Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad

Filing 166

MEMORANDUM AND ORDER granting in part and denying in part 124 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/10/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
)
KENT DUTY,
)
)
Plaintiff-Intervenor,
)
v.
)
)
BNSF RAILWAY COMPANY,
)
)
Defendant.
)
______________________________ )

Case No.12-02634-JWL-KGG

ORDER ON DEFENDANT’S MOTION TO COMPEL
Now before the Court is Defendant’s “Motion to Compel Responses to
Defendant’s First Interrogatories and First Requests for Production of Documents
from Plaintiff-Intervenor” Kent Duty (Doc. 124). For the reasons set forth below,
the Court GRANTS in part and DENIES in part this motion.
BACKGROUND
This is an employment discrimination case brought under the Americans
with Disabilities Act. Plaintiff-Intervenor Kent Duty (“Mr. Duty”) applied for a
position with Defendant railroad as a locomotive electrician. Mr. Duty was hired
subject to a medical examination. He was then denied the position after a medical
examination by Defendant opined that he is unable to perform essential functions

of the job because of a physical impairment in one of his hands.
DISCUSSION
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.1
“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University,
932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “Relevance is
broadly construed at the discovery stage of the litigation and a request for
discovery should be considered relevant if there is any possibility the information
sought may be relevant to the subject matter of the action.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
“discovery should ordinarily be allowed unless it is clear that the information

1

Most of Plaintiff’s objections relate to issues of privilege, although relevance is
also implicated in the Court’s decision.
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sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
The scope of discovery is broad, but not unlimited. If the proponent has
failed to specify how the information is relevant, the Court will not require the
respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D.
Kan. 1995). Within this context, the Court will address the various discovery
requests at issue.
A.

Interrogatories at Issue.
1.

Nos. 1 and 2.

These two interrogatories seek a list of “every action” by Defendant that
Plaintiff contends constituted disability discrimination (No. 1) and retaliation (No.
2). (Doc. 125-2, at 2-6.) Plaintiff objects that both interrogatories call for a
narrative response.
As an initial matter, Courts in this District have looked with disfavor at
“blockbuster” narrative interrogatories, which “require the responding party to
provide the equivalent of a narrative of its entire case together with identification
of virtually all supporting evidence for each and every fact.” High Point SARL v.
Sprint Nextel Corp., No. 09-2269-CM-DJW, 2011 WL 4036424, at *19 (D. Kan.
3

Sept. 12, 2011) (citation omitted). “Indiscriminate use of blockbuster
interrogatories, such as these, do not comport with the just, speedy, and
inexpensive determination of the action.” Id., (quoting Hilt v. SFC Inc., 170
F.R.D. 182, 186 (D.Kan.1997)). Simply because a discovery request uses the
“each and every” language does not make it objectionable per se. Id.
The Court finds that Interrogatories Nos. 1 and 2 ask about specific aspects
of Plaintiff's claims and, thus, are “sufficiently narrow so as to not be unduly
burdensome or overly broad on [their] face.” Id. Further, it is imperative for
Defendant to be aware of all factual bases for Plaintiff's claims for discrimination
and retaliation. As such, the “each and every” language is appropriate and justified
in this instance.
In response to Plaintiff’s objections, Defendant argues that it has not
requested a narrative, but rather has requested a “list” of discriminatory or
retaliatory actions. Defendant argues that Plaintiff has provided a narrative
response, however, which Defendant contends is improper. Defendant argues it
“needs to know what specific adverse actions are at issue to move for summary
judgment.” (Doc. 125, at 3.) Defendant also argues that Plaintiff’s narrative
response makes “unclear” as to whether he “is actually seeking relief for every
alleged BNSF action he mentions or simply providing a narrative of the facts
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surrounding his claims.” (Id., at 3-4.)
The Court finds that Plaintiff’s response contains an abundance of factual
information. The fact that Plaintiff did not enumerate these facts in bullet points
(or whatever type or format of “list” Defendant would prefer) is irrelevant. The
Court reminds Plaintiff, however, that he is bound – and limited – by the sworn
discovery responses to these interrogatories. The interrogatories request
information on “every” discriminatory or retaliatory action by Defendant. Plaintiff
will not be allowed to subsequently ambush Defendant with additional examples of
discrimination or retaliation in response to dispositive motions and/or at trial.2
That stated, Defendant’s motion is DENIED in regard to Interrogatories Nos. 1
and 2.
2.

Interrogatory No. 5.

This interrogatory seeks identification of the sections of the Americans with
Disabilities Act (“ADA”) and/or other regulations Plaintiff contends Defendant
violated and “facts that you believe support your contentions.” (Doc. 125-2, at 7.)
Plaintiff argues that this is improper because it asks him, as a non-lawyer, “to
perform Defendant’s research of the law and/or to obtain this research from his

2

To the extent Plaintiff needs to supplement his response, he is reminded to so in
a timely manner.
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attorneys, seeking to disclose attorney client communications and the mental
impressions and legal conclusions protected as opinion work product.” (Doc. 134,
at 5.)
Plaintiff has chosen to sue Defendant for violations of the ADA. In order to
do so, Plaintiff and/or his counsel are required to know the legal basis for their
lawsuit – and they have a duty to inform Defendant of said basis. Further, it is
improper to object that an interrogatory requests a legal conclusion. Plaintiff’s
objections are overruled and Defendant’s motion is GRANTED in regard to
Interrogatory No. 5.
3.

Interrogatory No. 6.

Interrogatory No. 6. seeks information regarding “every oral
communication” Plaintiff Duty has had with the EEOC. (Doc. 125-2, at 8.)
Plaintiff raises the “common interest privilege,” which the Court previously
addressed in a prior discovery order in this case. (See Doc. 150.) The doctrine was
explained by Magistrate David Waxse in the case of United States Fire Ins. Co. v.
Bunge North America:
Generally, when a communication between a client
and an attorney occurs in the presence of third parties, the
attorney-client privilege is waived. The common interest
doctrine, however, affords two parties with a common
legal interest a safe harbor in which they can openly
share privileged information without risking the wider
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dissemination of that information. The common interest
doctrine can only exist where there is an applicable
underlying privilege.
The common interest doctrine is not a separate
privilege, but an exception to waiver of the attorneyclient privilege. The common interest doctrine thus acts
as an exception to the general waiver rule by facilitating
cooperative efforts among parties who share common
interests. For the common interest doctrine to attach,
‘most courts ... insist that the two parties have in common
an interest in securing legal advice related to the same
matter – and that the communications be made to
advance their shared interest in securing legal advice on
that common matter.’ ‘The key consideration is that the
nature of the interest be identical, not similar, and be
legal, not solely commercial.’
No. 05-2192-JWL-DJW, 2006 WL 3715927, at *2 (D. Kan. Dec. 12, 2006)
(citations omitted); see also Doc. 150, at 25-26.
As it did in regard to the discovery requests at issue in its prior motion to
compel against the EEOC, Defendant has limited its inquiry to “communications
that occurred prior to the earliest possible date on which the EEOC and Duty could
have had a common-interest for privilege purposes – the day that EEOC announced
that conciliation had failed.” Defendant continues that
a community of interest exists only when the parties have
identical legal interests. Duty cannot rely on the
common-interest privilege as to communications prior to
conciliation failure because prior to that time EEOC and
Duty did not share a common interest sufficient to rely
on the common-interest privilege.
As an initial matter, EEOC’s interests and Duty’s
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interests could not have been identical during the
investigatory period of Duty’s EEOC charge because
“[d]uring initial investigations the EEOC is a neutral
third party. . . .” EEOC’s investigator confirmed that fact
during his deposition. The same is true for the time
period following the investigation while EEOC was
obligated to attempt to resolve the dispute through
conciliation. Because (with one exception not applicable
here) EEOC cannot sue until after conciliation fails,
EEOC and Duty could not have had “identical legal
interests” during the conciliation phase of EEOC’s
processing of Duty’s discrimination charge. Before the
failure of conciliation, EEOC’s authorized role is in
attempting to use informal methods to resolve the
dispute. Thus, communications prior to conciliation
failure could only legitimately have been in connection
with EEOC’s legal duty to attempt to resolve the dispute
informally not to assist in development of a joint defense
or in furtherance of some common legal interest related
to litigation.
(Doc. 125, at 7-8 (internal citations omitted).)
As it found in the prior discovery Order, the Court agrees with Plaintiff that
a common interest exists between the EEOC and Duty – but the Court agrees with
Defendant that the common interest between the EEOC and Duty did not exist
until the conciliation efforts of the EEOC were unsuccessful and the agency
decided to bring suit in its name, giving the EEOC and Duty an identical legal
interest. (Doc. 150, at 27.) Plaintiff’s common interest privilege objection is
overruled.
Plaintiff’s objection based on the work product doctrine is also overruled as
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to any information shared with the EEOC before the unsuccessful completion of
the conciliation process. Any privilege that may have existed was waived during
communications with the EEOC during the time the agency was acting as a neutral
third party.
Finally, for the reasons discussed in the Court’s prior discovery Order, the
Court finds that Plaintiff incorrectly relies on 42 U.S.C. § 2000e-5(b) as a statutory
basis for the privilege.
The language of [EEOC v.] Associated Dry Goods
specifically addresses the portion of the statute
forbidding public disclosure of any matters arising in
informal conciliation ‘without the written consent of the
persons concerned.’ 449 U.S. 590, 598, at n.13, 101
S.Ct. 817, 822, at n. 13 (citing § 2000e-5(b)). In that
context, the Supreme Court held that ‘[t]his phrase
suggests that the parties, the ‘persons’ whose consent
would most obviously be necessary, are not members of
the ‘public’ to whom disclosure is forbidden.’ Id., at
n.13.
As such, Defendant’s motion is GRANTED in regard to Interrogatory No. 6.
Plaintiff is directed to produce any responsive information regarding
communications between himself and the EEOC (and their counsel) that were
created before December 20, 2011, and were withheld on the basis of the common
interest doctrine, attorney-client privilege, and/or the work product doctrine.
4.

Interrogatory No. 7.
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This interrogatory seeks facts supporting Plaintiff’s “contention that
Defendant is liable for punitive damages . . . .” (Doc. 125-2, at 9.) Plaintiff objects
on the basis of work product. For the reasons discussed in section B, supra,
regarding Interrogatory No. 5, Plaintiff’s objections are overruled and Defendant’s
motion is GRANTED in regard to Interrogatory No. 7. Plaintiff has chosen to
bring a claim for punitive damages against Defendant. As such, Plaintiff and his
counsel have a duty to inform Defendant of said basis.
5.

Interrogatory No. 14.

Interrogatory No. 14 asks for information regarding health care professionals
who have treated Plaintiff in the past seven years. (Doc. 125-2, at 12-13.) Plaintiff
objects that this information is protected by the physician-patient privilege. (Id., at
13.) Plaintiff also contends that he has he “is not presently seeking recovery for
any diagnosable medical or psychological condition resulting from the
discriminatory and retaliatory actions of Defendant . . . .” (Id.)
The Court agrees with Defendant that the physician-patient privilege is not
an appropriate basis to withhold the requested information. Kear v. Kohl’s Dept.
Stores, Inc., No. 12-1235-JAR-KGG, 2013 WL 3088922, at *3 (D. Kan. June 18,
2013) (holding that the physician-patient privilege has not been recognized under
federal common law by either the Supreme Court or the Tenth Circuit). Further, to
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the extent Plaintiff is seeking damages for emotional distress, “mental anguish,
stress, loss of enjoyment of life, loss of self esteem, anxiety, depression, feelings of
helplessness,” etc. (Doc. 125-4, at 6), the requested information is relevant and
discoverable. See Owens v. Sprint/United Management Co., 221 F.R.D. 657, 659
(D. Kan. 2004) (holding that “[g]enerally, discovery requests seeking an
employment discrimination plaintiff's medical and psychological records are held
to be relevant as to both causation and the extent of plaintiff's alleged injuries and
damages if plaintiff claims damages for emotional pain, suffering, and mental
anguish”). Plaintiff’s objection is overruled and Defendant’s motion is
GRANTED in regard to Interrogatory No. 14.
6.

Interrogatory No. 15.

This Interrogatory requests information regarding Defendant’s employees
that have been interviewed by, or on behalf of, Plaintiff. (Doc. 125-2, at 13.)
Plaintiff objects that the information is protected by the work product doctrine,
arguing that
the identity of the persons with whom Duty’s attorneys
have spoken (but have not provided a statement required
to be disclosed by Rule 26(b)(5)), are part of the mental
processes underlying the work product, as the
interrogatory seeks to reveal with witnesses Duty’s
attorneys believe are important enough to speak with and
to track preparation of Duty’s counsel in preparing for
trial. This invasion of the mental processes of Duty’s
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attorneys far exceed the intentions of discovery and are
the basic reasons for the protection of the mental
processes of attorneys’ work product.
(Doc. 134, at 14.) Plaintiff’s arguments are thoroughly misguided. The
information requested in purely factual (who was interviewed, when they were
interviewed, who was present).3 The law is well-settled that the work product
doctrine does not protect the disclosure of facts. See Resolution Trust Corp. v.
Dabney, 73 F.3d 262, 266 (10th Cir.1995) (“Because the work product doctrine is
intended only to guard against divulging the attorney's strategies and legal
impressions, it does not protect facts concerning the creation of work product or
facts contained within work product.”). Defendant’s motion is GRANTED in
regard to Interrogatory No. 15.
7.

Interrogatory No. 16.

Interrogatory No. 16 inquires as to oral or written statements by Defendant
or its employees that “evidence or support any allegation or claim” made by
Plaintiff’s objections that the interrogatory is overly broad and calls for a narrative
response are overruled. In addition, for the reasons set forth in section A.6.,
supra, the Court overrules Plaintiff’s work product objections. Defendant’s
motion is GRANTED in regard to Interrogatory No. 16.

3

Plaintiff asserts that no written statements have been created.
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8.

Interrogatory No. 18.

This interrogatory seeks information regarding non-expert opinion testimony
Plaintiff intends to offer. (Doc. 125-2, at 14-15.) Plaintiff objects that the
interrogatory is beyond the scope of the Federal Rules of Civil Procedure and
would implicate information protected from disclosure by the work product
doctrine. (Id., at 15.) For the reasons set forth in section A.6., supra, the Court
overrules Plaintiff’s objections. Defendant’s motion is GRANTED in regard to
Interrogatory No. 18. To the extent Plaintiff intends to offer non-expert witnesses
who will provide opinion testimony, he is required to identify these individuals.
B.

Requests for Production at Issue.4
1.

Documents relating to medical treatment and conditions.

Requests Nos. 34 and 35 seek information regarding Plaintiff’s “physical,
mental, or emotional condition, treatment, care, counseling and/or hospitalizations”
over the past seven years as well as any “counseling or treatment” he has received
as a result of the incident at issue. (Doc. 125-1, at 12.) Plaintiff argues that he has
received no health care or mental health care as a result of the allegations in this
lawsuit. (Doc. 134, at 17.) While this may be true, this does not mean that any

4

The parties appear to have resolved their disputes regarding Requests Nos. 29, 30, and

56.
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other medical or mental health care treatment he has received is irrelevant or nondiscoverable. See Owens, 221 F.R.D. at 659 (holding that “[g]enerally, discovery
requests seeking an employment discrimination plaintiff's medical and
psychological records are held to be relevant as to both causation and the extent of
plaintiff's alleged injuries and damages if plaintiff claims damages for emotional
pain, suffering, and mental anguish.”). To the extent Plaintiff continues to seek
damages for emotional distress and/or mental anguish, the information requested is
both relevant and discoverable. Plaintiff’s objections are overruled and
Defendant’s motion is GRANTED in regard to Requests Nos. 34 and 35.
2.

Plaintiff’s communications with non-parties.

Request No. 24 seeks documents regarding Plaintiff’s communications and
payments to Terry L. Cordray, a former employee of Defendant who provides
vocational rehabilitation services who was retained and paid by the EEOC to
compile a report on Plaintiff during the EEOC’s investigation process. (Doc. 1251, at 9.) Defendant is aware that Plaintiff contemplates naming Cordray as an
expert witness. To the extent he is to be designated as an expert by Plaintiff, all
required, discoverable information will be produced in accordance with the
relevant portions of the Court’s Scheduling Order (which will be entered in this
case following the resolution of the outstanding discovery disputes). Defendant’s
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pre-designation awareness of Cordray’s involvement in this case is irrelevant in
regard to when information governed by Fed.R.Civ.P. 26(b)(4) should be
produced. (Doc. 125, at 22-23.) The Court agrees, however, that any nonprivileged, pre-litigation information relating to Cordray should be produced
presently. Defendant’s motion is GRANTED in part and DENIED in part as to
Request No. 24.
Request No. 25 seeks information regarding to Scott Woods, Dsc, PT. (Doc.
125-1, at 9.) This information, is discoverable absent attorney work product
materials, such as reports written by Plaintiff’s counsel containing counsel’s
mental impressions regarding Woods and/or their bearing on Plaintiff’s claims.
Based on representations of Plaintiff’s counsel (Doc. 134, at 19-20), the Court is
comfortable that no such documents exist. To the extent Plaintiff locates
documentation regarding payment he made for Woods assessment, the same is to
be produced.
3.

Plaintiff’s communications with the EEOC.

Requests Nos. 40-45 seek information regarding certain communications
Plaintiff had with the EEOC. For the reasons set forth in section A.3, supra,
Plaintiff’s objections regarding the common interest privilege and work product
doctrine are overruled. The same is true for Plaintiff’s reliance on the statutory
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provisions of 42 U.S.C. § 2000e-5(b). Defendant’s motion is GRANTED in
regard to Requests for Production 40, 41, 42, 43, 44, and 45.
4.

Plaintiff’s communications with Defendant’s employees.

Defendant acknowledges that Plaintiff has indicated he has no documents
responsive to Requests Nos. 48 and 50. Even so, Defendant asks for the Court to
determine two issues relating to the document requests. Because Plaintiff has no
responsive documents, and is therefore not withholding responsive information, the
Court declines Defendant’s request for what would amount to an impermissible
advisory opinion. See Stephenson v. Young, No. 10-2197-KHV-KGG, 2010 WL
5422574, at *2 (D. Kan. Dec. 15, 2010).
5.

Attorney fee agreement.

Plaintiff argues, in part, that the information sought by Request No. 52
relating to attorneys fees (Doc. 125-1, at 19) is premature. The Court agrees. The
information is irrelevant, and not discoverable, unless and until Plaintiff is awarded
attorney’s fees.
Fed.R.Civ.P. 54(d)(2) provides that a “claim for attorney's fees and related
nontaxable expenses must be made by motion unless the substantive law requires
those fees to be proved at trial as an element of damages.” D. Kan. Rule 54.2(f)
states that “discovery may not be conducted with motions for awards of attorney's
16

fees unless the court permits upon motion and for good cause.”
The principal of D.Kan. Rule 54.2 is that motions for attorney’s fees should
not usually require discovery, thus discovery is permitted only for good cause after
a motion has been made for fees, and after the consultation requirements of the rule
have been satisfied. Defendant's discovery request is premature. If a motion for
attorneys' fees is ultimately made in this case, and if the parties are unable to reach
an agreement by consultation as required by the rule, Defendant may move to
conduct discovery upon a showing of good cause. The discovery, at this point, is
simply not yet relevant. See Newman v. Union Pacific R. Co., No. 12-2518-JTMKGG, 2013 WL 1308977, at *1 (D. Kan. March 29, 2013). Defendant's motion is,
therefore, DENIED without prejudice as premature in regard to Request No. 52.
6.

Documents Plaintiff used to refresh his recollection.

Now that Plaintiff’s deposition has occurred, he is required to supplement
his response to Request No. 55, which seeks “documents reviewed by you to
refresh recollection in connection with any deposition of you to be taken in this
case.” (Doc. 125-1, at 20.) Defendant’s motion is GRANTED in regard to
Request No. 55.

IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
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Responses to Defendant’s First Interrogatories and First Requests for Production of
Documents from Plaintiff-Intervenor (Doc. 124) is GRANTED in part and
DENIED in part as more fully set forth herein.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 10th day of June, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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