Mann v. Con-Way Freight, Inc.

Filing 137

ORDER granting in part and denying in part #98 Motion to Compel; granting in part and denying in part #107 Motion to Compel. Signed by Magistrate Judge James P. O'Hara on 7/19/2017. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY MANN, DANA MOYE,
and KATINA MCGEE,
Plaintiffs,
v.
XPO LOGISTICS FREIGHT, INC.,
f/k/a CON-WAY TRANSPORTATION
SERVICES, INC.,
f/k/a CON-WAY FREIGHT INC.,
Defendant.

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Case No. 16-2196-CM

ORDER
Plaintiffs are truck drivers who bring this employment-discrimination suit against their
former employer, defendant XPO Logistics Freight, Inc., alleging they were subject to
discrimination, harassment, and retaliation because of their race, age, and/or sex. A number
of discovery disputes have arisen between the parties, some of which are now before the
court. Defendant has filed a motion to compel plaintiffs Anthony Mann and Dana Moye to
fully respond to defendant’s second request for production of documents (ECF No. 98).
Plaintiffs have filed a motion to compel defendant to fully respond to each plaintiff’s opening
interrogatories and first requests for production of documents (ECF No. 107). For the
reasons discussed below, each motion is granted in part and denied in part.

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I.

Factual Background
Mann, Moye, and the third plaintiff, Katina McGee, were each employed at

defendant’s Kansas City, Kansas facility as a “driver sales representative” (“DSR”). Mann,
an African-American male, was terminated in June 2015, after about six years of
employment. He alleges that during his time at XPO, Caucasian employees were given
preferential treatment and assignments, and opportunities to advance that were not given
minority DSRs. He further alleges DSR supervisors called minority DSRs derogatory names.
Mann states the supervisors engaged in a pattern and practice of racial discrimination, and
that defendant fostered a hostile work environment. Mann asserts he was terminated for
making numerous internal complaints about XPO’s racial discrimination and unfair
employment practices.
Moye is an African-American male, over the age of fifty, who was employed by
defendant for nearly nineteen years until he was terminated in April 2016. Moye alleges he
was subjected to years of racial harassment by other DSRs and that defendant took no action
when he complained. Like Mann, Moye alleges Caucasian DSR’s were given preferential
treatment, assignments, and opportunities to advance, and that defendant’s representatives
engaged in a pattern and practice of intentional racial discrimination and harassment. Moye
also alleges he was harassed and not given job opportunities because of his age. Moye
contends defendant terminated him in retaliation for his complaints of racial and age-based
discrimination and harassment.

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McGee is an African-American female who worked for defendant for two-and-a-half
years until she was terminated in April 2016. She alleges racial discrimination, harassment,
and retaliation, as well as a pattern and practice of such, by defendant, all along the same
lines as alleged by Mann and Moye. In addition, she alleges she was harassed and treated
unfairly because of her sex. McGee asserts defendant fostered a hostile and abusive work
environment. McGee contends defendant terminated her in retaliation for her complaints of
racial and sexual discrimination and harassment.
II.

Legal Standards
Fed. R. Civ. P. 26(b)(1) allows parties to “obtain discovery regarding any

non-privileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.”1 Relevance, at the discovery stage, is broadly construed.2 “[A]ny matter
that bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case” will be deemed relevant.3 Proportionality is to be determined by

1

Fed. R. Civ. P. 26(b)(1) (emphasis added).

2

See Erickson, Kernell, Deruseau, & Kleypas v. Sprint Sols., Inc., No. 16-mc-212JWL-GEB, 2016 WL 3685224, at *4 (D. Kan. July 12, 2016).
3

Rowan v. Sunflower Elec. Power Corp., No. 15-9227-JWL-TJJ, 2016 WL 3745680,
at *2 (D. Kan. July 13, 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978) and ruling the Oppenheimer standard still relevant after the 2015 amendment to
Rule 26(b)(1)). See also Waters v. Union Pac. R.R. Co., No. 15-1287-EFM-KGG, 2016 WL
3405173, at *1 (D. Kan. June 21, 2016) (“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.”
(internal quotations and citation omitted)).
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considering, to the extent applicable, the following six factors: (1) the importance of the
issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to
relevant information, (4) the parties’ resources, (5) the importance of the discovery in
resolving the issues, and (6) whether the burden or expense of the proposed discovery
outweighs its likely benefit.4
Fed. R. Civ. P. 37(a) permits parties to “move for an order compelling disclosure or
discovery.” The burden is generally placed on the party resisting discovery to demonstrate
that the discovery should not be had.5 “If the motion is granted—or if the disclosure or
requested discovery is provided after the motion was filed—the court must, after giving an
opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to
pay the movant’s reasonable expenses incurred in making the motion, including attorney’s
fees,” unless the court finds the opposing party’s nondisclosure, response, or objection was
“substantially justified” or that “other circumstances make an award of expenses unjust.”6
“A nondisclosure, response, or objection is ‘substantially justified’ if it is ‘justified to a

4

Fed. R. Civ. P. 26(b)(1).

5

See, e.g., Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 211
(D. Kan. 2002) (“When the discovery sought appears relevant, the party resisting the
discovery has the burden to establish the lack of relevance. . . .”).
6

Fed. R. Civ. P. 37(a)(5)(A).

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degree that could satisfy a reasonable person’ or where ‘reasonable people could differ as to
the appropriateness’ of the nondisclosure, response, or objection.”7
III.

Defendant’s Motion to Compel (ECF No. 98)
Defendant’s motion to compel asks the court to mandate plaintiffs’ responses to three

document requests.
Requests Directed to Moye. Two of the requests were directed to Moye: Request No.
19 sought documents related to Moye’s income subsequent to his employment with
defendant, and Request No. 22 sought Moye’s medical records evidencing the physical,
mental, or emotional harm he allegedly suffered as a result of defendant’s actions. The
motion noted that, as late as April 14, 2017, Moye had promised to produce the responsive
documents as soon as he received them from his accountant and medical providers,
respectively. Nevertheless, defendant included Request Nos. 19 and 22 in its motion filed
on May 8, 2017. On May 18, 2017, Moye produced his responsive financial and medical
records. Defendant’s reply brief states defendant “accepts” that Moye has now fully
responded to Request Nos. 19 and 22.8 The motion to compel therefore is denied as moot
with regard to these two requests.

7

Linnebur v. United Tel. Ass’n, No. 10-1379-RDR, 2012 WL 1183073, at *1 (D. Kan.
Apr. 9, 2012) (internal citations omitted); see also Hamner v. Assoc. Wholesale Grocers,
Inc., No. 07-2314-KHV-DJW, 2008 WL 917900, at *2 (D. Kan. March 31, 2008) (internal
citations omitted).
8

ECF No. 108 at 2 n.3.

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Request Directed to Mann. The third document request discussed in the motion
remains at issue. Request No. 18 was directed to Mann and sought his e-mails, text
messages, and phone-usage records for May 17, 2015, through June 17, 2015 (i.e., the month
preceding his termination). One of the reasons given by defendant for terminating Mann was
Mann’s use of his cellphone during work hours. Mann’s response to Request No. 18 asserted
objections, but then stated, “These documents were already produced on December 10,
2016.”9 It is undisputed Mann produced four pages of e-mails from the time frames June 14, 2015, and June 16-17, 2015.
In an April 3, 2017 meet-and-confer discussion, Mann agreed to produce additional
documents. On April 21, 2017, defendant provided Mann a log of the time he was clockedin during the one-month period, and asked Mann to produce the additional responsive
documents by April 28, 2017. Mann did not produce additional responsive documents before
defendant filed its motion on May 8, 2017. During a telephone conference between counsel
on May 19, 2017, plaintiffs’ counsel informed defense counsel that Mann’s cellphone
account is controlled by Mann’s estranged wife, and that Mann had tried to retrieve the
requested documents from her but was unsuccessful. The parties agreed defendant would
issue a subpoena to Mann’s wife to obtain the records.
In defendant’s June 5, 2017 reply brief, defendant recognizes the issuance of the
subpoena, but asserts Mann has not addressed his “lack of production regarding the

9

ECF No. 98-2.

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documents sought in Request No. 18 that are in his own possession, such as emails, text
messages, and phone call logs which are retrievable from the phone itself.”10 Accordingly,
to the extent it is within Mann’s control to retrieve responsive documents via the cellphone
in his possession, the motion to compel is granted.11
Fees and Costs. Defendant seeks its fees and costs incurred in bringing the motion
to compel under Fed. R. Civ. P. 37(a)(5)(A). The court is satisfied, however, that plaintiffs’
delayed production of documents was substantially justified given the circumstances
discussed above.12 Although, of course, there are times when it becomes necessary for a
party to move to compel production when an opposing party continuously delays producing
discovery it has promised to provide, the situation here was different. Here, plaintiffs were

10

ECF No. 108 at 2.

11

In a document titled “defendant’s notice of supplemental authority” (ECF doc. 109),
filed after briefing had concluded on this motion and without leave of court, defendant
suggests, “Mann may be directed by the Court to obtain responsive email messages directly
from the email service providers or, alternatively, execute a consent for such messages to be
subpoenaed from the email service providers, should Plaintiff Mann no longer have them in
his possession.” Defendant, however, never sought this form of relief in its motion to
compel, and the court can find no indication in the record that defense counsel discussed this
possibility with plaintiffs’ counsel pursuant to D. Kan. Rule 37.2. While obtaining e-mail
messages directly from Mann’s e-mail service providers might be a viable option (assuming,
of course, Mann believes e-mails exist in addition to the four pages already produced), the
court will not order it on the state of the current record.
12

Linnebur, 2012 WL 1183073, at *1 (“A nondisclosure, response, or objection is
‘substantially justified’ if it is ‘justified to a degree that could satisfy a reasonable person’
or where ‘reasonable people could differ as to the appropriateness’ of the nondisclosure,
response, or objection.”).

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actively attempting to obtain responsive documents and the parties’ were openly and
regularly communicating about plaintiffs’ outstanding discovery.13 Defendant’s request for
fees and costs therefore is denied.
IV.

Plaintiffs’ Motion to Compel (ECF No. 107)
Plaintiffs’ motion to compel is a bit hard to follow, as it first lists numerous individual

interrogatories and requests for production of documents at issue, and then separately puts
forth plaintiffs’ legal arguments, but does not indicate which legal arguments correspond to
which specified requests/interrogatories, or whether those legal arguments apply beyond or
in addition to the specified requests/interrogatories. Defendant’s response is of little more
help, as it does not include a single citation to legal authority. Moreover, though defendant
made certain objections in its responses to plaintiffs’ discovery requests, some of which
likely would have been upheld, they are deemed abandoned where defendant did not reassert
them in response to the motion to compel.14

13

See ECF Nos. 98-5 and 98-6.

14

See Kannaday v. Ball, 292 F.R.D. 640, 644 (D. Kan. 2013) (ruling “objections
initially raised but not supported in the objecting party’s response to the motion to compel
are deemed abandoned”); Cardenas v. Dorel Juvenile Grp., 230 F.R.D. 611, 615 (D. Kan.
2005) (“When ruling upon a motion to compel, the Court will consider only those objections
that have been (1) timely asserted, and (2) relied up in response to the motion to compel.
Objections initially raised but not relied upon in response to the motion to compel will be
deemed abandoned.”); Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 656 (D. Kan.
2004) (“[A] court will consider only those objections that have been timely asserted in the
initial response to the discovery request and subsequently reasserted and relied upon in
response to the motion to compel.”).

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Signature of Person Answering Interrogatories. Plaintiffs’ object that defendant’s
interrogatory responses are not “signed under oath by the person(s) making the answers as
required by [Fed. R. Civ. P.] 33.”15 The Tenth Circuit has held that when an answering party
is a corporation, it is “entirely acceptable” for the party’s attorney to swear to the accuracy
of the interrogatory answers.16 Here, defendant’s attorney signed each set of answers, but
his signatures were not accompanied by his verification or affidavit attesting to the accuracy
of the answers. Defendant is therefore ordered to provide an affidavit, by its attorney or
other authorized representative, signed under oath and attesting to the accuracy of the
answers.17
Contention Interrogatories. A number of plaintiffs’ interrogatories ask defendant to
identify the facts, documents, and witnesses that support its asserted defenses.18 Such socalled “contention interrogatories” are permitted by Fed. R. Civ. P. 33(a)(2).19 Defendant

15

ECF No. 107 at 4.

16

Rea v. Wichita Mortg. Corp., 747 F.2d 567, 574 n.6 (10th Cir. 1984).

17

See Unified Sch. Dist. 467 v. Gray Architects, LLC, No. 14-1025-KHV, 2016 WL
2727281, at *4 (D. Kan. May 6, 2016) (granting motion to compel responses to
interrogatories and requiring supplemental responses to “be verified under oath by an
authorized representative of [the corporate defendant], as required by Rule 33”).
18

ECF No. 107-2: Mann’s Opening Interrogatory Nos. 19–24, Moye’s Opening
Interrogatory Nos. 9–24, and McGee’s Opening Interrogatory Nos. 9–25.
19

See Lykins v. Certain Teed Corp., No. 11-2133-JTM, 2012 WL 3578911, at *8 (D.
Kan. Aug. 17, 2012).

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answered these interrogatories, in large part, by referring plaintiffs to specific bates-stamped
documents.20 Plaintiffs’ motion objects to this practice, arguing,
[T]he defendant failed and still refuses to identify any principal or material
facts, witnesses, or documentation for its defenses. The documentation that
defendant produced also are not, “in sufficient detail to enable the
interrogating party to locate and identify them as readily as the responding
party could.” Rule 33(d).21
Defendant’s response to the motion did not address this argument or otherwise offer support
for its responses to the contention interrogatories.22
Rule 33 gives parties responding to interrogatories the option, in some circumstances,
of producing business records as a method of answering an interrogatory. Specifically, “[i]f
the answer to an interrogatory may be determined by” reviewing business records, “and if the
burden of deriving or ascertaining the answer will be substantially the same for either party,
the responding party may answer by specifying the records that must be reviewed.”23 This
court has recognized, however, that “the option to produce business records would rarely
constitute an appropriate response for contention interrogatories because contention

20

ECF No. 107-2: Mann’s Opening Interrogatory Nos. 19–24, Moye’s Opening
Interrogatory Nos. 9–24, and McGee’s Opening Interrogatory Nos. 9–25.
21

ECF No. 107 at 8-9.

22

To the extent defendant occasionally asserted an objection to one of these
interrogatories as premature, presumably under Rule 33(a)(2), defendant waived that
argument by not re-asserting it in response to the motion to compel.
23

Fed. R. Civ. P. 33(d).

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interrogatories, by their very nature, seek information regarding a party’s opinion or
contention. It is difficult to see how business records would provide this information.”24
Defendant does not address this caselaw. Accordingly, and in the absence of any explanation
from defendant as to how the documents cited in each response to a contention interrogatory
fully answer that interrogatory, the motion is granted in this regard and defendant is ordered
to supplement its responses to contention interrogatories with written responses.
Identity of Person “Assisting” Defendant in Answering Interrogatories. Mann’s
Interrogatory No. 2, Moye’s Interrogatory No. 1, and McGee’s Interrogatory No. 1 asked
defendant to “[i]dentify each person who assisted you in answering these interrogatories.”25
Defendant identified its counsel in response to each. Plaintiffs argue this “response is
evasive, as it does not identify each person who provided information in answering the
interrogatories.”26 The court rejects this argument. Defendant answered the question asked.
24

Unified Sch. Dist. 467, 2016 WL 2727281, at *2; see also S.E.C. v. Kovzan, No. 112017-JWL, 2012 WL 3111729, at *2 (D. Kan. July 31, 2012) (“The option to produce
business records would not often completely satisfy a contention interrogatory because
contention interrogatories by their very nature seek information about the responding party’s
opinion or contention with regard to the facts or application of the law to the facts. It is
difficult to see how business records could adequately answer this inquiry.”), partially
overturned on other grounds, 2012 WL 4819011 (D. Kan. Oct. 10, 2012); Heartland Surgical
Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB, 2007 WL 2668742, at *8 (D.
Kan. Sept. 6, 2007) (“Nor can Heartland simply ‘incorporate’ other documents such as its
response to Aetna’s summary judgment motion and its expert reports as a means of
answering the contention interrogatories.”).
25

ECF No. 107-2 at 3, 23, & 40.

26

ECF No. 116 at 4.

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The identical interrogatories did not ask for the information plaintiffs apparently now seek,
i.e., the identity of each officer or agent of the corporation who answered on defendant’s
behalf. This portion of plaintiffs’ motion is denied.
Persons from Whom Statements or Factual Memoranda Were Obtained. Mann’s
Interrogatory No. 9 asked defendant for the “names, addresses, and telephone numbers of all
persons from whom anyone . . . has obtained statements or factual memoranda . . . pertaining
to the facts related in any way” to the claims in this case, and for each, “furnish a brief
description of the statements or memoranda sufficient to identify it.”27 Defendant answered
by referring Mann to 259 bates-stamped pages of documents “from which the Answer to this
Interrogatory, to the extent known by Defendant, can be ascertained.”28 Defendant also
supplemented its answer with a list of hundreds of employees and past management
personnel no longer employed by defendant, as well as their addresses and telephone
numbers.
Plaintiffs argue “[p]roviding a list of hundreds of names and documents does not
provide a sufficient response to Interrogatory No. 9, nor does it satisfy rule 33.”29 As noted
above, Rule 33(d) permits a responding party to produce business records in response to an
interrogatory “[i]f the answer to an interrogatory may be determined by” reviewing the
27

ECF No. 107-2 at 6.

28

Id. at 7.

29

ECF No. 116 at 4.

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business records, “and if the burden of deriving or ascertaining the answer will be
substantially the same for either party.”30 “To comply with Rule 33(d)’s option to produce
business records, the responding party must not only specifically designate which records
answer the interrogatory, but the records specified must actually contain the information
sought by the interrogatory. In other words, a party does not comply with this provision by
generally identifying large categories of documents . . . .”31
Under these standards, the court is inclined to agree with plaintiffs that defendant’s
designation of 259 pages of documents did not satisfy Rule 33(d). But plaintiffs have
provided the court no argument or evidence from which the court can definitively make such
a holding. For example, plaintiffs do not state whether Rule 33(d) was not met because
certain documents specified do not contain information sought by Interrogatory No. 9, or
whether the rule was not satisfied because the burden of ascertaining the answer to the
interrogatory from the documents would fall more heavily on plaintiffs, or for both of these
reasons, or for a reason entirely different. Nor have plaintiffs included in the record any of
the documents defendant identified. Thus, for example, the court cannot say whether all of
the documents identified meet the requirement that they contain information sought by the
interrogatory. The court cannot grant plaintiffs relief based on their conclusory allegation
alone, so the court denies the motion as to Mann’s Interrogatory No. 9.
30

Fed. R. Civ. P. 33(d) (emphasis added).

31

Unified Sch. Dist. 467, 2016 WL 2727281, at *1.

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Defendant’s Financial Information/Tax Returns. Mann’s Interrogatory Nos. 11-13
sought information about defendant’s gross income for the past five years, current net worth,
and “recent” financial statements.32 Mann’s First Request For Production of Documents
(“Request”) Nos. 11-12 sought copies of defendant’s tax returns and financial statements for
the years 2012-2016. Plaintiffs state such financial information is relevant to their claims for
punitive damages. In responding to the motion to compel, defendant’s only argument is that
“Plaintiffs have provided no explanation for why” defendant’s financial statements available
on defendant’s public website are “insufficient.”33
Defendant has not challenged (at least not in response to the motion to compel) the
relevance of its financial information, and the court agrees with plaintiffs that the information
is relevant to the issue of punitive damages. Thus, the burden falls on defendant “to show
that other sources exist from which the information is readily obtainable.”34 Although it may
be the case that the information on defendant’s website would provide the information sought
in each of the three interrogatories and two requests, defendant has presented the court no
argument or evidence in an attempt to make this showing. Because defendant has failed to
32

ECF No. 107-2 at 8-9. Defendant stretches the truth in stating plaintiffs seek
financial statements for “an unlimited time frame.” ECF No. 110 at 3.
33

ECF No. 110 at 3, 9–10.

34

See, e.g., Hilt v. SFC Inc., 170 F.R.D. 182, 189 (D. Kan. 1997) (“The party seeking
production [of tax returns] 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.” (internal quotations and citation omitted)).

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meet its burden, plaintiffs’ motion to compel as to these interrogatories and requests is
granted.
Persons Responsible for Developing Defendant’s Non-Discrimination Procedures and
Policies. Plaintiffs ask the court to compel defendant to respond to Mann’s Interrogatory No.
16, which sought the name, address, and telephone number of each person responsible for
developing each of defendant’s procedures and policies about avoiding racial discrimination
in the workplace. Defendant responds that the responsible persons are management
personnel that are either currently employed at XPO such that plaintiffs’ counsel may not
contact them directly, or are former employees whose contact information was produced in
response to a separate interrogatory. This response is evasive. It does not answer the
question asked in Interrogatory No. 16. And if it is an objection to providing the information
requested by Interrogatory No. 16, it is rejected because it was never raised in defendant’s
response to the interrogatory.35 Plaintiffs’ motion to compel as to this interrogatory is
granted.
Defendant’s Provision of Mental Health Services in the Workplace.

Mann’s

Interrogatory No. 17 sought information about defendant’s “procedures and programs . . . for
providing mental health services for your employees in your workplace.”36 Mann’s Request
35

Allen v. Mill-Tel, Inc., 283 F.R.D. 632, 633 (D. Kan. 2012) (stating, “the court will
deem waived any objections not asserted in the initial response to a discovery request but
raised in a response to a motion to compel”).
36

ECF No. 107-2 at 16.

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No. 10 sought copies of such procedures and programs. In response to the motion to compel,
defendant asserts that such mental health information is not relevant to Mann’s claims. As
the court noted above, relevance is broadly construed at the discovery stage.37 “[A]ny matter
that bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case” will be deemed relevant.38 The court finds information about
defendant’s provision of mental-health services (if any) relevant to Mann’s claim for
emotional distress. Plaintiffs’ motion to compel is granted in this regard.
Surveillance Equipment. Moye’s Interrogatory No. 5 sought a description of “all
cameras, listening devices and other surveillance equipment installed at every XPO Logistics
terminal since January 1, 2010,” as well as the location and custodian of any resulting
recordings. Plaintiffs later limited this interrogatory to defendant’s Kansas City terminal.39
Defendant argues the information sought is not relevant because such devices “have nothing
whatsoever to do with Plaintiff Moye’s employment or the reasons for his termination.”40
Defendant further argues, “[t]he burden of compiling the information requested in this

37

See Erickson, Kernell, 2016 WL 3685224, at *4.

38

Rowan, 2016 WL 3745680, at *2.

39

ECF No. 116 at 6.

40

ECF No. 110 at 5.

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Interrogatory would clearly and substantially exceed any possible evidentiary value to be
gained from such information.”41
Under the liberal relevance standards set forth above, the court finds that a description
of the surveillance equipment operating in defendant’s Kansas City terminal from 2010 until
the date on which Moye was terminated in 201642 could lead to information that could bear
on an issue in the case. For example, Moye has alleged he was subjected to years of racial
harassment by other DSRs and that defendant took no action when he complained. He
further alleged XPO managers called him derogatory, age-based terms, such as “old fart” and
“old guy.” Information defendant provides about the surveillance equipment and its
recordings could lead plaintiffs to obtain the recordings, which may reflect the actions of
defendant’s employees that Moye relies on in support of his race and age discrimination
claims.
Defendant’s burdensome argument appears misguided and, in any event, is not
supported. First, defendant characterizes this interrogatory as requesting a “massive amount
of data.”43 It appears defendant may be misinterpreting the interrogatory as seeking the
actual recordings from the devices, which it does not. But even if defendant views the

41

Id.

42

Plaintiffs have not suggested information after this date is relevant to Moye’s claims.
Thus, the court sets it as the outer temporal limit.
43

ECF No. 110 at 5.

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interrogatory as written as requiring the production of a massive amount of data, defendant
has not met its burden of showing the time and expense that would be involved in responding
to the interrogatory would be unreasonable. “Any objections that discovery is unduly
burdensome must contain a factual basis for the claim, and the objecting party must usually
provide an affidavit or other evidentiary proof of the time or expense involved in responding
to the discovery request.”44 Defendant has not offered an affidavit or any evidentiary proof
to support its objection that producing the information responsive to Interrogatory No. 5
would be unduly burdensome. Nor has defendant offered any detail as to the time, money,
and procedure that would be required to respond. Accordingly, defendant’s objections are
overruled, and plaintiffs’ motion to compel as to this interrogatory is granted.
Promotions, Advancements, and Pay Increases Offered to Moye and McGee. Moye’s
Interrogatory No. 6 asked defendant to describe promotions, advancements, and pay
increases offered to Moye during his employment at XPO, including the identity of any
person involved in making the offer. McGee’s Interrogatory No. 5 sought identical
information with respect to McGee.

44

Ehrlich v. Union Pac. R.R. Co., 302 F.R.D. 620, 626 (D. Kan. 2014) (internal
quotation marks and citation omitted). See also, Fish v. Kobach, Nos. 16-2105-JAR-JPO,
15-9300-JAR-JPO, 2016 WL 893787, at *1 (D. Kan. March 8, 2016) (“Objections based on
undue burden must be clearly supported by an affidavit or other evidentiary proof of the time
or expense involved in responding to the discovery request.”).

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In response, defendant directed plaintiffs to the bates-stamped personnel records that
defendant had previously provided. Defendant states these records reflect Moye’s and
McGee’s position (they each held only the DSR position during their employment) and pay.
Although that may be true, plaintiffs note that defendant has not identified the persons
involved in offering any promotions, advancements, or pay increases to Moye and/or McGee.
Because defendant does not address this deficiency, plaintiffs’ request to compel this
information is granted and defendant shall supplement its answers to these two
interrogatories.
Identity of Defendant’s Corporate Officers. In Interrogatory No. 8, Moye asked
defendant to identify its corporate officers since 2010. Defendant objects on relevance
grounds, arguing the officers have no relation to Moye’s claims of discrimination and
retaliation. Again, given the broad construction of relevancy at the discovery stage, this
objection is overruled.

Defendant’s corporate officers may have information about

defendant’s discrimination policies and/or any practices of discrimination at the Kansas City
facility. To the extent defendant also objects on the basis that the burden of providing this
information is not proportional to the needs of the case, defendant has again failed to present
evidentiary support or detailed argument to demonstrate burden. Accordingly, defendant’s
objections are overruled, and plaintiffs’ motion to compel an answer to this interrogatory is
granted.

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Reports Made By McGee to XPO Management. In his Interrogatory No. 4, McGee
asked defendant to identify each person with possession, custody, or control of any report
(original or copy) McGee made to a member of defendant’s management. In response to
plaintiffs’ motion to compel, defendant argues that it produced the reports and that the
reports themselves reflect the names of persons to whom they were submitted. As plaintiffs
note, however, this interrogatory seeks the identity of persons possessing the reports, not the
identities of persons to whom the reports were submitted. Defendant is therefore ordered to
supplement its response to address the question actually asked. Plaintiffs’ motion to compel
is granted in this respect.
Dispatch Records for McGee. McGee’s Interrogatory No. 8 sought “each date on
which plaintiff McGee was dispatched after a Caucasian male DSR with less seniority was
dispatched,” and the identity of the person making the dispatch decision.45 In its response
to the motion to compel, defendant objects on burdensome grounds, asserting that because
it does not maintain records of dispatch times in relation to seniority,46 “any attempt at
identifying information in response to this Interrogatory would require an extensive and
highly labor-intensive search of voluminous dispatch records and employment files.”47
45

ECF No. 107-2 at 44. The interrogatory also sought the reasons for the order of
dispatch, but plaintiffs do not discuss that request in their motion to compel.
46

Defendant does not dispute McGee’s assertion that dispatchers maintain a sheet of
dispatch times that reflect the order of dispatch. See ECF No. 107 at 6.
47

ECF No. 110 at 7.

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Because defendant has again failed to support its burdensome argument with evidentiary
proof or a detailed explanation of the time, money, and procedure that would be involved in
responding, defendant’s objection is overruled. When responding to this interrogatory,
however, defendant need only review its dispatch records for the dates and times specified
in the Amended Complaint as days on which a DSR with less seniority allegedly was
dispatched before McGee.48
Documents Reflecting the Wages, Working Conditions, and Treatment of DSRs.
Plaintiffs move to compel defendant to produce documents reflecting the wages, working
conditions, and treatment of all DSR’s employed in defendant’s Kansas City facility for the
years 2012-2016, as requested in Mann’s Request Nos. 18-23 and 25.49 Plaintiffs state this
information is relevant to support Mann’s claims that Caucasian DSR’s received better routes
(for which they were compensated at a higher rate) than African American DSRs, and that
defendant “had a pattern and practice of discrimination based on race through the truck
assignments, denial/acceptance of time off requests, withholding wages, and punishment
practices.”50 Defendant responds that “the nature of the information requested, such as all

48

ECF No. 107 at 6.

49

See ECF No. 116, at 8-9, limiting the information sought to the Kansas City facility.

50

Id. at 9.

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documents regarding time off requests, holiday pay, etc., for all employees over multiple
years, still means that it would take a veritable army to gather all of the documents.”51
Although defendant may have a valid concern, it has again failed to support its
burdensome objection with an affidavit, other evidentiary support, or a detailed discussion
of the time and expense that would be involved in responding to the requests. Thus,
defendant’s objection that these requests are unduly burdensome must be overruled.
Plaintiffs’ motion to compel is granted as to these requests.
Records of Former Terminal Manager Jeff Vogavich. In Moye’s Request No. 13,
Moye sought “[a]ll documents pertaining to former terminal Manager Jeff Vogavich.”52
Vogavich was the terminal manager in 1999 when, as alleged in Moye’s complaint, “Moye
witnessed nooses hanging in defendant’s public facilities including, but not limited to: the
driver’s room, the break room, the cafeteria, and the bathroom; [and] plaintiff Moye found
a noose on the front seat of his truck.”53 Moye allegedly reported these incidents to
Vogavich.

51

ECF No. 127 at 3. Defendant also states, “[g]iven the prodigious scope and
generalized phrasing of these requests, Defendant submits that it should not be compelled to
respond.” ECF No. 110 at 8. To the extent this is meant to assert an objection based on
overbreadth, defendant does not support it with analysis or citation of law, and it is therefore
rejected.
52

ECF No. 107-1. The parties seem to have limited the request to Vogavich’s
personnel file, rather than “all documents.”
53

ECF No. 41 at ¶ 110.

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In response to the motion to compel, defendant objects that Request No. 13 is “beyond
the scope of discovery in this action” because defendant is unaware of any allegations
pertaining to Vogavich that would not be time barred.54 It is unclear to the court what
defendant means by “beyond the scope of discovery.” Presuming this is an objection based
on relevance, it is overruled. It is reasonably possible that the information in Vogavich’s
personnel file could support Moye’s timely claims or lead to other matter that could support
those claims. Defendant has presented no evidence to the contrary.55 Plaintiffs’ motion to
compel is granted as to this request.
Litigation Over Interference with Pension Rights. Plaintiffs next move to compel, in
response to Moye’s Request No. 16, all documents relating to litigation (presumably against
defendant) in 2012-2016 pertaining to interference with the pension rights of any employee.
In response to the motion, defendant objects to the request as “neither relevant nor
proportional to the needs of the case” because “this action contains no legal claims by
Plaintiff Moye for ‘interference with pension rights.’”56 Plaintiffs point out in reply that

54

ECF No. 110 at 8.

55

The court attributes no weight to the fact that Moye testified in deposition that
Vogavich was no longer employed at XPO when, in a separate incident, Moye discovered
a noose in 2008.
56

ECF No. 110 at 9.

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Moye has alleged his pension was cut in half because he was fired.57 Plaintiffs argue the
information requested would “provide evidence” and “also identify witnesses.”58
The court sustains defendant’s relevance objection. Request No. 16 is not relevant
on its face, so the burden falls on plaintiffs to prove its relevance. The connection between
other lawsuits against defendant for interference with pension rights and the claims in this
case is attenuated at most. There is no allegation in the amended complaint that has anything
to do with pension rights. Because plaintiffs have failed to prove relevance, their motion to
compel is denied as to Request No. 16.
Composition of Defendant’s Workforce. Plaintiffs move to compel defendant’s
response to McGee’s Request No. 13, which, as subsequently limited,59 sought documents
reflecting the composition—by race, gender, age, job category, pay level, and
department—of defendant’s Kansas City workforce for the years of 2012-2016. Defendant
objects that this request is “a classic fishing expedition” seeking information unrelated to the
claims at issue.60 Plaintiff asserts the information is “crucial to show whether defendant
exhibits a pattern or practice of discrimination,”61 as plaintiffs alleged in the amended

57

See ECF No. 41 at ¶ 142.

58

ECF No. 116 at 9.

59

See ECF No. 116 at 10.

60

ECF No. 110 at 9.

61

ECF No. 107 at 7-8.

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complaint. To this argument, defendant responds that plaintiffs have not asserted a disparateimpact claim, nor explained how the composition information would show a pattern or
practice of discrimination.62
The court finds the requested information relevant. Although neither side cited a
single legal authority to support its position, the court has found caselaw holding that
workforce demographics are relevant to proving an employer’s pattern and practice of
discrimination, which can be used to support claims of individual discrimination.63 In
McDonnell Douglas Corp. v. Green, for example, the Supreme Court ruled that “the (racial)
composition of defendant’s labor force” may reflect “restrictive or exclusionary practices”
relevant to an employee’s claim that the reason given by his employer for termination was
actually a pretext for discrimination.64 Defendant’s objection is overruled, and plaintiffs’
motion to compel documents showing defendant’s workforce demographics is granted.

62

Defendant’s sur-reply further objects that generating racial-composition data is
highly burdensome given the claims in the case. ECF No. 127 at 4. Because this burden
argument was not raised in defendant’s response to the motion to compel, and further
because it is not support by evidence or detailed argument of the time and expense of
responding, it is rejected.
63

See, e.g., Thomas v. Hall, No. 3:10cv171, 2011 WL 4021333, at *5 n.16 (N.D. Fla.
Sept. 9, 2011); Conti v. Am. Axle & Mfg., Inc., No. 05-CV-72335, 2006 WL 3500632, at *2
(S.D. Mich. Dec. 4, 2006).
64

411 U.S. 792, 804-05 & n.19 (1973) (quoting Alfred W. Blumrosen, Strangers in
Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71
Mich. L. Rev. 59, 91-94 (1972)).

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Release Form. Without citation to a specific discovery request, plaintiffs ask the court
to compel defendant to produce “a signed employment records release form.”65 The parties’
subsequent briefing indicates the form plaintiffs presented for defendant’s signature would
be addressed to the Equal Employment Opportunity Commission (“EEOC”) and grant the
EEOC the right to release any and all documents concerning defendant.66 Defendant argues
such a broadly scaled release is unjustified, and suggests plaintiffs make a request to the
EEOC under the Freedom of Information Act. Neither party has submitted a copy of the
proposed form for the court’s consideration, nor presented legal authority or analysis for its
position. Perhaps more importantly, the record does not reflect that the parties satisfied their
D. Kan. Rule 37.2 meet-and-confer obligations with respect to this matter.67 The court
declines to decide this question on the current record. Plaintiffs’ motion to compel on this
basis is denied.68
Fees and Costs. Plaintiffs’ motion to compel concludes by requesting an award of
attorneys’ fees under Rule 37(a)(5). Specifically, plaintiffs request an award of $1,600 to

65

ECF No. 107 at 8.

66

See ECF No. 110 at 10; ECF No. 116 at 10.

67

There is no substantive discussion about the release form in the submitted written
exchanges between counsel.
68

At this point, the court does not go on to address the discovery dispute over
defendant’s response to Mann’s Interrogatory No. 14, which plaintiffs’ reply brief indicates
is now moot. In addition, the court does not address Moye’s Interrogatory No. 4, which
plaintiffs mentioned for the first time in their reply brief.

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account for eight hours of attorney time, billed at $200 per hour, incurred in bringing the
motion.69 This request is granted.
Defendant’s objections—those made both initially and in response to plaintiffs’
motion to compel—were largely evasive, unpersuasive, and unsupported by existing law or
facts. Defendant did not cite a single legal authority to support its positions, nor did
defendant offer any evidence or explanation to support its numerous burdensome objections.
These practices suggest sanctions are appropriate under Fed. R. Evid. 26(g), in addition to
Rule 37(a). As the court cautioned the parties in the scheduling order,70 Rule 26(g) mandates
the imposition of sanctions if an attorney improperly certifies, by signing a discovery
response, that the attorney has conducted “a reasonable inquiry,” that the response is
consistent with “existing law or by a non-frivolous argument for extending, modifying, or
reversing existing law,” and that the response is “not interposed for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation.”
Given the number of document requests and interrogatories at issue, defendant’s
unsupported positions, and the extensive briefing required to address both of these, $1,600

69

ECF No. 116 at 12 (the court assumes the “$1,800” request is a miscalculation or
a typographical error).
70

ECF No. 10 at 8.

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in plaintiffs’ attorneys’ fees strikes the court as modest. Defendant is ordered to pay
plaintiffs this amount.
Extension of Discovery. Finally, in their reply brief, plaintiffs include a single
sentence asking “the court to reset the deadline for plaintiffs’ discovery in this case by three
months.” Because this request was made for the first time in a reply brief and, moreover, is
not supported by reasoning or citation to legal support, it is denied without prejudice to being
reasserted. Given the extent to which defendant stonewalled in responding to discovery, the
court would favorably view a reasserted motion for this relief, but the parties should meet
and confer to discuss whether an extension of less than three months might be justified, and
the effect any extension would have on other set deadlines.
IT IS THEREFORE ORDERED that defendant’s motion to compel is denied as to the
two document requests directed to Moye, and granted as to the document request directed to
Mann. Mann is ordered to produce the documents discussed above by August 1, 2017 (the
current discovery end date).
IT IS FURTHER ORDERED that plaintiffs’ motion to compel defendant to fully
respond to each plaintiff’s opening interrogatories, and first requests for production of
documents is granted in part and denied in part. Where defendant has been ordered to
supplement its answers or produce documents, it must do so by August 1, 2017. By that
same date, defendant shall pay plaintiffs their requested attorneys’ fees incurred in bringing
the motion.

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Dated July 19, 2017, at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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