Kimbrough v. Cincinnati Association for the Blind and Visually Impaired

Filing 22

ORDER following 21 Informal Discovery conference held on 7/2/2013. Defendant is ordered to supplement its discovery responses in accordance with this order within (14) days. The parties have agreed to schedule the supplemental deposition of Mr. DeHart at a mutually agreeable date and time. In view of the additional discovery ordered in this matter, the discovery deadline in this case is extended to 7/16/2013, and the deadline for dispositive motions is extended to 8/16/2013. Signed by Magistrate Judge Karen L. Litkovitz on 7/3/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SUSAN M. KIMBROUGH,
Plaintiff,
vs.
CINCINNATI ASSOCIATION FOR THE
BLIND AND VISUALLY IMP AIRED,
Defendant.

Case No. 1: 12-cv-342
Beckwith, J.
Litkovitz, M.J.

ORDER

Plaintiff brings this action against her former employer, the Cincinnati Association for
the Blind and Visually Impaired (CABVI), alleging, inter alia, age discrimination and retaliation
in violation of the Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. § 621 et seq.,
and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. This matter is before the
Court following an informal telephonic discovery conference held on July 2, 2013. At issue are
several outstanding discovery requests by plaintiff and the designation of certain deposition
testimony by defendant as confidential. After review of the parties' position letters and
consideration of argument by counsel, the Court rules as follows:
1. Reopening of the deposition of Scott DeHart
Plaintiff seeks to reopen the deposition of Scott DeHart, CAB VI's human resources
supervisor, for purposes of questioning Mr. DeHart concerning documents recently produced by
defendant: (1) Jodi Shank's FMLA file; (2) the most recent personnel policies subsequent to the
version already produced; (3) the missing pages of alleged "comparator" evidence, to wit, a
"review" found at bates no. 003436, a "memo" found at bates no. 3488, and a "360 eval" found
at bates no. 3484; and (4) Climate Surveys after 2008.
The Court shall permit the limited reopening of Mr. DeHart's deposition for the sole

purpose of questioning him on Jodi Shank's FMLA file and the missing pages of a "review"
found at bates no. 003436, a "memo" found at bates no. 3488, and a "360 eval" found at bates
no. 3484. The Court finds that the information contained in Ms. Shank's FMLA file is relevant
to plaintiffs retaliation claim. In addition, given the inadvertent omission of the pages identified
above, fairness dictates that plaintiff be given the opportunity to question Mr. DeHart on these
documents. However, the Court is not persuaded that any further discovery should be permitted
on additional personnel policies or Climate Surveys after 2008. Plaintiff has not articulated how
the additional personnel policies are relevant to her claims. In addition, the Court is not
persuaded that the Climate Surveys after 2008 are relevant or will lead to the discovery of
admissible evidence.
2. Emails relating to Dennis Weber performance reviews
Defendant has produced the personnel file of employee Dennis Weber. This personnel
file does not include any performance reviews or evaluations, which plaintiff represents is
contrary to all of the other personnel files produced in this case. Plaintiff requests that defendant
be required to search for and produce any electronic copies or emails of performance reviews for
Mr. Weber. Defendant states that the former director ofCABVI did not always complete
performance reviews and that any such reviews would have been reduced to writing and be
contained in the file. Plaintiff disputes this assertion, and states that Messrs. DeHart and
Mitchell, the Executive Director of CAB VI, both testified that they received reviews and other
performance-related documents via email. The Court determines that plaintiff is entitled to
electronic copies or emails of performance reviews for Mr. Weber, if they exist, for the limited
time period of January 1, 2006 to December 31, 2012.

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3. Performance-related electronic documents of other employees
The undersigned previously ordered defendant to produce the personnel files of
individuals who were CABVI managers or supervisors (approximately 13-15 individuals) for the
time period of January 1, 2006 to December 31, 2012. (Doc. 17 at 2). Plaintiff states that some
of these files contain emails relating to the employee's performance and reviews. Plaintiff also
states that at his deposition, Mr. DeHart testified he was able to locate performance-related
emails in plaintiff's personnel file and he searched for additional associated emails in
defendant's electronic database that did not appear in the personnel file. Based on the deposition
testimony described above, plaintiff seeks emails and other electronic documents related to
performance concerns about employees other than plaintiff. Defendant objects, stating it has
produced the personnel files of these individuals in accordance with the Court's order and that
plaintiff's request is overbroad.
While the electronic information plaintiff seeks about the comparator employees is
relevant, her current request is too broad. Therefore, the undersigned will grant plaintiff's
request, in part, for the limited time period of January 1, 2006 to December 31, 2012, and will
require defendant to produce any additional performance-related emails that relate to emails
already contained in the previously produced personnel files.
4. Confidentiality of deposition testimony related to employee personnel files
In accordance with the protective order in this case, defendant has designated certain
portions of deposition testimony related to employee personnel files as confidential. Plaintiff has
agreed to treat all documents marked as confidential as such, but has not yet had the opportunity
to review the deposition testimony in question. As the Court indicated at the conference, to the
extent either party wishes to submit in conjunction with dispositive motions or memoranda

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documents or deposition testimony marked as confidential, the parties must seek permission
from the Court in accordance with Paragraph 5 ofthe protective order (Doc. 10 at 2-3) and
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996).

Defendant is ordered to supplement its discovery responses in accordance with this order
within fourteen (14) days. The parties have agreed to schedule the supplemental deposition of
Mr. DeHart at a mutually agreeable date and time. In view of the additional discovery ordered in
this matter, the discovery deadline in this case is extended to July 16, 2013, and the deadline for
dispositive motions is extended to August 16, 2013.
IT IS SO ORDERED.

Date:

~X~

7/sja

Karen L. Litkovitz
United States Magistrate Judge

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