Wallace v. Douglas County, Nebraska et al

Filing 56

ORDER granting 41 Plaintiff's Motion to Compel; denying 51 defendants' Motion/objection. Defendants ordered to produce the responsive materials no later than Wednesday, April 7, 2010. The final pretrial conference remains set for April 12, 2010 at 11:00 AM. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA C H A N T E L L A WALLACE, P l a i n t i f f, vs. C O U N T Y OF DOUGLAS, N E B R A S K A , et al., D e f e n d a n t s. ) ) ) ) ) ) ) ) ) )

8 :0 8 C V 4 7 8 ORDER

T h is matter is before the magistrate judge on the plaintiff's Motion to Compel D is c o v e ry (Filing 41), the defendants' response in objection thereto (Filings 51-53), and the p lain tiff 's reply brief (Filing 55). The motion relates to information the defendants p re v io u s ly produced to the Nebraska Equal Opportunity Commission ("NEOC"). Plaintiff's employment with the Douglas County, Nebraska, Department of C o rrectio n s was terminated on September 16, 2008. The parties' Rule 26(f) planning report (F ilin g 12) indicates that "Plaintiff has been a previous litigant in a case against Douglas C o u n ty alleging racial discrimination against herself and she has a pending charge of racial te rm in a tio n with the [NEOC], and said charges were pending at the time of her termination." T h e court could not locate in the file any information relating to the content of the charges f ile d with the NEOC, other than that found in defense counsel's affidavit (Filing 52-1). The record shows that the defendants did not respond to plaintiff's second and third req u ests for production of documents until March 8, 2010 even though the responses were d u e November 13, 2009 and January 27, 2010, respectively. The plaintiff did not seek a ss is ta n c e from the court in compelling the defendants to respond to the second and third set o f requests, and there is no information in the file as to the nature of the information that was re q u e s te d or produced. Plaintiff's brief states that the plaintiff participated in a "rebuttal" interview with the N E O C on February 10, 2010. She was reportedly told that, in response to her allegation of ra c ia l discrimination and retaliation for engaging in protected activity under Title VII, the C o u n ty said "the reason they did not subject other employees similarly situated [to] Plaintiff to an exhaustive review of their [computers] as Plaintiff was subjected to was that the other o f f en d in g employees alleged to have violated the computer workplace use policy of the

D ef en d an t did not warrant the level of scrutiny that Plaintiff's misconduct warranted." (F ilin g 42 at p. 2/21). Apparently, the plaintiff immediately tried to obtain the following documents from th e NEOC by subpoena (see Filing 35) served on February 11, 2010: T h e entire NEOC file: NEB 2-08/09-9-39463-R, including, but not limited to, a u d io t a p e (s ) of investigation and/or proceedings, correspondence, reports, m e d ica l documentation(s), telephone and/or fax contracts and all documents relatin g to the claim and investigation of the above-referenced file number. T h e discovery deadline expired on February 12, 2010. Plaintiff's brief (Filing 42 at p. 2/21) indicates that the NEOC "responded that they w ill not allow copying or inspection until the case is resolved through a determination." P la in tif f did not seek to compel compliance with the subpoena. Instead, plaintiff served a " 4 th Request for Production of Documents" on the defendants after the close of discovery. T h e current dispute pertains to the following "fourth" Request for Production of D o c u m e n ts served on the defendants on February 19, 2010: R E Q U E S T NO. 11: Please produce for copying and inspection all c o r re sp o n d e n c e and other documents provided by Douglas County to the N e b r a s k a Equal Opportunity Commission in response to the allegation of d is c rim in a tio n and retaliation made by Chantella Wallace in Case No. NEB 20 8 /0 9 -9 -3 9 4 6 3 -R . O n March 8, 2010 (the same date they belatedly served responses to plaintiff's other d i sc o v e r y requests), the defendants objected to Request No. 11 on grounds of untimeliness.1 A p p a re n tly, it is their position that the plaintiff should have requested the documents earlier in the case because she was aware that she had filed a complaint with the NEOC and the a g e n c y was investigating her complaint.

The defendants also objected on the ground that "Pursuant to Neb. Rev. Stat. § 20-140, said documents are not public documents and can only be used as evidence in proceedings pursuant to Neb. Rev. Stat. § 20-141(2)." This assertion is not supported by the language of the statutes and is not mentioned or discussed in the defendants' brief. The objection is, therefore, deemed waived for purposes of deciding this motion. -2 -

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T h e defendants­who substantially delayed their own responses to the plaintiff's d is c o v e ry requests­have already compiled the responsive items and provided them to the N E O C . The defendants raise no claim of privilege as to these items. U n d e r the circumstances, the court finds that the defendants should be ordered to p ro d u c e the responsive materials no later than Wednesday, April 7, 2010. The final pretrial c o n f e re n c e remains set for April 12, 2010 at 11:00 AM. IT IS SO ORDERED. D A T E D April 2, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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