Kotsias v. CMC II, LLC et al
Filing
69
ORDER granting in part and denying in part Plaintiff's 37 Motion to Compel consistent with this Court's prior oral ruling and this Order. Signed by Magistrate Judge Dennis Howell on 11/21/2016. (kby)
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15 CV 242
RITA KOTSIAS,
)
)
Plaintiff,
)
)
v.
)
)
CMC II, LLC, LA VIE CARE CENTERS,
)
d/b/a CONSULATE HEALTH CARE,
)
CONSULATE MANAGEMENT COMPANY, )
FLORIDA HEALTH CARE PROPERTIES, )
LLC, and ESIS,
)
)
Defendants.
)
ORDER
Pending before the Court is the Plaintiff’s Motion to Compel (#37) requesting
an Order directing Defendants to fully respond to her Interrogatories and Request
for Production of Documents. Defendants CMC II, LLC, La Vie Care Centers,
Consulate Management Company, and Florida Health Care Properties, LLC
(collectively, “Defendants”) filed Responses to the Motion to Compel (#42) on
September 12, 2016, and Plaintiff filed her Reply (#43) on September 12, 2016. The
Court allowed Defendants to file a Surreply (#49), which Defendants filed on
September 26, 2016. On October 5, 2016, and October 6, 2016, the Court held a
hearing on the Motion and orally granted in part and denied in part the Motion. The
Court now enters this written Order to memorialize the Court’s prior oral Order. The
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Court GRANTS in part and DENIES in part the Motion to Compel (#37).
I.
Background
Plaintiff alleges Defendants discriminated against her by allegedly failing to
provide reasonable accommodations in the workplace for Plaintiff’s disability. In
addition, Plaintiff alleges Defendants harassed her and wrongfully terminated her
employment. Defendants deny the allegations.
Specifically, Plaintiff alleges that she was injured on August 17, 2011, while
working as a physical therapist for one of the Defendant’s predecessor companies.
While Plaintiff’s workers compensation claim was pending, Plaintiff alleges that
Defendant Consulate Health Care offered Plaintiff a job as a “Chart Audit and
Appeals Specialist” that was to begin on January 20, 2014. Plaintiff alleges that she
requested accommodations be made to her job because the job required her to
perform tasks that were outside of her physical limitations, but Defendants refused
to make the accommodations.
Thereafter, Defendants terminated Plaintiff’s
employment.
After bringing this action, Plaintiff served her Interrogatories and Request for
Production of Documents on Defendants La Vie Health Care Centers and Florida
Health Care Properties, LLC on May 24, 2016. La Vie Health Care Centers and
Florida Health Care Properties, LLC served their Responses and Objections on June
27, 2016.
Plaintiff served her Interrogatories and Request for Production of
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Documents on the Defendants CMC II, LLC and Consulate Management Company
on July 5, 2016. CMC II, LLC and Consulate Management Company served their
Responses and Objections on August 8, 2016. La Vie Health Care Centers
supplemented its Response on September 1, 2016.
Defendant CMC II, LLC
supplemented its Response on September 26, 2016. Finally, La Vie Health Care
Centers served a second supplemental Response on September 26, 2016.
The Plaintiff also served Interrogatories and Request for Production of
Documents upon Defendant ESIS. ESIS is the workers compensation insurance
carrier defending the workers compensation claim of the Plaintiff. After discovery
in this case commenced, Defendant ESIS filed a Motion to Dismiss, the Court
recommended that the District Court grant. On September 30, 2016, this Court
entered an Order staying the Motion to Compel of the Defendant as to ESIS pending
the District Court ruling on any objections to the Memorandum and
Recommendation.
Plaintiff contends in her Motion to Compel that Defendants did not fully and
completely answer or respond to the discovery requests and that the answers and
responses were evasive or incomplete. Plaintiff also contends the Defendants did
not file a privilege log as required by the Fed.R.Civ.P. 26(b)(5)(A).
II.
Legal Standard
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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)
states:
(1) Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
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).
Rule 26 (b)(5) provides that when a party withholds discoverable information
on the ground that the information is privileged, the party must: (1) expressly assert
the claim; and (2) “describe the nature of the documents, communications, or
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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. 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 Indenmity Co. v. Allied
Tube & Conduit, Corp. No. 1:08cv548, 2010 WL 272579, at (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, ad 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 (D.S.C. Nov. 24, 2010)
(“Failure to produce a timely or sufficient privilege log may constitute a forfeiture
of any claims of privilege.”)
III.
Analysis
At the hearing, the Court addressed each of the Interrogatories and Request
for Production and the Responses made by the Defendants and orally ruled on each
interrogatory and each request for production of documents. The Court now enters
this Order to perfect the record.
A.
Interrogatories and Request for Production to CMC II, LLC
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(a)
Interrogatories
No. 1: The objection to the number of employees is
overruled and Defendant will be required to provide to the
Plaintiff the number of employees for 2013, 2014 and 2015. The
objection to the names of all corporate affiliations, officers and
board members is overruled and Defendant will be required to
produce to the Plaintiff the names of all corporate affiliations,
officers and board members of CMC II, LLC for the years 2011,
2012, 2013, 2014, 2015 and 2016.
No. 2: The Court finds this interrogatory has been
answered by the Defendant.
No. 3: This objection of the Defendant is overruled and
the Defendant will be required to provide the date of the
promotion of Crystal Maldonado to corporate resource manager.
No. 4: The Court finds the supplemental response of the
Defendant answers this interrogatory.
No. 5: The Court sustains the objection of the Defendant.
The Court has considered the factors as set forth in Rule 26(b)(1)
and finds that this interrogatory has no relevance to the claims
asserted in Plaintiff’s Complaint.
No. 6: The Court sustains the objection of the Defendant.
The Court has considered the factors as set forth in Rule 26(b)(1)
and finds that this interrogatory has no relevance to the claims
asserted in Plaintiff’s Complaint.
No. 7: The objection of Defendant to this interrogatory is
overruled. Defendant is ordered and required to answer this
interrogatory fully and completely, including the dates and the
name of the person who told Mr. Hager to tell employees not to
assist the Plaintiff. This should include the names and address
of any attorney or counsel who gave this instruction to Mr.
Hager.
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No. 8: The Court finds that this interrogatory has been
answered fully and completely.
No. 9: The Court finds that this interrogatory has been
answered fully and completely.
No. 10: The Court finds that this interrogatory has been
answered fully and completely.
No. 11: The Court finds that this interrogatory has been
answered fully and completely.
No. 12: The Court finds that this interrogatory has been
answered fully and completely.
No. 13: The Court finds that this interrogatory has been
answered fully and completely.
No. 14: The Court finds that this interrogatory has been
answered fully and completely.
No. 15: The Court finds that the objection of the Defendant
to this interrogatory is sustained. The Court has considered
the factors as set forth in Rule 26(b)(1)
and finds that this
interrogatory has no relevance to the claims asserting in
Plaintiff’s Complaint.
(b)
Request for Production of Documents
No. 1: The Court overrules the objection. Defendant is
hereby ordered to produce the job description for Crystal
Maldonado for the period from January 1, 2014 to July 1, 2014.
No. 2: The Court sustains in part and overrules in part the
objection of Defendant to this request for production of
documents. The Court sustains the objection for the request for
production of documents for the period from 2007 through 2013.
The Court overrules the objection and orders Defendant to
produce the income statement and balance sheets of CMC II,
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LLC for the years 2014, 2015 and 2016.
No. 3: The Court overrules the objection of Defendant and
orders Defendant to produce all policies and procedures
regarding leave as a reasonable accommodation under the ADA
for employees that have doctor’s orders taking them out of work
or limiting their hours and prescription drug use for the years
2013, 2014, 2015 and 2016. The Defendant is to produce these
documents in paper form and mail them to Plaintiff and produce
and certify that they have sent the documents to the Plaintiff.
No. 4 The Court overrules the Defendant’s objection to
this request for both subparts A & B of the request. For Part A,
the Defendant is specifically directed to produce in writing to the
Plaintiff the entire personnel file concerning Plaintiff’s
employment, including but not limited to, performance
evaluations, taking leave, and any communications between the
Defendant and the Plaintiff. For Part B, the Defendant is to
produce the entire personnel file concerning the employment of
the Plaintiff, including but not limited to, employment
applications, initial injury of the Plaintiff, time sheets, chart
review records, payroll records, phone call records, and
communications of the Plaintiff with Susan Musgrove. It is
further directed that Defendant’s counsel is to personally
examine these documents and files, not rely upon statements
made by the Defendant regarding the employment file. If
Defendant contends the employment file contains documents
that are privileged, Defendant’s counsel must present a privilege
log. Defendant is further ordered to present a certification that
all documents have been provided in paper form to the Plaintiff.
B.
Interrogatories and Request for Production of Documents to
Consulate Management Company, LLC
(a)
Interrogatories
No. 1: The objection of the Defendant is overruled in part
and sustained in part. The Defendant shall provide in detail
complete answers to the interrogatories for the period from 2013,
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2014, 2015, and 2016. The answers shall incorporate the answer
of Consulate Management Company, LLC or Consulate Health
Care or any company under the Consulate umbrella.
No. 2: The Court finds this interrogatory has been
answered.
No. 3: The Court finds this interrogatory has been
answered, but the answer is incomplete. Defendant’s counsel
will be required to search the records of Defendant and provide
supplemental answers to this interrogatory. Defendant’s counsel
is to examine the records to see if there are documents related to
telephone calls between the Plaintiff and Defendant or any
employee of Defendant or any company under the Consulate
Health Care umbrella for the dates of February 13, 2014, and
February 19, 2014 concerning conversations between the
Plaintiff and Susan Musgrove.
No. 4: The Court finds that this interrogatory has been
answered, but the answer is incomplete. Defendant is directed to
provide the telephone number and address of Work Comp
Strategic Solutions and also the address and telephone number of
Kelly Ongie.
No. 5: The Defendant’s objection to this interrogatory is
overruled. Defendant is required to provide the name and address
of counsel who provided advice or gave instructions to Debra
Mason to hire the Plaintiff.
No. 6: The Court finds this interrogatory has been
answered.
No. 7: The Court overrules in part the objection of the
Defendant. Defendant and any company under the Consulate
Health Care umbrella shall identify all human resource personnel
responsible for managing requests for accommodations for the
Plaintiff for the period from January 1, 2014, to April 30, 2014.
Otherwise, the objection of Defendant is sustained.
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No. 8: The objection of Defendant is sustained. The Court
has considered the factors as set forth in Rule 26(b)(1) and finds
that this interrogatory has no relevance to the claims asserted in
Plaintiff’s Complaint.
No. 9: The objection of the Defendant to interrogatory No.
9 is sustained. The Court has considered the factors as set forth
in Rule 26(b)(1) and finds that this interrogatory has no relevance
to the claims asserted in Plaintiff’s Complaint.
(b)
Request for Production of Documents
No. 1: The Defendant is ordered to produce the documents
that would relate to the answers to interrogatories that Defendant
is required to answer as set forth in this Order.
No. 2: The objection of Defendant is sustained in part and
is overruled in part. Defendant will be required to supplement
its responses regarding any telephone calls made between the
Plaintiff and Susan Musgrove for the dates of February 13, 2014
and February 19, 2014 and provide any documents that relate in
any way to those calls. Should there be any privileged
communications of the Defendant or any company under the
Consulate Health Care umbrella, Defendant’s counsel will be
required to provide a privilege log.
No. 3: The objection of Defendant to this request for
production of document is overruled. Both recorded calls and
any records of any email communications are to be produced to
Plaintiff, of any conversation between the Plaintiff and Susan
Musgrove or Tom Hager. For any privileged communications, a
privilege log must be provided by Defendant’s counsel.
No. 4: The Defendant’s objection to this request for
production of document is sustained. The Court has considered
the factors as set forth in Rule 26(b)(1) and finds that this request
for production of documents has no relevance to the claims
asserted in Plaintiff’s Complaint.
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No. 5: The Defendant’s objection to this request for
production of documents is overruled in its entirety. This Court
finds that Defendant has falsely represented that it has no
employees. The Court directs and orders that Consulate Health
Care, Consulate Management Company, LLC or any other
company or brand under the Consulate Health Care umbrella will
provide to the Plaintiff all human resource policies and
procedural manuals in force and effect from January 1, 2014, to
the present, and include the date that those policies and
procedures were enacted or adopted.
No. 6: The Court sustains the objection of Defendant for
the documents for the period from 2007 through 2013. The Court
overrules the objection of Defendant for the documents requested
for the period from 2014, 2015, and 2016 for Consulate
Management Company, LLC, Consulate Health Care or any
other brand or company under the Consulate Health Care
umbrella. Each company must produce their income statements
and balance sheets for the periods of time as set forth above.
C. Interrogatories and Request for Production of Documents to La Vie
Health Care Centers, LLC
(a)
Interrogatories
No. 1: The objection of the Defendant is sustained. The
Court has considered the factors as set forth in Rule 26(b)(1) and
finds that this interrogatory has no relevance to the claims
asserted in Plaintiff’s Complaint.
No. 2: The objection of the Defendant to this interrogatory
is sustained. The Court has considered the factors as set forth in
Rule 26(b)(1) and finds that this interrogatory has no relevance
to the claims asserted in Plaintiff’s Complaint.
No. 3: The objection of the Defendant as to this
interrogatory is overruled as to the records of the Plaintiff’s
employment and termination. The objection is sustained as to all
other records and persons. The Court directs that Defendant’s
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counsel is to review all records of the Defendant and to answer
this interrogatory fully and completely.
No. 4: The objection of the Defendant is overruled in its
entirety. Defendant is directed to answer the interrogatory fully
and completely.
No. 5: The Defendant’s objection to this interrogatory is
overruled as to the identification of all of the officers and board
members of La Vie Care Centers, LLC d/b/a Consulate Health
Care and all officers and board members of all of their corporate
affiliations for the years from January 1, 2014 through December
31, 2014.
No. 6: The Defendant’s objection to this interrogatory is
sustained.
No. 7: The objection to interrogatory No. 7 is overruled
as to part one. The Defendant is required to identify the location
of all medical charts audited by the Plaintiff when she was
employed at Emerald Ridge Rehabilitation and Health Care
Center during the months of January 2014 through March 2014
and all work related documents Susan Musgrove requested the
Plaintiff to generate with regard to those charts. The objection
of Defendant is sustained as to the additional portions and parts
of this interrogatory.
No. 8: The objection of Defendant as to this interrogatory
is overruled in part and sustained in part. Defendant’s counsel
shall be required to answer this interrogatory fully and
completely, including any employees under the Consulate Health
Care umbrella. Defendant and its counsel shall not be required
to provide federal tax return information or numbers.
(b) Request for Production of Document
No. 1: The Plaintiff has agreed that these request for
production of documents have been responded to, subject to the
provisions of this Order.
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No. 2: The Defendant’s objection to this request is
overruled in part and sustained in part. The Court directs the
Defendant and any company under the Consulate Health Care
umbrella to create the document requested by the Plaintiff and
provide it to the Plaintiff. The objection of the Defendant and
the companies under the Consulate Health Care umbrella is
sustained as to the identification of agents, servants, employees,
partners and attorneys.
No. 3: The objection of Defendant to this request for
production of documents is overruled. The personnel file and all
employment records of the Plaintiff produced by or in the
possession of any company under the Consulate Health Care
umbrella will be produced to the Plaintiff in paper form. The
Defendant shall provide a privilege log as to any privileged
material that Defendant contends is privileged.
No. 4: The objection of Defendant to this request for
production of documents is overruled. The personnel file and all
employment records of the Plaintiff produced by or in the
possession of any company under the Consulate Health Care
umbrella will be produced to the Plaintiff in paper form. The
Defendant can provide a privilege log as to any privileged
material that Defendant contends is privileged.
D.
Interrogatories and Request for Production of Documents to
Florida Health Care Properties, LLC
(a)
Interrogatories
No. 1: The Court finds that the answer to this interrogatory
is incomplete, nonresponsive, and inconsistent with known facts
and documents that have been produced in this file. The
Defendant will be required to answer the interrogatory fully and
completely and Defendant’s counsel will be required to find,
discover and explain the answer to the interrogatory as to how
and why it was represented to the North Carolina Industrial
Commission that Florida Health Care Properties, LLC was the
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employer of Plaintiff.
(b)
Request for Production of Documents
No.1: The Court finds that the response to this request for
production of documents is incomplete, nonresponsive and
inconsistent with known facts as shown by the documents
produced in this file. The Defendant will be required to produce
all documents and explain the answer to interrogatory No. 1 and
show why it was represented to the North Carolina Industrial
Commission that Florida Health Care Properties, LLC was the
employer of Plaintiff.
IV.
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 Plaintiff is appearing without the benefit of counsel, therefore, the
undersigned cannot award fees to the Plaintiff. In addition, the Court finds that the
parties each have equal responsibility in this discovery dispute. Many of the
interrogatories and requests were overly broad or were irrelevant to the issues
presented in Plaintiff’s Complaint. Similarly, Defendants should have produced a
privilege log and should have responded to many of the interrogatories and requests
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without the necessity 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.
V.
Conclusion
This Court GRANTS in part and part DENIES in part Plaintiff’s Motion to
Compel (#37) consistent with this Court’s prior oral ruling and this Order.
Signed: November 21, 2016
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