Sikon v. PHC of Michigan, LLC, a Massachusetts Company d/b/a Harbor Oaks Hospital et al
ORDER Regarding Discovery Disputes following Status Conference, re: 29 Email. ( Settlement Conference reset for 6/28/2018 02:00 PM before District Judge Victoria A. Roberts) Signed by District Judge Victoria A. Roberts. (Attachments: # 1 Document Continuation Confidential Settlement Statement Requirements)SEE ORDER FOR DEADLINES AND INSTRUCTIONS (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-12590
Honorable Victoria A. Roberts
PHC OF MICHIGAN, LLC., et al.,
The Court held a telephone conference with counsel on February 14, 2018
regarding discovery disputes. On the call were Deborah Gordon representing the
Plaintiff and Aron Karabel representing the Defendants. Based on the discussion held,
the Court ORDERS:
1. Defendant is to produce outstanding written discovery by Friday, February 16,
2. Plaintiff must produces signed medical and employment record authorizations by
Friday, February 16, 2018.
3. Before filing motions to compel, the parties must meet and confer and send a
joint letter to the Court outlining outstanding discovery issues.
4. The parties must immediately schedule the four defense depositions agreed
upon and the Plaintiff’s deposition to occur in March. The depositions will alternate as
previously agreed to by the parties.
5. After these depositions are completed, the parties must discuss the possibility of
mediation/facilitation, or whether additional discovery must be engaged in.
Following the February 14, 2018 conference call, counsel notified the Court that
a dispute remains over several items of written discovery requested by Defendants.
Defendants’ Request to Produce No. 17 seeks, “[a]ll documents in which
you have written anything about your employment with Harbor Oaks, the matters
described in the Complaint, or the separation of your employment with Harbor Oaks.”
Plaintiff say this request was overbroad, vague, and irrelevant. But, Plaintiff agrees to
produce, and says she has produced, responsive documents related to the matters
described in the Complaint, and Plaintiff’s wrongful termination. Defendants argue that
this proposed production is too narrow.
Defendants assert an after-acquired evidence defense; they say certain
requested documents may be relevant to Plaintiff’s claims for reinstatement, back pay,
and front pay. Specifically, Defendants say that are entitled to know whether Plaintiff
possesses anything in violation of Harbor Oaks’ policies that could be relevant to this
defense, including confidential and/or proprietary information. However, Plaintiff says
Defendants do not cite any reason to believe that she possesses such information,
making the request an unwarranted fishing expedition.
Plaintiff cites Oates v. Target Corp., 2012 WL 6608752, *1 and Tribula v. SPX
Corp., 2009 WL 87269, *2 to support her position that Defendants must say why they
believe the requested documents contain information relevant to an after-acquired
evidence defense. However, both Oates and Tribula dealt with requests for records
from prior employers which the defendants said would show that plaintiffs were
untruthful in the application process, or otherwise not qualified for their jobs. Oates,
2012 WL 6608752 at *3; Tribula, 2009 WL 87269 at *5.
This case is distinguishable from Oates and Tribula, and more in keeping with
Jones v. Nissan N. Am., Inc. There, the Sixth Circuit recognized that the after-acquired
evidence defense is available where a plaintiff seeks front pay and reinstatement, as
Plaintiff does here, and an employer seeks to show that the “employee would have
been terminated anyway had the employer known of wrongful conduct by the employee
plaintiff.” Jones v. Nissan N. Am., Inc., 438 Fed. Appx. 388, 405 (6th Cir. 2011). The
after-acquired evidence defense generally bars the employee from obtaining front pay
and reinstatement, and limits backpay. Id. See also Bazzi v. YP Adver. & Publ, LLC,
2016 U.S. Dist. LEXIS 13064, *3 (E.D. Mich. Feb. 3, 2016) (where district court judge
upheld magistrate judge’s reasoning that “metadata may lead to evidence of conduct in
violation of company policy that could be relevant to Defendant’s after-acquired
evidence defense” and ordered the plaintiff to disclose such metadata).
The Court finds that such documents are relevant to Defendants’ after-acquired
evidence defense, and orders Plaintiff to comply with Defendants’ Request to Produce
Defendants’ Request to Produce No. 18 seeks, “[a]ll text messages
between you and any individual either currently or formerly employed by Harbor Oaks.”
Again, Plaintiff say this request was overbroad, vague, and irrelevant. Plaintiff agrees to
produce, and says she has produced, responsive documents related to the matters
described in the Complaint, and Plaintiff’s wrongful termination, which Defendants again
argue is too narrow.
Plaintiff indicated that there are text messages between her and union
representatives regarding her employment, and that such text messages are protected
by a union-union member privilege. Plaintiff says that although such a privilege has not
been considered by the Sixth Circuit or Michigan state courts, this privilege has been
upheld in a case before the National Labor Relations Board, Cook Paint & Varnish Co.,
258 NLRB 1230, 1231 (1981). Defendants maintain that no such privilege exists in the
Sixth Circuit. According to Defendants, these text messages are relevant because any
of Plaintiff’s communication with the union likely concern Plaintiff’s employment terms
and conditions, and/or an individual or group grievance related to staffing, safety, and/or
other Hospital conditions.
Defendants cite NetJets Aviation, Inc. v. NetJets Ass’n of Shared Aircraft Pilots,
2017 U.S. Dist. LEXIS 129354 (S.D. Ohio, Aug. 15, 2017) to support their position that
no union-union member privilege exists in this circuit. In NetJets, the district court cited
several federal courts across the country which declined to recognize the privilege, due
to a lack of precedential authority. Id. at *11-12. Like the party asserting the privilege in
NetJets, Plaintiff “offers no binding case law to support [her] assertion that a unionunion member privilege exists and protects against disclosure.” Id. at *10.
Further, in Cook Paint, “the NLRB declined to create a ‘blanket rule’ and
‘emphasize[d] that [its] ruling … does not mean that all discussions between employees
and stewards are confidential and protected by the Act.’” United Gov’t Sec. Officers of
Am. v. Pinkerton Gov’t Servs., 2010 U.S. Dist. LEXIS 2269, *20 (E.D. Tenn. Jan. 12,
2010) (quoting Cook Paint, 258 NLRB at 1232).
The Court declines to recognize a union-union member privilege, and orders
Plaintiff to produce the text messages she is currently withholding on this basis.
The parties agree that depositions will be largely completed by April 20, 2018,
covering nineteen individuals and perhaps a few others whose roles and identities are
learned through discovery.
Discovery Cut Off
The parties agree that May 31, 2018 will be the date discovery closes.
The parties agree that a settlement conference should be held after the close of
discovery. Accordingly, the settlement conference scheduled for April 18, 2018 is
A new settlement conference is set for June 28, 2018 at 2:00 PM. However, if
the parties agree to pursue outside facilitation, they must arrange and complete that by
June 15, 2018. Otherwise, settlement statements are due by June 21, 2018 (See
attached Confidential Settlement Statement Requirements).
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 7, 2018
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?