Weichert v. E-Finance Call Center Support, LLC. et al
Filing
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MEMORANDUM AND ORDER granting 13 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 9/5/14. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARGARET WEICHERT,
)
)
Plaintiff,
)
)
E-FINANCE CALL CENTER SUPPORT, )
LLC, et al.,
)
)
Defendants.
)
___________________________________ )
Case No. 13-2493-KHV-KGG
MEMORANDUM & ORDER ON
PLAINTIFF’S MOTION TO COMPEL
The above-captioned matter is a workplace discrimination case filed by
Plaintiff alleging that she was treated unfavorably because of her race and gender.
She also alleges that her employment was terminated after she complained about
the alleged discrimination. (See Doc. 1.)
Before the Court is the Motion to Compel (Doc. 13) filed by Plaintiff,
requesting supplemental responses to certain of Plaintiff’s discovery requests as
well as additional information required pursuant to Fed.R.Civ.P. 26(a) initial
disclosures. Defendants have not filed a response to Plaintiff’s motion and the
time to do so has expired. D.Kan. Rule 6.1(d)(1). Plaintiff’s motion is
GRANTED as uncontested pursuant to D.Kan. Rule 7.4. Even so, the Court will
briefly address the substance of the requests at issue.
A.
Standards for Discovery.
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.” Courts of
this District have long held that “‘[d]iscovery 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).
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
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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
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
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interrogatory is objectionable.” Sonnino, 221 F.R.D. at 670–71 (internal citation
omitted).
B.
Discovery at Issue.
Within this framework, Defendants are ordered to provide the following
information:
1.
The last known addresses and telephone numbers of the individuals
identified in Defendants’ Rule 26(a) initial disclosures. (Doc. 13-1.)
2.
The identity of Defendants’ employees who complained about
discrimination or harassment from January 1, 2011, through
December 31, 2013. (Interrogatory No. 7, Doc. 13-2, at 3.)
Defendants’ response to this Interrogatory consists of unsupported
boilerplate objections which the Court would have been inclined to
overrule even had Defendants responded to Plaintiff’s motion.
Gheesling, 162 F.R.D. at 650.
3.
The requested information regarding employees hired, terminated,
and/or who worked within the areas of responsibility for Selena Smith
and/or Tramaine Smith from January 1, 2011, through December 31,
2013. (Interrogatories Nos. 8-11, Doc. 13-2, at 3-5.) Defendants’
response to these Interrogatories consist of unsupported boilerplate
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objections which the Court would have been inclined to overrule even
had Defendants responded to Plaintiff’s motion. Gheesling, 162
F.R.D. at 650.
4.
The requested information regarding charges or lawsuits filed against
Defendants alleging race and/or gender discrimination from January 1,
2011, through December 31, 2013. (Interrogatories Nos. 12-13, Doc.
13-2, at 5.) Defendants stated they would “identify all charges of
discrimination . . . which name Selena Smith and/or Tramaine Smith.”
(Id.) While these responses limited the substance of the
interrogatories, Defendants did not, however, object to the underlying
discovery requests. As such, any objections that could have been
raised are waived. Defendants are instructed to respond to the
Interrogatories in their entirety.
5.
Information regarding the value of “all employee benefits” for which
Plaintiff would have been eligible had his employment not been
terminated. (Interrogatory No. 18, Doc. 13-2, at 7.) Defendants stated
that Plaintiff’s compensation and benefits were at will “and could
have been changed at anytime at the discretion of management.” (Id.)
While this may be true, Defendants did not object to the underlying
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interrogatory. As such, any objections that could have been raised are
waived. Defendants are instructed to respond to the Interrogatory in
their entirety. In so doing, Defendants should base their response on
the compensation and benefits Plaintiff was receiving at the time of
her termination.
6.
The personnel files of Selena Smith and Tramaine Smith. (Requests
for Production Nos. 16, 17, Doc. 13-3, at 4-5.) Defendants stated the
information “[w]ill be produced.” (Id.) Defendants are instructed to
produce the information within the time frame set out by this Order.
7.
The personnel files of “anyone else employed as a New Business
Lead” by Defendants from January 1, 2011, through December 31,
2013. (Request for Production No. 30, Doc. 13-3, at 8.) Defendants’
response (“Objection. Relevancy.”) to this Request is merely a
conclusory, unsupported boilerplate objection which the Court would
have been inclined to overrule even had Defendants responded to
Plaintiff’s motion. Gheesling, 162 F.R.D. at 650. The Court notes,
however, that because this Request seeks information regarding
individuals who are not party to, or directly implicated in, this lawsuit,
Defendants are ordered to redact any and all confidential information
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such as Social Security numbers and insurance or medical
information.
8.
Emails between Selena Smith and Tramaine Smith, Jenny McElhenny,
and/or Naomi Davis from March 15, 2012 to May 15, 2012, as well as
emails between Tramaine Smith and Jenny McElhenny and/or Naomi
Davis. (Requests for Production Nos. 39-43, Doc. 13-3, at 10-11.)
Defendants’ response (“Objection. Relevancy.”) to these Requests are
merely conclusory, unsupported boilerplate objections which the
Court would have been inclined to overrule even had Defendants
responded to Plaintiff’s motion. Gheesling, 162 F.R.D. at 650.
9.
Copies of “[a]ny Separation Agreements that were offered to any
other employee during the period January 1, 2011 through December
31, 2013. (Request for Production No. 46, Doc. 13-3, at 10-11.) The
Court notes that because this Request seeks information regarding
individuals who are not party to, or directly implicated in, this lawsuit,
Defendants are ordered to redact any and all confidential information
such as Social Security numbers.
10.
Drafts and communications of documents Defendants “provided to the
EEOC in response to plaintiff’s charge of discrimination.” (Doc. 13,
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at 10; Requests for Production Nos. 50-52, Doc. 13-3, at 12.) In
response to the discovery requests, Defendants objected that the
documents would be produced “to the extent” they exist and are not
protected by the attorney-client privilege or work product doctrine.
(Doc. 13-3, at 12.) This Court has previously voiced its disapproval
for “conditional responses” in regard to discovery responses. (Doc.
71, at 7.) See Westlake v. BMO Harris Bank N.A., 2014 WL
1012669, *3 (D. Kan. March 17, 2014) (citing Sprint Comm'n Co.,
L.P. v. Comcast Cable Comm'n, LLC, Nos. 11–2684–JWL,
11–2685–JWL, 11–2686–JWL, 2014 WL 54544, *2, 3 (D.Kan. Feb.
11, 2014). The Court is in agreement with the Sprint decision that
found such conditional responses to be “invalid,” “unsustainable,” and
to “violate common sense.” 2014 WL 54544, *2, 3. All such
conditional responses are improper and Defendants are instructed to
provide supplemental responses without such language. As to any
documents withheld on the basis of the attorney-client privilege
and/or work product doctrine, the same shall be identified in a
privilege log. Defendants are directed to this Court’s prior decisions
of Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL
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1308890 (D. Kan. March 28, 2014) and Kear v. Kohl's Dept. Stores,
Inc., No. 12–1235–JAR–KGG, 2013 WL 3088922, *3 (D. Kan. June
18, 2013) for discussions as to what constitutes an adequate privilege
log providing sufficient information to allow the other party assess the
claimed to privilege.
11.
Copies of charges of retaliation, race discrimination, and/or sex
discrimination from January 1, 2010, to the present, within the areas
of responsibility of individuals identified in response to Plaintiff’s
Interrogatory No. 1. (Requests for Production Nos. 62-64, Doc. 13-3,
at 15.) Defendants’ response (“Objection. Relevancy.”) to these
Requests are merely conclusory, unsupported boilerplate objections
which the Court would have been inclined to overrule even had
Defendants responded to Plaintiff’s motion. Gheesling, 162 F.R.D. at
650.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
13) is GRANTED as more fully set forth above. Defendants are ORDERED to
provide supplemental discovery responses consistent with the terms of this Order
within thirty (30) days of the date of this Order.
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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 5th day of September, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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