Yerger v. Liberty Mutual Group, Inc.
ORDER granting in part and denying in part 50 and 52 Motions to Compel. Signed by US Magistrate Judge James E. Gates on 9/24/2012. (Sawyer, D.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
JENNIFER YERGER, on behalf of herself
and all other similarly situated and
LIBERTY MUTUAL GROUP, INC.,
This case comes before the court on a motion (D.E. 50) by plaintiff Jennifer Yerger
("plaintiff') to compel answers to interrogatories from defendant Liberty Mutual Group, Inc.
("defendant") and a motion (D.E. 52) by her to compel production of documents from defendant.
The motions have been fully briefed. I
They have been referred to the undersigned for
disposition pursuant to 28 U.S.C. §636(b)(l)(A). (D.E.66).
In this action commenced 12 May 2011, plaintiff asserts claims under the Fair Labor
Standards Act ("FLSA"), 29 U.S.c. §§ 201 et seq., arising from her employment as a field
premium auditor with defendant.
(CompI. (D.E. 2)
1). She alleges that defendant failed to
compensate her and similarly situated individuals for certain overtime work. (ld.
asserted her FLSA claims as a collective action, pursuant to the provisions of that statute, 29
I In support of her motion to compel answers to interrogatories, plaintiff filed a memorandum (D.E. 51) and exhibits
(D.E. 50-1 through 50-9, 51-1 through 51-6). Defendant filed a memorandum in opposition (D.E. 54) and an exhibit
(D.E.54-1). In support of her motion to compel production of documents, plaintiff filed a memorandum (D.E. 53)
and exhibits (D.E. 52-1 through 52-10, 53-1 through 53-6). Defendant filed a memorandum in opposition (D.E. 55)
with an exhibit (D.E. 55-1).
U.S.C. § 216(b).
She seeks unpaid back wages, unpaid benefits, liquidated
damages, attorneys' fees, and other relief. (ld., Prayer for Relief). Defendant generally denies
plaintiffs substantive allegations. (See Def. 's Ans. (D.E. 16)).
On 3 June 2011, plaintiff filed a motion (D.E. 6) for conditional certification of a
nationwide class of field premium auditors employed by defendant. The proposed class included
field premium auditors from defendant's Commercial Markets business unit where plaintiff
worked, as well as field premium auditors employed by two of defendant's subsidiaries or
related businesses, Liberty Mutual Agency Corporation ("LMAC") and Summit Consulting, Inc.
("Summit") (1st Mot. for Condo Cert. 7; Def.'s Opp. to 1st Mot. for Condo Cert. (D.E. 28) 2)).
On 15 November 2011, the court denied the motion for conditional certification. (See Order
Plaintiff subsequently filed a second motion (D.E. 43) to conditionally certify this case as
a collective action and a motion (D.E. 36) to amend the complaint to join several individuals as
plaintiffs. Both motions have been denied (See 24 Sept. 2012 Order (D.E. 80)). Over ten people
have filed consents to sue pursuant to 29 U.S.c. § 216(b). (D.E. 10, 11, 13-15, 20, 21, 24, 31,
While plaintiffs first motion for conditional certification was pending, the parties filed a
proposed discovery plan (D.E. 33). On 27 October 2011, the court entered a Scheduling Order
(D.E. 34) adopting the proposed plan. The Scheduling Order provides for a bifurcated discovery
schedule. In the first phase, defined as the time period before the court ruled on plaintiffs initial
conditional certification motion, the parties would "conduct discovery regarding the claims of
the named plaintiff and the claims of any of the other persons who have filed consents to sue,
subject to the limitations contained in Rules 33, 34, and 36 of the Federal Rules of Civil
(Proposed Jt. Disc. Plan' 3B(l)).
The second phase of discovery would be
conducted only "if the court issues an order granting the motion to conditionally certify, in whole
or in part." (ld.' 3B(2)). During the second phase, discovery would be permitted "regarding
those issues relevant to the collective action as conditionally certified, including discovery from
or regarding other individuals who are potential members of a collective action and any claims
that may be raised by such potential members of a collective action." (ld. , 3B(2)).
On 10 November 2011, before the court denied plaintiffs first motion for conditional
certification, she served on defendant her first set of interrogatories (Ints. no. 1-15) (D.E. 50-1).
On 20 December 2011, defendant served its initial responses to the interrogatories (D.E. 50-2).
On 31 January 2012, it served its first set of supplemental responses to these interrogatories
(supplementing Ints. no. 2, 3) (D.E. 50-6) and on 6 April 2012 a second set of supplemental
responses (supplementing Ints. no. 6-8) (D.E. 70-1).
On 13 January 2012, plaintiff served another interrogatory on plaintiff (Int. no. 16),
denominated the second set of interrogatories (D.E. 50-8). On 16 February 2012, defendant
served its response to the second set of interrogatories (D.E. 50-9).
Plaintiff served her first requests for production of documents (Reqs. no. 1-20) (D.E. 52
4) with her first set of interrogatories on 10 November 2011. On 20 December 2011, defendant
served its responses to these requests for production (D.E. 52-5). On 3 February 2012, defendant
produced a privilege log (D.E. 50-7) pursuant to Fed. R. Civ. P. 26(b)(5)(A) for the documents it
had withheld on the grounds of attorney-client privilege. On 6 April 2012, defendant served a
supplemental response to plaintiffs production requests (supplementing Reqs. no. 7, 8) (D.E. 70
2). Defendant had previously withheld a number of documents pending entry of a protective
order, which the court entered on 12 June 2012 (D.E. 69).
On 13 January 2012, plaintiff served on defendant a second set of requests for production
of documents (Reqs. no. 21-26) (D.E. 52-8).
On 16 February 2012, defendant served its
response to these requests (D.E. 52-9).
MOTIONS TO COMPEL
Plaintiff filed the instant motions to compel on 28 February 2012. The motions relate to
Interrogatories no. 6-9, 12, 15, and 16 and Requests for Production ("Requests") no.4-II, 12(c),
13,15-19,22,24, and 26. However, on 19 June 2012, the parties filed a joint notice (D.E. 70)
stating that their dispute: regarding Interrogatories no. 6 to 8 had been resolved based on
defendant's second supplemental response to the first set of interrogatories; regarding Requests
no. 7 and 8 had been resolved by defendant's supplemental response to the production requests;
and regarding Request no. 22 had been resolved by defendant's submission of a declaration of
one of its officers, Kristin Ciotti (D.E. 70-3). (11. Notice 1-2). The notice also acknowledged
that the motions were moot as to these requests. (ld. 2). The court accordingly DENIES as moot
the portions ofthe motions relating to these discovery requests.
APPLICABLE LEGAL STANDARDS
The Federal Civil Rules enable 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:
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 of discovery, including Rule 26, are to be given broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. a/Governors,
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 information sought
may be relevant to the claim or defense of any party.'"
EEOC v. Sheffield Fin. LLC, No.
1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007) (quoting Merrill v. WafJIe
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 allows for the filing of a motion to compel discovery responses.
Fed. R. Civ. P. 37(a)(3)(B).
MOTION TO COMPEL ANSWERS TO INTERROGATORIES (D.E. 50)
Interrogatories no. 9 and 16
Interrogatory no. 9 seeks information regarding any federal and state investigations or
compliance audits of defendant, LMAC, and Summit with respect to the overtime wage
requirements applicable to their employees. It reads:
Please specify the date(s), nature, and result/outcome of any investigation(s)
and/or compliance audit(s) of any place of business or work sites(s) owned,
operated or controlled by [defendant], LMAC, and/or Summit that was conducted
by the U.S. Department of Labor and/or any state Department of Labor at any
time in the time period from January 1, 2000 to the present with respect to any
complaint(s), issue(s), review(s), audit(s), and/or investigation(s) that concerned
the application of the overtime wage requirements that are described in 29 U.S.C.
§ 207 and/or any state wage and hour law to any person(s) employed by
[defendant], LMAC, and/or Summit in any such place of business or work site.
(Int. no. 9).
Interrogatory no. 16 seeks the same information when defendant, LMAC, and
Summit deemed the employees involved to be serving in a bona fide administrative capacity.
Defendant objects to the breadth of this interrogatory on the grounds that it is not limited
to the claims in this case and exceeds the relevant time frame, is related to any state wage and
hour law, is not limited to field premium auditors, and seeks information regarding individuals
who worked outside of Commercial Markets. Subject to its objections, defendant answered both
interrogatories by stating that it was "not aware of any investigation(s) and/or compliance
audit(s) of any of its field Premium Auditors" regarding wage requirements. (Resp. to Ints. no.
9, 16). For the following reasons, the court finds defendant's response to be sufficient.
The Scheduling Order in this case provides for discovery beyond that relating to plaintiff
and any persons filing consents to sue only in the event that the then-pending motion to
conditionally certify was allowed. Because that motion was denied by the court and the court
has since denied plaintiffs second motion for certification as well as her motion to amend to join
additional plaintiffs, the broad discovery plaintiff seeks is outside the permissible scope of
discovery. Indeed, even discovery relating to the persons who have filed consents to sue is no
longer permissible because the court has determined that this is not a collective action. Instead,
this is a single-plaintiff case and the permissible discovery is limited accordingly. Defendant has
answered adequately the permissible portion of these interrogatories.
To the extent that
plaintiffs motion seeks relief as to the remaining portions of these interrogatories, it is DENIED.
Interrogatory no. 12
Interrogatory no. 12 asks for the identity of
each person(s) who prepared or assisted in the preparation of any part of
[defendant's] response(s) to these interrogatories (excepting the person who typed
or reproduced the response(s)), the manner in which each such person(s) prepared
or assisted in the preparation of any such part, and the specific number and/or
lettered subpart of each interrogatory and/or interrogatory subpart for which each
such person(s) prepared or assisted in the preparation of the response(s).
(Int. no. 12). Defendant responded generally that its responses were prepared by its counsel
based on information provided to it by defendant, but refused to provide any more specific
information on the grounds that such information is protected by the attorney work product
doctrine. The court agrees.
The work product doctrine, as codified in Rule 26(b)(3)(A) of the Federal Rules of Civil
Procedure, is based on the Supreme Court's seminal decision in Hickman v. Taylor, 329 U.S. 495
(1947), and protects against the disclosure of certain materials prepared in anticipation of
litigation or for trial. Fed. R. Civ. P. 26(b)(3)(A). As the proponents of work product protection,
defendant has the burden of establishing its applicability. Sandberg v. Va. Bankshares, Inc., 979
F.2d 332, 355 (4th Cir. 1992).
Work product materials may be classified as either fact work product or opinion work
product. While fact work product is discoverable "upon a showing of both a substantial need
and an inability to secure the substantial equivalent of the materials by alternate means without
undue hardship," opinion work product "enjoys a nearly absolute immunity and can be
discovered only in very rare and extraordinary circumstances." In re Grand Jury Proceedings,
Thursday Special Grand Jury, 33 F.3d 342,348 (4th Cir. 1994).
The interrogatory here is an inquiry into the manner in which defendant is preparing its
case for trial, rather than the facts relating to the claims and defenses in the case. In re Equaphor
Inc., No. 10-20490-BFK, 2012 WL 1682583, at "'5 (Bkrtcy. E.D. Va. 14 May 2012) ("[I]n this
Circuit, opinion work product-that is, work product that contains the mental impressions or
theories of counsel-enjoys nearly absolute protection from disclosure under the rules of
discovery."). Specifically, instead of seeking the identity of persons with knowledge about the
substance of the case, this interrogatory inquires into details about defendant's preparation of its
responses to interrogatories, namely, as indicated, the identity of the attorney drafting each one,
the manner in which the attorney compiled the information, and the identity of each individual
the attorney spoke to before drafting a response. The focus, in short, is on gaining insight into
defense counsel's mental impressions and legal theories. Cf Hosch v. United Bank, Inc., No.
4:09--cv-1490-TLW-TER, 2012 WL 486478, at *4 (D.S.C. 13 Feb. 2012) (holding that
interrogatory that sought "only a summary of facts known by the witnesses" and did "not ask for
the mental impressions, conclusions, opinions or legal theories of Plaintiffs counsel" was
proper). The court accordingly DENIES plaintiffs motion to the extent is seeks to compel a
further response to this interrogatory.
Interrogatory no. 15
This interrogatory seeks the identity of individuals with knowledge of facts relating to the
third, eighth, and ninth defenses asserted by defendant in its answer. Defendant filed a motion
(D.E. 40) to amend its answer to delete the eighth and ninth defenses, which was allowed by the
court (D.E. 80). Plaintiffs motion to compel as to those defenses is thus DENIED AS MOOT.
As to the third affirmative defense, it states in full: "Plaintiff and other premium auditors
were properly classified as exempt employees pursuant to 29 U.S.C. § 213." (Def.'s Ans. 6).
Defendant argues that the interrogatory is improper in that every premium audit management
employee and every field premium auditor who worked in Commercial Markets, would have
knowledge of the job duties and nature of the position. Defendant argues that it has satisfied its
burden of identifying witnesses with knowledge relevant to the classification of plaintiff as an
exempt employee in its initial disclosures, discovery responses, and other documents. At this
juncture, the court finds that defendant's response is adequate. Plaintiff's motion to compel a
further response is therefore DENIED as to this interrogatory.
MOTION TO COMPEL PRODUCTION OF DOCUMENTS (D.E. 52)
Request no. 4
Request no. 4 seeks any documents setting forth any description of job duties or the
nature or type of work performed by any nonsupervisory premium audit job position pay grade
13 or less for Commercial Markets, LMAC, and Summit.
Defendant has produced the job
descriptions used by Commercial Markets, but objects to providing the information for LMAC
and Summit. For the same reasons set forth above with respect to Interrogatories no. 9 and 16
regarding the scope of permissible discovery in this single-plaintiff case, the court finds
defendant's response adequate. Plaintiffs motion to compel production of further documents
pursuant to this document request is accordingly DENIED.
Requests no. 5 and 6
These requests seek information concerning defendant's review of the classification and
resulting reclassification of field premium auditors below grade 13 from exempt to non-exempt
effective 1 January 2011. Request no. 5 seeks communications related to the reclassification and
Request no. 6 seeks documents concerning the development and/or distribution of a PowerPoint
presentation on this subject. Defendant has produced limited documents in response to these
requests and identified others it has withheld in its privilege log.
Plaintiff contends that
communications among non-attorneys that pertain to the classification review and its conclusions
must be produced. The court disagrees.
The attorney-client privilege exists when (1) there is an attorney-client relationship, (2)
the communication in question relates to a fact that the attorney learned from the client, outside
the presence of strangers, for the purpose of securing a legal opinion or legal services, and (3) the
privilege has been claimed and not waived. See Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir.
1998). The attorney-client privilege is designed "to encourage full and frank communications
between attorneys and their clients and thereby promote broader public interests in the
observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383,
389 (1981). "The burden is on the proponent of the attorney-client privilege to demonstrate its
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).
If a party
demonstrates that the attorney-client privilege applies, all communications between attorney and
client are entitled to absolute and complete protection from disclosure. In re Allen, 106 F.3d
582,600 (4th Cir. 1997).
In Upjohn, a corporation's in-house counsel conducted an investigation which included
completion of questionnaires by and interviews of employees.
449 U.S. at 387-89.
Supreme Court held that the attorney-client privilege protected both the written questionnaires
and the notes of interviews. The Court explained that "[t]he first step in the resolution of any
legal problem is ascertaining the factual background and sifting through the facts with an eye to
the legally relevant."
Id. at 390-91.
Accordingly, fact-finding which is necessary to the
provision of legal advice is worthy of the attorney-client privilege. 449 U.S. at 391 ("[T]he
privilege exists to protect not only the giving of professional advice to those who can act on it
but also the giving of infonnation to the lawyer to enable him to give sound and infonned
advice."); see also F.C Cycles Intern., Inc. v. Fila Sport, 184 F.R.D. 64,70-71 (D. Md. 1998)
("Communications between corporate counsel and company personnel are privileged so long as
the infonnation is relayed for the purpose of obtaining legal advice.").
Here, defendant contends that "the internal [classification] reVIew was directed by
Defendant's inside and outside legal counsel for the purpose of rendering legal advice regarding
the proper classification of Defendant's field premium auditors." (Def. 's Mem. re Reqs. 5-6).
Merely because only some of the individuals who participated in the classification review were
attorneys does not dictate a finding that all of the materials cannot be protected by the attorney
Similarly, the fact that non-attorneys were among those responsible for
compiling the data does not prevent the attorney-client privilege from applying. See Upjohn, 449
U.S. at 391. The court accordingly finds that defendant has met its burden of establishing that an
attorney-client relationship existed and that the documents in question relate to facts that the
attorney learned from the client for the purpose of securing a legal opinion. Plaintiffs motion to
compel further responses to these requests for production is therefore DENIED.
Request no. 9
Request no. 9 seeks any software or software programs (collectively "software") used to
complete field audits by plaintiff or by any other field premium auditor employed in Commercial
Markets, LMAC, and Summit to complete field audits. Defendant objects to producing the
requested documents for LMAC and Summit. Because this litigation remains a single-plaintiff
case and discovery as to these entities falls outside the pennissible scope of discovery, as
discussed above with respect to Interrogatories no. 9 and 16, the court upholds this objection.
With respect to software used by plaintiff or other field premium auditors employed in
Commercial Markets, defendant explains that the software is integrated with a number of other
systems and databases and, if produced, would lose its functionality for current employees.
Therefore, in lieu of producing the software itself, defendant shall produce to plaintiff within 14
days after entry of this Order screenshots of its system that demonstrate how the software is used
by the field premium auditors.
If after reviewing the produced screenshots, plaintiff seeks
additional information concerning software used by plaintiff or other field premium auditors
employed in Commercial Markets, she shall identify to defendant the additional screenshots she
seeks and confer with defendant about their production. If the parties are unable to come to an
agreement on the production of additional screenshots after conferring in good faith, plaintiff
may renew her motion.
Request no. 10
Request no. 10 asks for any computer log reports that indicate when plaintiff or other
field premium auditors with a grade of 13 or less reported or filed audit reports. Defendant
objects to providing the requested documents for LMAC and Summit. For the same reasons
discussed above with respect to Interrogatories no. 9 and 16, these entities fall outside the
permissible scope of discovery, and the court upholds this objection.
As to computer log reports for plaintiff, defendant contends that it has already produced
detailed records from its time management system and PremiumWare system that reflect the
hours of work reported by plaintiff in the three years prior to the filing of this lawsuit. It
contends that computer logs which reveal only when plaintiff reported or filed her audit reports
would not be relevant. The court disagrees.
As plaintiff argues, the computer log reports would help establish when she started and
ended her work day, information that is relevant to her claims in this lawsuit. Accordingly,
plaintiff s motion to compel a further response to this request is allowed.
produce to plaintiff within 14 days after entry of this Order computer log reports indicating when
plaintiff reported or filed audit reports during the period specified in the request.
Request no. 11
This request seeks the manual or other documents containing instructions or guides used
by field premium auditors in Commercial Markets, LMAC, and Summit to carry out and
Defendant objects to providing the requested documents for LMAC and
Summit. Because discovery as to these entities falls outside the permissible scope of discovery,
as discussed above with respect to interrogatories no. 9 and 16, the court upholds this objection.
Defendant agreed to produce its Field Auditor's Manual upon the entry of a protective
order. Because a protective order has since been entered, the court expects that this manual has
been provided. If it has not been, defendant shall produce its Field Auditor's Manual to plaintiff
within 7 days after entry of this Order.
Request no. 12(c)
Request no. 12(c) seeks documents that reflect policies or guidelines regarding pay and
compensation to persons employed as field premium auditors with a grade of 13 or less in
Commerical Markets, LMAC, and Summit.
Defendant objects to producing the requested
documents for LMAC and Summit. The court upholds this objection because, as discussed
above with respect to interrogatories no. 9 and 16, this litigation remains a single-plaintiff case
and discovery as to these entities falls outside the permissible scope of discovery.
Defendant agreed to produce documents regarding compensation in Commercial Markets
upon the entry of a protective order. Because a protective order has since been entered, the court
expects that these documents have been produced.
If they have not been, defendant shall
produce the aforementioned documents to plaintiff within 7 days after entry of this Order.
Request no. 13
Request no. 13 seeks official corporate minutes relating to the corporate relationship
between defendant and Summit, LMAC, BUTTERBALL, MAXWELL, and Max Inc.
parties' joint notice and accompanying declaration of Kristin Ciotti moot this request as to
Summit and LMAC, and the court DENIES the motion to compel as moot as to this portion of
Plaintiff has not shown that any corporate relationship between defendant and the
remaining entities is relevant. The court therefore DENIES the motion to compel with respect to
this portion of Request no. 13.
Requests no. 15 and 24
Request no. 15 seeks all documents concerning any complaint that defendant, LMAC, or
Summit has not paid overtime to any employee as required by the FLSA or any state wage or
Request no. 24 seeks the same documents when these entities deemed any such
employee not to be subject to the overtime payment requirement.
Defendant objects to
producing the requested documents for LMAC and Summit. Because this litigation remains a
single-plaintiff case and discovery as to these entities falls outside the permissible scope of
discovery, as discussed above with respect to Interrogatories no. 9 and 16, the court upholds this
For the same reasons, the production of documents relating to any complaints from any
field premium auditor in Commercial Markets concerning overtime pay is within the permissible
scope of discovery. Defendant's responses to these requests indicate that it is not aware of any
such complaints. Plaintiff has not demonstrated grounds upon which to reasonably question the
accuracy of these responses. Accordingly, the portion of plaintiffs motions seeking relief as to
these requests is DENIED.
Requests no. 16 and 26
Request no. 16 seeks any documents received by defendant from the federal or any state
department of labor pertaining to any investigation or audit of defendant's pay practices with
respect to its payment of overtime to any employee of defendant, LMAC, or Summit. Request
no. 26 seeks the same information when these entities deemed any such employee not to be
subject to the overtime payment requirement.
Defendant objects to producing the requested
documents for LMAC and Summit. As discussed above with respect to Interrogatories no. 9 and
16, this litigation remains a single-plaintiff case, and discovery as to these entities falls outside
the permissible scope of discovery.
The documents sought are, however, within the permissible scope of discovery as to field
premium auditors in Commercial Markets. Defendant's responses to these requests indicate that
it is not aware of any audit or investigation by the federal or any state department of labor related
to its payment of wages to its field premium auditors in Commercial Markets. Plaintiff has not
shown any basis upon which to reasonably question the accuracy of these responses.
Accordingly, the portion of plaintiff s motions seeking relief as to these requests is DENIED.
Request no. 17
Request no. 17 seeks documents setting forth any policies or practices of defendant,
LMAC, and Summit concerning what constituted compensable hours worked by field premium
auditors and specified related compensation matters.
Defendant objects to providing the
requested documents for LMAC and Summit. Because this litigation remains a single-plaintiff
case and discovery as to these entities falls outside the permissible scope of discovery, as
discussed above with respect to interrogatories no. 9 and 16, the court upholds this objection.
Documents pertaining to any policies or practices of defendant concerning what
constituted compensable hours and the related specific compensation matters for field premium
auditors in Commercial Markets are within the permissible scope of discovery. In its response,
defendant referred plaintiff to its responses to Requests no. 1, 2, 11, and 12, in which it agreed to
produce certain documents, some only after entry of a protective order. Because a protective
order has since been entered, the court expects defendant to have already produced all the
documents it agreed to produce. If it is has not done so, defendant shall produce the outstanding
documents to plaintiff within 7 days after entry of this Order.
Request no. 18
Request no. 18 seeks documents that "set forth any information, advice statement(s), or
other opinion(s)" provided to Commercial Markets, LMAC, and Summit regarding the legality
of the employment practices that are the subject of plaintiffs complaint under federal and/or
state law. Defendant objects to providing the requested documents for LMAC and Summit. As
discussed above with respect to Interrogatories no. 9 and 16, this litigation remains a single
plaintiff case, and discovery as to these entities falls outside the permissible scope of discovery.
This objection will therefore be upheld.
In its opposition memorandum, defendant states its agreement to produce upon entry of a
protective order responsive documents from trade organizations or other nonattomey sources
relating to Commercial Markets upon which it intends to rely. (Def.'s Mem. re Reqs. 9-10; see
also Supp. Resp. to 1st Reqs. (D.E. 70-2) Req. no. 8) (defendant agrees to produce outside
survey regarding compensation for field premium auditors). Because a protective order has since
been entered, the court expects that these documents have been produced. If they have not been,
defendant shall produce the aforementioned documents to plaintiff within 7 days of entry of this
Request no. 19
This request seeks plaintiff s complete personnel file, as well as the personnel files of
other individuals who have filed consents to join this lawsuit. 2
Defendant has produced
plaintiffs personnel file, but objects to producing the other personnel files requested. For the
same reasons set forth above with respect to Interrogatories no. 9 and 16 regarding the scope of
permissible discovery in this single-plaintiff case, the court finds defendant's response adequate.
The portion of plaintiffs motion to compel seeking production of the other personnel records is
Although plaintiffs motions to compel are being allowed in part, the court finds that an
award of expenses is not warranted because defendant's objections to the discovery requests
were substantially justified. See Fed. R. Civ. P. 37(a)(5)(A)(ii). The court therefore declines to
award any expenses incurred in connection with the motions.
While Request no. 19 requests the personnel file for the "Plaintiff," that term is defined to include persons who
have filed consents to sue. (Req. no. 19; 1st Ints. at 3 ~ 4).
For the foregoing reasons and on the terms set forth above, IT IS ORDERED that
plaintiffs motion (D.E. 50) to compel interrogatory answers and her motion (D.E. 52) to compel
production of documents are ALLOWED IN PART, DENIED IN PART AS MOOT, AND
DENIED IN PART ON THE MERITS. In sum, the motions are denied as moot with respect to
Interrogatories no. 6 to 8, and 15 (in part), and Requests no. 7, 8, and 22; the motions are denied
on the merits with respect to Interrogatories no. 9, 12, 15 (in part), and 16 and Requests no. 4, 5
and 6, 13, 15 and 24, 16 and 26, and 19; defendant must produce documents within 7 days after
entry of this Order (i.e., on or before 1 October 2012) with respect to Requests no. 11, 12(c), 17,
and 18; and defendant must produce documents within 14 days after entry of this Order (i. e., on
or before 9 October 2012) with respect to Requests no. 9 and 10. Each party shall bear its own
expenses incurred in connection with the motions.
SO ORDERED, this the 24th day of September 2012.
United States Magistrate Judge
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