Nieman v. Grange Mutual Casualty Company et al

Filing 87

OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiff Jason Nieman's Motion to Compel Depositions of Grange Officers Beth Murphy and Peter McMurtrie, and Motion Requesting the Court to Extend the Time Permitted for Discovery by 60 Days 77 and Defendants Grange Mutual Casualty Company and Integrity Mutual Insurance Company's Motion to Quash Notices of Depositions 78 are ALLOWED in part and DENIED in part. See written order. (LB, ilcd)

E-FILED

Wednesday, 17 October, 2012 10:39:30 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JASON LEE NIEMAN,
Plaintiff,
v.
GRANGE MUTUAL
INSURANCE COMPANY, et al.,
Defendants.

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No. 11-cv-3404

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Jason Nieman’s
Motion to Compel Depositions of Grange Officers Beth Murphy and Peter
McMurtrie, and Motion Requesting the Court to Extend the Time Permitted
for Discovery by 60 Days (d/e 77) (Motion to Compel), and Defendants
Grange Mutual Casualty Company (Grange) and Integrity Mutual Insurance
Company’s (“Integrity”) Motion to Quash Notices of Deposition (d/e 78)
(Motion to Quash). For the reasons set forth below, the Motions are
allowed in part and denied in part. The Court directs that Defendants make
Peter McMurtrie available for deposition in the district of McMurtrie’s
residence, but limits the deposition to matters that occurred August 4,
2011, and to matters relevant to that particular hiring process for the

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position for which Nieman applied with Defendants during that time period.
The deposition notice for Beth Murphy is quashed. Nieman’s request to
compel additional discovery production is allowed in part as set forth below.
Nieman’s request to extend the time for discovery is denied.
BACKGROUND
Nieman brings a Complaint against Defendants Grange and Integrity
for age discrimination in employment and retaliation. Nieman is more than
40 years of age. In 2009, Nieman applied for the position of Vice President
for Claims Administration at Integrity (Position). Nieman had previously
sued his former employer Nationwide Mutual Insurance Company
(Nationwide) for employment discrimination and additional claims.
Nieman v. Nationwide, C.D. Ill. Case Nos. 09-3304 and 10-3230.
Publically recorded information about that lawsuit was available on the
Internet. On August 4, 2011, Nieman discovered a news release that on or
about June 22, 2011, Integrity had hired someone other than Nieman for
the Position. Complaint (d/e 1), ¶ 31. Nieman alleges that Integrity and
Grange discriminated against him because of his age and in retaliation for
engaging in protected activity by suing Nationwide. See Complaint, at
15-48.
Nieman served interrogatories and requests to produce on
Defendants. The Defendants responded. Nieman raised deficiencies in
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the responses. The parties have communicated back and forth regarding
these requests, and the Defendants have provided some additional
material. Nieman believes the responses are still inadequate and asks the
Court to compel additional responses. Nieman also asks the Court to
compel the depositions of McMurtrie and Murphy. The Defendants move
to quash those deposition notices. Nieman also asks the Court to extend
the discovery deadline to allow the deposition of a third-party witness
named Michael Tingley. Motion to Compel, at 21-24. The Court will
address these matters in order below.
PRINCIPLES OF DISCOVERY
Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain
discovery regarding any matter, not privileged, which is relevant to the
claim or defense of any party. Relevant information need not be
admissible at trial if the discovery appears to be reasonably calculated to
lead to the discovery of admissible evidence. The rule gives the district
courts broad discretion in matters relating to discovery. See Brown-Bey v.
United States, 720 F.2d 467, 470-471 (7th Cir.1983); Eggleston v. Chicago
Journeymen Plumbers' Local Union 130, 657 F.2d 890, 902 (7th Cir.1981);
see also, Indianapolis Colts v. Mayor and City Council of Baltimore, 775
F.2d 177, 183 (7th Cir.1985) (on review, courts of appeal will only reverse a
decision of a district court relating to discovery upon a clear showing of an
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abuse of discretion). “. . . if there is an objection the discovery goes
beyond material relevant to the parties’ claims or defenses, the Court
would become involved to determine whether the discovery is relevant to
the claims or defenses and, if not, whether good cause exists for
authorizing it so long as it is relevant to the subject matter of the action.
The good-cause standard warranting broader discovery is meant to be
flexible.” Federal Rule of Civil Procedure 26(b)(1) Advisory Committee
Notes, 2000 Amendment.
The federal discovery rules are to be construed broadly and liberally.
Herbert v. Lando, 441 U.S. 153, 177 (1979); Jeffries v. LRP Publications,
Inc., 184 F.R.D. 262, 263 (E.D .Pa. 1999). Federal Rule of Civil Procedure
26(b)(1) provides that the “[p]arties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party .
. .,” but “[f]or good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action.” Id. The party
opposing discovery has the burden of proving that the requested discovery
should be disallowed. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656
(D. Kan. 1999); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn
Co., 132 F.R.D. 204, 207 (N.D. Ind. 1990); Flag Fables, Inc. v. Jean Ann’s
Country Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1989).

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District Courts have broad discretion in discovery matters. Packman
v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir., 2001). The Court may
limit the frequency or extent of discovery if: the discovery is unreasonably
cumulative or duplicative, or can be secure for a more convenient and less
expensive source; the party seeking discovery has had ample opportunity
to conduct discovery; or if the burdens of the proposed discovery
outweighs the benefits. Fed. R. Civ. P. 26(b)(2)(C). A party must be
diligent in pursuing the perceived inadequacies in discovery and the trial
court does not abuse its discretion if a party untimely seeks to compel
inadequate discovery responses. Packman, 267 F.3d at 647. However,
even an untimely filed motion to compel may still be allowed if the party
demonstrates actual and substantial prejudice resulting from the denial of
discovery. Id. Remember, we are talking discovery, not admissibility at
trial. With these principles in mind, the Court addresses each aspect of the
Motions:
A.

Interrogatories
The Motion to Compel complains about the Defendants’ answers to

Interrogatories 2, 3, 15, 22, 23, 24 and 25.
1.

Interrogatory Number 2

Interrogatory Number 2 states:
INTERROGATORY NO. 2: If you or any of your employees,
agents, or assigns, have ever talked to the Plaintiff or Plaintiff’s
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co-workers, former co-workers, agents, servants, employees,
friends, partners, or anyone who has or who may have
knowledge of Plaintiff regarding Plaintiff’s claims in this lawsuit
or have any knowledge, either directly or indirectly, of any
statement or admission of any kind made by Plaintiff or anyone
acting on Plaintiff’s behalf regarding Plaintiff’s claims or any
other fact that might be relevant to this lawsuit, describe in
detail such statement and/or admission and identify who made
the statement or admission, to whom it was made, and the date
it was made.
Motion, Exhibit C, Plaintiff’s First Set of Interrogatories to Defendant
Integrity Mutual, at 5.
Defendants’ answers state:
RESPONSE: Objection. This interrogatory asks Integrity to
identify any of its "employees, agents or assigns" who have
ever spoken with anyone that Plaintiff knows who may have
knowledge related to "any statement or admission of any kind"
that Plaintiff has made. Integrity has no way of knowing if any
of its "employees, agents or assigns" know any of Plaintiffs
"co-workers, former co-workers, agents, servants, employees,
friends, partners," much less whether Plaintiff's "co-workers,
former co-workers, agents, servants, employees, friends,
partners" have knowledge of any statements or admissions
made by Plaintiff. This interrogatory is overbroad, unduly
burdensome, unlimited in time and not calculated to lead to the
discovery of admissible evidence. Subject to and without
waiving these objections, Integrity states:
(a) Please refer to Plaintiff’s Deposition Transcript.
(b) Please refer to Plaintiff’s e-mails to Defendant's
Counsel.
Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 3; and Exhibit I,

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Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 3. The Court quotes the Integrity response
throughout. The Grange response is substantially similar. Sometimes the
only difference is that “Grange” is substituted for “Integrity.” In other
responses, Grange adopts Integrity’s response by reference.
Nieman complains that the Defendants’ answer is non-responsive.
Motion, at 5. The Court disagrees. The Defendants properly objected to
the overbreath of the Interrogatory. The Interrogatory is unlimited in time
and is vague in other respects. For example, the Interrogatory
presupposes that the Defendants know the identity of Nieman’s friends.
The objection that the Interrogatory is overly broad is well taken. Still, the
Interrogatory seeks some relevant information, specifically whether any of
Defendants’ employees spoke to a former employer about Nieman during
the hiring process for the Position. The Defendants provided this
information by letter from their attorney David Croysdale to Nieman dated
August 1, 2012. Motion, Exhibit M, Letter Dated August 1, 2012, at 1-2.
The Court, therefore, will not compel any further response to this
Interrogatory.
2.

Interrogatory Number 3

Interrogatory Number 3 states:
INTERROGATORY NO. 3: Describe in detail all facts, proof, or
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evidence which, in whole or in part, form the basis of any
defense or affirmative defenses pled in this lawsuit.
Motion, Exhibit C, Plaintiff’s First Set of Interrogatories to Defendant
Integrity Mutual, at 5.
Defendants’ answers state:
RESPONSE: (a) The February 11, 2010 interview of Plaintiff
conducted by Cindy Heindel.
(b)

Ms. Heindel's notes of such interview.

(c)

Ms. Heindel's standard interview format.

(d)

Complete lack of communication between Integrity
and Plaintiff after the interview.

(e)

Jeff Gipson's internal notes dated on or about
February 11,2010.

(f)

E-mail from Jeff Gipson to Cindy Heindel dated
March 15, 2010.

(g)

VP Claims Search Time1ine and Candidate History.

(h)

Candidate qualifications spreadsheet and related
resume documents.

(i)

College graduation dates for phone screened
candidates.

(j)

Job offers to Jim Blair and Sue Frantzen.

(k)

Cindy Heindel's testimony regarding when and why
Plaintiff was eliminated from consideration.

(l)

Cindy Heindel's testimony regarding lack of
knowledge of any protected activity. Plaintiff may
have engaged in and, accordingly, that no such
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activity was considered in making the decision to
eliminate the Plaintiff from further consideration.
(m)

Cindy Heindel's testimony that candidate age was
not considered in making any decisions throughout
the search and hiring process.

(n)

Cindy Heindel's testimony regarding the
qualifications considered to be most important
and/or critical for the VP of Claims position.

(o)

Jeff Gipson's deposition testimony.

(p)

Jim Roark's Declaration.

(q)

Plaintiff’s admissions.

Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 4; and Exhibit I,
Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 3.
Nieman complains that Defendants did not provide this information in
their Rule 26(a) initial disclosures. Nieman does not object to the response
itself. Motion, at 5. The Defendants respond that Rule 26(a) does not
require disclosure of matters related to affirmative defenses. Defendants’
Response to Plaintiff’s Motion to Compel Depositions of Grange Officers
Beth Murphy and Peter McMurtrie, and Motion Requesting the Court to
Extend the Time Permitted for Discovery by 60 Days (d/e 83), at 8.
Defendants are incorrect. Rule 26(a) lists the categories of information that

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must be disclosed initially. The categories call for disclosure of individuals
and documents that provide discoverable information that may be used by
the party to support a defense. Fed. R. Civ. P. 26(a)(1)(A)(i) & (ii). The
response to the Interrogatory, however, is adequate. The Court will not
compel an additional response to Interrogatory Number 3.
The Court also will not decide whether the Defendants should
supplement their Rule 26 initial disclosures or whether the information in
the answer to Interrogatory Number 3 should be barred. Nieman makes no
such motion, so that issue is not before the Court. The Court notes that
parties have a duty to supplement their initial disclosures. Fed. R. Civ. P.
26(e). The duty to supplement, however, contains an important caveat.
A party is required to supplement incomplete or incorrect initial disclosures,
“if the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.”
Fed. R. 26(e)(1)(A). Thus, a party is not obligated to supplement the Rule
26(a) disclosures if the material has been otherwise disclosed during the
discovery process or in writing.
3.

Interrogatory Number 15

Interrogatory Number 15 states:
INTERROGATORY NO. 15: Please provide specific
information as to the Plaintiffs current eligibility for hire at
Grange Mutual Insurance Company and/or any affiliate. If the
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Plaintiff is not currently eligible for hire, please provide specific
information as to the reason(s). If the Plaintiff is not currently
eligible for hire, please provide specific information as to what
notations, records, or computer system information is in place
in regard to the Plaintiffs potential candidacy which would alert
a Grange and/or Integrity employee as to the Plaintiffs' status
as being ineligible for hire.
Motion, Exhibit C, Plaintiff’s First Set of Interrogatories to Defendant
Integrity Mutual, at 5. This Interrogatory was numbered 14 in the
Interrogatories served on Integrity. The Defendants both numbered the
interrogatory as number 15 in their responses. The Motion discusses the
response to this Interrogatory and refers to the Interrogatory as number 15.
See Motion, at 5.
The Defendants response to Interrogatory 15 states:
RESPONSE: Objection. The Interrogatory is vague, calls for
speculation and seeks information that is neither (a) relevant to
any disputed issue in the case nor (b) calculated to lead to the
discovery of relevant or admissible evidence. Subject to and
without waiving this objection, Plaintiff has no pending
application for employment at Integrity.
Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 9; and Exhibit I,
Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 8.
Nieman complains that the response is non-responsive. The Court
disagrees. Nieman is asking if he is qualified for a position with the

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Defendants. The Defendants respond that he is not currently applying for a
position, and so, they cannot evaluate his qualifications for a particular
position. This is a reasonable response. The Court will not compel any
additional response to Interrogatory Number 15.
4.

Interrogatory Number 22

Interrogatory Number 22 states:
INTERROGATORY NO. 22: Please identify all insurance
and/or executive recruiting firms which were assigned the task
or job of identifying candidates for the role of Vice President
Claims, Wisconsin, with Integrity Mutual and/or Grange, which
was filled on or about June 2011. Your response should include
any person or firm assigned the "job" or who were
communicated with by any Grange or Integrity employee,
officer, or agent, from January 1, 2009 to present.
Motion, Exhibit C, Plaintiff’s First Set of Interrogatories to Defendant
Integrity Mutual, at 10.
The Defendants’ response states:
RESPONSE: Integrity objects to the phrase "assigned the task
or job of identifying candidates" as vague and undefined.
Subject to this objection, please refer to the VP Claims Search
Timeline and Candidate History provided in Defendant's
Document Production Response for the identification of entities
that were given the opportunity to find and submit candidates
for the VP Claims position.
Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 11; and Exhibit I,

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Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 10.
Nieman complains that the reference to the VP Claims Search
Timeline and Candidate History document is not responsive. The Court
disagrees. A party may answer an interrogatory by referencing a
document produced in discovery. Fed. R. Civ. P. 33(d). The VP Claims
Search Timeline and Candidate History identifies the individual or company
that provided each referral for the Position. Motion, Exhibit L, VP Claims
Search Timeline and Candidate History. The answer is sufficient and
responsive. The Court will not compel any further response to
Interrogatory 22.
5.

Interrogatory Number 23

Interrogatory Number 23 states:
INTERROGATORY NO. 23: Please describe the process by
which the job listings, advertisements, or other information
related to the role of Vice President Claims, Wisconsin,
with Integrity Mutual and/or Grange, which was filled on or
about June 2011, were deleted, removed or requested to be
deleted or removed. Please explain the process specifically,
including dates of actual or requested activity and the method
of activity or request to an internal or external employee, officer,
agent or other party or entity.
Motion, Exhibit C, Plaintiff’s First Set of Interrogatories to Defendant
Integrity Mutual, at 10.

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The Defendants’ response states:
RESPONSE: Objection. The Interrogatory is overly broad and
seeks information that is neither (a) relevant to any disputed
issues in the case nor (b) calculated to lead to the discovery of
relevant or admissible evidence. Subject to and without waiving
this objection, please refer to the VP Claims Search Timeline
and Candidate History.
Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 11; and Exhibit I,
Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 11.
Nieman complains that the answer is non-responsive. The Court
agrees. The VP Claims Search Timeline and Candidate History does not
describe how advertisements or notices for the Position were deleted,
removed or requested to be removed. The Defendants are directed to
answer the Interrogatory.
6.

Interrogatory Number 24

Interrogatory Number 24 states:
INTERROGATORY NO. 24: Please describe the process by
which the job description and/or desired qualifications for the
position of Vice President Claims, Wisconsin, with Integrity
Mutual and/or Grange, which was filled on or about June 2011,
was created prior to the position being originally posted or
advertised in 2009, including any changes to the job description
and/or desired qualifications changed at any time from the date
of original posting or advertisement of the position up to the
point of the position being filled, on or about June 2011.

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Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 11-12; and Exhibit I,
Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 11.
The Defendants’ response states:
RESPONSE: Objection. The Interrogatory is so broad and
vague as to be incomprehensible, seeks information that is not
maintained by Defendant in a readily accessible form, and
seeks information that is neither (a) relevant to any disputed
issue in the case nor (b) calculated to lead to the discovery of
relevant or admissible evidence. Subject to and without waiving
this objection, there were no material changes to the job
description or the desired qualifications throughout the
selection process for VP of Claims.
Motion, Exhibit G, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Set of Interrogatories, at 11-12; and Exhibit I,
Defendant Grange Mutual Casualty Company’s Response to Plaintiff’s First
Set of Interrogatories, at 11.
Nieman complains that the answer does not address how the job
description for the Position was created. Nieman is correct. The
Defendants are directed to state the origin of the job description for the
Position at the beginning of the hiring process.
7.

Interrogatory No. 25.

Interrogatory Number 25 states:
INTERROGATORY NO. 25: Please specifically describe the
nature and content of the telephone call or conversation which
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occurred between Jeff Gipson of James Allen Company and
Cindy Heindell of Integrity Mutual Insurance Company on
October 6, 2010 at approximately 9:45 a.m.
Motion, Exhibit R, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Supplemental Interrogatory, at 2.
Defendant Integrity’s response states:
RESPONSE: Cindy Heindel has no specific recollection of a
phone call or phone message from Jeff Gipson on October 6,
2010 at approximately 9:45 a.m. and, accordingly, has no
specific recollection of the nature or content of any such call
that may have occurred.
Motion, Exhibit R, Defendant Integrity Mutual Insurance Company’s
Response to Plaintiff’s First Supplemental Interrogatory, at 2.
Nieman’s complaint about the response to Interrogatory Number 25
is unclear. The answer is responsive. Integrity states that Cindy Heindel
does not remember the call. The Court will not compel any additional
response to Interrogatory Number 25.
B.

Requests to Produce
Nieman raises several issues regarding the production of documents.

The parties seem to have resolved a number of the initial issues raised by
the Motion, but several remain. The Court will address each remaining
issue separately.

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1.

Relevant Time Period
Nieman complains that Grange limited its discovery responses to the

time period of January 1, 2009, to August 4, 2011. Motion, at 8. The Court
sustains Grange’s objection to produce material after August 4, 2011. The
time period selected by Grange covers the selection process for the
Position. The Complaint concerns reasons Nieman was not hired for the
Position. The relevant period, thus, ended when the hiring decision was
made in the summer of 2011, before the news release that Nieman
discovered on August 4, 2011.
The Court sustains the objection for documents after August 4, 2011,
in part, because Nieman has filed a separate action alleging claims against
Grange and Integrity based on events that occurred after August 4, 2011.
Nieman v. Grange Mutual Insurance Company, et al, C.D. Ill., Case No.
12-cv-3250, Plaintiff’s First Complaint at Law (d/e 1) (2012 Case). The
Court finds that in the interests of judicial economy Nieman should limit his
discovery in this case to matters related to this case, not the 2012 Case.
The Defendants’ objection to producing documents before January 1,
2009, however, may be too restrictive. The Court believes that information
from prior years may be relevant to the Defendants’ overall hiring practices.
The Court, therefore, overrules Grange’s objection to the extent that
Grange excludes responsive documents from the period from January 1,
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2007, to January 1, 2009. Responsive documents from two additional
years should provide additional relevant information about prior practices
without over burdening Grange. The Court therefore directs Grange to
expand its responses to Nieman’s request to produce to include responsive
documents from the years January 1, 2007, to January 1, 2009.
2.

Heindel Notes
Integrity employee Cindy Heindel kept handwritten notes in a spiral

notebook. Defendants produced redacted copies of responsive pages of
these notes. Defendants redacted home telephone numbers of Integrity
and Grange employees and other third parties and matters for which they
assert attorney client privilege. Nieman objects to these redactions.
Nieman further complains that Defendants provided no information
regarding the time period covered by the notes and whether any notes
were lost or destroyed.
Defendants redacted the telephone numbers to keep Nieman from
calling these third parties and employees of Defendants. The Court finds
that redaction of this confidential information of third parties is appropriate
in this case, particularly in light of Nieman’s past contacts with third party
witness Jeff Gipson. See Opinion entered August 31, 2012 (d/e 74), at
7-15. Nieman can communicate with Defendants’ attorneys if he wishes to
contact employees.
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With respect to the claims of privilege, Defendants have provided no
information to justify the claims. The Court therefore directs Defendants to
provide revised copies of the Heindel notes without the redactions based
on claims of privilege, but with the redactions of private telephone numbers
and any other private third-party information.
Defendants are also directed to provide readily available information
regarding the time period covered by the notes and whether any notes
were lost or destroyed. Defendants are not obligated to create documents,
but only to produce them. Defendants, therefore, are not obligated to date
documents or create time lines; however, to the extent that Defendants’
personnel know the general time frame of the notes and whether any were
lost or destroyed, they are directed to provide that information.
3.

Native Format and Metadata
Nieman asked for electronically stored information to be produced in

native format with metadata. The Defendants produced documents in .pdf
format initially, but have now produced some documents in native format
with metadata. Nieman states that some documents still have not been
produced in native format with metadata. The Defendants are directed to
produce in native format with metadata any electronically stored
information that Defendants have already produced in paper form or in .pdf

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form if the Defendants also possess the information in some other
electronic native format.
Nieman specifically references a document called Claims
Candidates.xlsx. Nieman states that this document was produced in paper
form. Reply, at 9. The Defendants are directed to produce the
electronically stored native format copy with metadata of the document
identified as Claims Candidates.xlsx that was produced in paper form.
It is somewhat unclear from the Reply, but it appears that Nieman
wants drafts of Claims Candidates.xlsx in addition to the final document.
Reply, at 9. Defendants state that defense counsel prepared this
document for this litigation. As such, the drafts are privileged work product.
Fed. R. Civ. P. 26(b)(3)(A). The Court will not compel their production.
Nieman notes that these documents are not listed on a privilege log. The
Defendants are directed to amend the privilege log to include these
documents.
4.

Document 87
Document 87 is an email that Defendants produced. The document

is an email dated December 6, 2011, from Murphy to attorney Croysdale.
Reply, Exhibit R, Descriptions of Documents 87-240. Nieman states that
the email had attachments, but the Defendants did not produce the
attachments. The email lists a large number of attachments. Reply,
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Exhibit R, Email dated December 6, 2011. Many of the documents were
created after August 4, 2011. The Defendants are not required to produce
those documents for the reasons discussed above. The Court, however,
directs the Defendants to produce the documents that were created before
August 4, 2011, and that were attached to Document 87.
C.

Depositions of Beth Murphy and Peter McMurtrie
Nieman seeks to depose Beth Murphy and Peter McMurtrie. Murphy

is an attorney employed by Defendants. She had no involvement in the
process of filling the Position, but has only been involved in this matter after
Nieman filed the charge of discrimination. She therefore has no relevant
personal knowledge of the issues raised in this case. Her personal
knowledge would only be relevant, if at all, to the 2012 Case. The Court,
therefore, will not allow her deposition in this case. The Motion to Quash is
allowed with respect to her deposition. The Court makes no ruling
regarding any discovery issues in the 2012 Case, including the
appropriateness of any deposition of Murphy in that case.
Nieman also wants to depose McMurtrie. McMurtrie had some
involvement in the process of filling the Position. Nieman may depose him
about his involvement in the hiring process for the Position before August
4, 2011. Any information that he might have regarding events after that
date would, again, be relevant to the 2012 Case, not this case. Again, in
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the interest of judicial economy, the discovery in this case should be limited
to this case. The deposition is limited to his knowledge of events related to
the hiring process for the Position before August 4, 2011, and is limited to a
maximum of four (4) hours in length.
D.

Motion to Extend Discovery
Nieman moves to extend discovery to depose a third party witness

Michael Tingley. Motion, at 21-24. Tingley has provided an affidavit that
has obviated the need for his deposition. The request for an extension is
therefore denied.
E.

Additional Matters Raised in Reply
Nieman raises additional matters regarding the extension of

discovery in his reply. See Reply, at 3-8. A party may not raise new
matters by reply. The Court will not address such matters at this time.
Nieman also recently filed a supplemental motion regarding these matters.
Plaintiff’s Supplemental Motion to Compel, and Motion for Discovery
Sanctions Under Rule 37 (d/e 86). Defendants are entitled to respond to
this supplemental motion before the Court considers these matters.
WHEREFORE Plaintiff Jason Nieman’s Motion to Compel
Depositions of Grange Officers Beth Murphy and Peter McMurtrie, and
Motion Requesting the Court to Extend the Time Permitted for Discovery
by 60 Days (d/e 77), and Defendants Grange Mutual Casualty Company
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and Integrity Mutual Insurance Company’s Motion to Quash Notices of
Depositions (d/e 78) are ALLOWED in part and DENIED in part.
Defendants are directed to provide the additional interrogatory answers
and produce additional documents as directed by this Opinion by
November 2, 2012. The Court directs that Defendants make Peter
McMurtrie available for deposition in the district of McMurtrie’s residence
before November 15, 2012, but limits the deposition to four (4) hours in
length and to matters that occurred before August 4, 2011, and to matters
relevant to that particular hiring process for the Position. The notice of
deposition for Beth Murphy is quashed. The request to extend discovery is
denied. The remainder of the Motions are otherwise denied.
ENTER: October 17, 2012
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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