Penley v. McDowell County Board of Education et al
Filing
71
ORDER granting in part and denying in part 58 Motion to Compel. Signed by Magistrate Judge Dennis Howell on 11/30/15. (emw)
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14CV170
STANLEY JEFFREY PENLEY,
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Plaintiff,
v
McDOWELL COUNTY BOARD OF
EDUCATION, et al.,
Defendants.
ORDER
Pending before the Court is the Motion to Compel [# 58]. Plaintiff moves to
compel Defendants to fully respond to his Request for Production of Documents.
On October 23, 2015, the Court held a hearing on the motion and orally granted in
part and denied in part the motion. In addition, the Court took under advisement the
issue of the manner in which Defendants produced the documents and the issue of
an award of costs related to the Motion to Compel. The Court now enters this written
Order to memorialize the Court’s prior oral order and to address the two remaining
issues. The Court GRANTS in part and DENIES in part the Motion to Compel
[# 58].
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I.
Background
Plaintiff alleges that beginning in the fall of 2004, he worked as a political
consultant representing Democratic candidates for elective office in McDowell
County, North Carolina elections.(#23,¶9) Plaintiff acted as a political consultant
over the next several years, representing Democrat candidates running for elected
office for the North Carolina House of Representatives.(#23,¶11)
Defendant
Gillespie was the Republican candidate in each of these elections. Plaintiff contends
that Defendant Gillespie was angry about Plaintiff’s political activities and
threatened to get Plaintiff.(#23,¶12-23)
Beginning in 2006, Plaintiff was also employed full time as a school teacher
with the McDowell County Schools.(#23,¶8) Plaintiff achieved career teacher status
effective during the 2010-2011 school year.(#23,¶8) Plaintiff contends that various
employees of the McDowell County Schools told him that Defendant Gillespie was
attempting to have the Plaintiff terminated from his teaching position in retaliation
for the Plaintiff’s political activities.(#23,¶12-23) The Plaintiff further alleges that
Defendant Neighbors, as chairman and a member of the McDowell County Board
of Education, conspired with Defendant Gillespie to hire Defendant Martin as the
Superintendent of McDowell County Schools in order for Defendant Martin to
terminate Plaintiff’s employment.(#23,¶24-34) Plaintiff also alleges that Defendant
Martin did in fact take actions to terminate Plaintiff, but that Defendant Martin’s
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recommendation of dismissal and termination of Plaintiff was rejected by a hearing
officer.(#23,¶42-53)
Plaintiff then brought this action against Defendants. Plaintiff asserts a
number claims against Defendants, including claims pursuant to 42 U.S.C. § 1983
based on alleged violations of Plaintiff’s rights as protected by the First Amendment
to the United States Constitution, that the individual Defendants entered into a civil
conspiracy to retaliate against the Plaintiff for exercising his First Amendment
rights, that Defendants violated Plaintiff’s rights as guaranteed by the
North
Carolina Constitutional, that Defendants Martin, Neighbors and Gillespie
intentionally inflicted emotional distress upon Plaintiff, that Defendant Gillespie
tortuously interfered with Plaintiff’s contract of employment with the McDowell
County Board of Education, and that Defendant Martin maliciously prosecuted a
dismissal action against Plaintiff.(#23)
After the Court entered a Pretrial Order and Case Management Plan, Plaintiff
served its First Request for Production of Documents on Defendants. Plaintiff now
moves to compel Defendants to respond to various requests for production of
documents. Plaintiff also contends that Defendant McDowell County Board of
Education did not file a privilege log as required by the Federal Rules of Civil
Procedure. Finally, Plaintiff contends that the manner in which Defendants have
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produced documents violates the Federal Rules of Civil Procedure.
II.
Legal Standard
Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Where a
party fails to respond to an interrogatory or a request for production of documents,
the party seeking discovery may move for an order compelling an answer to the
interrogatories or the production of documents responsive to the request. Fed. R.
Civ. P. 37(a)(3)(B). “Over the course of more than four decades, district judges and
magistrate judges in the Fourth Circuit…have repeatedly ruled that the party or
person resisting discovery, not the party moving to compel discovery, bears the
burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226,
243 (M.D.N.C. 2010) (collecting cases); Mainstreet Collection, Inc. v. Kirkland’s,
Inc., 270 F.R.D. 238, 241 (E.D.N.C. 2010).
III.
Analysis
A. Privilege Log
Rule 26 provides that when a party withholds discoverable information on the
ground that the information is privileged, the party must: (1) expressly assert the
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claim; and (2) “describe the nature of the documents, communications, or tangible
things not produced or disclosed---and do so in a manner that, without revealing
information itself privileged or protected, will enable the parties to assess the claim.”
Fed. R. Civ. P. 26(b)(5)(A). Typically, this description takes the form of a privilege
log. See Mezu v. Morgan State Univ., 269 F.R.D. 565, 577 (D. Md. 2010); Smith
v. Café Asia, 256 F.D.R. 247, 250 (D.D.C. 2009). “A party simply cannot claim
privilege and refuse to provide a privilege log; indeed, some courts have found that
doing so results in waiver of the privilege.” Travelers Indemnity Co. v. Allied Tube
& Conduit, Corp. No. 1:08cv548, 2010 WL 272579, at *1 (W.D.N.C. Jan. 15, 2010)
(Howell, Mag. J.); Mezu, 269 F.R.D. at 577 (“a privilege log…must accompany a
written response to a Rule 34 document production request, and a failure to so may
constitute a forfeiture of any claims of privilege.”); AVX Corp. v. Horry Land Co.,
Inc., No. 4:07cv3299, 2010 WL 4884903, at *4 (D.S.C. Nov. 24, 2010) (“Failure to
produce a timely or sufficient privilege log may constitute a forfeiture of any claims
of privilege.”)
Plaintiff contends that Defendant McDowell County Board of Education
failed to provide a privilege log, as required by the Federal Rules. At the hearing,
counsel for Defendant McDowell County Board of Education stated that a privilege
log was provided to the Plaintiff the day before the hearing. Although the better
practice in this case might have been to produce a privilege log with each round of
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documents produced, rather than wait until the very end and produce a single,
comprehensive privilege log, no order compelling the production of a privilege log
is necessary. Defendant McDowell County Board of Education has now produced
the privilege log, and there is no issue as to the sufficiency of the log before the
Court. Accordingly, the Court DENIES as moot the Motion to Compel to the extent
it seeks an order compelling the production of a privilege log.
B. The Request for Production of Documents served upon The McDowell
County Board of Education
Plaintiff moves to compel the responses to Request for Production of
Documents 6, 12, 16, 17, 20, 21, 23, 24, 30, 32 and 33. At the hearing, this Court
addressed each of these requests and their responses and orally ruled on the motion.
The Court now enters this Order to perfect the record.
1.
Request for Production of Documents No. 6
The Court finds the documents requested in Request No. 6 could contain
information relevant to the allegations contained in the Plaintiff’s Amended
Complaint. As a result, the Court sustains the objection of the McDowell County
Board of Education, in part, and overrules the objection, in part. The Court orders
Defendant McDowell County Board of Education to fully answer Interrogatory No.
9, subject to the conditions of the July 13, 2015, Protective Order. The answer shall
be limited to the time period from June 1, 2010, to October 23, 2015.
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Defendant McDowell County Board of Education shall also produce the
documents as requested in Request No. 6. Specifically, Defendant McDowell
County Board of Education shall produce the personnel files of the persons identified
in the answer to Interrogatory No. 9. However, no medical records of any person
shall be produced, and the documents shall be subject to the July 13, 2015, Protective
Order entered by this Court. This Order will be considered a Court Order pursuant
to North Carolina law directing the production of these documents. N.C. Gen. Stat.
§ 115C-319; N.C. Gen. Stat. § 115C-321; see also Cole v. Charlotte Mecklenburg
Sch. Dist., Civil Action No. 3:13-cv-57-DCK, 2013 WL 6056587 (W.D.N.C. Nov.
15, 2013) (Keesler, Mag. J.).
2.
Request for Production of Documents No. 10:
At the hearing, Plaintiff withdrew its Motion to Compel in regard to Request
No. 10.
3.
Request for Production of Documents No. 12:
The Court finds that although the documents sought in Request No. 12 may
be relevant, they are the records and documents that concern third parties and require
a court order prior to their disclosure. The Court sustains the objection in part, and
overrules the objection in part.
The Defendant McDowell County Board of
Education shall produce the documents as to any disciplinary action taken against
any career employee by the McDowell County Board of Education for the period
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from June 1, 2010, to October 23, 2015. The McDowell County Board of Education,
however, need not produce any documents referencing any investigation of any
career teacher.
The production of these documents shall be pursuant to the July 13, 2015,
Protective Order. This Order will be considered a Court Order pursuant to North
Carolina law directing the production of these documents. N.C. Gen. Stat. § 115C319; N.C. Gen. Stat. § 115C-321.
4.
Request for Production of Documents No. 16:
The undersigned finds that the information requested in this request may
contain information relevant to the claims in the Amended Complaint, but that the
documents require a court order pursuant to North Carolina law prior to their
disclosure. The Court also finds that any medical records that may be located in the
file of Defendant Martin are not relevant in this matter, and Defendant McDowell
County Board of Education need not disclose any such medical records.
Accordingly, the Court sustains in part and overrules in part the objection to Request
No. 16.
The McDowell County Board of Education shall produce any and all
communications between members of the McDowell County Board of Education
concerning the recruitment and hiring of Defendant Martin as Superintendent,
including any email communications concerning the recruitment and hiring of Ms.
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Martin up to the date of her hiring. The McDowell County Board of Education shall
not disclose or produce any medical records of Defendant Martin. This Order will
be considered a Court Order pursuant to North Carolina law directing the production
of these documents. N.C. Gen. Stat. § 115C-319; N.C. Gen. Stat. § 115C-321.
5.
Request for Production of Documents No. 17:
The Court finds that Request No. 17 seeks relevant information. Andy Webb
applied for employment as a school custodian with the McDowell County Board of
Education. Plaintiff contends that Mr. Webb was not hired due to political concerns.
Information related to the decision not to hire Mr. Webb is relevant to the claims
asserted in the Amended Complaint. As a result, the Court sustains the objection of
the Defendant McDowell County Board of Education in part and overrules the
objection in part. The McDowell County Board of Education shall produce all
documents, including emails or electronic communications of any of the McDowell
County school board members concerning the decision about whether or not to hire
Andy Webb to a custodian position at any McDowell County school during the fall
semester of 2012. As a part of this production, the school board will be ordered to
produce all school board minutes or recordings for any meeting at which the
application for employment of Mr. Webb was discussed.
6.
Request for Production of Documents No. 19:
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After considering the arguments of the parties, the Court sustains the objection
of Defendant McDowell County Board of Education as to Request No. 19. The
Court finds that Defendant McDowell County Board of Education’s response to
Request No. 19 was reasonable.
7.
Request for Production of Documents No. 20:
This request seeks information related to the characterization of a former
student. This student made a complaint regarding statements or the conduct of
Plaintiff, which led to the action of Defendant Martin in seeking termination of
Plaintiff. The Court finds that this request seeks information relevant to the claims
in this dispute and directs McDowell County Board of Education to produce any
paper writing, other than a medical record, concerning any characterization by an
employee or member of the McDowell County Board of Education that referred to
this student as “medically fragile.”
Defendant McDowell County Board of
Education, however, shall not produce any such reference if it is part of a medical
record or statement by any physician, psychiatrist or psychologist that treated the
student. Plaintiff has other methods of discovery, including a subpoena under Rule
45 of the Federal Rules of Civil Procedure, to obtain the medical records of this
student while also allowing this student an opportunity to be heard about the
disclosure of her medical records.
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8.
Request for Production of Documents No. 21:
Request No. 21 seeks information related to a racial slur allegedly uttered by
a former employee of the McDowell County Board of Education in 2013. The Court
finds that this information is potentially relevant to the allegations contained in the
Amended Complaint and overrules the objection of McDowell County Board of
Education. The Court Orders McDowell County Board of Education to produce the
documents requested. The documents produced shall be subject to the previously
entered Protective Order. This Order will be considered a Court Order pursuant to
North Carolina law directing the production of these documents. N.C. Gen. Stat. §
115C-319; N.C. Gen. Stat. § 115C-321.
9.
Request for Production of Documents No. 23:
Plaintiff seeks all documents listing the career employees of the McDowell
County Board of Education and McDowell County Schools by their user ids. The
Court finds that the information sought is not relevant to any claim asserted in the
Amended Complaint or any defense in this case. The Court sustains the objection
of Defendant McDowell County Board of Education.
10.
Request for Production of Documents No. 24:
At the hearing, Plaintiff withdrew its Motion to Compel in regard to Request
No. 24.
11.
Request for Production of Documents No. 30:
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Plaintiff seeks all documents related to the deliberations and decisions as to
the staffing of teachers in the Social Studies Department during the 2013-14 and
2014-15 school years for the McDowell County Board of Education and McDowell
County Schools. The Court finds that due to the allegations contained in the
Amended Complaint concerning Plaintiff’s position of employment when he was
restored to his teaching position, the requested documents are relevant. Defendant
McDowell County Board of Education has not come forward with any relevant legal
authority that would prohibit the disclosure of this information. The Court overrules
the objection of Defendant McDowell County Board of Education and orders
Defendant Dowell County Board of Education to produce the responsive documents.
12.
Request for Production of Documents No. 32:
At the hearing, Plaintiff withdrew its Motion to Compel in regard to Request
No. 32.
13.
Request for Production of Documents No. 33:
This request seeks documents related to whether AP Government teachers
were certified by the North Carolina education authorities or the College Board.
Defendant McDowell County Board of Education contends that a certification was
not required to teach AP Government in the McDowell County school system.
Plaintiff contends otherwise. The Court directs Defendant McDowell County Board
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of Education to produce any responsive documents, if such documents exist. The
Court finds that such documents, if they exist, are relevant to Plaintiff’s contention
that he was not restored to his former teaching position and could be relevant to the
issue of damages in this matter. The Court overrules the objection of Defendant
McDowell County Board of Education to this request.
C. Plaintiff’s First Request for Production of Documents as to Defendant
Neighbors
Plaintiff moves to compel the responses to Request for Production of
Documents 8, 9 and 10. At the hearing, this Court addressed each of these requests
and their responses and orally ruled on the motion. The Court now enters this Order
to perfect the record.
1. Request for Production of Documents No. 8:
This request seeks documents related to any disciplinary action taken against
Vicki Webb. The Court finds that the request seeks information that could lead to
the discovery of admissible evidence and would be relevant to the allegations in the
Amended Complaint. The Court overrules the objections of Defendant Neighbors
and directs Defendant Neighbors to produce the responsive documents.
To the
extent this request seeks information protected by North Carolina law, this Order
will be considered a Court Order pursuant to North Carolina law directing the
production of these documents. N.C. Gen. Stat. § 115C-319; N.C. Gen. Stat. § 115C13
321.
2. Request for Production of Documents No. 9:
Request No. 9 seeks information related to the decision not to hire Andy
Webb. The Court sustains in part and overrules in part the objection to this request.
The Court directs Defendant Neighbors to produce any emails between himself and
any other member of the McDowell County Board of Education concerning the
hiring or failure to hire Mr. Webb for a custodial position with the McDowell County
Board of Education or the McDowell County Schools.
3. Request for Production of Documents No. 10:
Plaintiff seeks documents related to discussions concerning Andy Webb’s role
as County Commissioner and his candidacy for the North Carolina State Senate. The
Court finds that the requested documents may be relevant to the allegations
contained in the Amended Complaint and could lead to the discovery of admissible
evidence. The Court overrules the objection and directs Defendant Neighbors to
respond fully and completely to Request No. 10, including the production of any
emails from Defendant Neighbors’s personal computer or any computer he had as a
school board member with the McDowell County Board of Education or any other
documents that would respond to Request No. 10.
D. Plaintiff’s First Request for Production of Documents as to Defendant
Gouge
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Request No. 7 seeks documents related to any student complaints during the
Spring semester of 2013 related to a racial slur allegedly made by Rodney Wheeler,
a current or former employee of the McDowell County Board of Education. The
Court finds that the request seeks the disclosure of documents that are relevant to the
claims in the Amended Complaint and could possibly lead to the discovery of
admissible evidence. Accordingly, the Court overrules the objection of Defendant
Gouge. Defendant Gouge, in her administrative capacity as an employee of the
McDowell County Board of Education, shall produce all documents responsive to
this request for production of documents. The production of these documents is
subject to the previously entered Protective Order. This Order will be considered a
Court Order pursuant North Carolina law directing the production of these
documents. N.C. Gen. Stat. § 115C-319; N.C. Gen. Stat. § 115C-321.
E. Search Terms
Plaintiff contends that the Defendant McDowell County Board of Education
did not provide the electronically stored information as requested in the Plaintiff’s
Request for Production of Documents because it failed to use the search terms
suggested by Plaintiff.
Defendant McDowell County Board of Education
acknowledged at the hearing that it did not use Plaintiff’s suggested search terms but
contends that the terms it did use were sufficient. At the hearing, Plaintiff also
advised the Court that he would be satisfied if Defendant McDowell County Board
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of Education conducted another search of their records using the following words
and time frames: (1) Jolene - Hollowell within three words for the period from April
1, 2013, to June 30, 2014; (2) Gabe - Robinson within three words for the period
from April 1, 2013, to June 30, 2014; (3) Vicki - Webb within three words for the
period January 1, 2010, to June 1, 2014; (4) Andy – Webb within three words for
the period January 1, 2010, to June 1, 2014, and (5) the word “Nigger” for the period
January 1, 2010, to October 23, 2015.
The Court finds that these search terms are reasonable and may lead to the
discovery of relevant information related to the claims in this matter. The Court
directs Defendant McDowell County Board of Education to perform another search
of their electronic records using the words and time frames listed above, as directed
during the Court’s hearing on the Motion to Compel.
F. The Manner of the Production
The Federal Rules of Civil Procedure address the manner in which a
responding party must produce electronically stored information. Fed. R. Civ. P.
34(b)(2)(E). Where a party produces electronically stored information, the party
“must produce the documents as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the request . . . .” Id.
Plaintiff contends that Defendant McDowell County Board of Education failed to
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comply with its requirements under the Federal Rules and produced the
electronically stored information in a “document dump.” Plaintiff seeks an order
from this Court directing Defendant McDowell County Board of Education to
organize or label the responsive documents. In response Defendant McDowell
County Board of Education contends that it produced the documents in the manner
in which they are kept in the usual course of business.
After reviewing the record, and after having the benefit of oral argument at
the hearing, the Court finds that Defendant McDowell County Board of Education
did not engage in an impermissible “document dump” and is not obligated to
organize the documents at issue. Defendant McDowell County Board of Education
produced the Declaration of Caitlin M. Poe, an attorney at Brooks, Pierce,
McLendon, Humphrey & Leonard, LLP who has handled the document production
in this matter. Ms. Poe states that the document production “was organized as the
documents were stored in the ordinary course of business, which is chronologically
by custodian.” (Poe Aff. ¶ 21.) Based on the statements in the affidavit submitted
by Ms. Poe, as well as her statements at the hearing, the Court finds that the evidence
before the Court demonstrates that Defendant McDowell County Board of Education
met its obligation pursuant to Rule 34 and produced the documents in the manner in
which they are kept in the usual course of business. Accordingly, the Court DENIES
the Motion to Dismiss as to the manner in which Defendant McDowell County
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Board of Education produced the responsive electronically stored information.
G. Award of Costs and Fees
Rule 37 of the Federal Rules of Civil Procedure provides for an award of
reasonable expenses, including attorney’s fees in filing a motion to compel where
the Court grants the motion or where discovery is provided after the filing of the
motion. Fed. R. Civ. P. 37(a)(5)(A). Where the Court grants in part and denies in
part the motion, the Court may apportion the reasonable expenses for the motion
between the parties. Fed. R. Civ. P. 37(a)(5)(C).
Here, the Court granted in part and denied in part the motion. Although the
Court overruled many of the objections to Plaintiff’s discovery requests, the Court
also sustained many of the objections and narrowed the requests. In addition,
Plaintiff withdrew some of the requests, which the Court would have found to be
overbroad. The Court finds that the parties bare equal responsibility in this discovery
dispute. Many of the request were overly broad and some of the requests referred to
the incorrect interrogatory. Similarly, Defendant should have produced a privilege
log sooner and should have responded to some of the requests without the need for
a court order. However, because the Court finds that the parties are equally to blame
for this discovery dispute, the Court will not award expenses to either party. An
award of fees in this case is not warranted.
IV.
Conclusion
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The Court GRANTS in part and DENIES in part the Motion to Compel
[# 58] consistent with the Court’s prior oral ruling and this Order. To the extent that
Defendants have not already done so, the Court DIRECTS the Defendants to
produce the relevant documents within fourteen (14) days of the entry of this Order.
In addition, the Court DIRECTS Defendants to fully answer any interrogatories
consistent with this Order within fourteen (14) days of the entry of this Order.
The Court DIRECTS the parties that this Order directing the production of any
employment record of an employee of the McDowell County Board of Education is
to be considered as an Order directing the production of those records pursuant to
N.C.G.S. § 115C-319, N.C.G.S. § 115C-320, and N.C.G.S. § 115C-321.
Signed: November 30, 2015
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