Ross v. Bachand et al

Filing 80

ORDER Overruling 77 Objections, Denying 77 Motion to Vacate, and Denying 77 Motion for Protective Order. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
R. L. ROSS,
Plaintiff,

Case No. 14-cv-14122

v

Honorable Thomas L. Ludington

DONALD BACHAND, et al.,
Defendants.
__________________________________________/
ORDER OVERRULING OBJECTIONS, DENYING MOTION TO VACATE
AND DENYING MOTION FOR PROTECTIVE ORDER
I.
Plaintiff Rhonda L. Ross, appearing pro se, initiated this matter by filing a complaint on
October 27, 2014. ECF No. 1. Ross then filed an amended complaint on February 2, 2015,
claiming that Defendant Saginaw Valley State University (“SVSU”) and more than thirty named
individuals associated with SVSU violated a plethora of her federal and state law rights when
they denied her tenure and terminated her employment. ECF No. 23. In response, SVSU and
some of the named defendants (the “SVSU Defendants”) filed a motion to dismiss several of
Ross’s claims on February 20, 2015. ECF No. 30. That motion was granted on April 20, 2015.
ECF No. 51.

The remaining defendants then filed a motion to dismiss several of Ross’s

remaining claims on June 5, 2015, which was granted in part on August 5, 2015. ECF Nos, 60,
69.
A.
i

While this was occurring, the parties began conducting discovery. On June 3, the SVSU
Defendants served their first interrogatories and first request for production of documents to
Ross. ECF No. 78 Ex. A.

The requests sought information regarding (1) Health care

professionals Ross had visited with during the Fall 2011 semester; (2) every health care
professional Ross had visited in the past 10 years; (3) Ross’s outside employment activities while
employed at SVSU; (4) Ross’s employment history since leaving SVSU; (5) Ross’s efforts to
find employment since leaving SVSU; (6) Ross’s inability to work since leaving SVSU; and (7)
the amount of alleged damages Ross suffered as a result of the SVSU Defendant’s conduct. The
requests also asked Ross to produce (1) documents related to her efforts to obtain employment
since leaving SVSU; (2) notes or memoranda related to the allegations in her amended
complaint; (3) documents, photos, or recordings relating to the allegations in her amended
complaint; (4) documents relied on to answer the interrogatories; (5) tax returns from 2010 to the
present; (6) Ross’s most recent pay stub from her current employment; (7) any employment
contracts entered into since leaving SVSU; (8) documents regarding Ross’s outside employment
activities while employed as SVSU; and (9) Ross’s professional Practices Committee file as it
existed April 5, 2013. Id. Ross neither objected nor responded to the discovery requests.
ii.
On June 8 2015, Ross served the SVSU Defendants with her Rule 26(a)(1)(A)
disclosures. ECF No. 78 Ex. C. In those disclosures, Plaintiff identified 474 individuals likely to
have discoverable information, including 164 faculty and staff members and 307 unidentified
students. Id. On July 1, 2015 the SVSU Defendants asked Ross to supplement her disclosures to
provide more specific information including the names of the 307 unidentified students. Id. at
Ex. D. Ross responded that same day, informing the SVSU Defendants that she would work to

-2-

narrow down the lists, and that she was “guessing I can get the faculty names to you next week
and the student names the following week.” Id.

Ross never followed up with the SVSU

Defendants, nor did she object to their request.
iii.
On June 12, 2015 the SVSU Defendants sent Ross a blank medical authorization form,
seeking to discover Ross’s medical records pursuant to Ross’s assertion of noneconomic
damages, including emotional distress. Id. at Ex. B. Ross did not respond to the request, so on
July 1, 2015 the SVSU Defendants requested an update as to the authorizations. Id. at Ex. 5. In
response, Ross stated that she would not be signing the form because it was far too broad. Id. She
argued that she had evidence of her disability and that she did not think it appropriate to allow
Defendants access to her unrelated health information. Id. The SVSU Defendants replied that
Ross’s medical records were relevant with regard to two issues in the case: (1) whether Ross has
a disability under the ADA, MPWDCR, and Rehab act; and (2) Ross’s request for noneconomic
damages, including emotional distress. Id. That same day, July 1, 2015, Ross informed the
SVSU Defendants that she would review their arguments and get back with you next week.” Id.
On July 14, 2015 the SVSU Defendants requested an update from Ross. Id. at Ex. G.
Ross responded that she had been ill and had not yet reviewed the case law, but would do so that
week. Id. The SVSU Defendants again followed up with Ross on July 27, 2015, who responded
that she was still ill and had been unable to complete that review or finish the interrogatories. Id.
at Ex. H.
iv.
On July 6, 2015 the SVSU Defendants served Ross with a second request for
interrogatories, seeking information regarding the 473 individuals named in Plaintiff’s Rule

-3-

26(a)(1)(A) disclosures and exhibits Ross expected to offer at trial. Id. at Ex. F. Ross did not
respond or object to the request.
B.
On August 19, 2015, the SVSU Defendants emailed Ross to request a status update
regarding all outstanding discovery requests. Id. at Ex. I. Ross again told the SVSU Defendants
that she was ill but would hopefully be able to respond in a week or so. Id. The SVSU
Defendants followed up with Ross on August 27, 2015, and again on September 1, 2015,
expressing concern with the lack of discovery progress. Ross once again responded that she had
been ill and also claimed that she had been busy with the start of the new semester.
C.
The Court issued its scheduling order on September 14, 2015, which requires discovery
to be completed by April 1, 2016. ECF No. 71. The SVSU Defendants sought additional updates
from Plaintiff on September 15, 2015, September 22, 2015, and October 22, 2015. Id. at Ex. J.
Because the SVSU Defendants had not received the requested discovery by the October 30, 2015
deadline, the SVSU Defendants filed the current motion to compel discovery and for costs on
November 5, 2015. ECF No. 72. Ross did not file a response to the motion.
Magistrate Judge Patricia T. Morris held a hearing on the SVSU Defendants’ motion to
compel on December 3, 2015. At the hearing, Ross acknowledged that despite her alleged
illness she had been working as a college professor teaching classes twice a week. Tr. 20, ECF
No. 79. The Magistrate Judge thus found that, because Ross was not disabled to the point of
being unable to work full-time as a college professor, she had not shown good cause for her
failure to provide discovery for a period of six-months. The Magistrate Judge also found the
discovery requests non-privileged, relevant, and proportional to the needs of the case under the

-4-

new Rule 26. Tr. 27-30. She also found the requests for medical records proper in light of
Plaintiff’s claims for non-economic damages and disability. Tr. 30. The Magistrate Judge
therefore found sanctions against Ross appropriate in the form of reasonable expenses caused by
her failure to respond under Federal Rule of Civil Procedure 37(d)(3).
On December 3, 2015, the Magistrate Judge issued an order granting the SVSU
Defendants’ motion to compel and awarding sanctions. ECF No. 76. Ross objected to that order
on December 22, 2015. ECF No. 77. In that same filing Ross moved to vacate the Magistrate
Judge’s order and sought a protective order. Id. Ross does not raise any specific objections to
the Magistrate Judge’s order. Instead, she argues generally that she was too ill to respond to the
discovery requests, that she has privacy rights to her medical records and tax returns, and that the
Magistrate Judge’s order is facilitating Defendants’ ongoing discrimination and retaliation
against her.
II.
The decision and order of a non-dispositive motion by a magistrate judge will be upheld
unless it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a); Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993). A district judge shall
consider such objections and may modify or set aside any portion of the magistrate judge’s order
found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). “The ‘clearly erroneous’
standard applies only to the magistrate judge’s factual findings; his legal conclusions are
reviewed under the plenary ‘contrary to law’ standard . . . . Therefore, [the reviewing court]
must exercise independent judgment with respect to the magistrate judge’s conclusions of law.”
Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v.
Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992)). “‘An order is contrary to law when it fails to

-5-

apply or misapplies relevant statutes, case law, or rules of procedure.’” Mattox v. Edelman, 2014
WL 4829583, at *2 (E.D. Mich. Sept. 29, 2014) (quoting Ford Motor Co. v. United States, 2009
WL 2922875, at *1 (E.D. Mich. Sept. 9, 2009)).
A.
Under Rule 37(a)(1) a party may move for an order compelling discovery. Specifically
under Rule 37(a)(3)(B), a party seeking discovery may move for an order compelling discovery
when a party fails to answer an interrogatory submitted under Rule 33 or fails to produce
documents or permit an inspection requested under Rule 34.
If a party fails to serve answers to interrogatories or respond to a request for inspection,
then a court may order sanctions if “a party… fails to serve its answers, objections or written
response.” Rule 37(d)(1)(A)(ii). A party is not excused from such a failure “on the ground that
the discovery sought was objectionable, unless the party failing to act has a pending motion for a
protective order under Rule 26(c).” Rule 37(d)(2).

If a court grants such a motion, “the court

must require the party failing to act, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” Rule 37(d)(3)
(emphasis added).
If a party fails to supplement an earlier response, provide information or identify
witnesses as required by Rule 26(a) or (e), then after an opportunity to be heard, the court may
order “payment of the reasonable expenses, including attorney’s fees, caused by the failure.”
Rule 37(c)(1).
B.

-6-

Here, Ross failed to respond to discovery requests for over six-months. Ross’s claims
that she was ill for the entire six-month period do not substantially justify her failure to respond
where she herself admits that she continued to work full-time as a professor. Tr. 20. She also
cannot argue that the discovery was objectionable, since Ross did not have a motion for a
protective order pending at the time of the SVSU Defendant’s motion or the Magistrate Judge’s
ruling. Rule 37(d)(2).
Ross’s objection that she has a constitutional privacy interest in her medical records and
tax returns is also without merit. As explained by the Magistrate Judge, Ross herself has placed
her medical records at issue in this case by filing claims for emotional distress damages. As long
as Ross seeks such non-economic damages, Ross’s medical records are relevant and
discoverable. Moreover, because Ross did not file any motion for protective order as to her
medical records or tax returns, she is precluded from now arguing that the discovery sought was
objectionable. Rule 37(d)(2).
The Magistrate Judge’s order does not constitute discrimination against Ross. Ross had
over six months to respond to Defendant’s discovery requests and failed to do so, even while she
continued to work as a college professor. As noted by the Magistrate Judge, if Ross needed an
extension, then she needed to request one before the deadline passed. Tr. 24 Similarly, if Ross
thought Defendants’ discovery requests were too broad or burdensome, or sought privileged
information, then she needed to file a motion for a protective order before the deadline passed.
Id. Finally, as noted by the Magistrate Judge, if Ross is unable to manage her case then she
should retain an attorney to represent her. Id.
Finally, the award of expenses under Rule 37(d)(3) is not unjust. The SVSU Defendants
provided Ross with ample time to respond to their discovery requests and gave her advanced

-7-

notice that they would be filing a motion to compel discovery. Because Ross’s unwarranted
inaction led to the SVSU Defendants’ increased litigation expenses, it is not unjust to require
Ross to bear those expenses.
Because the Magistrate Judge’s order granting the SVSU Defendants’ motion to compel
and awarding sanctions was neither clearly erroneous nor contrary to law, Ross’s objections will
be overruled. Her motion to vacate and her motion for a protective order will be denied.
III.
Accordingly, it is ORDERED that Ross’s objections, ECF No. 77 are OVERRULED.
It is further ORDERED that Ross’s motion to vacate the Magistrate Judge’s order
granting the SVSU Defendants’ motion to compel and awarding sanctions, ECF No. 77, is
DENIED.
It is further ORDERED that Ross’s motion for a protective order, ECF No. 77, is
DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 12, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 12, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

-8-