Felton v. Gates County Board of Education

Filing 37

ORDER granting 29 Motion to Compel. Signed by Magistrate Judge Robert T. Numbers, II on 5/26/2016. Order to plaintiff via US Mail at 105 Princess Anne Circle, Elizabeth City, NC 27909. (Marsh, K)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:15-cv-00020-BR
Mary E. Lyons Felton,
Plaintiff,
v.

Order

Gates County Board of Education,
Defendant.

Defendant Gates County Board of Education seeks a motion compelling Plaintiff Mary E.
Lyons Felton to appear for a deposition, requiring her to produce her tax returns, and extending
the deadline to conduct discovery and file dispositive motions. D.E. 29. This motion follows
Felton’s unsuccessful attempt to obtain a protective order which would have relieved her of the
obligation to attend her deposition and produce the requested documents. D.E. 31. After
reviewing the parties’ arguments, the court determines that the Board is entitled to an order
compelling the requested discovery and that good cause exists for modifying the scheduling
order.
I.

Motion to Compel
The Board seeks to compel Felton to sit for a deposition and to produce certain tax

documents. 1 Due to Felton’s failure to attend her deposition after receiving proper notice, the
Board is entitled to an order requiring her to attend a deposition in the future. Additionally,

1

Felton claims that the Board’s motion does not contain a certification indicating that the parties
attempted to resolve this matter without court involvement. D.E. 36 ¶ 14. However, the Board’s
motion does include such a certification, D.E. 29 ¶ 8, and the record indicates the parties engaged
in substantial discussion regarding the deposition and tax records.

Felton must produce her tax records because she failed to demonstrate that they are immune
from discovery. Therefore, the court will grant the Board’s motion to compel.
First, the Board requests that the court require Felton to sit for a deposition after she
failed to appear for her original deposition. A court may sanction a person or party for failure to
attend a properly noticed deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). As noted in the April 19,
2016 Order, the Board properly noticed Felton’s deposition for April 8, 2016.

D.E. 31.

However, Felton failed to attend the deposition. D.E. 29-1. Therefore, the Board is entitled to
the relief it seeks and Felton will be required to submit to a deposition under the provisions
outlined at the end of this order.
Next, the Board requests that the court require Felton to produce her tax records for
2010–2015, which the Board sought through a request for production of documents. Parties to a
civil action “may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense….” Fed. R. Civ. P. 26(b)(1). Federal case law recognizes a qualified
privilege limiting the disclosure of tax returns. Interstate Narrow Fabrics, Inc. v. Century USA,
Inc., No. 1:02-CV-000146, 2004 WL 444570, at *2 (M.D.N.C. Feb. 24, 2004). Under this
standard, tax returns are discoverable if they are relevant and the information is not available
from other sources. Id. The requesting party bears the burden of showing relevance and the
resisting party the burden of showing availability from other sources. Id.
The Board maintains that it is necessary to review Felton’s tax returns in order to
adequately assess her claim of damages. This court has recognized on a number of occasions
that a plaintiff’s tax returns are relevant to “a plaintiff employee’s mitigation of damages.”
Feldman v. Law Enf’t Associates Corp., No. 5:10-CV-8-BR, 2012 WL 6552921, at *2 (E.D.N.C.
Dec. 14, 2012); SMD Software, Inc. v. EMove, Inc., No. 5:08-CV-403-FL, 2010 WL 2232261, at

2

*2 (E.D.N.C. June 2, 2010). Therefore, the Board has satisfied its burden to show that Felton
should have to produce her tax returns.
Felton, on the other hand, has failed to show that the requested information is available
from other sources. Although Felton has indicated that a number of documents are available that
will show certain aspects of her income, D.E. 36 ¶ 10, she has failed to demonstrate that these
documents would present the same comprehensive summary of her income during the years at
issue as would her tax returns. Therefore, the Board’s motion to compel will be granted and
Felton will be required to produce the requested tax returns.
II.

Extension of the Discovery Period.
The Federal Rules provide that a scheduling order “may be modified only for good cause

and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Here, Felton’s failure to comply with
her obligations during the discovery process establish good cause to modify the deadlines for
discovery and dispositive motions set out in the original scheduling order.
III.

Conclusion
As discussed above, the court determines that the Board’s Motion to Compel should be

granted. Therefore, the court orders as follows:
1.

Felton shall appear for a deposition at the offices of the Board’s counsel in

Elizabeth City, North Carolina at a date and time provided in a notice of deposition. The notice
shall be served on or before June 2, 2016. The notice shall provide at least 14 days’ notice of the
deposition date unless the parties agree to an earlier date.
2.

During her deposition, Felton shall respond in good faith and in complete and full

detail to all questions posed by the Board’s counsel. As specified in Rule 30 of the Federal

3

Rules, any objections to questions posed by the Board’s counsel shall be noted on the record, but
the examination shall continue and Felton’s testimony shall be taken subject to any objection.
3.

Felton shall produce, at the outset of such deposition, her complete state and

federal income tax returns for the years 2010, 2011, 2012, 2013, 2014 and (if complete) 2015,
with social security numbers in those returns blacked out. If Felton does not have copies of these
returns in her possession, custody, or control, she may satisfy this requirement by completing a
release authorizing the Board’s counsel to obtain copies directly from the state and federal
governments.
4.

The discovery period is extended until June 30, 2016.

5.

The deadline for submitting dispositive motions is extended to August 1, 2016.

6.

The trial date will be reset by separate order.

7.

All other deadlines set forth in the scheduling order in this action remain

unchanged.
Dated:
Dated: May 26, 2016
ROBERT T. NUMBERS, II
______________________________________
UNITED S Numbers, II
Robert T. TATES MAGISTRATE JUDGE
United States Magistrate Judge

4