Konecny v. BNSF Railway Company
Filing
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MEMORANDUM AND ORDER granting in part and denying in part 17 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/20/14. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAWRENCE H. KONECNY,
)
)
Plaintiff,
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)
vs.
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BNSF RAILWAY COMPANY,
)
)
Defendants. )
______________________________ )
Case No. 13-2369-KHV-KGG
MEMORANDUM & ORDER
Now before the Court is Plaintiff’s Motion to Compel. (Doc. 17.) Having
reviewed the submissions of the parties, the Court GRANTS in part and DENIES
in part Plaintiff’s motion.
BACKGROUND
This is an employment discrimination claim brought pursuant to Title VII o
the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment
Act of 1967 (“ADEA”), and 42. U.S.C. §1981. (Doc. 1.) Plaintiff contends that he
was removed from his position as Senior Manager, Training & Technical
Support because of his age, race, and sex in violation of these federal statutes.
Further, he contends that the reason given – that “he supposedly had been
dishonest by failing to disclose his adult daughter’s relationship with William
Maintz, who was hired in early 2012 to work in a position that reported to
[Plaintiff]” – is pretextual. (Doc. 17, at 2-3.) Plaintiff contends that he disclosed
that his daughter was “a very close friend” of Mr. Maintz prior to Maintz being
hired and that he “was recused from Mr. Maintz’ interview” as a result. (Id.)
Plaintiff’s daughter and Maintz were ultimately married, which Plaintiff contends
he “promptly disclosed . . . pursuant to [Defendant’s] Code of Conduct reporting
process and . . . to HR Director Tamala Cleaver.” (Id., at 3.) Ms. Cleaver
subsequently “launched an ‘investigation’ into [Plaintiff’s] ‘honesty,’” which lead
to his removal from the management position he held. (Id.)
DISCUSSION
A.
Standards for Motions to Compel.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . . 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 relevant and nonprivileged to be discoverable.
“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
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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
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).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the
proponent has failed to specify how the information is relevant, the Court will not
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require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D.
649 (D.Kan.1995). Even so, courts look “with disfavor on conclusory or
boilerplate objections that discovery requests are irrelevant, immaterial, unduly
burdensome, or overly broad.” Id., 650.
“Unless a request is overly broad, irrelevant, or unduly burdensome on its
face, the party asserting the objection has the duty to support its objections.”
Sonnino v. University of Kansas Hosp. Authority, 221 F.R.D. 661, n. 36
(D.Kan.2004) (citing Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 670
(D.Kan. 2003)); Cont’l Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136
F.R.D. 682, 685 (D. Kan. 1991) (stating that a party resisting a discovery request
based on relevancy grounds bears the burden of explaining how “each discovery
request is irrelevant, not reasonably calculated to the discovery of admissible
evidence, or burdensome”). Thus, “the objecting party must specifically show in
its response to the motion to compel, despite the broad and liberal construction
afforded by the federal discovery rules, how each request for production or
interrogatory is objectionable.” Sonnino, 221 F.R.D. at 670–71 (internal citation
omitted).
B.
Discovery Requests at Issue.
1.
Interrogatories Nos. 11-12 and Requests Nos. 28-29.
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Interrogatories Nos. 11 and 12 seek the identification of all charges of
discrimination, lawsuits, or arbitration proceedings filed against defendant that
include a claim of race or age discrimination, “within the areas of responsibility of
any of the individuals identified in response to Interrogatory No. 1.”1 (Doc. 17-1,
at 6-7.) Requests for Production Nos. 28 and 29 seek miscellaneous personnel
information regarding such individuals. (Doc. 17-2, at 10-11.) Defendant objects
that the interrogatories are “overly broad, unduly burdensome and not calculated to
lead to the discovery of relevant evidence to the extent [the requests] essentially
seek[s] company-wide information regarding individuals who are not similarly
situated to plaintiff or who are raising allegations distinct from those raised by
plaintiff in this case.”2 (Doc. 17-1, at 6-7.)
The Court finds Defendant’s objections regarding the “company-wide”
nature of the discovery requests to be unpersuasive. Plaintiff has limited the
context of his requests to the areas of responsibility for the individuals who were
chosen by Defendant to be the decision-makers. For Defendant to now complain
1
Interrogatory No. 1 requested the identities of the persons “who participated in
the decision to terminate plaintiff’s employment . . . .” (Doc. 17-1, at 1.)
2
Defendant raises additional objections in response to the document requests, but
does not address them in its briefing. As such, those objections are waived. Paolucci v.
Render Kamas Law Firm, No. 12-1253-MLB-KGG, 2013 WL 3189082, *1 (D. Kan.
June 21, 2013).
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that these individuals’ areas of responsibility are too vast is disingenuous,
particularly given Defendant’s admission that the decision regarding Plaintiff’s
employment was a “‘collective’ decision” by these individuals. (Doc. 25, at 5.)
Plaintiff’s motion is GRANTED in regard to Interrogatories Nos. 11-12 and
Requests Nos. 28-29.
2.
Request for Production Nos. 16-18.
These document requests seek email between Tamala Cleaver, Ruth Huning,
and Scott Shafer. (Doc. 17-2, at 6-7.) Ms. Cleaver’s involvement is discussed
above. According to Plaintiff, Mr. Shafer was Plaintiff’s supervisor and Ms.
Huning is “an HR representative who was involved in the hiring of Mr. Maintz and
who relayed Ms. Cleaver’s ‘justification directive’ to [Plaintiff].” (Doc. 17, at 5.)
In the underlying discovery response, Defendant objects that the requests call for
documents protected by the attorney-client privilege and the attorney work product
doctrine. (Doc. 17-2, at 6-7.) Defendant also objects that the requests are “overly
broad and unduly burdensome in that [the requests] would encompass everyday
business communication of no relevance to this lawsuit.” (Id.) In response to
Plaintiff’s motion, Defendant has “agreed to provide all non-privileged e-mails
between Huning, Cleaver and Schaefer regarding plaintiff and the investigation
into his inappropriate behavior.” (Doc. 25, at 7.)
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As stated above, Defendant has “must specifically show in its response to
the motion to compel, despite the broad and liberal construction afforded by the
federal discovery rules, how each [discovery request] is objectionable.” Sonnino,
221 F.R.D. at 670-71 (D.Kan.2004) (internal citation omitted). Defendant has
made no effort to describe how providing all of the requested emails would be
unduly burdensome. This objection is overruled.
Defendant has, however, established that the information implicated would
be overly broad as these individuals “communicated . . . about virtually every
human resources related matter at the [Technical Training Center]” where Plaintiff
worked. (Doc. 25, at 6.) Obviously, a significant portion of this material would
have no relation to Plaintiff or his claims. Plaintiff contends that this additional
information will shed light on topics such as “the relative seriousness and singlemindedness (or lack thereof) with which other situations were handled; Ms.
Cleaver’s behind-the [sic] scenes control of personnel decisions; and . . . the nature
of the relationships between these key witnesses (were they friendly, strictly
professional, hostile, argumentative?).” (Doc. 17, at 5.)
Plaintiff also argues that email “regarding other matters and dealings”
between these three individuals “are very relevant because they will provide a
point of reference to determine whether there was anything unusual about the
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handling of Mr. Maintz’s hiring and the investigation of Mr. Konecny.” (Doc. 26,
at 3 (emphasis in original).) Despite Plaintiff’s arguments, the Court finds the
relevance of all email between these three individuals to Plaintiff’s claims to be
tenuous at best. Plaintiff should be able to glean relevant information from nonprivileged a) email regarding or referencing Plaintiff, his employment, and his
removal from the management position; b) email regarding or referencing Mr.
Maintz (including, but not limited to, his interview process, selection, hiring, and
job performance); c) email regarding or referencing the individual hired to replace
Plaintiff (including, but not limited to, the interview process, selection, hiring,
and/or job performance of this individual); d) email regarding or referencing any
and all individuals considered and/or interviewed as Plaintiff’s replacement; and e)
email regarding other management-level employees who have made complaints of
sex, age, and/or race discrimination. Plaintiff’s motion is, therefore, GRANTED
in part and DENIED in part in regard to Requests Nos. 16-18.
3.
Request for Production No. 24.
This document request seeks various categories of information regarding the
individual who replaced Plaintiff. Defendant responded to Plaintiff’s motion that it
“objected to producing the requested documents because plaintiff was not removed
from his management position due to performance issues; rather, he was removed
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due to dishonesty in his handling of the events leading up to the hiring of his
daughter’s boyfriend, who later became plaintiff’s son-in-law.” (Doc. 25, at 7.)
Defendant also objects in its response brief that the request is overly broad and
seeks irrelevant information. In reality, however, Plaintiff did not raise these
objections in the underlying discovery response to Request No. 24. Rather,
Defendant objected that the request calls for documents protected by the attorneyclient privilege and the attorney work product doctrine, that the request is “vague
and ambiguous” as to the use of the terms “coaching or counseling” and
“termination,” and that the request constitutes “an undue invasion of the privacy of
individuals who are not parties to this lawsuit.” (Doc. 17-2, at 8.) Because
Plaintiff did not raise the objections contained in its responsive brief when it
responded to the underlying discovery requests, the objections have been waived.
Paolucci, 2013 WL 3189082, at *1. Plaintiff’s motion is, therefore, GRANTED
in regard to Request No. 24.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
17) is GRANTED in part and DENIED in part as more fully set forth herein.
The documents to be produced by Defendant in compliance with this Order shall
be provided to Plaintiff’s counsel within 30 (thirty) days of the date of this
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Order.
Dated at Wichita, Kansas, on this 20th day of June, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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