Murray v. Nationwide Better Health et al

Filing 316

OPINION entered by Judge Sue E. Myerscough on 08/24/2012. SEE WRITTEN OPINION. Plaintiff's Objections (d/e 310 ) are DENIED and Defendants' Objection (d/e 312 ) is GRANTED. Judge Cudmore's July 19, 2012 Order (d/e 308 ) is modi fied to permit defense counsel to confer with Northrup during the deposition under the parameters set forth in this Opinion. The remainder of Judge Cudmore's Order is affirmed. (DM, ilcd) (Main Document 316 replaced on 8/24/2012--Judge's electronic signature converted incorrectly into PDF--replaced with "good" signature) (DM, ilcd).

E-FILED

Friday, 24 August, 2012 01:15:26 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHARON MURRAY,
Plaintiff,
v.
NATIONWIDE BETTER
HEALTH, BARBARA LEY, and
CYNTHIA NORTHRUP,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 10-3262

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Plaintiff Sharon Murray’s
Objections (d/e 310) to the order entered by United States Magistrate
Judge Byron G. Cudmore on July 19, 2012 (d/e 308) and the Objection
filed by Defendants’ Nationwide Better Health (Nationwide), Cynthia
Northrup, and Barbara Ley (d/e 312). Plaintiff has also requested the
opportunity to explain verbally why the documents she has identified are
within the scope of limited discovery. See d/e 315.
Plaintiff’s request for a hearing and her objections are DENIED,

and Defendants’ objection is GRANTED.
I. BACKGROUND
In June 2011, Defendants filed a Motion for Summary Judgment
raising primarily legal issues with regard to Plaintiff’s federal claims.
Defendants supported the Motion, in part, with an affidavit of
Defendant Northrup, the Director of Leave and Disability for
Nationwide. See d/e 108-2. In the affidavit, Northrup states that
between 2006 and 2008, she was the Manager of Leave and Disability
for Nationwide and managed the department that administered leave and
disability claims for Nationwide as third-party administrator for AT&T
Mobility LLC (formerly Cingular Wireless). Northrup authenticated the
pertinent pages of the contract between AT&T and Nationwide for thirdparty administrator services. Northrup also stated that (1) Nationwide
provided third-party administrative services to AT&T for family and
medical leave and disability claims for AT&T employees; (2) Nationwide
did not have the ability to hire, fire, assign, or direct the work of AT&T
employees; (3) Nationwide did not exercise control over the working

Page 2 of 14

conditions of AT&T employees; and (4) Nationwide was an independent
contractor with its own employees and a separate and distinct company
from AT&T.
In July 2011, this Court entered an order staying discovery with the
exception that Plaintiff be entitled to conduct limited discovery necessary
to respond to Defendants’ Motion for Summary Judgment. See d/e 134.
The Court limited discovery to the following issues: “(1) whether
Nationwide Better Health is a ‘covered employer’ under the FMLA; and
(2) whether Nationwide Better Health, Northrup, or Ley are ‘fiduciaries’
of a ‘plan’ under ERISA.” Opinion, p. 8. The Court also permitted
Plaintiff to “conduct discovery regarding any agreements, policies, or
contracts entered into between Nationwide Better Health and Plaintiff’s
former employer during the relevant time and relating to the two issues
cited above.” Opinion, p. 8-9. Finally, the Court allowed Plaintiff to
“obtain discovery from Northrup and Baugh regarding the information
provided in their Affidavits” in support of summary judgment. Opinion,
p. 9.

Page 3 of 14

In August 2011, Judge Cudmore entered an order permitting
Plaintiff to conduct a deposition by telephone of Northrup. See Opinion
p. 8 (d/e 150). Plaintiff objected to this ruling, but this Court denied
Plaintiff’s objections. See d/e 171.
On May 18, 2012, Northrup sat for a deposition. A dispute arose
during the deposition, and the Court was contacted. See May 18, 2012
Minute Entry. The Court instructed Plaintiff to submit her objections in
writing and obtain a copy of the transcript of the deposition. Id. On
June 12, 2012, the Court, after listening to the audio recording of the
depositions provided to the Court by Plaintiff, found it would be unduly
burdensome to require Plaintiff to identify the specific objections by
defense counsel that she challenged. Instead, the Court directed Plaintiff
to submit in writing the questions she wanted to ask Northrup (within
the limitations of discovery) to be answered under oath and in writing by
Northrup. Text Order of June 12, 2012.
Plaintiff thereafter objected to having to write out her questions.
See d/e 301. On June 19, 2012, the Court gave Plaintiff two choices:

Page 4 of 14

Plaintiff could submit in writing her questions to Northrup to be
answered under oath and in writing or she could conduct a second
deposition of Northrup, at Plaintiff’s expense, in the presence of Judge
Cudmore. Text Order of June 19, 2012. Plaintiff chose the second
option. See d/ 302.
Judge Cudmore held a hearing to establish the ground rules and
procedures for the deposition. See d/e 305. Judge Cudmore held that
the scope of the deposition was limited by the Opinions (d/e 134, 150,
171), the deposition would be limited to four hours, and once the
deposition began, defense counsel and Northrup were prohibited from
having any private conferences. See d/e 305. (Defendants indicate that
during the hearing, Judge Cudmore also stated that a one-hour break
would occur after the first two hours). Judge Cudmore also directed
Plaintiff to e-file any documents or exhibits that she intended to use
during the deposition, along with a list of documents she is requesting
Northrup bring to the deposition. Id.
On July 16, 2012, Plaintiff filed a document identifying (1)

Page 5 of 14

documents she wanted Defendants to produce (listed in 20 numbered
paragraphs) and (2) documents Plaintiff intended to present during the
deposition (identified by docket number and including over 50 sets of
documents). See Notice (d/e 306). On July 17, 2012, Defendants
objected to Plaintiff’s Notice on the grounds that (1) the documents
requested by Plaintiff relate to calculation of Plaintiff’s leave for AT&T,
short-term disability, and calculation of FMLA leave– issues that exceed
the scope of the stay of discovery and which are not subjects at issue in
this litigation; and (2) the documents Plaintiff intended to introduce
during the deposition were outside the scope of the discovery allowed by
the Court. See d/e 307. Defendants also objected to Judge Cudmore’s
limitation on defense counsel conferring with their client, Northrup,
during the deposition. Id. at footnote 1.
On July 19, 2012, Judge Cudmore entered an Order finding the
following documents were within the scope of discovery: (1) the
Agreement between Nationwide’s predecessor Gates, McDonald and
Company (Gates McDonald) and AT&T’s predecessor Cingular Wireless,

Page 6 of 14

LLC (d/e 253-1 through 253-10); (2) the 2007 W-2 and Earnings
Summary filed with the Court (d/e 159-19); and (3) the Cingular
Wireless Attendance Only Term Verification Request of FMLA, LOA
and/or Disability Claim Status form filed with the Court (126-1). Judge
Cudmore also refused to modify the direction that once the deposition
had begun, defense counsel and Northrup were prohibited from having
any private conferences. Judge Cudmore noted that “[t]he Court wants
the deposition to proceed and be completed in a timely fashion.
Conferences will only cause delay.” d/e 308, p. 4.
Both parties have filed objections to Judge Cudmore’s Order.
II. STANDARD OF REVIEW
A magistrate judge may hear and determine matters that are not
dispositive of a claim or defense. See Fed.R.Civ.P. 72(a); 28 U.S.C. §
636(b)(1)(A). Routine discovery matters are generally considered
nondispositive. Westefer v. Snyder, 472 F. Supp. 2d 1034, 1036 (S.D.
Ill. 2006). When a district court considers objections to a magistrate
judge’s ruling on a nondispositive matter, the magistrate judge’s

Page 7 of 14

disposition will be set aside only if it is clearly erroneous or contrary to
law. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). “A finding is ‘clearly
erroneous’ when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. United States
Gypsum, Co., 333 U.S. 364, 395 (1948).
III. ANALYSIS
A.

Plaintiff’s Objections Are Denied
In her objections, Plaintiff asserts that Judge Cudmore improperly

limited Plaintiff’s requests regarding the documents to be produced and
reviewed at Northrup’s deposition. In particular, Plaintiff asserts that the
“AT&T Integrated Disability Service Center Short Term Disability Step
Process Disability Specialist 1, 2 and 3" document (AT&T Integrated
Disability Service Center document) (d/e 218-1 through 218-3) and
Summary Plan Description, AT& T Mobility Disability Benefits Program
(SPD) (d/e 218-4), within which, according to Plaintiff, “the Disability
directors are spelled out”is within the scope of discovery because Plaintiff

Page 8 of 14

is allowed to question Northrup about her duties under ERISA.
The AT&T Integrated Disability Service Center Document appears
to be a set of internal AT&T documents that provide the general
guidelines for managing a claim. The SPD describes the AT&T benefits
program.
Northrup works for Nationwide, not AT&T. Moreover, nothing in
the documents relates to the issues identified by the Court when setting
the scope of discovery (i.e., whether Nationwide is a covered employer
under the FMLA, whether Northrup is a fiduciary under ERISA) or
addresses Northrup’s duties under ERISA. Judge Cudmore’s ruling that
these documents fell outside the scope of discovery allowed by this
Court’s stay was neither clearly erroneous nor contrary to law.
This Court has also reviewed the remaining documents Plaintiff
requested Defendant Northrup bring to the deposition and that Plaintiff
intended to use at the deposition. See Plaintiff’s “Compliance”
document (d/e 306). Judge Cudmore’s determination that, with the
exception of the Agreement (d/e 253-1 through 253-10), the 2007 W-2

Page 9 of 14

and Earnings Summary (d/e 159-19), and the Attendance Only Term
Verification Request (d/e 126-1), the documents Plaintiff requested and
sought to use at the deposition are outside the scope of the limits of
discovery was not clearly erroneous or contrary to law. The excluded
documents primarily pertain to calculation of Plaintiff’s leave while
employed by AT&T, whether leave runs concurrently, and policies
pertaining to short-term disability, which are issues beyond the scope of
the discovery limits. By way of example, one of the documents Plaintiff
wanted to use at the deposition is a “transcript” of an October 15, 2008
scheduling conference in Plaintiff’s earlier litigation with AT&T (d/e 2185). The Court fails to see how that would have any relevance to the
issues within the scope of discovery in this litigation. Plaintiff’s
objections are denied.
B.

Defendants’ Objection Is Granted
Defendants object to Judge Cudmore’s Order to the extent it

prohibits defense counsel and Northrup from having any private
conference once the deposition has begun. Defendants assert that

Page 10 of 14

defense counsel has “no desire or intent to confer with Ms. Northrup
while a question is pending or to prolong Ms. Northrup’s deposition with
unnecessary breaks or conferences.” Def. Objections, p. 10 (d/e 313).
Defendants express concern, however, about the absolute prohibition on
conferences once the deposition has begun, including during the prescheduled one-hour break. This Court agrees.
This Court recognizes that she assigned to Judge Cudmore the duty
to oversee the deposition of Northrup and is reluctant to interfere with
Judge Cudmore’s procedure and limitations. However, the Court finds
that the blanket prohibition on conferences between defense counsel and
Defendant Northrup is contrary to law.
Even the most restrictive of the cases that have addressed
restrictions on conferences between a deponent and his lawyer during a
deposition has allowed such conferences when the purpose of the
conference is to decide whether to assert a privilege. Hall v. Clifton
Precision, 150 F.R.D. 525, 529 (E.D. Penn. 1993) (prohibiting any
conferences between a deponent and his lawyer except when the purpose

Page 11 of 14

of the conference is to decide whether to assert a privilege). Moreover,
several cases have held that the Hall case goes too far by prohibiting any
conferences except when the purpose of the conference is to decide
whether to assert a privilege. For example, In re Stratosphere Corp.
Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998), the court
agreed with the Hall court’s goal of preventing the coaching of witnesses
but declined to adopt the Hall court’s “strict requirements.” Id. at 621.
The Stratosphere court held:
This Court will not preclude an attorney, during a
recess that he or she did not request, from making
sure that his or her client did not misunderstand
or misinterpret questions or documents, or
attempt to help rehabilitate the client by fulfilling
an attorney’s ethical duty to prepare a witness. So
long as attorneys do not demand a break in the
questions, or demand a conference between
questions and answers, the Court is confident that
the search for truth will adequately prevail.
Id.; see also McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D.
Colo. 2001) (following Stratosphere); see, e.g., Ecker v. Wisconsin
Central Ltd., 2008 WL 1777222, at *3 (E.D. Wisc. 2008) (finding that
“mere fact that counsel for the defendant privately conferred with the
Page 12 of 14

witness during a break after the plaintiff completed his examination does
not warrant sanctions,” but also suggesting that private conferences that
occurred when opposing counsel was questioning the witness or when a
question was pending would be improper).
In addition, the American Bar Association, in its 2004 Civil
Discovery Standards, takes the position that an attorney for a deponent
may have a private conference with the deponent during the deposition
only to “determine whether a privilege should be asserted or to enforce a
court-ordered limitation on the scope of the discovery.” ABA Civil
Discovery Standards, p. 34. The ABA also takes the view that an
attorney for the deponent can communicate with the deponent during a
recess. Id.
In light of the reasoning of Stratosphere and McKinley, and in
consideration of the ABA Civil Discovery Standards, this Court finds that
Judge Cudmore’s blanket prohibition on defense counsel having a private
conference with Northrup during the deposition is overly broad.
Therefore, this Court holds that defense counsel may have a private

Page 13 of 14

conference with Northrup during a recess that counsel did not request
(and so long as a question is not pending), during the hour break already
scheduled by the Court, and at any time for the purpose of determining
whether a privilege should be asserted.
IV. CONCLUSION
For the reasons stated, Plaintiff’s Objections (d/e 310) are DENIED
and Defendants’ Objection (d/e 312) is GRANTED. Judge Cudmore’s
July 19, 2012 Order (d/e 308) is modified to permit defense counsel to
confer with Northrup during the deposition under the parameters set
forth in this Opinion. The remainder of Judge Cudmore’s Order is
affirmed.
ENTER: August 24, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 14 of 14