Davis et al v. Ricketts et al
ORDER - Plaintiffs' Motion to Compel (filing 73 ) is granted, in part, as set forth above. Defendants shall supplement their discovery responses as set forth above by or before January 23, 2013. Defendant Opportunity Education Foundation's Motion to Compel (filing 70 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICIA J. DAVIS, an Individual,
PATRICIA A. DUNCAN, an
Individual, and JEFFREY J.
HUGO ENTERPRISES, LLC, a
Nebraska Limited Liability Company, )
FOUNDATION, an Iowa Non-Profit
Corporation, and ADP
TOTALSOURCE, INC., a Florida
This matter is before the Court on Plaintiffs’ and Defendant Opportunity Education
Foundation’s (“Opportunity Education”) respective motions to compel (filings 73 & 70). For
the reasons set forth below, Plaintiffs’ motion to compel (filing 73) will be granted, in part,
and Opportunity Education’s motion to compel (filing 70) will be denied.
Defendant Opportunity Education is a non-profit corporation that provides educational
support and supplies to schools in developing countries. Joe Ricketts (“Ricketts”) is the
founder and CEO of Opportunity Education. Defendant Hugo Enterprises, LLC (“Hugo”)
is the holding company for various businesses and ventures owned and operated by Ricketts.
Hugo also provides administrative services to Opportunity Education.
The Amended Complaint (filing 38) alleges that Plaintiff Patricia Davis (“Davis”) was
employed by Defendants as Director of Education Opportunity, Plaintiff Patricia A. Duncan
(“Duncan”) was employed part-time by Defendants as Sister Schools Coordinator of
Opportunity Education and Plaintiff Jeffrey J. Goergen (“Goergen”), who is Davis’ son, was
employed by Opportunity Education in its warehouse.
In August, 2009, Davis and Duncan submitted complaints of alleged sexual
harassment to Opportunity Education. In response to those complaints, Ricketts requested
that Alfred Levitt, an in-house lawyer at Hugo, assist him in conducting an internal
investigation. That internal investigation concluded in early September, 2009. In November,
2009, Davis submitted another complaint, this time alleging retaliation because of her prior
harassment claims. In response to her allegations of retaliation, Opportunity Education hired
an outside law firm to investigate Davis’ new charges. Specifically, Opportunity Education
engaged the law firm of Morgan Lewis & Bockius, LLP and had one of its partners, Ken
Turnbull (“Turnbull”), investigate Davis’ retaliation allegations. That investigation was
conducted from November through December, 2009, and at the conclusion of the
investigation, Turnbull prepared an investigative report that detailed his findings. This report
was provided to Plaintiffs.
After Plaintiffs’ employment with Opportunity Education was terminated, Plaintiffs
instituted this action, asserting claims under Title VII of the Civil Rights Act of 1964 and the
Nebraska Fair Employment Practices Act (“NFEPA”). (Filing 38.)
Plaintiffs’ Motion to Compel
In order to be subject to liability under Title VII or NFEPA, an employer must have
fifteen or more employees for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year. See 42 U.S.C. § 2000e(b); Neb. Rev. Stat. § 481102(2). There is a dispute in this case regarding whether the fifteen employee threshold has
been met. Plaintiffs claim that Opportunity Education and Hugo are an integrated employer
and, taken together, the fifteen employee requirement is satisfied.
With respect to the employee numerosity and integrated enterprise issues, Plaintiffs,
through several interrogatories, requested information regarding individuals who performed
services for Opportunity Education, Hugo, and other enterprises Hugo administers. Plaintiffs
also propounded requests for production, seeking similar information in documentary form.
Defendants objected to those discovery requests, but agreed to produce documents showing
the number of individuals hired to perform services for Opportunity Education as an
“employee” for years 2008 to 2010.
Plaintiffs seek an order directing Defendants to produce responsive information
relating to the individuals who performed services for Opportunity Education in 2008, 2009
and 2010, whether classified as employees, independent contractors or otherwise.1 Plaintiffs
argue that this information is critical in determining whether the fifteen employee
requirement has been satisfied. Plaintiffs note that Defendants recently produced IRS 1099
Forms for individuals who provided services for Opportunity Education from 2008 to 2010.
Plaintiffs maintain, however, that the production of the 1099's does not satisfy the discovery
requests because the 1099s do not necessarily include the names of all individuals who
performed services for Opportunity Education in those years. Plaintiffs argue that
Opportunity Education knows who provided services in those years and can easily list them
in an interrogatory answer and produce records reflecting them.
In response to Plaintiffs’ arguments, Defendants assert that they have already provided
substantial information pertaining to the employee numerosity and purported integrated
enterprise issues. Defendants maintain that the additional information requested by Plaintiffs
is cumulative and burdensome.
The information Plaintiffs seek through these discovery requests is relevant to issues
involved in this proceeding. Although Defendants have produced materials which they
believe provide Plaintiffs sufficient information regarding the issues in this case, Defendants
Plaintiffs initially requested that the Court compel Defendants to supplement their
responses to multiple interrogatories and document production requests. In their reply brief,
Plaintiffs withdrew their motion, except as it relates to Opportunity Education’s response to
Interrogatory No. 7 (filing 74-2), Interrogatory No. 2 (filing 74-2) and Requests for
Production Nos. 5, 6, 52, 53, 54, 55 and 58. (Filing 74-4.) Therefore, the Court’s order only
addresses Plaintiffs’ motion as it pertains to those remaining discovery requests.
are not relieved of their responsibility to provide full discovery responses. Generally, “[a]ll
discovery requests are a burden on the party who must respond thereto. Unless the task of
producing or answering is unusual, undue or extraordinary, the general rule requires the
entity answering or producing the documents to bear that burden.” Continental Ill. Nat’l
Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation
omitted). Therefore, the party resisting discovery must “show facts justifying its objection
by demonstrating that the time or expense involved in responding to requested discovery is
unduly burdensome.” Whittington v. Legent Clearing, LLC, No. 8:10CV465, 2011 WL
6122566, *3 (D. Neb. Dec. 8, 2011). There has not been a sufficient demonstration that the
time or expense involved in responding to Plaintiffs’ requested discovery would unduly
burden Defendants. Therefore, the Court will order Defendants to supplement its responses
to Opportunity Education Interrogatory No. 7 and Requests for Production Nos. 52, 53, 54,
55 and 58.
Plaintiffs have also moved the Court to compel Defendants to fully respond to
Interrogatory No. 2 and Document Production Request Nos. 5 and 6, which includes the
production of thirty-two emails described in Defendants’ privilege log. (Filing 74-7.)
Generally, these discovery requests seek information regarding investigations of Plaintiffs’
claims. Interrogatory No. 2 provides:
Identify every individual involved in any way in the investigation of Patricia
Duncan’s and Patricia Davis’s internal complaints of discrimination,
harassment and retaliation in 2009 and 2010 including, but not limited to, by
gathering information, providing information, reviewing information,
interviewing witnesses, making credibility determinations, discussing the
matter, making recommendations, making decisions and/or reviewing or
approving decisions. For each such individual:
Describe in detail his/her involvement; and
Identify all documents and electronically-stored information
(hereinafter “ESI”) relating to his/her involvement.
(Filing 74-2.) Defendants objected to this discovery request based on the attorney-client
privilege and work-product doctrine, but also answered that, subject to and without waiving
the objections, they would produce responsive documents concerning the investigation into
Duncan and Davis’ internal complaints. (Id.) Document Production Request No. 5 seeks:
All documents relating to the investigation(s) of Patricia Davis’ and/or Patricia
Duncan’s internal complaints of discrimination, harassment and retaliation in
2009 and 2010 including, but not limited to, witness statements, interview
notes, evidence, exhibits, findings, conclusions, results, reports, draft reports,
correspondence, e-mails, disciplinary documents, and warnings.
(Filing 74-4.) Request No. 6 requests:
All documents demonstrating that defendants acted in good faith in
compliance with Title VII of the Civil Rights Act of 1964 and the Nebraska
Fair Employment Practice Act.
(Id.) Defendants objected to Request No. 5, claiming, among other things, that the
information sought was protected by the attorney-client privilege and work-product doctrine.
(Id.) Defendants stated, however, that subject to, and without waiving these objections, they
would produce responsive documents. (Id.) With respect to Request No. 6, Defendants
stated that they would produce responsive documents.
In response to Plaintiffs’ discovery requests, Plaintiffs produced information with
respect to the investigative work performed by Turnbull, but withheld materials regarding
the investigative work performed by Ricketts and Levitt before they hired Turnbull.
Plaintiffs argue that by producing information regarding Turnbull’s investigation, Plaintiffs
have waived the attorney-client privilege as to the remaining information. Plaintiffs assert
that Defendants cannot waive privilege where they think it will aid them in litigation, while
maintain the privilege when they believe it would be a detriment.
“Voluntary disclosure of attorney client communications expressly waives the
privilege.” U.S. v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (citations omitted).
“When a party reveals part of a privileged communication in order to gain an advantage in
litigation, it waives the privilege as to all other communications relating to the same subject
matter . . . ” In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982). However, although the
waiver extends beyond documents initially produced to communications relating to the same
subject matter, what constitutes the “same subject matter” is to be viewed narrowly. See
Skukh v. Seagate Tech, LLC, 848 F. Supp.2d 987, 990-92 (D. Minn. 2011).
In this case, Davis and Duncan complained of alleged harassment in August, 2009.
In response, Opportunity Education conducted an internal investigation that was completed
by Levitt and Ricketts in September, 2009. In November, 2009, two months after her initial
complaint of harassment, Davis submitted a separate complaint of alleged retaliation. Then,
in November, Opportunity Education hired outside counsel, Turnbull, to conduct an
investigation. Given the facts here, the Court finds that the subject of Defendants’ waiver
is Turnbull’s November/December 2009 investigation, not the internal investigation
conducted earlier. Therefore, the Court rejects Plaintiffs’ argument that the attorney-client
privilege was waived as to the other investigatory materials.
Also, the Court disagrees with Plaintiffs’ assertion that the crime-fraud exception
applies to the facts of this case. Under the crime-fraud exception, “[a]ttorney-client
communications lose their privileged character when the lawyer is consulted . . . to further
a continuing or contemplated criminal fraud or scheme.” In re Green Grand Jury
Proceedings, 492 F.3d 976, 979 (8th Cir. 2007). Plaintiffs claim that the crime-fraud
exception operates here because Davis’ sworn testimony regarding a telephone call between
Ricketts and Levitt, as well as her journal notes, indicate that Defendants had a plan to allow
Davis to be retaliated against until she quit her job. At least at this point, Plaintiffs have not
offered sufficient evidence to show a factual basis adequate to support a good faith belief by
a reasonable person that the crime-fraud exception applies. The Court will not conduct an
in camera review of the documents in question and Plaintiffs’ motion to compel will be
denied with respect to Interrogatory No. 2 and Document Production Request Nos. 5 and 6.
Finally, Plaintiffs’ request that Defendants be compelled to produce Turnbull’s
investigatory report in “native” format, or produce the report electronically in such a format
that would reveal changes, edits and when those changes or edits were made. This request
Defendant Opportunity Education Foundation’s Motion to Compel
During her employment with Opportunity Education, Davis was provided a computer
for use in connection with her job responsibilities. On April 3, 2012, Defendants served
Plaintiffs with Defendants’ First Request for Production of Documents. Defendants’ Request
No. 20 sought the “[r]eturn of the [Foundation] - issued computer provided to Davis during
her employment at Opportunity Education.” (Filing 72-3.) Request No. 20 further called for
Davis to return the computer “without any alteration, deletion or other manipulation of files,
documents or other materials stored on the computer and without any attempt to erase, alter
or overwrite any item on the computer or its drives.” (Id.) In her discovery responses, Davis
objected to Request No. 20, claiming that it was “overly broad and beyond the scope of
discovery.” (Filing 72-5.) Opportunity Education subsequently filed this motion to compel,
seeking an order compelling Davis to return the computer and precluding her from further
accessing the computer or engaging in any conduct that could affect the integrity of the
information on the computer.
There is no dispute that Opportunity Education issued the subject computer to Davis.
Davis contends, however, that she should not be ordered to produce the computer because
Opportunity Education’s CEO verbally told her that she could keep it, a claim which
Opportunity Education denies. Davis argues that Fed. R. Civ. P. 34 does not require
production of the computer because ownership of the computer is in dispute. Davis also
argues that she should not be ordered to produce the computer because it stores personal
information, as well as information potentially protected by the attorney-client privilege or
The question of who owns the computer, Davis or Opportunity Education, is separate
from the issue of whether information stored on the computer is subject to discovery. To the
extent that Opportunity Education simply seeks the return of its alleged property, it must seek
this relief by other means - not through a discovery request. To the extent Opportunity
Education seeks to obtain relevant information stored on the computer, this request is
certainly within the scope of permissible discovery. However, production of the entire
computer, at least before ownership of the computer is determined, is inappropriate. “[T]he
federal rules do not give a party the ‘right to conduct its own search of [another party’s]
electronic devices.’” Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693,
2009 WL 3347101, *1 (E.D. Wis. Oct. 15, 2009) (quoting Henderson v. United States Bank,
N.A., No. 08-CV-0839, 2009 WL 1152019, *1 (E.D. Wis. Apr. 29, 2009). Instead, the
federal rules “allow the responding party to search his [or her] records to produce the
required, relevant data.” Id. (quotation omitted).
There does not appear to be a dispute that the computer may contain information
relevant to these proceedings. However, Request No. 20 does not specifically identify the
information sought from the computer. Accordingly, Opportunity Education’s motion to
compel will be denied. Opportunity Education may, however, amend Request No. 20 to
identify the categories of information it seeks from the computer. Then, if upon receiving
Davis’ response to the amended request Opportunity Education has reason to believe that
Davis has failed to perform an adequate search of the computer files, it may submit another
motion to compel addressing this issue.
IT IS ORDERED:
Plaintiffs’ Motion to Compel (filing 73) is granted, in part, as set forth above.
Defendants shall supplement their discovery responses as set forth above by
or before January 23, 2013.
Defendant Opportunity Education Foundation’s Motion to Compel (filing 70)
DATED January 9, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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