Cannon v. Charter Communications

Filing 78

ORDER denying 59 Plaintiff's Motion to Compel Defendant to Provide Documentation Requested From Plaintiff Relevant to Claim. Signed by Magistrate Judge David Keesler on 2/16/21. (Pro se litigant served by US Mail.)(mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:18-CV-657-FDW-DCK
NATHANIEL CANNON,
Plaintiff,
v.
CHARTER COMMUNICATIONS,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion To Compel
Defendant To Provide Documentation Requested From Plaintiff Relevant To Claim” (Document
No. 59) filed November 17, 2020. This motion has been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully
considered the motion and the record, the undersigned will deny the motion.
BACKGROUND
Nathaniel Cannon (“Cannon” or “Plaintiff”) initiated this action with the filing in this Court
of a pro se “Complaint For Employment Discrimination” on December 11, 2018, against Charter
Communications (“Charter” or “Defendant”). (Document No. 1). Plaintiff’s Complaint alleges
that Charter discriminated against him during Plaintiff’s employment with Charter by failing to
accommodate his disability, thus violating the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. §§ 12112 to 12117. This Court issued an order on January 14, 2019 granting Plaintiff’s
motion to proceed in forma pauperis. (Document No. 3).
Defendant filed a “Motion To Dismiss Plaintiff’s Complaint” pursuant to Fed.R.Civ.P.
12(b)(6) on October 28, 2019. (Document No. 9, p. 1). After Plaintiff filed a response to the

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motion to dismiss (Document No. 11) and Defendant filed a reply to the response (Document No.
13), The Honorable Frank D. Whitney issued an amended order on March 4, 2020 denying the
Defendant’s “Motion To Dismiss Plaintiff’s Complaint” as moot without prejudice. (Document
No. 24). In the order, the Court granted Plaintiff fourteen days from the date of the order to file
an Amended Complaint in light of “the supplemental allegations Plaintiff has set forth in his
response to Defendant’s motion to dismiss.” Id. at p. 1. As the Court stated, Plaintiff was directed
to file an Amended Complaint “[i]n order to make clear the allegations that have been set forth
over multiple documents.” Id. at p. 2. Plaintiff filed the Amended Complaint on March 18, 2020.
(Document No. 29).
Defendant filed a “Motion To Dismiss Plaintiff’s Amended Complaint” pursuant to
Fed.R.Civ.P. 12(b)(6) on March 31, 2020 (Document No. 30), to which Plaintiff responded on
April 24, 2020 (Document No. 36). Defendant filed a reply to Plaintiff’s response to the motion
to dismiss the Amended Complaint on May 4, 2020. (Document No. 37). The Honorable Frank
D. Whitney issued an order denying Defendant’s “Motion To Dismiss Plaintiff’s Amended
Complaint” on June 12, 2020. (Document No. 42).
The Court granted “Defendant’s Third Motion To Extend Discovery Period And Amend
Scheduling Order” on July 28, 2020. (Document No. 47). The amended—and current—case
deadlines included: expert reports – November 9, 2020; discovery completion – November 30,
2020; mediation report – December 6, 2020; dispositive motions – December 16, 2020; and trial
term – March 1, 2021. Id. at p. 1.
Defendant previously filed a “Motion To Compel Discovery Responses And Document
Production” (Document No. 44) on July 22, 2020, which the Court granted on November 20, 2020
(Document No. 60). In the order, the undersigned directed Plaintiff to “provide supplemental

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discovery responses” on or before December 7, 2020. Id. at p. 5. The Court’s order found that
although “[s]ome challenges and misunderstanding as a pro se Plaintiff are understandable, [] the
delayed discovery production in this case is unacceptable and has caused unnecessary expense to
Defendant,” particularly where “the discovery requested by Defendant is appropriate and
proportional to the needs of the case.” Id.
On November 17, 2020, Plaintiff filed the pending “Motion To Compel Defendant To
Provide Documentation Requested From Plaintiff Relevant To Claim.” (Document No. 59).
“Defendant’s Opposition To Plaintiff’s Motion To Compel Discovery” was filed on November 30,
2020. (Document No. 61). Plaintiff failed to file a reply brief or notice of intent not to reply, as
required by Local Rule 7.1(e). Thus, this motion is now ripe for review and disposition.
STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
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’ relative access to relevant information, 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.
Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507 (1947).
However, a court may “issue an order to protect a party or person from annoyance, embarrassment,
oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Whether to grant or deny a motion to compel is generally left within a district court’s broad
discretion. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th

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Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion); Erdmann v.
Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s substantial
discretion in resolving motions to compel); and LaRouche v. National Broadcasting Co., 780 F.2d
1134, 1139 (4th Cir. 1986) (same).
DISCUSSION
Plaintiff’s “Motion To Compel Defendant To Provide Documentation Requested From
Plaintiff Relevant To Claim” requests that the Court compel Defendant Charter to respond to a
revised version of his Requests for Production (“RFP”) of documents, request number 20.
(Document No. 59). More specifically, in the pending motion, Plaintiff seems to acknowledge
that he is not requesting that the Court compel Defendant to respond to his original document
request no. 20 dated January 17, 2020, but rather he is seeking to compel Defendant to respond to
his revised email request of October 5, 2020. Id. at p. 3.1 Plaintiff asserts that “[a] good faith
effort has been made via phone conversation in March and emails during the interim as recently
as October 5, 2020 asking for such documents.” Id. at p. 2. As set forth in full in the Defendant’s
response in opposition, original RFP no. 20 requests that the Defendant:
Produce any and all documents, notes, writings, and
communication, electronic information listing all employee requests
or (claims) [sic] for ADA (American Disability Act [sic])
accommodations from January 1, 2014 through the date of this
response.
(Document No. 61, p. 2).
However, on September 8, 2020 – as Plaintiff explicitly acknowledges – he revised that
RFP (although not formally but rather in an email), now requesting instead “stats/data from

Notably, attachments to Defendant’s response in opposition to Plaintiff’s motion showing emails exchanged
between the parties indicate that Plaintiff made the revised request in an email dated September 8, 2020. (Document
No. 61-1, p. 9).
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Defendant pertaining to Defendants [sic] employee [sic] request [sic] for ADA (American
Disability Act [sic]) and WFH program (Work from Home Program).” (Document No. 59, p. 2).
Plaintiff proceeds to clarify that he is asking in this revised request for documents showing the
“number of requests, number of denials and approvals as well as [] Charters [sic] processes
determining final decisions of such request [sic].” Id. Plaintiff sent another email on November
9, 2020 requesting those documents, and Defendant is allegedly refusing “to provide such
information.” Id. at p. 3.
Defendant in opposition makes several arguments supporting its position that the Court
should deny the Plaintiff’s motion to compel. (Document No. 61). As an important note at the
outset, Defendant’s brief indicates that they did already “produce documents related to any request
Plaintiff made for an ADA accommodation,” as so indicated in Defendant’s response to Plaintiff’s
RFP. Id. at p. 3 (emphasis added). Moreover, email attachments to Defendant’s brief indicate that
Defendant “already produced documents responsive to” the request concerning documents about
the “Plaintiff’s March 2017 ADA request,” including “all documents within its possession,
custody, and control.” (Document No. 61-1, p. 7); (Document No. 61-2, p. 4).
Defendant’s first argument is that Plaintiff’s motion to compel “is untimely and [] Plaintiff
failed to comply with the Court’s Case Management Order (D.E. 20), which required Plaintiff to
confer with Charter and request an informal telephonic conference with Magistrate Judge Keesler
within 14 days after the discovery dispute arose.” (Document No. 61, p. 1). Defendant contends
that such 14-day period lapsed on March 5, 2020, given that “any dispute regarding Charter’s
response to Plaintiff’s Request No. 20 arose on February 19, 2020, when Charter served that
response on Plaintiff.” Id. at p. 5. Thus, the failure to “schedule and submit to an informal
telephonic conference” with the Court within the 14-day period running from February 19, 2020

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“dooms [Plaintiff’s] Motion at the outset.” Id. at pp. 4-5 (citing paragraph 1(i) of the Case
Management Order, Document No. 20, pp. 4-5).
The second argument Defendant makes for why the Court should deny the motion is that
“Plaintiff’s proposed ‘revision[]’…was not remotely responsive to or sought by Request No. 20.”
(Document No. 61, p. 6). His request for “the number of individuals who requested any ADA
accommodations over the past six years, the number of same who were granted or denied such a
request, and the number of employees currently working from home due to the pandemic”
constitutes information sought that “was not requested in his Document Request No. 20 upon
which his motion is based.” Id. at pp. 1, 6. Email attachments to Defendant’s response brief
indicate that Plaintiff sent the revised request through email on September 8, 2020, and
Defendant’s counsel responded via email on September 14, 2020, pointing out to Plaintiff that “to
the extent your email [] is an attempt to propound additional requests for documents, it is
insufficient and of no effect [because] [d]iscovery must be propounded pursuant to Rules 33 and
34 of the Federal Rules of Civil Procedure and served through the proper channels.” (Document
No. 61-1, pp. 8-9). Furthermore, Defendant contends that even the revised set of information
sought would be “irrelevant” to Plaintiff’s lawsuit, for “accommodations requested, afforded, or
denied to other employees and the propriety of those decisions turn on facts unique to each
situation, making the information Plaintiff seeks irrelevant” and “unduly burdensome.”
(Document No. 61, p. 7).
Third and finally, Defendant argues that as to Plaintiff’s original RFP no. 20, the request
is “overbroad, unduly burdensome, and an invasion of employee privacy.” Id. at p. 2. Defendant
also makes clear in its response to Request No. 20 that the request is objectionable on the
aforementioned bases, in addition to being “disproportional to the needs of the case, and [it] seeks

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documents that are irrelevant and immaterial to the subject matter of the pending litigation.” Id.
at p. 5. Defendant highlights that Plaintiff’s request was “unlimited in scope,” seeking “ADA
accommodation paperwork for ‘every employee who has ever requested an ADA accommodation
during the last six years.’”

Id. Furthermore, the request sought “highly-personal medical

information, the disclosure of which would constitute an invasion of privacy of those individuals
and a potential violation of the ADA’s confidentiality provisions.” Id. at p. 6.
The undersigned is persuaded by Defendant’s arguments that Plaintiff’s motion to compel
should be denied. First, as Defendant makes clear, Plaintiff’s motion should be denied on purely
procedural grounds. The “Case Management Order” in this action indicates that the parties should
first “attempt in good faith to resolve discovery disputes without the necessity of court
intervention.” (Document No. 20, p. 4). However, where such good faith conferral fails, “the
parties are required, within fourteen (14) calendar days after a discovery dispute arises, to
schedule and submit to an informal telephonic conference before the referral magistrate judge.”
Id. at pp. 4-5 (emphasis added). Footnote 3 to the “Case Management Order” indicates that “failure
to timely submit to this procedure will result in the objection being deemed waived.” Id. at p. 5.
The discovery dispute arose on February 19, 2020, when Charter responded to Plaintiff’s RFPs.
The two-week period for conferring with Defendant, and failing resolution of the dispute,
thereafter seeking court intervention by way of telephonic conference with the undersigned
magistrate judge, has clearly passed. Thus, Plaintiff’s motion should be denied because it is
untimely.
Notwithstanding Plaintiff’s waiver of his objection to Charter’s document production given
the expiration of the time limit for objections, the undersigned will note that both Plaintiff’s
original request no. 20 and the “revised” request set forth in the September 8, 2020 email

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(procedurally deficient, as explained below) (see Document No. 61-1, p. 9) fall outside the bounds
of Federal Rule of Civil Procedure 26(b)(1) given the requests’ overbreadth and disproportionality,
questionable relevance to Plaintiff’s individual lawsuit, and the high burden that responding to
such requests would impose upon Defendant. Importantly, Defendant has already produced
documents relevant to Plaintiff’s individual 2017 request for an accommodation under the ADA,
which of course are relevant and proportional to the case and thus fall within the scope of
permissible discovery sought pursuant to Fed.R.Civ.P. 26(b)(1). However, to require that Charter
produce documents about all employee requests for accommodation under the ADA from 20142020 (per Plaintiff’s original request no. 20) is undoubtedly overly broad, disproportional to the
needs of Plaintiff’s individual lawsuit, and exceedingly burdensome. So, too, is the “revised”
request for statistics concerning numbers of employees over a six-year time frame who requested
ADA accommodations and numbers of those employees granted or denied such requests overly
broad and unduly burdensome. Statistics concerning the number of employees working from
home because of the pandemic are not relevant to Plaintiff’s case, where the issue concerns
whether Charter failed to accommodate a disability under the ADA.
Finally, the Court will point out that Federal Rule of Civil Procedure 33 and 34 govern
service of interrogatories and requests for document production, respectively. Revising a request
for production in an email between the parties does not comply with the Federal Rules, which
require formal discovery requests be served upon the other party. See Grant v. Wachovia Mortg.
FSB, 2009 WL 10667045, at *1 (S.D. Fla. May 14, 2019) (“[i]nformal requests for production lie
outside the boundaries of the discovery rules…[t]o treat correspondence between counsel as
formal requests for production under Rule 34 would create confusion and chaos in discovery”)
(citing Sithon Maritime Co. v. Mansion, 1998 WL 182785, at *2 (D. Kan. Apr. 10, 1998));

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Firestone v. Hawker Beechcraft Int’l Serv. Co., 2012 WL 359877, at *3-*4 (D. Kan. Feb. 2, 2012)
(same).
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion To Compel Defendant To
Provide Documentation Requested From Plaintiff Relevant To Claim” (Document No. 59) is
DENIED.
The Clerk of Court is directed to send a copy of this Order to pro se Plaintiff by email at
the address [e-mail] and by certified U.S. mail, return receipt requested.
SO ORDERED.

Signed: February 16, 2021

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