Fulmore et al v. United Parcel Service, Inc. et al
Filing
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ORDER granting in part and denying in part 24 Motion to Compel. Counsel is reminded to read the order in its entirety for detailed information. Signed by US Magistrate Judge James E. Gates on 12/18/2012. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NICHELE FULMORE, H. RONALD
REVELS III, and RONALD C. JONES,
Plaintiffs,
v.
UNITED PARCEL SERVICE, INC. and
DOES 1-100,
Defendants.
NICHELE FULMORE, H. RONALD
REVELS III, and RONALD C. JONES,
Plaintiffs,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.
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7:II-CV-18-F
7: Il-CV-91-F
This case comes before the court on a motion (D.E. 24) by defendant United Parcel Service
("defendant") to compel responses to interrogatories and production of documents from plaintiffs
Nichele Fulmore ("Fulmore"), H. Ronald Revels III ("Revels"), and Ronald C. Jones ("Jones")
(collectively "plaintiffs").
The motion has been fully briefed] and has been referred to the
undersigned for disposition pursuant to 28 U.S.C. §636(b)(l)(A). (See Minute Entry after D.E. 26).
For the reasons set forth below, the motion will be allowed in part and denied in part.
I In support of its motion to compel, defendant filed a memorandum (D.E. 24-1) with exhibits (D.E. 24-2
through 24-8). Plaintiffs filed a memorandum (D.E. 25) in opposition.
BACKGROUND
Plaintiffs, current employees of defendant, commenced this employment discrimination
action in July of201O. (See CompI. (D.E. 1-2)). In their complaint, plaintiffs allege that they were
discriminated against on the basis ofrace by being subjected to disparate discipline,job assignments,
and training; false accusations of misconduct; terminations; and retaliation. (See, e.g., CompI.
~~
11, 14, 16). They assert claims for wrongful termination in violation ofNorth Carolina public policy
(id.
~~
19-23); wrongful harassment and termination in violation of42 U.S.C. § 1981 (id.
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24-28);
and wrongful harassment and termination in violation of Title VII of the Civil Rights Act of 1964
(id.
~~
29-33). Defendant generally denies the allegations in plaintiffs' complaint. (See generally
Ans. (D.E. 5)).
On 10 March 2011, defendant served on plaintiffs its first set of interrogatories and requests
for production (D.E. 24-2, 24-3). Included in the discovery were requests, Interrogatory no. 10 and
Production Request no. 14, to Revels and Jones seeking information and documents regarding their
medical histories. There were also requests, Interrogatory no. 16 and Production Request no. 13,
seeking information and documents regarding the attorneys' fees and costs sought by each of the
plaintiffs in this case. Plaintiffs timely served their responses on 2 November 2011 (see Pis.' Resp.
(D .E. 24-4)), but asserted various objections to the foregoing requests. Following defendant's failure
to resolve the disputes over them, it filed the instant motion to compel further responses to them.
DISCUSSION
I.
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
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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 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 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 Jun. 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). The party
resisting providing discovery bears the burden of establishing the legitimacy of its objections. Brey
Corp. v. LQ Management, L.L.c., No. AW-ll-cv-00718-AW, 2012 WL 3127023, at *4 (D. Md.
26 JuI. 2012) ("In order to limit the scope of discovery, the 'party resisting discovery bears the
burden of showing why [the discovery requests] should not be granted. ", (quoting Clere v. GC
Services, L.P., No. 3: 10-cv-00795, 2011 WL 2181176, at *2 (S.D.W. Va. 2011)). Rule 37 allows
for the filing of a motion to compel discovery responses. Fed. R. Civ. P. 37(a)(3)(B).
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II.
DISCOVERY REQUESTS REGARDING MEDICAL HISTORY
Interrogatory No. 10 reads in relevant part2 "[i]dentiry each and every physician, doctor,
psychologist, psychiatrist, clergyman, counselor or other health care professional that [plaintiff] has
met with or consulted, or that has treated or diagnosed [plaintiff], in conjunction with any physical,
mental, or emotional condition within the past ten (l0) years." (E.g., Interr. to Revels no. 10 (D.E.
24-2 at 19)) (emphasis added). Production request no. 14 seeks "[a]ll documents relating to or
evidencing each and every physical, emotional, psychological or mental treatment, condition, injury
or illness identified in response to Interrogatory 10." (E.g., Doc. Req. to Revels no. 14 (D.E. 24-3
at 14)).
Revels objected to Interrogatory no. lOon several grounds, but nevertheless responded that
"he has not been treated by any health care provider within the past 10 years that has treated or
diagnosed Plaintiff with any physical, mental, or emotional condition." (Revels' Ans. to Interr. 10
(D.E. 24-4 at 31-32)). He thereby appeared to be limiting his response to health care providers who
treated him. He responded to Production Request no. 14 by stating that he was unaware of any
responsive documents. (Id., Revels' Resp. to Prod. Req. no. 14 at 37).
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Interrogatory no. 10 states in full:
Identify each and every physician, doctor, psychologist, psychiatrist, clergyman, counselor or other
health care professional that [plaintiff] has met with or consulted, or that has treated or diagnosed
[Revels], in conjunction with any physical, mental, or emotional condition within the past ten (10)
years. For each such person identified, please state their address and telephone number; describe the
nature of the condition, injury, or illness for which that person treated [plaintiff]; state whether any
medication, treatment or therapy was required and, if so, the name or nature of the medication,
treatment or therapy and, if hospitalization was required, the name and address of the hospital or
clinic; and identify any documents relating to [plaintiffs] consultation, diagnosis or treatment with
such person. (Please execute one of the enclosed medical waivers for each such health care facility,
provider or professional). [Plaintiff] may make and use additional copies of the medical waiver if
necessary.
(Interr. to Revels no. 10 (D.E. 24-2 at 19)).
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In plaintiffs' opposition memorandum, Revels states that since his initial response to this
discovery he has identified a provider who comes within the scope of Interrogatory no. 10 and
produced to defendant documents relating to him. (PIs.' Resp. Mem. 2-3). It is not clear, however,
whether he is continuing to limit his responses to providers who have treated him.
In response to Interrogatory no. 10, Jones identified several providers. (Jones' Ans. to Interr.
no. 10 (D.E. 24-4 at 51-52)). He objected to Production Request no. 14 on grounds ofprivilege, but
stated that "copies of non-privileged responsive documents will be produced upon entry of a
protective order." (Jones' Resp. Prod. no. 14 (D.E. 24-4 at 57)). The court has since entered a
protective order. (Prot. Ord. (D.E. 26)).
The case law is clear that by seeking damages for emotional- and medical-related damages
plaintiffs have placed their mental and medical health in issue, and rendered discoverable relevant
information and documents relating to their mental and medical health. See, e.g., Iannucci v. Rite
Aid Corp., No.1: 11cv281, 2012 WL 3019953, at *5 (W.D.N.C. 24 JuI. 2012) (directing production
of medical records in employment case where plaintiff placed her emotional and medical state at
issue by seeking damages arising from the alleged discrimination); Wells v. General Dynamics
Information Technology, Inc., No. DKC 11-2748,2011 WL 5036022, at *3 (D. Md. 21 Oct. 2011)
("Much as the attorney-client privilege is waived by a client when he or she brings a malpractice
action against his or her lawyer, or a doctor-patient privilege is waived when a plaintiff seeks to
recover for medical injuries arising out of a tort or other legal wrong, [plaintiff] cannot both assert
a claim for medical injuries and at the same time withhold relevant information as to her medical
claim from the defendant on the grounds of privilege."). Plaintiffs may not limit their production
to only diagnosing providers, as Revels may be doing, or to non-privileged documents, as Jones may
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be doing, where more complete discovery is properly sought, as here. While defendant seeks
releases for the various providers identified by Revels and Jones in addition to the documents for
such providers themselves, defendant has not demonstrated that, at this point, there is sufficient basis
to require production of such releases (e.g., reason to believe documents represented as being
nonexistent are, in fact, being withheld).
This portion of defendant's motion is therefore ALLOWED IN PART and DENIED IN
PART.
To the extent that Revels has not provided to defendant all information sought by
Interrogatory no. 10 and all documents sought by Production Request no. 14, he shall serve any
outstanding information, in the form of a verified supplemental interrogatory answer, and any
outstanding documents, together with a supplemental response to the production request, no later
than 2 January 2013. The production shall include requested information and documents whether
or not the provider made a diagnosis.
To the extent that Jones has not provided to defendant all documents sought by Production
Request no. 14, he shall serve any outstanding documents, together with a supplemental response
to the production request, no later than 2 January 2013. The production shall include requested
documents whether or not they are subject to the physician-patient, psychologist-patient, psychiatrist
patient, therapist-patient, or other similar privilege.
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III.
DISCOVERY REQUESTS REGARDING ATTORNEYS' FEES AND COSTS
Interrogatory no. 16 to each plaintiff asks him or her, in relevant part,3 to "[s]tate the amount
[the plaintiff] is claiming for attorneys' fees and costs in this case." (E.g., Interr. to Fulmore no. 16
(D.E. 24-2 at 10)). Production Request no. 13 seeks, in relevant part,4 "[a]ll documents, records and
papers which in any way pertain to any damages, including the calculation of such damages, that
[plaintiff] contend [he or she] suffered as a result ofthe acts alleged in Plaintiffs' Complaint." (E.g.,
Doc. Req. no. 13 to Fulmore (D.E. 24-3 at 6)). The parties appear to agree that "damages" as used
in this production request includes attorneys' fees and costs claimed by plaintiffs.
Plaintiffs initially objected to Interrogatory no. 16 on grounds ofattorney-client privilege and
to Production Request no. 13 on the grounds of attorney-client privilege and the attorney work
product doctrine. (E.g., Fulmore's Ans. to Interr. no. 16 (D.E. 24-4 at 15); Fulmore's Resp. to Prod.
Req. no. 13 (D.E. 24-4 at 18)). Plaintiffs state that they have since produced a copy of their fee
agreement and provided information about its terms at deposition. (Pis.' Resp. Mem. 3). The court
is satisfied that this production satisfies any obligation that plaintiffs may have at this time to provide
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Interrogatory no. 16 reads in full:
State the amount [plaintiff] is claiming for attorneys' fees and costs in this case (and if the entire
amount is not known, the amount as of the date of [plaintiffs] answer to this interrogatory and an
estimate ofany additional amounts likely to be claimed by [plaintiff] and, for each such amount, please
state the manner in which such amount was calculated and identify each document referring,
containing or relating in any way to the arrangement that [plaintiff] has for the payment of fees and
costs to any legal counsel in this matter.
(E.g., Interr. to Fulmore no. 16 (D.E. 24-2 at 10)).
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Production Request no. 13 reads in full:
All documents, records and papers which in any way pertain to any damages, including the calculation
of such damages, that [plaintiff] contends [he or she] suffered as a result of the acts alleged in
Plaintiffs' Complaint, including, but not limited to those documents identified in response to
Interrogatory 9 of [defendant'S] First Interrogatories to [the plaintiff].
(E.g., Doc. Req. no, 13 to Fulmore (D.E. 24-3 at 6)).
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the information
and documents
at
issue.
Brown
v.
Walsh
&
Kelly,
Inc.,
No.
2:11-CV-34-RLM-PRC, 2012 WL 1831545, at *2 (N.D. Ind. 18 May 2012) (denying motion to
compel production of attorneys' fee agreement where party had "not shown that the attorney fee
arrangement information would be or lead to evidence admissible at trial; instead, it appears that the
fee arrangement information would only be relevant in the case of a judgment against Defendant,
at which time a renewed motion can be made if necessary."). Accordingly, defendant's motion to
compel production as to Interrogatory no. 16 and Production Request no. 13 is DENIED without
prejudice.
CONCLUSION
For the reasons and on the terms set forth above, defendant's motion to compel is
ALLOWED in PART and DENIED in PART. Each side shall bear its own expenses incurred in
connection with the motion on the grounds that the circumstances would make the award ofexpenses
unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii).
SO ORDERED, this 18th day of December 2012.
~/
United States Magistrate Judge
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