Gibbs v. Smitherman et al

Filing 19

ORDER denying 18 Motion to Compel. Signed by Magistrate Judge James E. Gates on 11/3/2011. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

4: I O-CV-186-BR

MARY GIBBS,

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Plaintiff,

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v.

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DAYID SMITHERMAN, Individually and
in his Official Capacity as Interim County
Manager of Hyde County, et a!',
Defendants.

ORDER

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This case comes before the court on the motion (D.E. 18) by plaintiff Mary Gibbs
("plaintiff') to compel discovery ftom defendants David Smithennan, Sharon Spencer, George
Thomas Davis, Darlene Styron, Anson Byrd, and Ken Collier ("defendants"). In support of her
motion, plaintiff filed several exhibits' (D.E. 18-1 through D.E. 18-3). Defendants did not file a
response. The motion was referred to the undersigned Magistrate Judge for determination pursuant
to 28 U.S.c. § 636(b)(l )(A). For the reasons set forth below, the motion will be denied without
prejudice.

BACKGROUND
I.

Plaintiff's Claims
Plaintiff, an African-American, commenced this employment-related action against

defendants in December 20 I 0 (Comp!. (D.E. 1)). She alleges that she served as an assistant tax
administrator for the county government of Hyde County, North Carolina. (ld.

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8). She maintains

I Plaintiffs motion was not accompanied by a legal memorandum, as required by the Local Civil Rules. Local
Civil Rule 7.1(d), E.D.N.C. Notwithstanding this omission, the court elects to consider the motion.

that defendants, present and fonner members ofthe Board ofCommissioners ofHyde County, North
Carolina, stripped her of her duties and titles, denied her pay raises received by other similarly
situated employees, and ultimately tenninated her on 16 June 2010 on the basis of her race and age.

(Id.

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10, 11, 13, 15). Plaintiff further alleges that defendants induced her to sign an inappropriate

release relating to her retirement benefits. (Id.
discrimination (id.

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19). Her complaint includes claims for race

22-26); age discrimination (id.

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27-31); and retaliation (id.

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32-35).

Plaintiff seeks compensatory damages, injunctive relief, attorney's fees, and other relief. (Id. 7
(prayer for relief)). Defendants answered, denying any wrongdoing. (D.E. 5).

II.

Plaintiff's Discovery Requests
On 12 May 2011, plaintiff served on defendants her first set of requests for production of

documents. (See Prod. Req .. (D.E. 18-1)). On 6 July 2011, defendants served responses to the
document requests. (See Resp. to Prod. Req. (D.E. 18-2)). Production request no. 6 seeks the
complete personnel files of Hyde County employees who were dismissed in 2010 and later rehired,
and production request no. 8 seeks personnel records of all employees hired to work in the Hyde
County Tax Department following plaintiff's dismissal. (Prod. Req. Nos. 6, 8). Defendants objected
to both requests and referenced N.C. Gen. Stat. § 153A-98, though they noted that no records
responsive to request no. 8 exist.

DISCUSSION
I.

Applicable Legal Standards
The Federal Civil Rules enable the parties to obtain information by serving requests for

discovery on each other, including interrogatories and requests for production of documents. See
generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:

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Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense .... For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)( 1). The rules ofdiscovery, including Rule 26, are to be given broad and liberal
construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecekv. Bd. ofGovernors, No. 2:98­
CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance
has been "'broadly construed to encompass any possibility that the infonnation sought may be
relevant to the claim or defense ofany party.'" Equal Employme nt Opportunity Comm 'n v. Sheffield

Fin. LLC, No.1 :06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007) (quoting Merrill v.
Waffle House, Inc., 227 F.R.D. 467,473 (N.D. Tex. 2005)). The district court has broad discretion
in determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482,
489 (4th Cir. 1992).
Rule 37 provides for motions to compel discovery responses. Id. 37(a)(3)(B). Fed. R. Civ.
P. 37(a)(1) and Local Civil Rule 7.1(c), ED.N.C., require that a party filing a motion to compel
include a certification that the movant in good faith conferred or attempted to confer with the other
party before filing the motion with the court. See Cassell v. Monroe, 5: 10-CT-3023-BO, 2010 WL
5125339, at *2 (E.D.N.C. 7 Dec. 2010) (denying motions to compel that failed to comply with rule
requiring certification of good faith efforts to resolve discovery disputes).
II.

Sufficiency of Plaintifrs Motion

In her motion, plaintiffstates that it is "[her] understanding that defendants will not actively
oppose this motion" and that "it is understood that [defendants] would not object to a court order

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requiring them" to produce the documents sought. (Mot. 2). But the motion stops short of
definitively stating that defendants have informed pJaintiffthat they do not oppose the relief sought.
Indeed, the motion does not even certify that plaintiffs counsel has conferred with defendants'
counsel in an attempt to resolve the dispute in good faith without court intervention, as required.
The court is not willing to accept defendants' failure to file a response as establishing their lack of
any objection to the motion given the apparent privacy interests of the employees relating to the
documents sought. Moreover, plaintiff makes no mention of any measures to protect the apparent
confidentiality of information in the documents.
The motion to compel will therefore be denied without prejudice. Any renewed motion shall
be tiled by 23 November 2011 and shall contain the required certification of consultation with
opposing counsel. The motion shall address, and counsel shall include in their discussions, the issue
of the extent to which information in the documents sought merits protection as confidential.
Assuming, as seems evident, that protection is warranted, the parties shall file jointly by 23
November 20 I J a proposed protective order. Defendants shall file a response to any renewed motion
to compel within 14 days after it is served, unless the motion definitively states that defendants
consent or do not object to the relief sought and agree with plaintiffs position on the confidentiality
of information in the documents sought. Any response shall include an explanation of defendants'
position on the confidentiality issue.

CONCLUSION
For the reasons and on the terms set out above, plaintiffs motion to compel (D.E. 18) is
denied without prejudice.

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SO ORDERED, this:i day of November 2011.

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United States Magistrate Judge

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