Kear v. Kohl's Department Stores, Inc.

Filing 119

MEMORANDUM AND ORDER granting in part and denying in part 74 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/18/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TIFFANY KEAR

)
)
)
Plaintiff,
)
)
vs.
) Case No. 12-cv-1235-JAR-KGG
)
KOHL’S DEPARTMENT STORES, INC., )
)
Defendants.
)
___________________________________ )
MEMORANDUM ON PLAINTIFFS’
MOTION TO COMPEL AND FOR SANCTIONS

This case is before the Court on Defendant’s motion requesting an Order
compelling Plaintiff to produce certain documents and respond to interrogatories.
(Doc. 74.) After reviewing the submissions of the parties, the Court GRANTS in
part and DENIES in part Defendant’s motion as more fully set forth below.
BACKGROUND
Plaintiff Tiffany Kear was employed by Defendant Kohl’s Department
Stores, Inc. as an Assistant Store Manager from December 27, 2004, until
September 10, 2010, when Plaintiff claims she was constructively discharged. In
this action, Plaintiff claims damages for lost wages as well as “mental anguish” and
“emotional distress” suffered during her employment with Kohl’s. Plaintiff alleges

violations of Title VII of the Civil Rights Act of 1964 in the form of gender
discrimination, gender stereotyping, pregnancy discrimination, and hostile
environment created by sexual harassment. Plaintiff also claims discrimination
under Kansas state law, K.S.A. §44-1001.
Defendant brings the present Motion to Compel (Doc. 74.) to challenge
objections Plaintiff raised in response to Defendant’s Interrogatories Nos. 4, 11,
and 14, and Requests for Production Nos. 10, 15, 16, and 18 and to ask the Court
to waive all objections to Interrogatory Nos. 11, 12, 14, 16 and Request for
Production Nos. 1, 2, 4, 7, 10, 14-18.
DISCUSSION
A.

Standards on Motions to Compel.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.
“‘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 require the respondent

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to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D. Kan.1995).
B.

Timeliness
Defendant contends that Plaintiff has waived all objections to discovery

responses with the exception of Interrogatory Nos. 1-8 on the grounds that the
remaining responses were untimely. Under Rule 33(b)(4) of the Federal Rules of
Civil Procedure states that an untimely objection may be excused if there is good
cause. Plaintiff counsel contends their fax machine malfunctioned by only faxing
the pages containing the first eight (8) Interrogatories. Plaintiff minimized the
delay caused by the malfunction by providing Defendant the remaining responses
by the next business day. Accordingly, the Court finds any harm caused by
Plaintiff’s untimely response is negligible and holds that Plaintiff’s objections are
not waived.
C.

Privilege Log
Defendant claims that Plaintiff failed to produce a privilege log and

therefore waived any objection on that basis. Plaintiff was served the discovery
requests on November 29, 2012 and responded on January 14, 2013, after the
extended deadline to respond on January 11. Plaintiff asserted attorney workproduct doctrine for Request for Production No. 2 and attorney-client privilege for
Requests for Production Nos. 4 and 7. Defendant notified Plaintiff on January 15

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and 24 that they had not produced a privilege log. A party withholding documents
on the grounds of privilege must expressly make the claim of privilege, usually in
the form of a privilege log. Sprint Commc’ns Co., L.P. v. Vonage Holdings Corp.,
05-2433-JWL-DJW, 2007 WL 1347754 (D. Kan. May 8, 2007) (citing
Fed.R.Civ.P. 26(b)(5)). The party must also make the claim of privilege at the
same time the privilege objection is lodged and documents are withheld, otherwise
the Court may enforce the sanction of waiver. Id.
Plaintiff ultimately produced a privilege log on March 26, 2013, four (4)
days after Defendant filed the present motion. Plaintiff provides no explanation for
the more than two (2) month delay in emailing their privilege log. In that email,
which the Court considers sufficient in form as a privilege log, Plaintiff asserted
work-product and attorney-client privilege for one document. Plaintiff claimed
this document was produced for counsel 2-3 weeks after Mrs. Kear was
constructively discharged on September 10, 2010. However, Mrs. Kear stated in
her deposition testimony that she did not meet with an attorney until November 17,
2010. This discrepancy was recognized by the Defendant who accordingly notified
the Plaintiff and asked for clarification. Plaintiff’s reply stated:
This has been an extremely lop-sided discovery process.
We will produce additional documents once you start
engaging in good faith discovery and produce documents
and information that has been requested of you and your
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client months ago, or after you are compelled to do so.
(Doc. 96, at 5.) This is an inappropriate response. One party’s discovery tactics do
not excuse the other party from cooperating in the discovery process.1
A privilege log must provide sufficient information to allow the other party
assess the claimed to privilege. Fed.R.Civ.P. 26(b)(5). Plaintiff cannot invoke
work-product or attorney-client privilege for a document that was prepared before
Mrs. Kear consulted counsel. This is a valid issue raised by the Defendant that
required an explanation by Plaintiff. By refusing to explain the discrepancy,
Plaintiff failed to sufficiently establish in its log why work-product or attorneyclient privilege would apply to this document. Plaintiff’s attempt to explain this
discrepancy to the Court in her Response (Doc. 91, at 3.) does not “cure” the
inadequate log. Plaintiff’s objections are overruled. The Court GRANTS
Defendant’s motion in this regard and orders Plaintiff to respond to Requests for
Production Nos. 2, 4, and 7 by producing the aforementioned document and all
other responsive documents.
D.

Discovery Requests at Issue.
Within the general parameters discussed, the Court will address the various

discovery requests at issue. Each will be discussed in turn.

1

Plaintiff repeats this error in her response. (Doc. 91, at 3-4.)
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1.

Interrogatory No. 4

Defendant has requested that Plaintiff identify all health care providers
and/or facilities that have treated/examined Plaintiff in the past seven (7) years.
Plaintiff contends the request is irrelevant, not likely to lead to admissible
evidence, requests privileged and confidential information, and the confidentiality
of her medical records and her physician-patient privilege are not waived because
she seeks only “garden variety” emotional damages.
Plaintiff asserts that physician-patient privilege protects the requested
information from discovery. By bringing a cause of action under federal law, the
privilege Plaintiff asserts is governed by Federal Rule of Evidence 501. Under
Rule 501, privileges will be “governed by the principles of common law as they
may be interpreted by the courts of the United States.” Becker v. Securitas Sec.
Servs. USA, Inc., 06-2226-KHV-DJW, 2007 WL 677711 (D. Kan. Mar. 2, 2007)
Physician-patient privilege has not been recognized under federal common law by
either the Supreme Court or the Tenth Circuit. Kubie v. Target Corp., No.
CIVA09CV00669ZLWKMT, 2009 WL 5216943 (D. Colo. Dec. 30, 2009)
(citations omitted). Additionally, confidentiality does not generally bar
information from discovery. High Point Sarl v. Sprint Nextel Corp., No. 09-2269,
2011 WL 4008009, at *2 (D. Kan. July 29, 2011) (citations omitted). Thus, the

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requested information is not protected from discovery by objections of privilege
and confidentiality asserted by Plaintiff.
Information regarding medical and health care providers is relevant to a
claim asserting emotional damages. Narrowing a claim of emotional damages to
“garden variety” emotional damages does not prevent discovery of medical
information on grounds of relevancy or privilege in this case. The District of
Kansas has held that “information on Plaintiff’s medical and health care providers
and records relating to her medical care, treatment and counseling are relevant to
the claims [Plaintiff] seeks to assert for her ‘garden variety’ emotional damages
under Title VII.” Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 60 (D. Kan.
2004). Claiming “garden variety” emotional distress may narrow the scope of
discovery in specific instances, but this is not one of them. “Garden variety”
emotional distress can exempt a plaintiff from being subjected to a mental
examination. Id. It may also prevent disclosure of information protected under
pyschotherapist-patient privilege. John v. Napolitano, 274 F.R.D. 12 (D. D.C.
2011); Jackson v. Chubb Corp., 193 F.R.D. 216, 225-26 (D. N.J. 2000). However,
psychotherapist-patient privilege is recognized under federal common law while
physician-patient privilege is not. Jaffee v. Redmond, 518 U.S. 1, 15 (1996) In
this case, there is no indication that Plaintiff has sought the services of a

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psychotherapist. Therefore, the information sought in this interrogatory is both
relevant and not privileged. Accordingly, the Plaintiff’s objections are overruled
and Defendant’s motion is GRANTED in regard to interrogatory No. 4. The
Court orders Plaintiff to respond to Interrogatory No. 4 within thirty (30) days.2
2.

Interrogatory No. 11.

Defendant has requested that Plaintiff identify all income or monies applied
for and/or received in the last five (5) years and complete a Consent For Release of
Information to the Social Security Administration. Plaintiff contends the request
its overly broad and seeks information that is irrelevant but has supplemented her
answer stating that she has not held a second job or earned any other income in the
past five years. (Doc. 91, at 5.) Despite Plaintiff’s supplemental answer,
Defendant’s request for information regarding all income or monies applied for
may reveal information relevant in determining Plaintiff’s damages. Therefore,
Defendant’s motion is GRANTED in regard to Interrogatory No. 11. The Court
orders Plaintiff to respond within thirty (30) days to Interrogatory No. 11 by
identifying all income applied for in the last five (5) years. The Court also orders
Plaintiff to draft the supplemented answer to Interrogatory 11 in the format of a

2

The Court will not compel Plaintiff to execute the HIPAA Compliant
Authorization for Release of Information per Defendant’s request for the reasons stated
under heading “Interrogatory 11".
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formal discovery response.
The Court will not order Plaintiff to execute a Consent For Release of
Information to the Social Security Administration per Defendant’s request. Rule
45 of the Federal Rules of Civil Procedure governs the acquisition of records from
nonparties. The rule includes a requirement that a subpoena requesting the
production of documents be proceeded by a notice to each party, Fed. R. Civ. Proc.
45(b)(1), thus providing other parties an opportunity to object to the issuance of the
subpoena by proper motion. The Rule also provides protections to the subject nonparty. Fed. R. Civ. Proc. 45(c). After notice, a party can challenge the
appropriateness of the subpoena by motion. Fed. R. Civ. Proc. 45(c)(3). If a
subpoenaed party fails to respond, the Court may issue an order to enforce the
subpoena. Fed. R. Civ. Proc. 45(c)(3). The Court will not issue an order to
execute a Consent For Release of Information because such an order would
effectively bypass Rule 45 procedures and protections.3 See Spraggins v. Sumner
Reg’l Med. Ctr., 10-2276-WEB KGG, 2010 WL 5137439 (D. Kan. Dec. 10, 2010)
3.

Interrogatory No. 14.

Defendant has requested that Plaintiff describe any statements made on
behalf of Defendant that would constitute as an admission under applicable law
3

The Court encourages the use of voluntary consent forms and/or agreed orders as
efficient and less-expensive means for obtaining such records. See Fed.R.Civ.Proc. 1
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and identify the date, location, and persons present when such statements were
made. Plaintiff objects that the request seeks a legal opinion and analysis.
Under Fed.R.Civ.P. 33(a)(2), ‘[a]n interrogatory is not
objectionable merely because it asks for an opinion or
contention that relates to fact or the application or law to
fact.’ Thus, to the extent plaintiffs contend that
interrogatories may never seek legal opinions, they are
incorrect. ‘[T]he only kind of interrogatory that is
objectionable on the basis that it calls for a legal
conclusion is one that extends to legal issues unrelated to
the facts of the case.’
In re Motor Fuel Temperature Sales Practices Litigation, No. 07-1840-KHV, 2009
WL 3045718, at *2 (D. Kan. Sept. 21, 2009) (internal citations omitted). The legal
opinions or conclusions sought by the Defendant, if any, are clearly related to the
facts of this case. The Plaintiff’s objection is overruled and Defendant’s motion is
GRANTED as to Interrogatory No. 14. The Court orders Plaintiff to respond to
Interrogatory No. 14 within thirty (30) days.
4.

Request For Production No. 10.

Defendant has requested that Plaintiff provide her federal and state tax
returns for the past five (5) years. Plaintiff objects that the document request is
overly broad because the documents Defendant seeks pertain to her husband,
income from investments or otherwise which are irrelevant, the documents are
confidential, and the relevant financial information and documentation is limited to

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Plaintiff’s wages and benefits from Kohl’s and her post-Kohl’s employment, which
have already been produced.
“[T]ax returns are not generally discoverable, and there is a public policy
against exposure of production of them.” Winchester v. Lester’s of Minn., Inc., No.
CIV. A. 88-2586, 1990 WL 126827, at *1 (D. Kan. Aug. 1, 1990) (citations
omitted)
The Courts have developed a two-pronged test to assure a
balance between the liberal scope of discovery and the
policy favoring the confidentiality of tax returns. 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. 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 available.
Hilt v. SFC, Inc., 170 F.R.D. 182, 189 (D. Kan. 1997) (citing Audiotext
Communications Network, Inc. V. U.S. Telecom, Inc., Case No. 94-2395, 1995 WL
625962, at *11(D. Kan. Oct. 5, 1995)) (internal quotations omitted).
Defendant has met the burden of relevancy by showing tax returns would
reveal Plaintiff’s income. In her response, Plaintiff has indicated that the relevant
information contained in the tax return would be found in her W-2 which has
already been provided. Additionally, Plaintiff has indicated in her supplemented
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answer to Interrogatory 11 that she has not held a second job or earned other
income in the past five years. Taking this into account, compelling production of
Plaintiff’s tax returns is unlikely to reveal any relevant information related to
income outside of the information already provided in her W-2. (Doc. 91, at 5)
The Court finds that Plaintiff’s W-2 likely provides sufficient information to
calculate all of her damages from lost wages. Accordingly, the Court sustains
Plaintiff’s objection and DENIES Defendant’s motion in regard to Request for
Production No. 10.
5.

Request for Production No. 15.

Defendant has requested Plaintiff provide all documents in her possession
referencing medications, whether prescribed or over the counter, for the last seven
(7) years. Plaintiff objects that the information sought is confidential and
privileged and that the confidential or privileged nature of these documents was not
waived by asserting a “garden variety” emotional damages claim. As previously
stated, physician-patient privilege is not recognized under federal common law.
Also, information is not shielded from discovery on the sole basis that the
information is confidential. Gen. Elec. Capital Corp. v. Lear Corp., 215 F.R.D.
637, 643 (D. Kan. 2003). Accordingly, Plaintiff’s objection is overruled and
Defendant’s motion is GRANTED as to Request for Production No. 15. The

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Court orders Plaintiff to respond to Request for Production No. 15 within thirty
(30) days.
6.

Request for Production No. 16

Defendant has requested all documents relating to any condition or
circumstances that rendered Plaintiff unable to work during her employment with
Defendant through present including all documents related to Plaintiff’s
pregnancies and miscarriage. Plaintiff objects that the request is overly broad,
seeks documents that are irrelevant, that the requested documents are confidential
and privileged, and the confidential or privileged nature of these documents are not
waived by asserting a “garden variety” emotional damages claim. Plaintiff also
contends that the pregnancy-related documents are irrelevant since she has not
asserted an FMLA or disability claim.
The Court finds relevancy to be an issue here. Defendant has not
established, or even argued why documents relating to circumstances or conditions
that rendered Plaintiff unable to work are relevant. Rather, Defendant argued that
a sub-category of documents, Plaintiff’s medical records, within this larger
category of requested of documents may be relevant for a different reason. While
it is apparent to the Court that Plaintiff’s medical records are relevant, it is less
apparent why the broader category of documents identified in the request are

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relevant. If Defendant 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). Because Defendant has failed to establish
the relevancy of these documents, the Court sustains Plaintiff’s objection and
DENIES Defendant’s motion as to Request for Production No. 16.
7.

Request for Production No. 18.

Defendant has requested Plaintiff’s Twitter and Facebook account data
between her date of hire through present. Plaintiff objects that the request seeks
documents that are irrelevant. Given the broad scope of relevancy in the discovery
process, the Court finds that Plaintiff’s activity on social media sites may lead to
relevant information regarding alleged discrimination and harassment. Defendant
has sufficiently limited the scope of this request by seeking limited access during
the relevant time frame rather than seeking unfettered or unlimited access to
Plaintiff’s social media accounts. Held v. Ferrellgas, Inc., 10-2393-EFM, 2011
WL 3896513 (D. Kan. Aug. 31, 2011). Therefore, Plaintiff’s objection is
overruled and Defendant’s motion is GRANTED as to Request for Production
No. 18. The Court orders Plaintiff to respond to Request for Production No. 18
within thirty (30) days.
E.

Sanctions.

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Defendant argues sanctions against Plaintiff should be granted under
Fed.R.Civ.P. 37(a)(5), which states that if a motion to compel is granted, “the court
must . . . require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Further, “the
court must not order payment” when the nonmovant’s conduct was “substantially
justified . . . .” The Court finds that the issues between the parties were, for the
most part, reasonable, thus substantially justified. Because the Court has granted
portions of Defendant’s motion while denying others, sanctions will not be
appropriate. This portion of Defendant’s motion is DENIED.

IT IS THEREFORE ORDERED that Defendant’s Motion to Compel and
for Sanctions (Doc. 74.) is GRANTED in part and DENIED in part as more
fully set forth above.
Dated at Wichita, Kansas, on this 18th day of June, 2013.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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