Rollins v. FMR Corporation d/b/a Fidelity Brokerage Services LLC
Filing
29
ORDER granting in part and denying in part 20 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ROLLINS,
Plaintiff,
CIVIL ACTION NO. 15-cv-12681
v.
DISTRICT JUDGE NANCY G. EDMUNDS
FMR CORPORATION d/b/a
MAGISTRATE JUDGE MONA K. MAJZOUB
FIDELITY BROKERAGE SERVICES,
LLC
Defendant.
_________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO COMPEL [20]
This matter comes before the Court on Plaintiff Michael Rollins’ Motion to Compel.
(Docket no. 20.)
Defendant FMR Corporation, d/b/a Fidelity Brokerage Services, LLC,
responded to Plaintiff’s Motion (docket no. 25), and Plaintiff replied to Defendant’s Response
(docket no. 26). The parties have also filed a Joint Statement of Resolved and Unresolved
Discovery Issues regarding Plaintiff’s Motion to Compel. (Docket no. 27.) The Motion has
been referred to the undersigned for consideration. (Docket no. 21.) The Court has reviewed the
pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule
7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.
BACKGROUND
Plaintiff, an African American, initiated this employment civil rights action on July 30,
2015, alleging that he was discriminated against on the basis of his race when he was “abruptly”
terminated from his employment as a Workplace Planning and Guidance Consultant
(“Workplace Consultant”) and replaced with a “less qualified white male,” in violation of Title
VII of the Civil Rights Act of 1964, Michigan’s Elliott-Larsen Civil Rights Act, and 42 U.S.C. §
1981. (Docket no. 1 at 5-8.) Plaintiff alleges that Defendant’s stated reason for terminating him,
namely violations of the company’s Corporate Travel and Business Expense Policy, is false and
a pretext for Defendant’s racial discrimination. (Id. at 6.)
Plaintiff began working for Defendant in 2005, and became a Workplace Consultant in
2009. (Id. at 2.) As a Workplace Consultant, Plaintiff was essentially an investment broker who
sold “financial investment services to individual employees of institutional employers” in
Michigan.
(Id. at 2.)
His job required frequent local travel, and he regularly made
reimbursement requests to Defendant for mileage, food, and lodging. (Id. at 3.) Plaintiff claims
that he “consistently received good to excellent reviews, won awards, and achieved high sales
numbers,” as compared to other Workplace Consultants, and was “constantly adding millions of
dollars of new business.” (Id. at 3, 4.)
Plaintiff alleges that his problems began in May 2013, when Mr. Roger Trapp became
manager of the Tax Exempt Market Department, where Plaintiff worked. After Plaintiff refused
Mr. Trapp’s request to give up a section of his sales territory, Plaintiff claims that Mr. Trapp
singled Plaintiff out for an audit of his past reimbursement requests, even though all of these
requests had already been approved and were “not out of line or unusual compared to those of
his co-workers.”
(Id. at 3.)
Defendant’s investigators uncovered approximately $900 in
reimbursement requests over an eighteen month period that Plaintiff was unable to account for,
at least not at the time of the investigation. (Id. at 4.) Plaintiff claims, however, that he was
“ambushed” by the investigators and became “flustered,” and therefore “was understandably not
able to muster 100% total recall for each and every expense over the 15 month period that he was
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questioned about.” (Id.) Defendant terminated Plaintiff based on these expenses, and thereafter
reported him to the Financial Industry Regulatory Authority as having committed fraud, which
Plaintiff claims has rendered him “virtually unemployable in his field.” (Id. at 4-5.)
In support of his claims of racial discrimination, Plaintiff asserts that he never submitted
any false or fraudulent expense reimbursement requests, that similarly situated white employees
were not singled out for reimbursement audits or terminated for submitting similar
reimbursement requests, and that he was replaced by a less qualified white male, Mr. Seth Yanik.
(Id. at 6.) Plaintiff also claims that Mr. Trapp used a racially insensitive nickname for him,
“brother,” and for another black employee, Ms. Sherise Steele, whom Mr. Trapp allegedly called
“kiddo.” (Id. at 6.) Ms. Steele eventually resigned from the company, although her resignation
was because Mr. Trapp allegedly discriminated against her based on her gender. (Docket no. 208.) Plaintiff claims white employees were not subjected to the same treatment by Mr. Trapp.
Plaintiff also asserts that Defendant was not a racially diverse company; out of the 10-15
Workplace Consultants working for Mr. Trapp, Plaintiff claims that he and Ms. Steele were the
only African Americans. (Docket no. 1 at 6.)
Plaintiff filed a charge of racial discrimination with the Equal Employment Opportunity
Commission (“EEOC”), on October 3, 2014, and after his receiving his “right to sue” letter from
the EEOC, filed this lawsuit on July 30, 2015. (Docket no. 1 at 2.)
Plaintiff served his first set of “Discovery Requests” on March 2, 2016.1 (Docket no. 202.) Defendant responded on April 20, 2016 (docket no. 20-3), and provided a Supplemental
Response on May 23, 2016 (docket no. 20-6.) Defendant provided some of the information and
1
Plaintiff combined his interrogatories with his requests for production (see docket no. 20-2), in violation of Eastern
District of Michigan Local Rule 26.1, which requires that interrogatories, requests for production, and requests for
admission be numbered separately. Defendant notes this deficiency in a footnote in response to Plaintiff’s Motion
(docket no. 25 at 2 n.2), and raised it in the General Objections section of its April 20, 2016 Discovery Responses
(docket no. 20-3 at 2), but did not specifically object to it in response to Plaintiff’s Motion or discuss it in the
parties’ Joint Statement of Resolved and Unresolved Discovery Issues (docket no. 27).
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produced some of the documents Plaintiff requested, but not all, which prompted Plaintiff to file
the instant Motion to Compel on July 6, 2016. (Docket no. 20.) Thereafter, the parties resolved
some of the disputes raised in the Motion, and Defendant responded that Plaintiff’s remaining
requests were either not proportional to the case, overbroad, unduly burdensome, not relevant to
Plaintiff’s claims, or that Defendant had already produced all the responsive documents.
(Docket no. 25 at 5, 7, 9.) Plaintiff clarified some of his requests in reply. (Docket no. 26 at 24.)
On August 31, 2016, the parties filed their Joint Statement of Resolved and Unresolved
Discovery Issues. (Docket no. 27.) The specific issues involved in the remaining discovery
disputes are discussed in detail below.
II.
GOVERNING LAW
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain
discovery on any matter that is not privileged, is relevant to any party’s claim or defense, and is
proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “Relevant evidence” is “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”
Fed. R. Evid. 401.
Information need not be admissible in evidence to be
discoverable. Fed. R. Civ. P. 26(b)(1). But the scope of discovery is not unlimited. “District
courts have discretion to limit the scope of discovery where the information sought is overly
broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound
Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
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Rules 33 and 34 allow a party to serve interrogatories and requests for production of
documents on an opposing party. Fed. R. Civ. P. 33, 34. A party receiving these types of
discovery requests has thirty days to respond with answers or objections. Fed. R. Civ. P.
33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without
leave of court, subject to certain exceptions. Fed. R. Civ. P. 30(a)(1). If the party receiving
discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose
deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the
party who sent the discovery the means to file a motion to compel. Fed. R. Civ. P. 37(a)(3). If a
court grants a Rule 37 motion to compel, or if discovery is received after a Rule 37 motion is
filed, then the court must award reasonable expenses and attorney’s fees to the successful party,
unless the successful party did not confer in good faith before the motion, the opposing party’s
position was substantially justified, or other circumstances would make an award unjust. Fed. R.
Civ. P. 37(a)(5)(A).
III.
ANALYSIS
According to the parties’ Joint Statement of Resolved and Unresolved Issues, the parties’
disputes regarding Plaintiff’s Discovery Request nos. 3(g), 4(a) and (e), 5(e)(ii), and 16 remain
unresolved. (See docket no. 27.) The parties also dispute whether Defendant should be required
to produce a member of its Employee Relations team, Ms. Charleen Carey, for a deposition.
(See id. at 8.) The Court will first address the discovery requests and Defendant’s corresponding
responses. The Court will then address Ms. Carey’s deposition. Last, the Court will address
Plaintiff’s request for attorney fees and additional time for discovery.
A. Discovery Request No. 3(g) - Expense Reimbursement Requests or Vouchers
Plaintiff’s Discovery Request no. 3(g) asks Defendant to:
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Identify all Workplace Consultants in Plaintiff’s department, employed at any
time while Roger Trapp was manager. Of these persons:
....
g. Identify all expense reimbursement requests or vouchers submitted by any of
these persons between May, 2013 and June, 2014[.]
....
Identify and produce all documents relating or referring to this answer.
(Docket no. 20-2 at 6.)
Defendant’s initial response to this Discovery Request consisted of a list of 99 people
(i.e., all the Workplace Consultants who worked in the Tax Exempt Market nationwide),
identified by employee number, ethnicity, and the name of their manager. After receiving this
Response, Plaintiff clarified that he only sought the names and “reimbursement requests or
vouchers” of the people who specifically worked under Mr. Trapp during the same time as
Plaintiff. (Docket no. 26 at 2.) There are six such people identified as working for Mr. Trapp on
Defendant’s original list of 99.
Defendant objects that the names of these six people are
irrelevant to Plaintiff’s claims, as is any information that might be contained within their expense
reimbursement requests. Defendant further contends that “gathering the thousands of pages of
documents for this Request places an undue burden on [Defendant], as it would require manually
accessing the actual receipts and back-up documents in support of every expense report that each
individual submitted.”
(Docket no. 27 at 4.)
Defendant emphasizes that it identified the
Workplace Consultants in the Tax Exempt Market who, like Plaintiff, were investigated for
allegedly submitting false or fraudulent expense reimbursement requests, and argues that this is
the “similarly situated” group against which Plaintiff should be comparing himself. (Docket no.
25 at 6.)
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Defendant’s “similarly situated” argument fails. It is well-settled law that, in the absence
of direct evidence of discrimination, a plaintiff may establish a prima facie case of
discrimination under Title VII and the Elliott Larsen Civil Rights Act by showing that:
1) he is a member of a protected class; 2) he was qualified for the job and
performed it satisfactorily; 3) despite his qualifications and performance, he
suffered an adverse employment action; and 4) he was replaced by a person
outside the protected class or was treated less favorably than a similarly situated
individual outside of his protected class.
Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (other citations omitted). If a plaintiff is able to do so,
“the burden of production shifts to the defendant to articulate a legitimate nondiscriminatory
reason for the adverse action,” and if “the defendant satisfies this burden, the plaintiff must then
show that the defendant’s reason is a pretext for discrimination.” Wilson v. Ford Motor Co., 513
Fed. App’x 585, 588 (6th Cir. 2013) (citations omitted).
To establish the fourth element of his prima facie case, Plaintiff is “not required to
demonstrate an exact correlation between himself and others similarly situated; rather, he [has] to
show only that he and his proposed comparators were similar in all relevant respects, and that he
and his proposed comparators engaged in acts of comparable seriousness.” Bobo v. United
Parcel Serv., 665 F.3d 741, 751 (6th Cir. 2012) (abrogated on other grounds) (citations omitted).
Plaintiff essentially claims that he was terminated because of his race and his refusal to
give up part of his sales territory, and that Mr. Trapp ordered the audit that led to Plaintiff’s
termination to create the pretext that Plaintiff had submitted fraudulent reimbursement requests
when Plaintiff had not. Given the broad scope of discovery, expense reimbursement requests
submitted to Mr. Trapp from other employees during the same time period as Plaintiff are at least
arguably relevant to Plaintiff’s claims. If requests from other employees are similar to the
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requests submitted by Plaintiff, yet did not prompt an audit request by Mr. Trapp or a
termination, Plaintiff may be able to rely on them to establish that he was singled out for less
favorable treatment than those employees, or that Defendant’s reasons for terminating Plaintiff
were a pretext.
Defendant’s proportionality argument also fails. The Court finds the argument suspect
because, even after Plaintiff narrowed his request from 99 people to six, Defendant still
maintains that fulfilling this request will require Defendant to gather “thousands” of pages.
(Docket nos. 25 at 6-7, 27 at 3-4). Plaintiff’s request is also reasonably limited to the specific
time period during which Plaintiff worked for Mr. Trapp, May 2013 to June 2014.
The Court will therefore grant Plaintiff’s Motion to Compel with respect to Discovery
Request No. 3(g) and order Defendant to identify and produce all expense reimbursement
requests or vouchers submitted between May 2013 and June 2014 by the six people identified by
Defendant as having worked under Mr. Trapp during that time. Defendant must do so on or
before January 13, 2017. The Court notes that Defendant originally also objected to this
discovery request “to the extent that it requests non-parties’ personal information, the production
of which would invade such non-parties’ legitimate privacy interests.” (Docket no. 20-3 at 7.)
Since that time, a Stipulation and Agreed Confidentiality Order has been entered. (See docket
no. 28.) To alleviate Defendant’s privacy concerns and because these records may indeed
contain information the six employees wish to keep private, these records should be produced
pursuant to this Agreed Confidentiality Order.
B. Discovery Request No. 4(a) and (e) - Seth Yanik
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Plaintiff’s Discovery Request No. 4 relates to the employment of Mr. Seth Yanik, who
was allegedly hired to replace Plaintiff. In Discovery Request No. 4(a) and (e), Plaintiff asks
Defendant to:
a. Describe all communications between Roger Trapp and Seth Yani[k]
concerning Mr. Yani[k] working in Mr. Trapp’s department; [and]
....
e. Fully describe records relating or referring to Mr. Yanick’s employment,
including all personnel records including but not limited to:
i. his registration file, complaint file, and employment file;
ii. expense voucher reimbursements;
iii. territory assigned;
iv. sales achieved;
v. compensation in detail, including pay, bonus, and all fringe benefits and
perquisites.
Identify and produce all documents relating or referring to this answer.
(Docket no. 20-2 at 7.)
Regarding Request No. 4(a), Defendant objected on the grounds that the request was
overbroad, unduly burdensome, not relevant to Plaintiff’s race discrimination claims, and sought
a non-party’s personal information (docket no. 25 at 9-10), and because the phrase “all
communications,” is “not sufficiently defined.” (Docket no. 20-3 at 8.) In his Reply, Plaintiff
clarified that he “only wants communications between Trapp and Yani[k] regarding the hiring
process—not all communications regarding Yani[k]’s employment.” (Docket no. 26 at 4.)
Regarding subpart 4(e), Defendant states that it did produce a copy of the resume Mr. Yanik
included in the job application he submitted to Mr. Trapp. The remaining documents and
information Plaintiff seeks in Discovery Request no. 4(e), Defendant argues, are not relevant to
his claims. Defendant also argues that, even with Plaintiff’s clarification regarding subpart (a),
Discovery Request nos. 4(a) and (e) are overbroad, unduly burdensome and not relevant to
Plaintiff’s claims. (Docket nos. 25 at 9-10, 27 at 5-6.)
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Plaintiff argues that Mr. Yanik’s personnel information is relevant because Mr. Yanik
was clearly hired to replace Plaintiff and is not a member of Plaintiff’s protected class, an
element of each of Plaintiff’s racial discrimination claims. Plaintiff also contends that the
information and documents he requests specifically in 4(e) are relevant because he needs to
“compare his allegedly excessive expense voucher requests to those of Yani[k] who is in the
same territory, as well as the other information in Yani[k]’s file so that he may compare himself
to his similarly situated replacement.” (Docket no. 26 at 3-4.)
Defendant’s response is that Mr. Yanik, who was hired four months after Plaintiff was
terminated, did not “replace” Plaintiff, and that his hiring “had no bearing on [Defendant’s]
decision with respect to Plaintiff.” (Docket no. 27 at 6.) And, similar to its objection to
Discovery Request no. 3(g), discussed above, Defendant contends that Mr. Yanik’s personnel
records, including the expense reimbursement requests, are not relevant because they “simply do
not provide insight into whether Yani[k] ever committed or was investigated for expense fraud
comparable to [Plaintiff].” (Docket no. 25 at 9.)
Regarding Discovery Request no. 4(a), the Court finds that communications between Mr.
Yanik and Mr. Trapp regarding the hiring process are not likely to contain information relevant
to Plaintiff’s claim that Mr. Yanik was hired to replace Plaintiff. The Court will deny this
request.
The Court finds that Mr. Yanik’s personnel files, which Plaintiff seeks in Discovery
Request no. 4(e)(i), however, could contain information relevant to the question of whether Mr.
Yanik was hired to replace Plaintiff, such as Mr. Yanik’s client list, stated duties, or other
information. The same is true for the information Plaintiff seeks in Discovery Request no.
4(e)(iii), relating to Mr. Yanik’s sales territory. The Court will therefore grant Plaintiff’s Motion
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to Compel the production of the personnel files described in Discovery Request no. 4(e)(i), and
order Defendant to produce these files, without further objection, on or before January 13,
2017. Because these files may contain private information about Mr. Yanik, Defendant is
instructed to produce the files pursuant to the previously entered Stipulation and Agreed
Confidentiality Order. (Docket no. 28.) The Court will also grant Plaintiff’s Motion to Compel
Defendant’s answer to Discovery Request no. 4(e)(iii), and order Defendant to “[f]ully describe
records relating or referring to Mr. Yanick’s . . . territory assigned,” without further objection, on
or before January 13, 2017.
To the extent that the information and documents Plaintiff seeks in Discovery Request
no. 4(e)(ii), (iv), and (v) are not contained within Plaintiff’s personnel files described in
Discovery Request no. 4(e)(i), the Court will deny these requests.
Mr. Yanik’s expense
reimbursement vouchers (4(e)(ii)), sales achieved (4(e)(iv)), and total compensation (4(e)(v)) are
simply not relevant to the question of whether Mr. Yanik was hired to replace Plaintiff. This
information is also not relevant to the question of whether similarly situated employees were
treated more favorably than Plaintiff, because Mr. Yanik did not begin working for Mr. Trapp
until four months after Plaintiff was terminated. The Court found Plaintiff is entitled to the
expense reimbursement requests or vouchers for other employees who worked under Mr. Trapp,
but only for the same time period during which Plaintiff also worked under Mr. Trapp. (See
above, Section III.A., Discovery Request 3(g) - Expense Reimbursement Requests or Vouchers.)
While Mr. Trapp’s handling of those expense reimbursement requests could conceivably show
that Plaintiff was “singled out,” the same is not true for Mr. Trapp’s handling of Mr. Yanik’s
reimbursement requests, months after Plaintiff was terminated.
C. Discovery Request Nos. 5(e)(ii) and 16 - Plaintiff’s Employment and Termination
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Plaintiff’s Discovery Request nos. 5(e)(ii) and 16 relate to Plaintiff’s employment and
termination. Plaintiff’s Discovery Request no. 5(e)(ii) asks Defendant to:
Fully describe records relating or referring to Plaintiff’s employment [from May
2013 until his termination], including:
....
(ii) expense voucher reimbursements
....
Identify and produce all documents relating to this answer.
(Docket no. 20-3 at 9-10.) Plaintiff’s Discovery Request no. 16 relates to Plaintiff’s termination,
and asks Defendant to identify:
a. The reason for the termination;
b. the date the determination to terminate was made;
c. identify each and every person with knowledge of the facts underlying the
decision to terminate
d. identify each and every person involved in the decision to terminate Plaintiff’s
employment, including a description of each such person’s involvement;
e. any and all communications given to Plaintiff concerning his termination.
Identify and produce all documents relating or referring to this answer.
(Docket no. 20-3 at 16.)
Regarding Discovery Request no. 5(e)(ii), Defendant asserts that it has produced “a
detailed spreadsheet of [Plaintiff’s] expense reports from 2012-2014,” as well as “all expense
reports that Plaintiff submitted during the period of 2012 to June 2014, including the receipts that
Plaintiff submitted with his expense reports for the same period of time.” (Docket no. 27 at 7-8.)
As for Discovery Request no. 16, Defendant answered each of the interrogatories in its original
discovery responses, such that the only dispute remaining with regard to Discovery Request no.
16 concerns the production of documents.
(See docket no. 20-3 at 17.)2
2
Regarding the
In his Motion, Plaintiff specifies that he only seeks the production of documents (and the deposition of Ms.
Charleen Carey, discussed below) and not answers to interrogatories. (See docket no. 20 at 2.) The Court notes,
however, that Discovery Request no. 4(e)(iii) (regarding Mr. Yanik’s sales territory), which is discussed above, is
more in the nature of an interrogatory.
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documents Plaintiff seeks in Request no. 16, Defendant concedes that certain investigatory
reports were discarded as is routinely done, but asserts that it produced “the entire investigation
file as it is maintained in the ordinary course of business.” (Docket no. 27 at 8.) Defendant
therefore asserts that it has “fully responded and provided all available documents” in response
to these discovery requests. (Id. at 7.) In the parties’ Joint Statement, Plaintiff does not specify
which documents he still seeks, instead only generally stating that Defendant did not produce
“source documents.” (Id.)
Based on Defendant’s representations, and the affidavit of defense counsel attached to
Defendant’s Response to Plaintiff’s Motion (docket no. 25-1), the Court will deny Plaintiff’s
Motion with regard to Discovery Request nos. 5(e)(ii) and 16. Nevertheless, the Court will order
Defendant to serve Plaintiff with amended answers to these discovery requests, indicating that
Defendant has produced all responsive documents within its possession, custody, and control,
and to serve the amended answers on Plaintiff on or before January 13, 2017.
D. Deposition of Charleen Carey
The last issue concerns the deposition of Ms. Charleen Carey, a member of Defendant’s
Employee Relations team. (Docket no. 20 at 7.) Ms. Carey was not involved in any complaints
Plaintiff made against Mr. Trapp; however, she apparently did receive a letter of resignation
from one of Plaintiff’s former co-workers, Ms. Sherise Steele, a black woman who also worked
for Mr. Trapp. In the letter, Ms. Steele complains that Mr. Trapp made derogatory comments
about her as a woman and promoted men “despite their lower ranking than women.” (Docket no.
20-8.) Ms. Carey received Ms. Steele’s letter approximately nine months after Plaintiff was
terminated. Plaintiff contends that deposing Ms. Carey will help him “determine whether there
is a pattern or practice of discrimination” because Ms. Steele’s complaint “was made against the
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same manager, at the same branch, around the same, as when Plaintiff was discharged.” (Docket
no. 20 at 13.) Plaintiff also argues that he should be allowed to depose Ms. Carey because,
although Ms. Carey did not have contact with Plaintiff, she “is likely to have knowledge of other
discrimination complaints against Defendant’s company more generally,” and therefore can help
establish “a pattern of discriminatory conduct or disparate impact at Defendant’s company.”
(Id.)
Defendant contends that deposing Ms. Carey regarding Ms. Steele’s letter is not likely to
lead to the discovery of relevant, admissible evidence for two reasons. First, Defendant argues,
Ms. Steele’s allegations against Mr. Trapp related to her gender, not her race.
Second,
Defendant asserts that Ms. Carey did not investigate the allegations made by Ms. Steele in the
letter; another one of Defendant’s employees did. (Docket no. 25 at 12-13.) Defendant further
argues Plaintiff should also not be allowed to depose Ms. Carey concerning her knowledge of
“discrimination complaints against Defendant’s company more generally,” because such
complaints would not be relevant in “this single plaintiff race discrimination case.” (Id. at 1314.) Finally, Defendant seems to take the position that allowing Plaintiff to question Ms. Carey
regarding discrimination complaints at the company, generally, would convert her into a Federal
Rule of Civil Procedure 30(b)(6) witness, for which Defendant has not been properly noticed.
(Id. at 14.)
The Court concludes that Plaintiff was not required to serve a Rule 30(b)(6) notice in
order to depose Ms. Carey. Plaintiff was, however, required to serve a general deposition notice
under Federal Rule of Civil Procedure 30(b)(1), and (2) if applicable, during the discovery
period, which has closed as of June 15, 2016. Plaintiff failed to do so, and on this basis, the
Court will deny Plaintiff’s request to order Defendant to produce Ms. Carey for a deposition.
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However, if the parties mutually agree to proceed with the deposition, despite the fact that it was
not properly noticed, they are permitted to do so.
E. Other Relief Requested by Plaintiff
In his Motion to Compel, Plaintiff also requests payment of attorney fees incurred in
bringing the Motion, and a thirty day extension of discovery “to allow Plaintiff time to follow-up
with any additional discovery requests that may arise” out of the responses Plaintiff receives in
response to this Opinion and Order. (Docket no. 20 at 14.)
Federal Rule of Civil Procedure 37(a)(5)(C) allows the Court to “apportion the
reasonable expenses” incurred in a filing a motion to compel when the motion is granted in part
and denied in part. The Court finds that each party should be responsible for their own attorney
fees and costs associated with Plaintiff’s Motion. The Court only partially granted the relief
Plaintiff seeks, and Defendant’s objections the Discovery Requests were substantially justified.
Under these circumstances, the Court will not award Plaintiff attorney fees.
The Court does, however, find that some additional time for discovery is warranted in
light of the Court’s decision regarding Discovery Request nos. 3(g), 4(e)(i), and 4(e)(iii). The
Court will allow an additional thirty days of discovery, specifically limited to any issues that
arise from the production of the discovery ordered herein. This discovery period will begin
January 14, 2017, and conclude February 13, 2017.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel [20] is GRANTED
IN PART, and DENIED IN PART as follows:
a. Plaintiff’s Motion to Compel is GRANTED with regard to Discovery Request nos.
3(g), 4(e)(i), and 4(e)(iii). Defendant will produce the requested information and
documents, without further objection, in accordance with this Opinion and Order and
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with the Stipulation and Agreed Confidentiality Order (docket no. 28), on or before
January 13, 2017.
b. The parties are granted an additional thirty days of discovery, limited to any issues
that may arise from the discovery ordered herein, to begin January 14, 2017, and
conclude February 13, 2017;
c. Plaintiff’s Motion to Compel is DENIED with regard to Discovery Request nos.
5(e)(ii) and 16. Defendant is ordered to serve Plaintiff with amended responses to
these discovery requests on or before January 13, 2017, indicating that Defendant
has produced all responsive documents within its possession, custody, and control;
d. Plaintiff’s Motion to Compel is DENIED with regard to Discovery Request nos. 4(a),
4(e)(ii), and 4(e)(iv)-(v), to the extent that such information is not contained within
Mr. Seth Yanik’s personnel files;
e. Plaintiff’s Motion to Compel is DENIED with regard to the deposition of Ms.
Charleen Carey; and
f. Plaintiff’s request for attorney fees is DENIED.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date
of this Order within which to file any written appeal to the District Judge as may be permissible
under 28 U.S.C. § 636(b)(1).
Dated: December 2, 2016
s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
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PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: December 2, 2016
s/ Lisa C. Bartlett
Case Manager
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