Meyer v. St. John's Hospital of the Hospital Sisters of the Third Order of St Francis
Filing
19
OPINION AND ORDER entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff's Motion to Compel 16 is DENIED, however Defendant is ordered to produce documents as set forth in the written order. Hearing on Plaintiff's Motion for Pr otective Order 18 is set Monday, 9/19/2016, at 10:00 AM by telephone (court will place call) before Judge Schanzle-Haskins. Defendant may file response to Plaintiff's Motion for Protective Order 18 by 9/16/2016. Telephonic Status Conference to discuss status of case and possibility of scheduling a settlement conference or mediation is set Friday, 2/17/2017, at 10:00 AM (court will place call) before Judge Schanzle-Haskins. See written order. (LB, ilcd)
E-FILED
Thursday, 08 September, 2016 08:36:05 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
TIFFANY MEYER,
Plaintiff,
-vsST. JOHN’S HOSPITAL OF THE
HOSPITAL SISTERS OF THE THIRD
ORDER OF ST. FRANCIS,
Defendant.
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) No. 15-cv-3313
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OPINION AND ORDER
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Before the Court is Plaintiff’s Motion to Compel (d/e 16) and
Defendant’s Response in Opposition to Plaintiff’s Motion to Compel
(d/e 17). For the reasons stated below, Plaintiff’s Motion to Compel is
denied for the reasons set forth below.
Also before the Court is Plaintiff’s Motion for Protective Order (d/e 18)
which will be addressed below.
BACKGROUND
Tiffany Meyer (Plaintiff) uses a wheelchair and crutches. She worked
for St. John’s Hospital of the Hospital Sisters of the Third Order of St.
Francis (Defendant) as a dietician for approximately four years. Plaintiff
alleges that in late June or July of 2014, Defendant announced it was
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relocating Plaintiff’s work station which would require her to work almost
exclusively on the patient floors. Plaintiff alleges she voiced concerns that
her new work station would not accommodate her wheelchair and asked for
accommodation to let her continue to work where she had prior to the
transfer of her work station. Plaintiff alleges that within days after her
accommodation request, her employment was terminated (d/e 16,
pgs 1, 2).
This matter resulted in the Plaintiff filing a disability discrimination
action against the Defendant asserting, among other things, that it refused
to provide her reasonable accommodations for her disability and retaliated
against her in violation of the Americans with Disabilities Act, as amended,
42 U.S.C. §12112(b)(1), 12112(b)(5)(A), and 12203(a).
PLAINTIFF’S MOTION TO COMPEL
The Defendant provided the Plaintiff with initial disclosures as
required by Rule 26 of the Federal Rules of Civil Procedure. In compliance
with Rule 26(a)(1)(A)(ii) concerning documents, the Defendant submitted to
the Plaintiff the following disclosure:
St. John's identifies the following categories of nonprivileged documents, electronically- stored information, and
tangible things that are in its possession, custody, or control
that St. John's may use to support its defenses, unless
solely for impeachment. Relevant documents will be made
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available for inspection and copying upon entry of an
Agreed Protective Order.
1.
Documents relating to Plaintiff's job
performance, employment, and termination;
2.
Documents relating to Plaintiff s personnel
records, medical records, and payroll records; and
3.
St. John's Colleague Handbook and other
Human Resources policies.
St. John's also reserves the right to use any
documents in Plaintiff's possession, custody, and control
and documents in the possession, custody, and control of
third parties to support its
defenses.
After receiving Defendant’s Rule 26 disclosure, the Plaintiff
propounded and served the following requests to produce to the
Defendant, and the Defendant responded to the requests as set forth
below:
I.
Produce each document described in or
encompassed by defendant's Rule 26 disclosure dated
March 25, 2016, including all of the following:
a.
Document(s) relating to Plaintiff's job
performance, employment and termination;
b.
Documents relating to Plaintiff s personnel
records, medical records and payroll records; and
c.
St. John's Colleague Handbook and other
Human Resource policies.
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RESPONSE:
Defendant objects to this request on the grounds that
it is vague in its failure to define the terms "encompassed
by" and "relating to" and overly broad in terms of scope and
time. Without waiving or prejudicing these objections in
whole or in part, see documents, herein numbered St.
John’s 1-252. Defendant’s investigation and discovery
continues, and Defendant will supplement this Response
accordingly.
Prior to making the specific response set forth above, the Defendant
also asserted an objection to the document request to the extent that the
Plaintiff sought privileged information subject to attorney client work product
and/or other applicable legal privileges (d/e 16-1, pg 1).
Plaintiff then filed a Motion to Compel (d/e 16) on Tuesday, July 5,
2016, and requested that the Court order the Defendant to produce each
document described in, or encompassed by, its Rule 26 disclosure set forth
above. The Plaintiff argues that the breadth of the request is no greater
than the scope of the documents identified under Rule 26(a)(1)(A)(ii) and
no broader than the contours of that Rule. Defendant has filed a Response
in Opposition (d/e 17) to the Motion to Compel.
The Plaintiff misapprehends the application of Rule 26(a)(1)(A)(ii)
which provides that the party in its Rule 26 disclosure must provide to the
other party the following:
(ii) a copy- or a description by category and location – of all
documents, electronically stored information, and tangible
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things that the disclosing party has in its possession,
custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment;
The plain language of the Rule gives the party making the Rule 26
disclosure the option of producing a copy of a document or tangible thing or
describing it by category. Defendant here chose to describe the document
by category. In Plaintiff’s counsel’s letter sent to defense counsel (d/e 174, pg 1), which Plaintiff’s counsel characterizes as a “good faith attempt to
resolve these issues”, Plaintiff’s counsel makes the following statement:
You [sic] response was subject to general objections and
other objections included in your response. Rule 26 does
not permit objections, and since we asked for documents
your client identified in its Rule 26(a) disclosures, your
objections are indefensible and must be withdrawn.
Plaintiff’s counsel is wrong.
In describing the effect of the language permitting disclosure, rather
than producing a copy of documents, the 1993 Committee Notes to Rule 26
provide as follows:
Unlike subparagraphs (C) and (D), subparagraph (B) does
not require production of any documents. Of course, in
cases involving few documents a disclosing party may
prefer to provide copies of the documents rather than
describe them, and the rule is written to afford this option to
the disclosing party. If, as will be more typical, only the
description is provided, the other parties are expected to
obtain the documents desired by proceeding under Rule 34
or through informal requests. The disclosing party does not,
by describing documents under subparagraph (B), waive its
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right to object to production on the basis of privilege or work
product protection, or to assert that the documents are not
sufficiently relevant to justify the burden or expense of
production.1
The Defendant’s Rule 26 disclosure set forth above specifically states
that the categories of documents pertain only to non-privileged documents
and relevant documentation as contemplated by Rule 26. The disclosing
party does not waive these reservations when choosing to describe only a
category of document. The Defendant’s objections of overbreadth in terms
and scope in time are well taken. As noted above, the Plaintiff was only
employed by Defendant for four years. Consequently, Plaintiff’s job
performance, employment, and termination records would have been
created during that four-year period. Presumably, the personnel and
payroll records of Plaintiff would be for the same time. The Defendant may
have medical records of the Plaintiff during the relevant period. However,
the Defendant may have medical records of the Plaintiff which encompass
periods prior to Plaintiff’s employment or after the Plaintiff’s termination.
These records would not appear to be relevant. Likewise, the Plaintiff’s
request for St. John's Colleague Handbook and other Human Resource
policies, without limiting those documents to portions of the records which
may be used to support the Defendant’s defenses, is overly broad.
1
At the time of the 1993 Amendments, the language now in Rule 26(a)(1)(A)(ii) was found in Rule 26(a)(1)(B).
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Plaintiff sought to simply plug in the description of categories of
documents described in the Defendant’s Rule 26 disclosures, rather than
attempt to draft a Rule 34 request for production which asks only for
relevant non-privileged documents. Rather than go through the process of
having the Plaintiff reformulate her requests to produce, the Court orders
the Defendant to produce, if the documents are not already produced in the
documents previously produced by the Defendant, the following:
1)
Plaintiff’s job performance, employment, and termination
records for the period during which Plaintiff was employed by the
Defendant;
2)
Plaintiff’s personnel records, medical records, and payroll
records during the time the Plaintiff was employed by the Defendant; and,
3)
Any portion of the St. John's Colleague Handbook and other
Human Resource policies which may support the defenses asserted by the
Defendant in this case.
In the event that materials are withheld from discovery based upon
attorney client privilege, the party withholding those documents must
provide the other party with a privilege log which shows the following:
1)
The privilege asserted;
2)
A general description of the document by type (e.g. letter,
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memorandum, report);
3)
The date of the document;
4)
A general description of the subject matter of the document;
5)
The name and job title of the author or originator of the
document; and,
6)
The name of the person who received a copy of the document
and their affiliation with the Defendant.
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
On Tuesday, August 30, 2016, the Plaintiff filed a Motion for
Protective Order (d/e 18). The Motion indicates that the parties have been
unable to agree to the terms of a protective order which both the Plaintiff
and Defendant agree is necessary to complete initial disclosures and
discovery in this case. Defendant may file a response to Plaintiff’s Motion
for Protective Order on or before September 16, 2016. Pursuant to Local
Rule 7.1(B)(2), if no response is timely filed, the Court will presume there is
no opposition to the Motion and may rule without further notice to the
parties.
Plaintiff requests a hearing by telephone on her motion to expedite
discovery.
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The Court has reviewed the Scheduling Order entered by the Court
on March 4, 2016 (d/e 14). That Scheduling Order set a telephonic
conference hearing to discuss setting of a settlement conference or
mediation on September 19, 2016 at 10:00 a.m. The Court notes that the
parties have until February 13, 2017 to complete all discovery in this case.
The Court also notes that the dispositive motion deadline under the current
Scheduling Order is April 13, 2017. Due to the remaining period of time to
complete discovery, the Court determines that it is unnecessary to hold the
telephonic status hearing to discuss setting of a settlement conference or
mediation. Consequently, the Court continues the conference to discuss
settlement or mediation, set on September 19, 2016 at 10:00 a.m. until
Friday, February 17, 2017, at 10:00 a.m. (Court will place call). The Court
sets a telephonic hearing on Plaintiff’s Motion for Protective Order (d/e 18)
at 10:00 a.m. on Monday, September 19, 2016, which was the same date
set forth in the Scheduling Order for the status hearing to discuss
settlement or mediation which has been rescheduled as stated above. The
Court will place the call. If the parties notify the Court that they have
agreed on the language of a protective order and forward the agreed
protective order to the Court prior to the hearing on September 19, 2016,
the Court will cancel the hearing. If the parties do not agree on a protective
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order, they shall provide the specific provisions of the protective order on
which they do not agree and proposed language suggested by each party
on or before the close of business on September 15, 2016.
THEREFORE, IT IS ORDERED:
A.
Plaintiff’s Motion to Compel (d/e 16) is DENIED, however, the
Court orders Defendant to produce documents as set forth above and to
also prepare a privilege log in the event that materials are withheld from
discovery based upon privilege;
B.
Defendant may file a response to Plaintiff’s Motion for
Protective Order (d/e 18) on or before September 16, 2016; telephonic
hearing on Plaintiff’s Motion for Protective Order is set Monday, September
19, 2016, at 10:00 a.m. (Court to place call); and,
C.
Telephonic hearing is set Friday, February 17, 2017, at 10:00
a.m. (Court will place call), to discuss status of case and possibility of
scheduling a settlement conference or mediation.
ENTERED: September 8, 2016
__s/ Tom Schanzle-Haskins_______
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
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