Equal Employment Opportunity Commission v. Star Transport, Inc.
Filing
33
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendant's Motion to Compel EEOC's Outstanding Discovery 25 is ALLOWED in part and DENIED in part. See written order. (LB, ilcd)
E-FILED
Wednesday, 20 August, 2014 11:41:01 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
STAR TRANSPORT, INC.,
Defendant,
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No. 13-cv-1240
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant’s Motion to Compel
EEOC’s Outstanding Discovery (d/e 25). Under the Scheduling Order
entered in this case (d/e 13), expert discovery was to be completed by May
30, 2014. By text order of Chief U.S. District Judge Shadid, the fact
discovery deadline was extended to May 31, 2014. (Text Order,
3/14/2014)
On May 30, 2014, Defendant Star Transport, Inc. (Star) filed
Defendant’s Motion to Compel EEOC’s Outstanding Discovery (d/e 25)
(Motion to Compel). On June 16, 2014, Plaintiff Equal Employment
Opportunity Commission (EEOC) filed its Response (d/e 29) to the Motion
to Compel.
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A Motion for Settlement Conference was filed by Star (d/e 24), and
was granted (Text Order, 6/20/2014). On July 8, 2014, the Joint Motion of
the Parties to Extend Dispositive Motion Deadline and EEOC’s Motion to
Extend the Final Pretrial Conference Date (d/e 31) was allowed in part.
The dispositive motion deadline of July 15, 2014 was vacated and the final
pretrial conference set for October 17, 2014 was cancelled. Both of these
were to be reset if necessary after the August 5, 2014 hearing before Chief
Judge Shadid. (Text Order, 7/8/2014)
On August 5, 2014, a settlement conference was held before Chief
Judge Shadid. A settlement was not reached. Chief Judge Shadid ordered
that a telephone hearing be set at a later date regarding pending motions
and setting a new dispositive motion deadline and pretrial / jury trial dates.
The case was then referred to U.S. Magistrate Judge Tom SchanzleHaskins for pending motions and scheduling. The Motion to Compel was
one of the pending motions.
The Scheduling Order entered in this case (d/e 13) provided, as is
pertinent to this motion, as follows:
Motions to compel and other motions relating to discovery shall
be pursued in a diligent and timely manner, but in no event filed
more than sixty (60) days following the event . . . that is the
subject of the motion. The parties are required to meet and
confer on the discovery dispute as required by Rule 37(a) within
the 60-day period. Except for good cause shown, any
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discovery motion that it not timely filed and any discovery
motion that is filed after the discovery deadline will not be
considered by the Court. . . . All motions to compel must
contain the certification required by Rule 37 that the parties met
and conferred and attempted to resolve the discovery dispute.
If the certification is not included, the motion to compel will be
denied.
In the Motion to Compel filed by Star, defense counsel makes several
representations. First, defense counsel indicates that Star did not file an
immediate motion to compel because defense counsel prefers to always try
to work out discovery issues between counsel prior to filing a motion.
Defense counsel represented that she preferred to try to resolve discovery
disputes without the expense of filing a motion to compel. Finally, defense
counsel represented that Star only recently learned of some of the
discovery issues as EEOC’s responses were “misleading as to their
completeness”.
A description of the general practices of defense counsel regarding
discovery is not a substitute for the specific requirements stated above and
set forth in the Scheduling Order.
While counsel for the Defendant indicates that she advised the EEOC
why Defendant waited to file its motion based on EEOC’s actions and
advised of Star’s desire to try to “work it out” between counsel, the Court
must consider whether the Defendant has met the requirement to meet and
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confer on the specific discovery dispute as required by Rule 37(a) and the
Scheduling Order within the 60-day period when the dispute arose. The
Court will address each of the requests to compel outstanding discovery
separately.
A.
INTERROGATORY NO. 2
The filings of the parties indicate that the interrogatory answers of
EEOC were served on Star on January 9, 2014. Regarding the answer to
Interrogatory No. 2, Defendant contends that EEOC’s answer indicated the
name of one of the charging party’s current employers, but did not give the
employer’s address as requested. This defect would have been obvious
from the interrogatory answer. There is no indication that the Defendant
sought to resolve the dispute regarding the failure to provide an address by
conferring with Plaintiff’s counsel. The Motion to Compel is denied as to
Interrogatory No. 2. Defendant did not follow the meet and confer
provisions of the Scheduling Order and Rule 37.
B.
INTERROGATORY NO. 3, DOCUMENT REQUEST NOS. 2, 13
Regarding Interrogatory No. 3 and Document Requests Nos. 2 and
13, Defendant indicates it sought the total hours worked by the charging
parties during their employment with Star and after their terminations by
Star. EEOC objected that the interrogatory was overly broad and unduly
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burdensome. EEOC indicated it would agree to produce the charging
parties’ earnings from employment since the termination from Star.
From the discussion of EEOC’s Response set forth in Star’s Motion to
Compel, it is clear that the answer to the interrogatory and documents
produced did not disclose the number of hours the parties worked for Star
and subsequent employers. Apparently, what was provided was a lump
sum annual amount summarized from W-2s. Defendant knew from the
information provided in Plaintiff’s answers and documents produced that
the number of hours worked was not disclosed.
There is no indication that Star met and conferred on the dispute
regarding hours as required by Rule 37(a) and the Scheduling Order within
60 days of receipt of the interrogatory answers.
While Star indicates that it tried to supplement the information at the
deposition of the charging parties and the charging parties were not able to
recall all of the relevant information requested, this does not present a valid
basis for not following the meet and confer provisions of the Scheduling
Order. It is unrealistic to think that individuals could recall the number of
hours they worked for various employers “from January 1, 2007 to the
present” at a deposition. The Motion to Compel is denied as to
Interrogatory No. 3 and Document Requests Nos. 2 and 13.
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C.
INTERROGATORY NO. 8, DOCUMENT REQUEST NO. 12
Defendant seeks information regarding whether either charging party
had been involved in any other litigation concerning their employment or
religion and any documents relating to the same.
The objections stated in the Motion to Compel with regard to the lack
of responsive answers and documents were obvious from the answer and
documents produced. The Defendant provides no certification that the
parties met and conferred and attempted to resolve the discovery dispute
stated in the objection prior to the filing of the Motion to Compel. As the
Local Rule indicates, if the certification is not included, the motion to
compel will be denied.
Additionally, Plaintiff’s response indicates the charging parties
testified at their depositions that they have filed no other charges of
discrimination against any other employer.
The Motion to Compel is denied as to Interrogatory No. 8 and
Document Request No. 12.
D.
DOCUMENT REQUEST NO. 5
Defendant’s Document Request No. 5 deals with documents relating
to the charging parties’ charges filed with the EEOC against Star. The bulk
of the objection is the same objection stated in the previous request
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described in paragraph C above. For the same reasons stated above, the
Motion to Compel is denied as to Document Request No. 5. The alleged
shortcoming of the response to the request to produce was evident at the
time it was received and there was no certification that the parties met and
conferred in an attempt to resolve this dispute.
E.
INTERROGATORY NO. 9
Defendant’s Interrogatory No. 9 sought information regarding any
branch of Islam with which the charging parties were associated. As with
the other interrogatories set forth above, there is no indication that the meet
and confer provisions of the Scheduling Order and Rule 37 were complied
with regard to this dispute. As the Plaintiff acknowledges in its Response
and the Defendant notes in its reply, Mr. Mohamed testified at his
deposition that he considered himself a Sunni and the other claimant
testified that he was not associated with any particular branch of Islam.
The Motion to Compel is denied as to Interrogatory No. 9.
F.
INTERROGATORY NO. 10, DOCUMENT REQUEST NO. 8
This interrogatory and document request sought information
regarding the charging parties’ efforts to seek employment. Plaintiff’s
answer to Interrogatory No. 10 indicates that the charging parties were “still
searching for documents related to searches for employment”. The answer
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noted that the charging parties used an on-line driver referral service to find
employment and most, if not all, of their applications and interviews were
on-line or over the phone. EEOC indicates the charging parties have no
documents associated with the applications.
It appears that counsel made no effort to follow up on this
interrogatory answer even though she would have known then, as she
asserts now, that it might be illogical that on-line applications would not
provide documents.
Likewise, the response to Document Request No. 8 indicated that the
Plaintiff would produce information regarding the charging parties’ attempts
to obtain employment after their termination with the Defendant. Again,
apparently no inquiry was made, prior to the filing of the Motion to Compel,
regarding production of these documents. The Motion as to Interrogatory
No. 10 and Document Request No. 8 is denied due to the failure of
Defendant to follow the meet and confer provisions of the Scheduling Order
and Rule 37.
G.
DOCUMENT REQUEST NO. 7
Document Request No. 7 sought the charging parties’ tax returns for
the years 2007 through the present. The Plaintiff indicates in its Response
that the Plaintiff knew, in advance of Defendant’s filing the Motion to
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Compel, that there was a disagreement about the production of the
charging parties’ tax returns. While Plaintiff states it was aware of the tax
return issue, it alleges that Star refused to engage in any discussion about
ways to resolve the matter without Court involvement.
Plaintiff’s response to Document Request No. 7 referred the
Defendant to Plaintiff’s response to Document Request No. 6. (Request
No. 6 requested all documents identifying, concerning, or referring to
monies received by the claiming parties.) Plaintiff’s response to Document
Request No. 6 provides: “Without waiving the above-stated objections,
produced herewith are the documents in charging parties’ possession,
custody, or control relating to the post-Star Transport employment income.”
Defendant’s Motion to Compel indicates, at the depositions of the
charging parties on May 8th and 9th, the charging parties indicated that they
had produced their tax returns to the EEOC and did not know why the
EEOC failed to produce them.
Defendant indicates that EEOC’s discovery response implied that
everything in the charging parties’ custody or control was being produced.
The Court agrees that the answer quoted above in Document Request No.
6, which is referred to in Document Request No. 7, could lead to that
conclusion and, consequently, the Defendant did not know until the
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depositions that the income tax returns in possession of Plaintiff had not
been produced.
The Plaintiff’s response indicates that Plaintiff produced “all available
W-2 forms”. It does not indicate what W-2 forms were available. Plaintiff
indicates that the EEOC is only seeking back pay damages for the period
between charging parties’ termination and the date they started the next
job. Defendant alleges that the spotty W-2 forms produced do not provide
a complete history of the employment income.
With regard to the request for production of income tax returns by the
charging parties, the Defendant’s Motion to Compel is granted in part as to
Document Request No. 7. The EEOC is directed to provide the charging
parties’ income tax returns for the period after their termination by
Defendant for which the Plaintiff seeks back pay. Those returns may show
income received by the charging parties which was not reflected by the
W-2 forms produced. Consequently, Plaintiff is required to produce income
tax returns of the charging parties for the period for which it seeks back pay
which shows the income received by the charging parties during that
period. If information on the tax returns is not related to the receipt of
income, the Plaintiff may redact that information. If Defendant objects to
the redactions, the Plaintiff shall submit the un-redacted tax returns to the
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Court for an in camera determination as to whether or not the redacted
information must be produced. Plaintiff shall produce the redacted tax
returns within 15 days after the entry of this Opinion. Any objections to the
redacted tax returns shall be brought to the attention of the Court within the
time period set forth in the Scheduling Order when it is entered by the
Court.
H.
FAILURE TO VERIFY INTERROGATORY ANSWERS AND
FAILURE TO PROVIDE DATES FOR RULE 30(b)(6) DEPOSITION
In the Plaintiff’s Response, Plaintiff’s counsel represents that EEOC
has provided interrogatory verifications and scheduled the Rule 30(b)(6)
deposition on June 19, 2014. Consequently, Defendant’s Motion to
Compel regarding the verification of interrogatory answers and failure to
provide a date for Rule 30(b)(6) deposition are denied as moot.
WHEREFORE, IT IS ORDERED that Defendant’s Motion to Compel
EEOC’s Outstanding Discovery (d/e 25) is allowed in part and denied in
part as set forth above.
ENTER:
August 20, 2014
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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