added in 1993.
[T]he Advisory Committee notes to the 1993 Amendment
to [Rule 33] distinguish between joining requests
about “discrete separate subjects” into a single
interrogatory, which is improper, from the permissible
practice of using a single interrogatory to ask for
information about all “communications of a particular
type
[which]
should
be
treated
as
a
single
interrogatory even though it requests that the time,
place, persons present, and
contents be stated
separately for each communication.”
Concerned Citizens of Belle Haven v. Belle Haven Club, 223
F.R.D. 39, 47 (D. Conn. 2004). Interrogatory 10 requests
complaints about Gluck made to any of three recipients.
26
Interrogatory 11 requests the various “who, what, where and
when” details of each of those complaints. These subparts do not
represent “discrete” inquiries; they are not “logically or
factually independent of the question posed by the basic
interrogatory.” Sec. Ins. Co. of Hartford v. Trustmark Ins. Co.,
No. 3:01CV2198(PCD), 2003 WL 22326563, at *1 (D. Conn. Mar. 7,
2003) (internal citation omitted). Accordingly, the BOE‟s
objection as to Interrogatories 10 and 11 is overruled and the
Court GRANTS plaintiff‟s motion to compel with respect to
Interrogatories 10 and 11. The BOE will provide complete answers
to Interrogatories 10 and 11 on or before February 24, 2016.
B.
Requests for Production 2, 3 & 4
Plaintiff seeks to compel the production of documents
responsive to Requests for Production 2, 3 and 4, which seek
information regarding internal complaints filed against
defendant Gluck:
Request
2:
Any
documents
including
complaints,
letters, e-mails, notes, diaries, or other tangible
evidence indicating, concerning or relating to any
complaint(s) concerning Mr. Gluck made by any BOE
employee or respective spouse or respective agent
(including legal counsel), and submitted to (1) BOE
and or (2) an employee union representative, and or
union
president
and
or
a
labor
relations
representative.
OBJECTION: Defendant objects to this request to the
extent that it seeks the production of information
protected by the attorney client privilege and/or the
attorney work product doctrine. Defendant also objects
to this request as vague and/or ambiguous.
27
ANSWER: Subject to and without waiving the foregoing
objections, see documents previously produced as part
of defendant‟s initial disclosures.
Request
3:
Any
documents
including
complaints,
letters, e-mails, notes, diaries, or other tangible
evidence indicating, concerning or relating to any
complaint(s) concerning Mr. Gluck made by a BOE
employee or respective spouse or respective agent
(including legal counsel), and submitted or provided
to BOE by an employee union representative, and or its
president and or labor relations representative.
OBJECTION: Defendant objects to this request to the
extent that it seeks the production of information
protected by the attorney client privilege and/or the
attorney work product doctrine. Defendant also objects
to this request on the grounds that it is duplicative
of the prior request.
ANSWER: Subject to and without waiving the foregoing
objections, see documents previously produced as part
of defendant‟s initial disclosures.
Request 4: All documents reflecting or relating to the
BOE‟s investigation concerning the allegations made in
Torcasio v. Town of New Canaan et al., EEOC Charge No.
523-2014-00323, including reports, witness interviews,
notes and memoranda created as part of and in
furtherance of the investigation, which will be used
as part of any defense to claims made in Complaint.
OBJECTION: Defendant objects to this request to the
extent that it seeks the production of information
protected by the attorney client privilege and/or the
attorney work product doctrine.
ANSWER: Subject to and without waiving the foregoing
objection, there are no non-privileged documents
responsive to this request.
[Doc. #73 at 4-5]. With respect to Requests for Production 2 and
3, the BOE represents that it has “provided initial disclosures
to the Plaintiff totaling nearly 300 pages of documents” and has
28
“indicated in its written responses to the Plaintiff‟s written
discovery that any complaints, letters, emails, notes, diaries,
and other materials concerning any complaints that BOE employees
or their spouses might have made about Mr. Gluck would be
contained in the initial disclosures.” [Doc. #73 at 5]. As to
Request for Production 4, the BOE represents that “it does not
have any non-privileged documents responsive to this request.”
[Doc. #73 at 5].
In light of these representations, the Court DENIES
plaintiff‟s motion to compel as to Requests for Production 2, 3
and 4. Plaintiff fails to articulate whether she believes
documents are missing from the BOE‟s production, or how the
BOE‟s responses are insufficient. To the extent that plaintiff
challenges any claims of privilege or work product protection,
this is not raised in her motion to compel. However to the
extent that any documents provided in the initial disclosures
are responsive to Requests for Production 2 and 3, on or before
February 24, 2016, the BOE shall amend its responses to these
requests to identify the Bates numbers of the responsive
documents. Additionally, if the BOE has not produced a privilege
log, it will do so on or before February 24, 2016.
C.
Requests for Production 6, 10, 11 & 18
Plaintiff seeks to compel the production of documents
responsive to Requests for Production 6, 10, 11 and 18, which
29
seek documents related to the claims made in the Complaint, and
the defenses asserted thereto:
Request 6: All documents including but not limited to
e-mails, notes, diaries, or other tangible evidence
indicating, reflecting or relating to any allegations
in and or defense to the Complaint.
OBJECTION: Defendant objects to this request on the
grounds that it seeks the disclosure of information
protected by the attorney client privilege and/or the
attorney work product doctrine and impermissibly seeks
the mental impressions of defense counsel. Defendant
also objects to the request on the grounds that it is
vague and/or ambiguous, as well as overly broad,
unduly burdensome and not reasonably calculated to
lead to the discovery of admissible evidence.
Request 10: All documents, including, but not limited
to, notes, diaries, logs, written records, audiotapes,
photographs,
drawings,
e-mails,
blogs,
websites,
videotapes or other materials created or maintained by
BOE which in any way reflect or relate to any
conversation, communication, incident, event, act, or
failure to act alleged in or relating to the
Complaint.
OBJECTION: Defendant objects to this request on the
grounds that it is vague and/or ambiguous. Defendant
also objects to this request on the grounds that it
seeks disclosure of information protected by the
attorney client privilege and/or the attorney work
product doctrine.
Request 11:
documents, or
conversation
concerning or
Complaint.
All tape recordings, transcripts or
other tangible evidence relating to any
with
or
statement
by
any
person
relating to any matter set forth in the
OBJECTION: Defendant objects to this request as vague
and/or ambiguous. Defendant also objects to this
request on the grounds that it seeks disclosure of
information protected by the attorney client privilege
and/or
the
attorney
work
product
doctrine.
Furthermore, defendant objects to this request on the
30
grounds that it is overly broad, unduly burdensome,
and not reasonably calculated to lead to the discovery
of admissible evidence.
Request 18: All documents, including, but not limited
to, electronic communications, concerning any nonprivileged communications that BOE has had with any
individual concerning:
(a) the fact that Plaintiff is suing BOE;
(b) Plaintiff‟s claims against a BOE in this action
and the basis for those claims; and
(c) the knowledge or testimony of any prospective
witness in this case concerning the subject matter of
the Complaint, the facts alleged in the Complaint, or
Plaintiff‟s claims against BOE.
OBJECTION: Defendant objects to this request on the
grounds that it is overly broad, unduly burdensome and
not reasonably calculated to lead to the discovery of
admissible evidence.
[Doc. #73 at 6-7]. With respect to Requests for Production 10
and 11,6 the BOE responds that these requests are so overbroad
that it “cannot find or determine search terms that would allow
it to identify each and every document or piece of evidence that
may relate to any allegations in or defense to the Complaint or
any matter set forth in the Complaint.” [Doc. #73 at 7]. The BOE
further represents that “in all likelihood” any such documents
responsive to Requests for Production 10 and 11 were produced in
connection with the Defendants‟ initial disclosures[.]” Id.
6
Again, although plaintiff seeks to compel responses to Requests
for Production 10 and 11, counsel stated in his affidavit
supporting the motion to compel that counsel had reached an
agreement as to these two requests. [Doc. #57-1 at ¶4]. The
Court will nevertheless address the arguments raised because the
Court finds the parties have not fully resolved the issues.
31
Similarly, with respect to Requests for Production 6 and 18, the
BOE stands by its objections, and further represents that these
requests are duplicative of the disclosures mandated by the
initial discovery protocol, with which the BOE has complied. Id.
at 8.
On March 31, 2015, Judge Thompson entered an Order
regarding the Initial Discovery Protocols for Employment Cases
Alleging Adverse Action (hereinafter the “initial discovery
protocol”). [Doc. #18]. The initial discovery protocol requires
that defendants in employment cases, such as the one here,
produce certain documents and provide certain information, to
plaintiff. In pertinent part, the initial discovery protocol
mandates the production of the following documents:
a.
All
communications
concerning
the
factual
allegations or claims at issue in this lawsuit
among or between:
i.
the plaintiff and the defendant, and
ii.
the
plaintiff's
manager(s),
supervisor(s),
and/or
the
defendant's
resources representative(s).
b.
and/or
human
Responses to claims, lawsuits, administrative
charges, and complaints by the plaintiff that
rely upon any of the same factual allegations or
claims as those at issue in this lawsuit.
...
l.
Documents concerning investigation(s) of any
complaint(s) about the plaintiff or made by the
plaintiff, if relevant to the plaintiff‟s factual
allegations or claims at issue in this lawsuit
and not otherwise privileged.
...
32
n.
Any other document(s) upon which the defendant
relies to support the defenses, affirmative
defenses, and counterclaims, including any other
document(s)
describing
the
reasons
for
the
adverse action.
[Doc. #18 at ¶IV(2)]. The Court agrees that plaintiff‟s Requests
for Production are largely duplicative of mandated disclosures
provided in the initial discovery protocol, and therefore DENIES
plaintiff‟s motion to compel with respect to Requests for
Production 6, 10, 11 and 18. However, to the extent that
documents responsive to these Requests for Production were
produced in connection with the initial disclosures, on or
before February 24, 2016, the BOE shall amend its responses to
these requests to identify by Bates number the previously
produced responsive documents.
D.
Request for Production 17
Plaintiff further seeks to compel production as to Request
for Production 17:
Request 17: All written statements obtained from any
person concerning this action and/or concerning any
allegation in the Complaint.
OBJECTION: Defendant objects to this request on the
grounds that it seeks the disclosure of information
protected by the attorney client privilege and/or the
attorney work product doctrine. Defendant also objects
to the request on the grounds that the term
“statement” is vague and/or ambiguous.
RESPONSE: Subject to and without waiving the foregoing
objections, see Affidavits produced in connection with
EEOC charge.
33
[Doc. # 73 at 6-7]. It is again unclear what production
plaintiff seeks to compel in light of the BOE‟s response to this
request. Plaintiff fails to articulate whether she believes
documents are missing from the BOE‟s production, or how the
BOE‟s response is insufficient. To the extent that plaintiff
challenges any claims of privilege or work product protection,
this is not raised in her motion to compel. Accordingly, the
Court DENIES plaintiff‟s motion to compel with respect to
Request for Production 17. However, if the BOE has not produced
a privilege log, it will do so on or before February 24, 2016.
E.
Requests for Production 19 & 20
Last, plaintiff seeks to compel the production of documents
in response to Requests for Production 19 and 20, which seek
documents related to lawsuits and administrative complaints
filed against the BOE alleging discrimination and infliction of
emotional distress:
Request 19: All documents or other tangible evidence
relating to any lawsuit or any other court or
administrative proceeding based on discrimination and
infliction of emotional distress to which BOE has been
a party, other than this lawsuit, including but not
limited to:
(a) any pleadings,
(b) deposition transcripts,
(c) transcripts of any testimony, or
(d) any other documents which set forth the name and
address of any attorney who represented Plaintiff, the
date of the incident which gave rise to such lawsuit
or administrative proceeding, the court or agency in
which such proceeding or lawsuit was filed, the
factual basis on which the proceeding or lawsuit was
34
based, or
lawsuit.
the
disposition
of
such
proceeding
or
OBJECTION: Defendant objects to this request on the
grounds that it seeks the disclosure of information
protected by the attorney client privilege and/or the
attorney work product doctrine. In addition, defendant
objects to this request on the grounds that it is
overly broad, unduly burdensome and not reasonably
calculated to lead to the discovery of admissible
evidence. Moreover, defendant objects to the request
on the grounds that it is not reasonably limited as to
time.
Request 20: All documents or other tangible evidence
relating to any charge or allegation of discrimination
filed against you with the EEOC or any other
organization or government agency (e.g., Connecticut
Commission
on
Human
Rights
and
Opportunities)
responsible for the enforcement of laws prohibiting
discrimination in employment or otherwise, or which
you have been a party to, including but not limited to
(a) the charge,
(b) position statements,
(c) reply or response to the position statement,
(d) all documents submitted to the EEOC and/or any
other
organization
or
government
agency
(e.g.,
Connecticut
Commission
on
Human
Rights
and
Opportunities) responsible for the enforcement of laws
prohibiting discrimination in employment or otherwise,
(e) the disposition of the charge, or
(f) any other documents which set forth the name and
address of any attorney who represented Plaintiff, the
date of the incident which gave rise to such charge of
discrimination, the agency in which such a charge was
filed, the factual basis on which the charge was
based, or the disposition of such charge.
OBJECTION: Defendant objects to this request on the
grounds that it seeks the disclosure of information
protected by the attorney client privilege and/or the
attorney work product doctrine. Defendant also objects
to this request on the grounds that it is overly
broad, unduly burdensome and not reasonably calculated
to lead to the discovery of admissible evidence.
Defendant also objects to this request on the grounds
that it is not reasonably limited as to time.
35
RESPONSE: Subject to and without waiving the foregoing
objections, no other charges have been filed with the
EEOC or CHRO or any other organization or government
agency responsible for the enforcement of laws
prohibiting
discrimination
in
employment
tor
otherwise, which the defendant has been a party to
which concerns Bruce Gluck or the food services
department. As such, there are no documents responsive
to this request regarding the conduct of Bruce Gluck
or any other employee of the Food Services Department.
[Doc. #73 at 8-9]. In response to plaintiff‟s motion to compel,
the BOE represents that with respect to Request for Production
19, it has agreed to “produce responsive documents pertaining to
any lawsuits that food services workers employed by the BOE have
filed against the BOE, or that other employees have filed
against the BOE which relate to the food services department,
from 2003 to the present.” [Doc. #73 at 9]. The BOE further
represents that the only documents responsive to this request,
as narrowed by its agreement, are documents pertaining to the
present litigation, which are already in plaintiff‟s possession,
custody and control. Id. Similarly, with respect to Request for
Production 20, the BOE represents that it “has agreed to produce
responsive documents pertaining to charges that food services
workers employed by the BOE have filed with administrative
agencies charged with the enforcement of laws prohibiting
discrimination in employment from 2003 to the present.” [Doc.
#73 at 9-10].
36
Plaintiff represents that she agrees to the time limitation
suggested by defendants, but does not agree to the proposed
substantive limitations. [Doc. #70 at 4]. The Court finds that
Requests for Production 19 and 20 as phrased are substantively
overbroad; however, the BOE‟s proposed narrowed category of
documents for production goes too far. Accordingly, in addition
to those documents the BOE has agreed to produce, it will also
produce any non-privileged documents relating to any lawsuits or
charges filed against the BOE claiming discrimination on the
basis of gender, and/or hostile work environment on the basis of
sexual harassment, for the time period agreed to by counsel. The
Court will not, however, require the production of deposition
transcripts of third parties which may implicate confidential
information. Therefore, on the current record, the Court GRANTS,
in part, plaintiff‟s motion to compel with respect to Requests
for Production 19 and 20. The BOE shall produce these documents
on or before February 24, 2016, along with a privilege log, if
applicable.
Therefore, for the reasons stated, the Court GRANTS, in
part, and DENIES, in part, plaintiff‟s Motion for Order
Compelling Discovery as to defendant BOE. [Doc. #57].
37
CONCLUSION
For the reasons set forth herein, the Court GRANTS, in
part, and DENIES, in part, plaintiff‟s Motions for Order
Compelling Discovery [Doc. ##55, 56, 57].
In light of the Court‟s orders requiring defendants to
provide additional discovery, a separate amended scheduling
order will issue.
This is not a Recommended Ruling. This is an order
regarding discovery and case management 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.
SO ORDERED at New Haven, Connecticut this 25th day of
January 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
38
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