Hunnewell v. BakerCorp

Filing 55

DISCOVERY RULING re: dispute related to the First Set of Interrogatories and Requests for Production served by plaintiff (Doc. # 43 ). See attached for details and deadlines. Signed by Judge Sarah A. L. Merriam on 3/27/2018. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
CARROLL HUNNEWELL
:
:
v.
:
:
BAKERCORP
:
:
------------------------------x

Civ. No. 3:17CV00893(AWT)

March 27, 2018

DISCOVERY RULING
Pending before the Court is a discovery dispute related the
First Set of Interrogatories and Requests for Production served
by plaintiff Carroll Hunnewell (“plaintiff”). See Doc. #43. On
February 9, 2018, plaintiff filed a Motion for Extension of Time
until April 30, 2018, to Complete Discovery. [Doc. #39].
Defendant BakerCorp (“defendant”) filed an objection to that
motion on February 12, 2018. [Doc. #40]. On February 13, 2018,
Judge Alvin W. Thompson referred plaintiff’s motion for
extension of time to the undersigned. [Doc. #41]. On February
15, 2018, the Court granted, in part, and denied, in part,
plaintiff’s motion for extension of time. See Doc. #42. As part
of that Order, the Court required that counsel “file a joint
notice with the Court on or before March 7, 2018, if they are
unable to resolve any discovery disputes related to plaintiff’s
written discovery requests.” Id. On March 7, 2018, the parties
filed a Joint Notice of Discovery Dispute. [Doc. #43]. As a

~1~

result, the Court scheduled an in-person discovery status
conference for March 16, 2018. [Doc. #44]. In anticipation of
that conference, the Court ordered the parties to file, on or
before March 13, 2018, “a joint status report describing with
specificity any remaining discovery disputes.” Doc. #45. The
Court also required counsel to file a copy of the disputed
discovery requests and objections with the joint status report.
See id.
Counsel failed to file the joint status report as ordered.
Accordingly, on March 14, 2018, the Court entered an order
canceling the March 16, 2018, discovery conference under the
assumption that because no status report had been filed, counsel
had resolved all outstanding disputes. See Doc. #46. Moments
after the Court issued that Order, counsel for plaintiff filed
the joint status report required by the Court’s March 8, 2018,
Order. See Doc. #47. The joint status report failed to include a
copy of the discovery requests and objections at issue. Counsel
for plaintiff also filed an “Emergency Motion Rescind
Cancellation of In Person Status Conference.” [Doc. #48] (sic).
On March 15, 2018, the Court granted, in part, and denied, in
part, plaintiff’s emergency motion. [Doc. #49]. As part of that
Order, the Court required counsel to file a copy of the disputed
discovery requests and objections at issue in the parties’ joint

~2~

status report. See id. The Court rescheduled the discovery
status conference to March 20, 2018. [Doc. #51].
On March 20, 2018, the Court conducted an in-person
discovery status conference and heard argument regarding the
disputed discovery requests. See Doc. ##51, 52. Following the
conference, the Court entered an order requiring defense counsel
to file a status report by the close of business on March 23,
2018, addressing, inter alia, “the possibility for the
production of electronically stored information in response to
plaintiff’s Requests for Production 5, 6, 6 (sic), 7, 8, and 9,
if narrowed as contemplated during the March 20, 2018 discovery
status conference.” Doc. #53. Pursuant to that Order, counsel
for defendant filed a Status Report stating that counsel had
collected the available .pst files containing the
Outlook data for the individuals discussed during the
March 20, 2018 discovery conference. Defense counsel has
been informed that .pst files do not necessarily contain
calendar entries; however, it is currently reviewing the
data to assess what, if any, electronic calendar entries
are available in these files. Defendant anticipates that
it will be able to complete this process and review the
potentially responsive data that may be discovered by
April 6, 2018.
Doc. #54 at 1. Defense counsel further represented:
On March 23, 2018, Plaintiff provided a written
statement summarizing the specific Outlook notes
requested related to Plaintiff – i.e., the notes from
April 8, 2016 through April 18, 2016. Defendant has
identified a majority of the Outlook notes requested;
however, its review of Plaintiff’s .pst does not include
outlook notes for the following dates: April 10, 2016 or

~3~

April 18, 2016. Defendant has no way to verify whether
outlook notes even exist for either of these dates.”
Id. at 1-2 (sic).
After considering the parties’ written submissions [Doc.
##47, 50, 54], and the arguments of counsel, the Court SUSTAINS,
in part, and OVERRULES, in part, defendant’s objections to
plaintiff’s First Set of Interrogatories and Requests for
Production.
A.

FACTUAL BACKGROUND
Plaintiff proceeds pursuant to a Second Amended Complaint

alleging the following causes of action: (1) Violation of
Connecticut General Statutes section 31-51q (liability of an
employer for discipline or discharge of employee on account of
employee’s exercise of certain constitutional rights); (2)
Violation of Public Policy; and (3) Breach of Implied Contract.
See generally Doc. #24, Second Amended Complaint. Plaintiff
alleges that his employment was terminated because he complained
that certain safety policies were not being enforced when
another employee was allowed to perform pipe fusing work without
the proper recertification. See generally id. Defendant has
filed a motion to dismiss Count Three of the Second Amended
Complaint; that motion remains pending. [Doc. #32].

~4~

B.

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 advisory committee’s notes to the
recent amendment of Rule 26 further explain that
[a] party claiming that a request is important to resolve
the issues should be able to explain the ways in which
the underlying information bears on the issues as that
party understands them. The court’s responsibility,
using all the information provided by the parties, is to
consider these and all the other factors in reaching a
case-specific determination of the appropriate scope of
discovery.
Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment.
“[T]he burden of demonstrating relevance is on the party seeking
discovery[.]” Mason Tenders Dist. Council of Greater New York v.
Phase Constr. Servs., Inc., 318 F.R.D. 28, 36 (S.D.N.Y. 2016).
Once the party seeking discovery has demonstrated relevance, the
burden then shifts to “[t]he party resisting discovery ... [to]
show[] why discovery should be denied.” Cole v. Towers Perrin

~5~

Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009) (alterations
added).
C.

DISCUSSION
After several meet-and-confers, the parties have narrowed

their dispute to a discrete number of written discovery
requests. See Doc. #47. The Court addresses each in turn.
1. Request for Production 21
Request for Production 21 seeks: “A copy of the ‘Safety
business plan’ associated with the Woodland Pulp LLC project
conducted in April 2016 in Baileyville, Maine.” Doc. #50-1 at
22. Defendant objected to this request, in pertinent part, as
follows:
[T]he ‘safety business plan’ associated with the
Woodland Pulp, LLC project is irrelevant to the claims
and issues in dispute. Plaintiff’s claims relate to a
specific alleged safety issue that he claims he raised
relating to the certification of another employee.
Plaintiff has not made any allegations concerning the
application or effect of the safety business plan
associated with the referenced project.
Id.
Plaintiff contends this information is relevant because it
“concerned the particular job-site about which the Plaintiff was
expressing his concerns regarding the alleged violation of
Defendant’s pipe fusing certification policy.” Doc. #47 at 1.
Defendant maintains its objection on relevance grounds. See id.
During the March 20, 2018, discovery conference, counsel for

~6~

defendant represented that the safety business plan is an
evolving document that covers an entire construction project and
is not limited to the safety of pipes and fusing.
Defendant’s objection to Request for Production 21 is
OVERRULED, in part. On or before April 13, 2018, defendant shall
produce the portions of the safety business plan associated with
the Woodland Pulp LLC project that relate to (1) the
certification requirements for employees who performed fusing on
pipes at that project, and (2) the types and PSI capacities of
pipe upon which such fusing was to be performed.
2. Interrogatory 12 and Request for Production 22
Interrogatory 12 requests defendant to: “Identify each and
every documented instance in the last ten (10) years in which
the protocols set forth in the defendant’s Whistleblower Policy
were followed, and for each, provide a brief description of the
claims or contentions made by the complainant.” Doc. #50-1 at
10. Request for Production 22 seeks “[a]ll non-privileged
documents identified in Interrogatory 12.” Id. at 22. Defendant
objected on the grounds that the discovery requests are over
broad, unduly burdensome, vague and ambiguous as framed, not
limited to a reasonable time frame, seek irrelevant information
that is not proportional to the needs of the case, and seek
information protected by the attorney-client privilege and work
product doctrine. See id. at 10-11, 22.
~7~

Plaintiff has offered to limit Interrogatory 12 to “the
last five years and to the individuals identified in Defendant’s
initial discovery protocol[,]” and “maintains that this
information is relevant to show that the Defendant’s
whistleblower policy is not followed.” Doc. #47 at 2. Defendant
stands on its objections, and contends that the proposed
limitation does not address the merits of those objections. See
id. During the March 20, 2018, discovery status conference,
after the Court inquired why the request was not limited to
“similar” whistleblower complaints, plaintiff’s counsel stated
that it was his “intention” to seek information relating to
whistleblower complaints regarding safety issues, and that this
intention was conveyed during counsel’s meet-and-confer. Defense
counsel disagreed with that representation and stated that it
was not until the discovery conference, and at the Court’s
suggestion, that plaintiff presented this as a request for
“comparator” information.
The Court SUSTAINS defendant’s objection to Interrogatory
12 and Request for Production 22 on the grounds that the
requests as framed -- even as narrowed in the joint status
report -- are overbroad and seek information that is not
reasonably calculated to lead to the discovery of admissible
evidence. The Court also declines to re-write Interrogatory 12
for plaintiff given that he had an opportunity to limit this
~8~

request and articulate a “comparator” request in the joint
status report, but did not do so.
3. Interrogatory 13
Interrogatory 13 requests defendant to: “Identify each and
every documented instance in the last ten (10) years in which a
salaried, a.k.a. non-exempt, employee was terminated, demoted or
reprimanded for violating defendant’s code of safety, safety
protocols or policies and for each, provide a brief description
of the nature of the violation and the adverse action taken
against the employee.” Doc. #50-1 at 11. Defendant objected on
the grounds that the interrogatory is over broad, unduly
burdensome, vague and ambiguous as framed, not limited to a
reasonable time frame, seeks irrelevant information that is not
proportional to the needs of the case, and seeks information
protected by the attorney-client privilege and work product
doctrine. See id. at 11.
Plaintiff contends that the information sought “is relevant
to his Complaint because it relates to the motivation of Chuck
Rickman, the individual who made the decision to terminate
Plaintiff’s employment. ... [I]t was the prospect of disclosure
that Rickman and others were in violation of company safety
policy that they feared their own dismissal[.]” Doc. #47 at 3
(sic). Defendant stands on the objection that the interrogatory
seeks irrelevant information, and “disagrees with the new theory
~9~

Plaintiff has advanced ... including that ‘Rickman and others’
were in violation of a safety policy.” Id. at 3.
The Court SUSTAINS defendant’s objections that
Interrogatory 13 is overbroad as framed and not reasonably
calculated to lead to the discovery of admissible information.
Although plaintiff contends that the information sought is
relevant because “it relates to the motivation of Chuck
Rickman,” this is not what Interrogatory 13 seeks, and the Court
declines to re-write this interrogatory for plaintiff.
4. Interrogatory 14
Interrogatory 14 requests defendant to: “List and identify
all professional degrees, certificates, licenses, certifications
and re-certifications held by Dave Arruda during his period of
employment with Defendant. For each, state the date it was
acquired and whether it was valid and in-force in April 2016.”
Doc. #50-1 at 11-12. Defendant objected on the grounds that this
interrogatory is over broad, unduly burdensome, and seeks
irrelevant information that is not proportional to the needs of
the case. See id. Notwithstanding those objections, defendant
responded and produced a copy of Dave Arruda’s recertification.
See id.
Plaintiff represents that he “agreed to limit this request
to a copy of Dave Arruda’s fusing certificate from his prior
employer as well as a copy of the recertification that Mr.
~ 10 ~

Arruda received during the course of his employment with
Defendant (which had already been produced).” Doc. #47 at 4.
Defendant represents that it has searched for Mr. Arruda’s prior
fusing certificate and that it is not in defendant’s possession,
custody or control. See id. Defendant reasserted this position
at the March 20, 2018, discovery conference. Plaintiff does not
contest the nature of defendant’s search or the representation
that the certificate is not in its possession, custody or
control. Plaintiff’s counsel voiced his intention to seek this
information directly from Mr. Arruda, and also indicated that he
would like to depose Mr. Arruda, to which defendant objects. See
also id.
The Court OVERRULES defendant’s objection with respect to
plaintiff’s request to subpoena the information sought from Mr.
Arruda. The Court will reopen discovery for the limited purpose
of permitting plaintiff to issue a subpoena to Mr. Arruda for
the production of his fusing certificate from his prior
employer. No other documents may be sought in this subpoena.
Plaintiff must issue this subpoena on or before April 6, 2018.
The Court SUSTAINS defendant’s objection to plaintiff’s request
to depose Mr. Arruda. Plaintiff has failed to establish the
requisite good cause to reopen discovery for the purpose of
deposing a non-party witness, particularly where, as here, the
information sought may be obtained by less intrusive means. See,
~ 11 ~

e.g., Bakalar v. Vavra, 851 F. Supp. 2d 489, 493 (S.D.N.Y. 2011)
(“In deciding whether to reopen discovery, courts consider
whether good cause exists.”).
5. Request for Production 2
Request for Production 2 seeks: “All discovery produced by
or on behalf of the defendant in the action brought against it
in United States District Court, District of Massachusetts
captioned West v. Firstlight Power Enterprises, Inc., et al.,
Docket No. 3:12-cv-30069.” Doc. #50-1 at 12. Defendant objected
on the basis that it overly broad, unduly burdensome and
seeks information that is not relevant to the claims or
defenses at issue in this lawsuit. The referenced
litigation is wholly unrelated to the claims and issues
in dispute in the present lawsuit, which arise from
Plaintiff’s alleged complaint concerning work performed
by David Arruda and his subsequent termination for
engaging in threatening and abusive behavior.
Id. at 12-13 (sic).
Plaintiff states that he is “willing to limit this request
to the West discovery that refers to or relates to Plaintiff,
Carroll Hunnewell, Jon Heslin, Wade Bergeron and Chuck Rickman.”
Doc. #47 at 5. Defendant stands on its objections and asserts
that Request for Production 2 “is a flat-out fishing
expedition.” Id. During the March 20, 2018, discovery status
conference, plaintiff’s counsel asserted that the West
litigation is relevant to plaintiff’s state of mind when he

~ 12 ~

reported the safety concerns which allegedly lead to the
termination of his employment.
Request for Production 2, even as narrowed, seeks
irrelevant information, and the Court SUSTAINS defendant’s
objection to that request on relevance grounds. The West
litigation involved a wrongful death suit against a corporation
that later filed a cross-claim against defendant. The claims and
defenses in West are entirely different from those asserted
here. While the fact that the West litigation occurred, and that
plaintiff was deposed during the course of that litigation, may
be relevant in some general sense, those facts are not in
dispute. The actual discovery produced by defendant in the West
litigation is not relevant to the claims and defenses asserted
in this matter.
6. Requests for Production 5, 6, 6 (sic), 7, 8, and 9
Requests for Production 5, 6, 6 (sic), 7, 8, and 9 seek:
“All work-related travel logs, calendars, diaries, journals or
notes of events maintained ... whether in paper or electronic
form concerning the allegations of Plaintiff’s Complaint, for
the period of January 1, 2016, to the present and continuing
through trial.” Doc. #50-1 at 14-17. Each request for production
seeks documents from one of the following custodians: Wade
Bergeron; plaintiff; Chuck Rickman; Jon Heslin; Paul Lundquist;
and Dave Arruda. See id. Defendants objected to each of these
~ 13 ~

requests on the grounds that each request is over broad, unduly
burdensome, vague and ambiguous as framed, seeks irrelevant
information that is not proportional to the needs of the case,
and seeks information protected by the attorney-client privilege
and work product doctrine. See id.
Plaintiff has offered to limit these requests to three
topics. See Doc. #47 at 6. Defendant stands on its objections
and further contends that it “does not have a reasonable means
to identify the full body of documents that would need to be
reviewed in order to assess whether the documents responsive to
this request even exist.” Id. During the March 20, 2018,
discovery conference, plaintiff further agreed to limit the
temporal scope of these requests to the period of January 1,
2016, through May 1, 2016. Plaintiff’s counsel also stated that
in particular, he was seeking plaintiff’s Outlook notes for the
week leading up to his termination. Counsel for defendant stated
that to the extent defendant was able to locate that particular
week of notes for plaintiff, and assuming there was no technical
difficulty in producing the same, defendant would be willing to
produce those notes authored by plaintiff. Counsel for defendant
also represented that she would confer with her IT department to
ascertain the process required to identify and produce the six
custodians’ calendars and notes for the time period of January
1, 2016, through May 1, 2016.
~ 14 ~

In light of plaintiff’s counsel’s agreement to narrow the
temporal scope of these requests, and the representations set
forth in the March 23, 2018, status report of defense counsel
[Doc. #54], the Court OVERRULES defendant’s objections to these
requests, as narrowed during the March 20, 2018, discovery
conference. Defendant shall produce any Outlook notes and
calendars (if they exist) for the six identified custodians, for
the time period of January 1, 2016, through May 1, 2016, that
relate to: (1) Mr. Arruda’s fusing certifications; (2)
defendant’s fusing policy; or (3) plaintiff’s termination.
Defendant shall produce this information to plaintiff on or
before April 13, 2018.
D. CONCLUSION
Accordingly, for the reasons articulated above, the Court
SUSTAINS, in part, and OVERRULES, in part, defendant’s
objections to plaintiff’s First Set of Interrogatories and
Requests for Production.
This is not a Recommended Ruling. This is an order
regarding discovery 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.

~ 15 ~

SO ORDERED at New Haven, Connecticut this 27th day of March,
2018.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

~ 16 ~