Schreckendgust v. Phillips 66 Company

Filing 32

ORDER denying without prejudice 22 Motion to File Under Seal ; granting 24 Motion to Compel. Signed by Magistrate Judge Richard W. Anderson on 2/7/2019. (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
BRENT SCHRECKENDGUST,
Plaintiff,
Cause No. CV 18-00071-DLC-RWA

v.
PHILLIPS 66 COMPANY,
ORDER
Defendant.

Pending in this case is Defendant Phillips 66 Company's ("Phillips 66") Motion for In

Camera Review ("Motion") filed December 19, 2018, wherein Phillips 66 seeks an in camera
review of the personnel files of several non-party individuals who are currently or were
previously employed by Phillips 66. Phillips 66's Motion was not accompanied by a brief as
required by Local Rule 7.l(d)(l)(A). 1 Phillips 66 argues in its skeletal Motion that an in camera
review of the referenced personnel files is necessary to protect the privacy rights of non-party
individuals. Phillips 66 also suggests in its Motion that the Court agreed off the record at an
informal preliminary pretrial conference conducted in Chambers on August 27, 2018, to conduct
the requested in camera review.

1

Local Rule 7.l(d)(l)(A) provides that "[a] motion, if opposed, must be accompanied by
a brief in support filed at the same time as the motion... Failure to timely file a brief will result
in denial of the motion[.]" Similarly, Local Ru! 26-4(a)(2) provides that "the motion for ... in
camera review and brief must be filed in the public record and must describe the nature of the
documents or items in a manner that, without revealing information sought to be protected,
enables an assessment of the propriety of a protective order[.]"

1

In response to Phillips 66's Motion, Plaintiff Brent Schreckendgust ("Schreckendgust")

filed on January 4, 2019, a Motion to Compel Response to Plaintiff's First Discovery Requests
("Motion to Compel") seeking an order compelling Phillips 66 to fully respond to Interrogatories
Nos. 9, 11, 12, and 19 and Requests for Production Nos. 11, 12, 18, 19, 22, 23, 24, 25, 26, 34,
and 37. Schreckendgust also filed on that same date a combined "Response to Motion for In

Camera Review and Brief in Support of His Motion to Compel Response to Plaintiff's First
Discovery Requests." On January 18, 2019, Phillips 66 filed a Reply and a response to
Schreckendgust' s Motion to Compel.
As a threshold matter, the Court does not recall telling counsel for Phillips 66 and
Schreckendgust that it would in fact conduct an in camera review of Phillips 66's personnel files,
without Phillips 66 first following proper procedure to put the matter before the Court, and
without any opportunity for Schreckendgust to oppose. lbe Court's recollection is that it
suggested an in camera review as one possible means to resolve the discovery dispute between
Schreckendgust and Phillips 66 regarding Phillips 66's personnel records. The Court, however,
did not definitively state that it would review all of Phillips 66's personnel records or that either
Phillips 66 or the Court could circumvent proper procedure. The Court agrees with
Schreckendgust that informal conversations at the pretrial scheduling conference do not override
the requirements of Rule 26(c) or Local Rule 26.4(a)(2), nor could they in this case.
~n its Reply, Phillips 66 concedes that "Schreckendgust is entitled to 'relevant'
information from the non-party personnel files[,]" but relying on Ivins v. Corrections Corp. of

America, 291 F.R.D. 517 (D. Mont. 2013), argues that its current and former employees have a
constitutional right of privacy in their personnel files." Phillips 66's reliance on Ivins is
2

misplaced. While recognizing the inherently private and potentially sensitive nature of personnel
files, the court in Ivins held that "the Montana Supreme Court has clearly established that 'the
privacy section of the Montana Constitution applies to state action only.' Thus, 'there is no
constitutional issue as to disclosure of records between private parties[)' absent a claim of
privilege protection over the information." Id. at 522-23 (citations omitted). The court in Ivins
went on to grant the plaintiffs motion to compel, subject to the terms of a prior stipulation and
protective order, 2 and reserved its ruling on three requests for production that were specifically
identified in a privilege log pending an in camera review of the documents. Id at 525.
Schreckendgust acknowledges in footnote 4 of his response to Phillip 66's Motion that he
"is not seeking private, confidential information regarding the various employees that is not
relevant to this suit and would be fine with substantial redactions to protect social security
numbers, benefits elections, etc." Schreckendgust "only seeks disciplinary actions taken or the
absence thereof to establish (I) what Phillips 66 knew about Binstock; and (2) what actions
Binstock did not take in light of other employee misconduct." Phillips 66 says it has gathered the
requested personnel files, but rather than first redacting what it deems the employees' private,
confidential information, and then determining whether such redacted information may be
relevant to this suit, followed by an appropriate privilege log, Phillips 66 wants this Court, on its
own, and without further guidance, to sift through all such files in their entirety and then decide

2

The stipulation and protective order in Ivins, 12-cv-00103-SEH-CSO, ECF No. 20,
provided that any document marked "confidential" by the defendant could be disclosed only to
certain identified people, could be used or disclosed only in connection with, or preparation for
settlement negotiations, trial and other proceedings associated with that case, and that once the
case was concluded, all copies, and any extracts, summaries, or descriptions of the information
contained in the confidential material would be immediately destroyed.
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whether any of the contents may be relevant, whether a privilege applies and whether it should be
produced to Schreckendgust with or without some form of protective order. Until Phillips 66
provides what the rules require, its Motion is premature. 3
This leaves remaining Schreckendgust's Motion to Compel. A motion to compel may be
filed when a party disagrees with the objections interposed by the other party and wants to
compel more complete answers. See Moreno Rivera v. DHL Global Forwarding, 272 F.R.D. 50
(D.P.R. 2011). The Court has wide discretion in controlling discovery. Jeff D. v. Otter, 643 F.3d
278,289 (9th Cir. 2011) (citing Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) ). Ifno
claim of privilege applies, the production of evidence can be compelled regarding any matter that
is "relevant to any party's claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources, and the importance of discovery in
resolving the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit." Fed. R. Civ. P. 26(b)(l ).
Schreckendgust' s Motion to Compel was filed in part in response to Phillips 66's refusal

to produce personnel records pending an in camera review of such personnel records by this
Court. As discussed earlier, that matter is not now properly before the Court. Based upon what
has been presented to the Court so far, the personnel files are generally relevant to the claims at
issue in this case, are not protected by a claim of privilege, and must be produced.

3

The Court was going to suggest that Phillips 66 request protection of private and
confidential matter such as the parties did in Ivins. In the interim the parties have entered into a
Stipulated Protective Order. The Court will approve the Stipulated Protective Order by separate
order and suggests that they now proceed pursuant to it.

4

Phillips 66, in response to Schreckendgust's Request for Production 34, responds that it
will provide a supplemental response, that the production of the supplemental response can be
handled through redaction, and that Phillips 66 is having a forensic evaluation done to see if
there are additional emails that are responsive to the request for production. With regard to
Request for Production 37, Phillips 66 states it was an exit interview that it is willing to present
for an in camera review and will provide exit checklists for five employees pursuant to an agreed
protective order. The matter regarding an in camera review of"McArthur's" exit interview is
not before the Court. Phillips 66 can produce a redacted version of that exit interview and if
issues continue to exist, the parties may then present the matter to the Court as the rules provide.
As to Request for Production 25, Phillips 66 states it has provided the surveys that concern
Binstock and that it is not possible to produce surveys completed by other employees who were
employed at the Missoula Terminal. Phillips 66 states it is producing the other requested
information. The Court finds that the Motion to Compel, at the time it was filed, was made for
good cause and should be granted in its entirety.
Finally Schreckendgust requests an award of the reasonable expenses incurred in filing
his Motion to Compel, including attorney's fees. Phillips 66, in its response to the Motion to
Compel, wholly failed to address Schreckendgust' s request for an award of expenses and
attorney's fees. Because the Motion to Compel is, for good cause granted, and the Court finds
that the exceptions set forth in subsections (i) through (iii) of Rule 37(a)(5)(A) are not applicable,
the Court awards Schreckendgust his reasonable expenses, including his attorney's fees, incurred
in filing and briefing the Motion to Compel. Because of possible misunderstanding on the part
of Phillips 66's counsel resulting from the referenced conversations between the Court and
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counsel at an informal preliminary pretrial conference, Schreckendgust' s expenses incurred in
resisting Phillips 66's Motion are not allowed.
In accordance with the above,

IT IS ORDERED that Phillips 66's Motion for In Camera Review filed December 19,

2018, is denied without prejudice.
IT IS FURTHER ORDERED that Schreckendgust's Motion to Compel Response to

Plaintiff's l:<'irst Discovery Requests filed January 4, 2019, is granted; and Phillips 66 shall fully
respond to Schreckendgust's lnterrogatories Nos. 9, 11, 12, and 19 and Requests for Production
Nos. 11, 12, 18, 19,22,23,24,25,26,3~7.
Done and dated in Butte this~ day of February, 2019.

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