Meyer v. Dollar General Corporation et al

Filing 46

ORDER granting in part and denying in part 39 defendant's motion to compel. Plaintiff shall supplement her discovery responses and produce all responsive documents by October 25, 2013. Signed by Magistrate Judge James P. O'Hara on 10/21/2013. (mb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TABBITHA MEYER,
Plaintiff,
v.

Case No. 13-2115-KHV

DG RETAIL LLC,
Defendant.
ORDER
The plaintiff, Tabbitha Meyer, a retail sales associate formerly employed by the
defendant, DG Retail LLC, brings this action alleging she was subjected to unlawful
discrimination in violation of 42 U.S.C. § 2000e et seq. Specifically, plaintiff alleges she
was discriminated against because of her pregnancy. Currently before the undersigned
U.S. Magistrate Judge, James P. O’Hara, is a motion to compel plaintiff to provide
complete answers to defendant’s first set of interrogatories and requests for production
(doc. 39). For the reasons discussed below, defendant’s motion is granted in part and
denied in part.
Defendant challenges the adequacy of plaintiff’s responses to Interrogatories Nos.
4, 6, 7, 17, and 19, and Requests for Production Nos. 3-6, 10, 11, 17, 20, 24, and 25.
Defendant served these written discovery requests on June 13, 2013. Plaintiff served her
objections and responses on July 16, 2013. On July 30, 2013, defendant sent plaintiff a
“golden rule letter,” outlining the deficiencies in plaintiff’s responses to its discovery

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requests. The parties conferred via telephone and e-mail but were unable to resolve the
dispute.
I.

Governing Legal Standards.
When a party files a motion to compel and asks the court to overrule objections,

the objecting party must specifically show in its response to the motion how each
discovery request is objectionable.1

Objections initially raised but not supported in

response to the motion to compel are deemed abandoned.2 However, if the discovery
requests appear facially objectionable in that they are overly broad or seek information
that does not appear relevant, the burden is on the movant to demonstrate how the
requests are not objectionable.3 The decision to grant a motion to compel is a matter of
discretion for the court.4
II.

Interrogatories.
A.

Interrogatory No. 4.

Interrogatory No. 4 asks plaintiff to identify any employee she contends was in a
comparable or similar situation to her, but whom she believes was treated in a more
favorable manner than she was treated during her employment with defendant due to her
gender or pregnancy, including but not limited to the “non-pregnant workers with other
1

Sonnino v. Univ. of Kan. Hosp. Auth., 221 F.R.D. 661, 670-71 (D. Kan. 2004).

2

In re Bank of Amer. Wage & Emp’t Practices Litig., 275 F.R.D. 534, 538 (D.
Kan. 2011).
3

Id.

4

G.D. v. Monarch Plastic Surgery, P.A., 239 F.R.D. 641, 644 (D. Kan. 2007)
(citing Martinez v. Schock Transfer & Warehouse Co., 789 F.2d 848, 850 (10th Cir.
1986)).
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medical conditions.” Plaintiff objected because the request “calls for a legal conclusion
from a witness,” and because it seeks information “which is not relevant to Ms. Meyer’s
prima facie case of discrimination in this Circuit.” However, plaintiff asserted, “Without
waiver, Ms. Meyer has served discovery requests on Defendant – who is in possession of
documents showing its treatment of nonpregnant employees who were similarly situated
in their ability to work.”
Defendant seeks to compel plaintiff to disclose any person that she believes to
have received more favorable treatment than her, or to indicate that she is unaware of any
such persons. Defendant asserts plaintiff’s counsel has already agreed to supplement this
interrogatory answer but to date has not done so. Plaintiff confirms that she agreed to
supplement her response, but states she has been unable to do so because the depositions
of key witnesses in this case have not been transcribed yet. Plaintiff does not support any
of her initial objections in her response; instead, she supplements her answer to
Interrogatory No. 4 and asks the court to overrule defendant’s request as to this response
as moot. Because plaintiff does not support her objections to this request, as earlier
indicated, the objections may be deemed abandoned. In the interest of justice, however,
the court will briefly address plaintiff’s objections.
Plaintiff first objects to Interrogatory No. 4 because it “calls for a legal conclusion
from a lay witness.” Generally, a request seeking material facts a party contends supports
its case would be considered a contention interrogatory.5 Fed. R. Civ. P. 33(c) expressly

5

G.D. v. Monarch Plastic Surgery, P.A., No. 06-2184, 2007 WL 201150, at *9 (D.
Kan. Jan. 22, 2007).
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recognizes and permits the use of contention interrogatories.6

It provides that “an

interrogatory otherwise proper is not necessarily objectionable because an answer to the
interrogatory involves an opinion or contention that related to fact or the application of
law to fact, …”7 In light of the foregoing, the court finds that this is not a proper
objection. Therefore, the court overrules plaintiff’s objection to Interrogatory No. 4 on
this first basis.
Plaintiff also objects to this request because “it seeks information which is not
relevant to Ms. Meyer’s prima facie case of discrimination in this Circuit.” This is a
frivolous objection.

Under Fed. R. Civ. P. 26(b)(1), discovery may be obtained

“regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
Relevancy is broadly construed for pretrial discovery purposes. “A party does not have
to prove a prima facie case to justify a request which appears reasonably calculated to
lead to the discovery of admissible evidence.”8 At least as a general proposition then,
“[a] request for discovery should be allowed unless it is clear that the information sought
can have no possible bearing on the claim or defense of that party.”9
When the discovery sought appears relevant, the party resisting discovery
has the burden to establish lack of relevance by demonstrating that the
requested discovery (1) does not come within the scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance
6

Id.

7

Id.

8

Mackey v. IBP, Inc., 167 F.R.D. 186, 193 (D. Kan. 1996).

9

Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001) (internal
quotations and citations omitted).
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that the potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.10
Plaintiff expressly injected this issue into the case.

In paragraph 22 of the

complaint, plaintiff alleges that defendant treated her “differently than non-pregnant
workers with other medical conditions.”11 It is therefore not surprising that defendant
now seeks to compel plaintiff to disclose any person she believes to have received more
favorable treatment, or to indicate that she is unaware of any such persons. Whether or
not this information is necessary to establish a prima facie case, it appears to be relevant
to the defense of plaintiff’s allegations in her complaint.
Because the discovery sought appears relevant on its face, it is plaintiff’s burden to
establish lack of relevance. Plaintiff fails to meet her burden. Plaintiff argues the
information requested is not relevant because the Tenth Circuit has held “comparison
evidence” is not necessary to establish a prima facie case of discrimination; rather, a
plaintiff only must show her position remained open and was filled by a non-pregnant
employee.12

However, discovery should be allowed unless “it is clear that the

information sought can have no possible bearing on the claim or defense of that party.”
As established above, defendant has shown that the requested discovery is relevant on its
face. Plaintiff did not meet her burden to show that the requested discovery is irrelevant
or is of such marginal relevance that the potential harm outweighs the ordinary
10

Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 670 (D. Kan. 2003)
(citations omitted).
11

Doc. 1 at 4.

12

Doc. 40-4 at 4.

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presumption in favor of broad disclosure. Accordingly, plaintiff’s relevancy objection is
overruled.
Plaintiff objects to this request but provides an answer subject to her objections.13
Plaintiff also directs defendant to documents in defendant’s possession.

Plaintiff’s

response is unclear and confusing. This is precisely the reason why objecting and
providing an answer subject to the objection is frowned upon by the courts. Plaintiff
failed to meet her burden to show her objections applied to this request. Plaintiff’s
attempt to supplement her answer to this request in her response to defendant’s motion is
insufficient. Therefore, plaintiff is ordered to supplement her answer in writing under
oath to directly address the question posed by defendant in Interrogatory No. 4 in
accordance with Rules 26 and 33 of the Federal Rules of Civil Procedure.
B.

Interrogatory No. 6.

Interrogatory No. 6 asks plaintiff to identify, for the five years before she began
her employment with defendant to the present, all employers and individuals for whom
she worked, the dates and title of each position she held, the job duties she performed,
compensation and benefits received, her direct supervisors, and the reasons for her
termination, if applicable. Plaintiff did not object to this request. Plaintiff responded that
she was a stay-at-home mother for five years before she began working for defendant.
Plaintiff asserted that she worked for L&M Marketing in Olathe, Kansas before she

13

See plaintiff’s response to Interrogatory No. 4 at Doc. 40-4: “Without waiver,
Ms. Meyer has served discovery requests on Defendant - - who is in possession of
documents showing its treatment of nonpregnant employees who were similarly situated
in their ability to work.”
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became a mother and before that, she was a media relations intern for the former Kansas
City Comets. Plaintiff referenced her resume and job application in her response but
failed to produce them to defendant.
Defendant asks that plaintiff fully answer this interrogatory by properly
identifying her employer, providing her complete earnings records, and producing her job
application(s), as referenced therein. Interrogatory No. 6 asks for plaintiff’s employment
information for the five years before she began her employment with defendant to the
present. Plaintiff answered that she was a stay-at-home mother for the five years before
she began working for defendant. Plaintiff volunteered additional information about her
work history prior to the time specified in defendant’s request.

Plaintiff omitted

information about where she worked between the time she worked for defendant to the
present. Therefore, plaintiff is ordered to fully answer this interrogatory. Plaintiff shall
articulate her full subsequent earnings, and ongoing mitigation efforts, if any.
C.

Interrogatory No. 7.

Interrogatory No. 7 asks plaintiff to identify any and all sources and amounts of
income, earnings, or monies that were given to her or earned by her, or that was
attributed to her by any other party in W-2 or 1099 forms, whether or not reported to the
Internal Revenue Service (“IRS”), for each calendar year from the last day she worked
for defendant to the present, and identify the amount of income that she reported to the
IRS for each reporting period. Plaintiff did not object to this request. Plaintiff identified
her employer starting in January 2013, her supervisor, her hourly pay rate, and the
amount of hours she worked per month for that employer. Plaintiff then stated that she
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was unemployed from January 2013 to April 2013. Plaintiff also identified her employer,
her supervisor, her hourly pay rate, and her job responsibilities from May 2013 to the
present. In addition, she enclosed her paycheck stub.
Defendant asks that plaintiff supplement her answer to provide the requested
information. In the alternative, defendant asserts that plaintiff may stipulate that she is
not seeking front or back pay after the date of her employment with her current employer,
starting on April 15, 2013. Defendant asserts that plaintiff’s counsel has agreed that
plaintiff would supplement this answer but to date she has not done so. Plaintiff responds
that she has already supplemented her response by providing a letter directly from her
current employer and a copy of her tax returns, which fully responds to this interrogatory.
It is still not clear that plaintiff has fully responded to the questions asked in
Interrogatory No. 7. Plaintiff is ordered to supplement her answer to Interrogatory No. 7
by fully and completely answering the questions posed. Alternatively, plaintiff may
stipulate that she is not seeking front or back pay after April 15, 2013.
D.

Interrogatory No. 17.

Interrogatory No. 17 asks plaintiff to identify any and all factors that affected her
availability to work during June 2012, including but not limited to her spouse’s work
schedule and child care options available to her. Plaintiff did not object but responded
that nothing out of the ordinary affected her availability to work other than her pregnancy
and related medical conditions. Plaintiff also referenced the investigative file of the
Equal Employment Opportunity Commission (“EEOC”).

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Defendant asks that plaintiff supplement her answer to identify if there were any
ordinary reasons why plaintiff’s availability was limited, including her husband’s work
schedule and childcare limitations. Plaintiff’s answer is vague at best. Plaintiff is
ordered to supplement her answer to directly answer the question posed in Interrogatory
No. 17 by identifying any and all reasons why plaintiff’s availability to work was limited
during June 2012, ordinary or not.
E.

Interrogatory No. 19.

Interrogatory No. 19 asks plaintiff to describe any and all efforts she has made to
seek other employment or other means of income since the last date she worked for
defendant. In so doing, defendant asks plaintiff to identify all companies or persons with
whom she has applied, inquired, or sought employment, including employment agencies
or other personnel placement services. In response, plaintiff did not object but directed
defendant to her response to Interrogatory No. 7 and the enclosed paycheck stub from her
current employer.
Defendant seeks to compel plaintiff to supplement her answer and to disclose
earnings to date and to fully answer this interrogatory. Defendant asserts that plaintiff
has only produced one paycheck stub from her current employer. In the alternative,
defendant states that plaintiff may stipulate that she is not seeking front or back pay after
April 15, 2013. Plaintiff responds that she has fully responded by producing all available
documents, including paycheck stubs, tax returns for 2011 and 2012, and letters from her
prior employers.

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Plaintiff is ordered to supplement her answer under oath in writing to fully and
completely answer the questions posed in Interrogatory No. 19, including all sub-parts.
In the alternative, plaintiff may stipulate in her amended response that she is not seeking
front or back pay after April 15, 2013.
III.

Requests for Production.
A.

Request No. 3.

Request No. 3 asks plaintiff to “produce any and all documents identifying and
evidencing: for whom you worked, where you worked; your job duties; compensation
earned; and each and every reason for your separation from each employer,” for the time
period during and/or subsequent to her employment with defendant. In response, plaintiff
did not object but asserted that “all such documents will be produced,” and directed
defendant to the enclosed paycheck stub from plaintiff’s current employer. Defendant
asserts that plaintiff’s counsel has agreed to supplement plaintiff’s production but to date
plaintiff has only produced a letter and one paystub. Plaintiff responds that she has
produced all available documents regarding her mitigation efforts.
Defendant seeks to compel plaintiff to supplement her production to produce all
paychecks, and any W-2’s or 1099’s, or other responsive documents. Plaintiff is ordered
to supplement her production and produce all responsive documents to Request No. 3 to
the extent she has not already done so.
B.

Request No. 4.

Request No. 4 asks plaintiff to execute and return a copy of an “Authorization for
Release of Employment Records” for each of her employers during and/or subsequent to
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her employment with defendant until the time of trial. Plaintiff objected to this request
because it is “improper under Rule 34, which contains no provision requiring a party to
sign a release or authorization to obtain documents directly from a non-party.”
Defendant asserts that the requested records are relevant to plaintiff’s mitigation
obligations and asks the court to overrule plaintiff’s objections and compel plaintiff to
produce responsive documents. Plaintiff responds that Rule 45 of the Federal Rules of
Civil Procedure is the proper method to obtain such records held by third parties.
Practically, the court is inclined to agree with defendant — surely the most
efficient way for both parties to proceed here would be for plaintiff to execute a
reasonably tailored authorization form. But technically, the court agrees with plaintiff.
The appropriate procedure to compel a non-party to produce documents is to serve a
subpoena as set forth in Rule 45.14 Defendant asserts that it has subpoenaed plaintiff’s
employment records but has not received them yet.

Defendant seeks to reserve its

request to compel plaintiff to produce these records or sign an authorization for release of
the records. However, it is only after the entities or individuals object on grounds of
privilege or otherwise fail to produce the documents pursuant to subpoena that the court
will consider a motion requesting: (1) the court compel the entity to produce the
documents pursuant to Rule 45; or (2) compel the party to execute appropriate releases
pursuant to the court’s general powers to enforce its own orders.15 Defendant’s request,

14

E.E.O.C. v. Thorman & Wright Corp., 243 F.R.D. 426, 429 (D. Kan. 2007)
(citing DirecTV, Inc. v. Hess, No. 04-2233, 2005 WL 375668, at *1 (D. Kan. 2004)).
15

Id.

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while understandable and reasonable, still is premature. Under the specific circumstances
presented, there appears to be no basis under Rule 34 to allow this court to compel
plaintiff to sign the release form as requested. Therefore, defendant’s request is denied.
C.

Request No. 5

Request No. 5 asks plaintiff to produce all documents that relate to her claim for
damages in this case, including but not limited to: 1) paycheck stubs from defendant and
subsequent employers; 2) documents that evidence any loss incurred by plaintiff for
which she seeks recovery in this litigation; and 3) documents that support her claim for
punitive damages or attorneys’ fees. Plaintiff did not object to this request but responded
that all such documents will be produced.
Defendant asserts that it has only received one paystub from plaintiff.
Additionally, defendant asserts that plaintiff agreed to supplement her production but to
date has not done so. Plaintiff responds that she has no other available documents
regarding her damages and asks that the court overrule defendant’s motion regarding this
request.
Plaintiff’s response still appears to be deficient. Plaintiff is ordered to supplement
her production to produce all responsive documents to Request No. 5.
D.

Request No. 6.

Request No. 6 asks for “all documents and/or files retained by, or taken by, you
from Defendant.” Plaintiff did not object but responded that all such documents will be
produced. Plaintiff also directed defendant to work schedules and a copy of the EEOC’s
investigative file, which she claims were previously produced.
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Defendant asserts that plaintiff has produced incomplete sets of store schedules
and points to plaintiff’s deposition testimony where she claimed to have at least one
additional page of store schedules that she has not produced.16 Defendant seeks to have
plaintiff produce any other pages from the schedules that plaintiff has in her possession,
or state that she cannot do so. Additionally, defendant seeks to have plaintiff produce
other responsive documents in her possession or indicate that there are none. Plaintiff is
ordered to supplement her response and produce all responsive documents to Request No.
6. If plaintiff does not have responsive documents, she shall state so in her amended
response.
E.

Request Nos. 10, 11, 17, 20, and 25.

Request Nos. 10, 11, 17, 20, and 25 ask plaintiff to produce documents regarding
her mitigation efforts to date, including plaintiff’s paycheck stubs. Plaintiff did not
object to any of these requests. Defendant asserts that plaintiff testified during her
deposition that she found her current job through a posting on Facebook; however,
plaintiff has not produced the posting. Defendant asks that plaintiff be compelled to
produce the Facebook posting and supplement her responses to provide additional
responsive documents, including, but not limited to, all paystubs. Plaintiff is ordered to
supplement her responses to Request Nos. 10, 11, 17, 20, and 25 and produce all
responsive documents in her possession, custody, or control, including the Facebook job
posting and all paystubs. Additionally, plaintiff shall certify in her response that she has

16

See Doc. 40, Exh. G.

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properly searched her Facebook account.

If plaintiff does not have responsive

documents, she shall state so in her amended response.
F.

Request No. 24.

Request No. 24 asks plaintiff to produce all income tax returns and documentation
submitted to the IRS for tax years 2011 through the date of trial. In addition, defendant
asks that plaintiff execute and return a copy of the attached “Tax Information
Authorization.” Plaintiff objected to this request as an invasion of privacy. Plaintiff also
objected to this request as improper under Rule 34, which plaintiff asserts has no
provision requiring a party to sign a release or authorization to obtain documents directly
from a non-party. Plaintiff did not support her objections in her response; therefore, they
may be deemed abandoned.

Nonetheless, the court will briefly address plaintiff’s

objections to this request.
Despite plaintiff’s objections to this request, plaintiff has provided her tax returns
for calendar years 2011 and 2012. However, plaintiff did not produce her supporting W2 or 1099 forms, as requested. Defendant asks the court to compel plaintiff to produce
supporting earning records related to her tax returns. Without that information, defendant
asserts that it is impossible to ascertain what amount of income is attributable to
plaintiff’s earnings.

Defendant asserts that plaintiff has agreed to supplement her

document production to this request but to date has not done so. Plaintiff responds that
she has already produced copies of her W-2 forms, but she is willing to produce an
additional copy. In addition, plaintiff responds that she has not received a W-2 from the
YMCA but she will promptly forward it to defense counsel after she receives it.
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Generally, courts do not favor compelling production of tax returns, but no
absolute privilege exists preventing their discovery.17 The District of Kansas has a twopronged test to assure a balance between the liberal scope of discovery and the policy
favoring the confidentiality of tax returns.18 “First, the court must find that the returns
are relevant to the subject matter of the action. Second, the court must find that there is a
compelling need for the returns because the information contained therein is not
otherwise readily obtainable.”19

“The party seeking production has the burden of

showing relevancy, and once that burden is met, the burden shifts to the party opposing
production to show that other sources exist from which the information is readily
obtainable.”20
To the extent the supporting tax return forms reveal plaintiff’s income, defendant
has satisfied the first prong of the test by showing plaintiff’s return is relevant to the issue
of damages. Plaintiff claims economic losses. Plaintiff is seeking back and front pay.
Plaintiff has put her income at issue.
As to the second prong of the test, the court finds that plaintiff has failed to
provide sufficient evidence to establish that the information found in the returns is readily
available from other sources.

Therefore, the court will order plaintiff to produce

supporting tax return forms consistent with Request No. 24.
17

Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 539 (D. Kan. 2006) (citing
Hilt v. SFC, Inc., 170 F.R.D. 182, 188-89 (D. Kan. 1997)).
18

Id. (citing Hilt, 170 F.R.D. at 189).

19

Id.

20

Id.

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The court notes that an agreed protective order has already been submitted by the
parties and approved by the court.21

The protective order limits the disclosure of

confidential materials to the general public, which includes “tax information … related to
the litigants,” “personal and job-related employee information,” and “financial …
information that is confidential.” Any privacy concerns plaintiff has should be relieved
by the entered protective order so long as plaintiff designates the responsive documents
as confidential. In consideration of the foregoing, plaintiff’s objection to this request as
an invasion of privacy is overruled and plaintiff is ordered to produce all responsive
documents in her possession, custody, or control.
The court will deny, however, that portion of the motion to compel requesting
plaintiff to execute a release allowing defendant to obtain plaintiff’s tax records from
third parties. As earlier indicated, technically, the appropriate procedure to compel nonparties to produce documents is to serve them a subpoena as set forth in Rule 45 of the
Federal Rules of Civil Procedure.22 Defendant did not indicate that it has subpoenaed
plaintiff’s tax returns from a third-party. It is only after the individuals or entities object
on grounds of privilege or otherwise fail to produce the documents pursuant to subpoena
that the court will consider a motion requesting: (1) the court compel the entity to
produce the documents pursuant to Rule 45; or (2) compel the party to execute
appropriate releases pursuant to the court’s general powers to enforce its own orders.

21

See doc. 18.

22

E.E.O.C., 243 F.R.D. at 429.

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Accordingly, the court denies defendant’s request to order plaintiff to sign an
authorization to release her tax returns.
IT IS THEREFORE ORDERED that defendant’s motion to compel (doc. 39) is
granted in part and denied in part.

In light of the approaching October 29, 2013

discovery deadline, plaintiff shall supplement her interrogatory and request for
production answers and produce all responsive documents by October 25, 2013. The
parties shall bear their own expenses and attorneys’ fees incurred in connection with this
motion.
IT IS SO ORDERED.
Dated October 21, 2013 at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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