Grant v. Target Corporation

Filing 58

OPINION AND ORDER. Motion to amend complaint (Doc. # 29 ) and Motion to compel discovery (Doc. # 30 ) are GRANTED; Motion to extend the discovery schedule (Doc. # 38 ) is denied as moot; Target's Motion for Summary Judgment (Doc. # 41 ), Motion to strike four affidavits (Doc. # 44 ), Motion to strike Mr. Grant's opposition to the motion to strike or alternatively a reply in support of Target's motion to strike (Doc. # 55 ), and Target's Motion to strike Mr. Grant's respo nse to Target's reply in support of its motion for summary judgment (Doc. # 56 ), are DENIED without prejudice; and Target's motion to schedule a status conference and final pre-trial conference (Doc. # 52 ) is DENIED as moot. Signed by Magistrate Judge Terence P Kemp on 3/14/2012. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mark Grant,

:

Plaintiff,

:

v.

: Case No. 2:10-cv-823

Target Corporation,

: Magistrate Judge Kemp

Defendant.

:
OPINION AND ORDER

This employment discrimination case is before the Court to
consider plaintiff Mark Grant’s renewed motion for leave to amend
his complaint (Doc. #29), defendant Target’s motion to compel
discovery (Doc. #30), Target’s motion to extend the discovery
schedule (Doc. #38), Target’s motion for summary judgment (Doc.
#41), Target’s motion to strike four affidavits (Doc. #44),
Target’s motion to schedule a status conference and final pretrial conference (Doc. #52), Target’s motion to strike Mr.
Grant’s opposition to Target’s motion to strike or in the
alterative, a reply in support of Target’s motion to strike (Doc.
#55), and Target’s motion to strike Mr. Grant’s response to
Target's reply in support of its motion for summary judgment
(Doc. #56).

For the following reasons, the motion to amend will

be granted; the motion to compel will be granted; the motion to
extend discovery will be denied as moot; the motion for summary
judgment, the motion to strike four affidavits, the motion to
strike Mr. Grant’s opposition to Target’s motion to strike, and
the motion to strike Mr. Grant’s response to Target's summary
judgment reply will be denied without prejudice; and the motion
to schedule a status conference and final pre-trial conference
will be denied as moot.
I. Renewed Motion to Amend Complaint (Doc. #29)

Mr. Grant filed his original complaint on September 14,
2010.

It named only Target Corporation as a defendant and

asserted a race discrimination claim.

(Doc. #2).

On June 3,

2011, within the Court’s deadline for filing motions to amend,
Mr. Grant filed a motion to amend his complaint (Doc. #16),
stating that he wanted to add three individual defendants, Mark
Nealon, Aaron Young, and Naomi Brook.

(Doc. #17).

On August 23,

2011, this Court denied Mr. Grant’s motion to amend without
prejudice, and cautioned him that any renewed motion to amend
must be accompanied by the proposed amended complaint. (Doc.
#28).

His renewed motion, filed thirty days later, states that

he wishes to name four individuals, Mark Nealon, Aaron Young,
Naomi Brook, and Marty Atwell as additional defendants.

He has

attached an amended complaint with numerous pages detailing these
individuals’ alleged involvement in the case. (Doc. #29).

In its

response, Target argues that allowing Mr. Grant to amend his
complaint would be futile, unduly prejudicial, a violation of
Fed. R. Civ. P. 16(b), and a violation of S.D. Ohio Local Rule
7.2(a)(1).
Fed. R. Civ. P. 15(a) requires the Court to grant leave to
amend “freely” if “justice so requires.”

Reasons for denying a

motion for leave to amend include undue delay, prejudice to the
opposing party, and futility of the amendment.

See generally

Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir. 1994); Midkiff v.
Adams County Reg'l Water Dist., 409 F.3d 758, 767 (6th Cir.
2005).

The Complaint must comply with federal pleading standards

as interpreted by the United States Supreme Court in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), which require that the complaint
contain enough factual allegations (and not just legal
conclusions) to make recovery against the defendants “plausible.”
There is some conceptual difficulty presented, however, when the
2

primary basis for a party’s opposition to the filing of an
amended pleading is that the pleading is futile, i.e. that it
fails to state a claim upon which relief can be granted.

Denying

a motion for leave to amend on grounds that the proposed new
claim is legally insufficient is, at least indirectly, a ruling
on the merits of that claim.
At least where the claim is arguably sufficient, it is
usually a sound exercise of discretion to permit the claim to be
pleaded and to allow the merits of the claim to be tested by way
of a motion to dismiss.

“The trial court has the discretion to

grant a party leave to amend a complaint, even where the amended
pleading might ultimately be dismissed.”

Morse/Diesel, Inc. v.

Fidelity and Deposit Co. of Md., 715 F.Supp. 578, 581 (S.D.N.Y.
1989).

Consequently, rather than determining the actual legal

sufficiency of the new claim, in many cases it will suffice to
determine if there is a substantial argument to be made on that
question and, if so, to allow the amended pleading to be filed
with the understanding that a motion to dismiss for failure to
state a claim may follow.
In its August 23, 2011 order, the Court noted that although
individual managers or supervisors cannot be held liable under
Title VII, individual managers and supervisors can be held liable
jointly with a corporate employer for acts of discrimination
under Ohio law. (Doc. #28, p. 3).

“Thus, if a complaint

sufficiently states a claim for discrimination against a
corporate employer and also alleges that certain managers or
supervisors committed individual acts of discrimination against
the plaintiff, the complaint would also state a cause of action
against them.” (Doc. # 28, p. 4).
Mr. Grant’s amended complaint contains multiple pages of
allegations against Target and various employees that work there,
including the proposed new defendants Mr. Nealon, Mr. Young, Ms.
3

Brook, and Mr. Atwell.

Target argues that his allegations

against the proposed defendants are not sufficient, under Twombly
and Iqbal, to state a claim for discrimination against these
individuals under Ohio law, but Target has not developed these
arguments with citations to appropriate
state employment law.

governing federal and

See Dillery v. City of Sandusky, 398 F.3d

562, 569 (6th Cir. 2005)(“[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.”)(internal quotations omitted)).

Moreover,

the Court is required to construe complaints filed by parties who
are not represented by attorneys in a liberal fashion.
Kerner, 404 U.S. 519, 520 (1972).

Haines v.

Thus, this Court will not deny

Mr. Grant’s renewed motion to amend his complaint at this stage
in the litigation based on the grounds of futility.

Beyond its

arguments relating to futility, Target also raises the issue of
prejudice.

It argues that it would have to start its defense

over from the beginning to respond to Mr. Grant’s new allegations
and the addition of new defendants.
In Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.
321 (1971), the Court indicated that mere delay, of itself, is
not a reason to deny leave to amend, but delay coupled with
demonstrable prejudice either to the interests of the opposing
party or of the Court can justify such denial.
Expanding upon this concept, the Court of Appeals has noted
that:
[i]n determining what constitutes prejudice, the court
considers whether the assertion of the new claim or
defense would: require the opponent to expend
significant additional resources to conduct discovery
and prepare for trial; significantly delay the
resolution of the dispute; or prevent the plaintiff
from bringing a timely action in another jurisdiction.
Phelps v. McClellan, 30 F.3d 658, 662-663 (6th Cir. 1994).

4

See

also Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986);
Tefft v. Seward, 689 F.2d 637 (6th Cir. 1982).

Stated

differently, deciding if any prejudice to the opposing party is
“undue” requires the Court to focus on, among other things,
whether an amendment at any stage of the litigation would make
the case unduly complex and confusing, see Duchon v. Cajon Co.,
791 F.2d 43, 48 (6th Cir. 1986) (per curiam), and to ask if the
defending party would have conducted the defense in a
substantially different manner had the amendment been tendered
previously.

General Electric Co. v. Sargent and Lundy, 916 F.2d

1119, 1130 (6th Cir. 1990).

See also Davis v. Therm-O-Disc,

Inc., 791 F. Supp. 693, 695 (N.D. Ohio 1992).
The District Court must also take into account whether there
has been a repeated failure to cure deficiencies in the pleading,
Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579, 591 (6th
Cir. 1990); Head, 870 F.2d at 1123 (6th Cir. 1989), or whether
“the matters contained in the amended complaint could have been
advanced previously so that the disposition of the case would not
have been disrupted by a later, untimely amendment.”

Ridenour v.

Collins, 692 F. Supp.2d 827, 843 (S.D. Ohio 2009).
Mr. Grant’s proposed complaint is not overly complex or
confusing.

Although he seeks to add four individual defendants

to the case, his legal claims remain relatively simple- race
discrimination under federal and Ohio law.

There is no reason to

believe Target would have conducted its defense in a
substantially different manner had the amendment been tendered
previously.

Although the original complaint was filed only

against Target, it contained allegations against both Mr. Young
and Mr. Nealon that Target no doubt has already explored in
discovery.

Any additional allegations yet to be explored against

those individuals or against Mr. Atwell or Ms. Brooks would not
likely require duplicative discovery.
5

Further, it does not appear that Mr. Grant waited an
inordinate amount of time to add the claims against the new
defendants.

His original motion to amend his complaint was

timely (Doc. #17) and was denied without prejudice (Doc. #28). He
renewed that motion just one month after this Court’s order
inviting him to do so (Doc. #29).
amend his complaint.

This is his first attempt to

Mr. Grant’s renewed motion was filed prior

to the close of discovery and prior to the dispositive motions
deadlines.

Thus, this case is not comparable to cases such as

Duggins v. Steak ‘n Shake, Inc., 195 F.3d 828, 834 (6th Cir.
1999), where the plaintiff delayed pursuing his new claims until
after the discovery and dispositive motions deadlines had passed.
Although this amendment will result in some delay, delay
itself is not a valid reason for denying leave to amend where
little prejudice is shown.

Although this Court will have to

reopen discovery, Target itself has a motion to compel discovery
pending before this Court that, if granted, will prolong the
discovery period and require the Court to extend this case
schedule.

Thus, this Court does not find that Mr. Grant’s motion

has unduly prejudiced Target.
Target next argues Mr. Grant has violated Rule 16(b) by
failing to demonstrate good cause for moving to amend the
complaint beyond the deadline for amendments which was
established in the initial pretrial order.

Fed. R. Civ. P. 16(b)

requires the Court, in each civil action which is not exempt from
that rule, to “enter a scheduling order that limits the time” to,
inter alia, join other parties, amend the pleadings, and complete
discovery.

The rule further provides that “[a] schedule may be

modified only for good cause and with the judge’s consent.”

The

touchstone of “good cause” under Rule 16(b) is not the presence
or absence of prejudice to the non-moving party - although that
is a factor - but, rather, “‘[t]he primary measure of Rule 16's
6

‘good cause’ standard is the moving party’s diligence in
attempting to meet the case management order’s requirements.’”
Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002),
quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir.
2001).

In this case, the deadline for filing such motions was

June 3, 2011, which is the date that Mr. Grant initially filed
his motion.
This Court’s August 23, 2011 order denied that motion
without prejudice to its renewal.
to that order.

Mr. Grant responded promptly

The logical implication of this sequence of

events is that the Court granted Mr. Grant leave to file beyond
the deadline if his renewed motion simply corrected the errors he
made in his first filing.

Therefore, this Court believes Mr.

Grant has shown the diligence required in attempting to meet this
Court’s scheduling order.
Lastly, Target argues Mr. Grant failed to comply with S.D.
Ohio Local Rule 7.2(a)(1), which requires that all motions be
accompanied by a memorandum in support.

But this Court’s order

on August 23, 2011 stated that Mr. Grant would be permitted to
file a renewed motion to amend his complaint as long as the
motion was accompanied by his amended complaint alleging facts
that each defendant, acting in a supervisory or managerial
capacity, discriminated or retaliated against him in connection
with his past employment by Target. (Doc. #28, pp. 5-6).

Mr.

Grant appears simply to have done what the Court told him to do.
The Court will not deny his motion for leave to amend simply for
not filing a memorandum in support.
II. Motion to Compel Discovery (Doc. #30)
The facts relating to Target’s motion to compel are taken
from Target’s motion to compel and Target’s reply in support of
its motion to compel. (Docs. #30 & #34).

Mr. Grant has not

provided this Court with a contrary statement of facts. Although
7

he suggests that Target’s motion is “laced with inaccuracies,” he
does not contest any specific facts they have alleged, so this
Court will accept Target’s statement of facts as true for
purposes of this order only.
Target sent interrogatories and requests for production of
documents to Mr. Grant on May 11, 2011.
33(b)(2), he had 30 days to respond.

Under Fed. R. Civ. P.

On June 14, 2011, Target

agreed to extend Mr. Grant’s time to respond to June 17, 2011.
(Doc. #30, Ex. C).

On June 17, 2011 Mr. Grant answered the

interrogatories, signed his answers, and submitted them to Target
sometime thereafter. (Doc. #30, Ex. D).

Although Mr. Grant

attached a number of documents to these interrogatories, he did
not specifically answer Target’s requests for production of
documents in writing or organize or label the attached documents
to respond to the categories in Target’s requests.
On July 12, 2011, Target’s counsel sent Mr. Grant a letter
asserting that Mr. Grant’s interrogatory responses were deficient
and that he failed to sign authorizations allowing Target to
conduct non-party discovery to determine the scope of Mr. Grant’s
damages and mitigation efforts. (Doc. #30, Ex. E).

Target’s

counsel also informed Mr. Grant that he failed to respond to the
requests for production of documents, thereby waiving his
objections to them.

The letter asked Mr. Grant to provide full

responses by July 22, 2011.
On July 17, 2011, Mr. Grant mailed his “Production of
Documents to Defendant Target.”

(Doc. #30, Exhibit F).

Again,

he did not make a separate written response to the request, did
not assert objections, and did not organize or label the
documents to respond to the categories in Target’s request.

He

produced only two exhibits: a mini-cassette tape and a letter
from Mr. Grant to the Ohio Job and Family Services, Unemployment
Compensation Review Commission.
8

On July 20, 2011, Target sent Mr. Grant a second letter,
stating he failed to answer Target’s requests for production of
documents, to produce the responsive documents, and to sign the
requested authorizations. (Doc. #30, Ex. G).

The letter asked

Mr. Grant to answer Target’s document request and return the
requested authorizations by July 29, 2011.
On July 29, 2011 Target’s counsel again requested discovery
responses from Mr. Grant. (Doc. #30, Ex. G).

That same day, Mr.

Grant responded and objected for the first time to Target’s
request for production as follows:
I object to providing any additional documents for your
review that are not pertinent to this case. However, I
will gladly provide any and all documents related to
this case as part of discovery for, “the judges eyes
only,” as the documents you are requesting are highly
privileged in nature and are not for public viewing.
Pursuant to rule 26.1, these documents will be clearly
provided to the judge in the form of a log in the order
that they were received.
(Doc. #30, ex. H).

Since that time, Mr. Grant has not moved for

a protective order regarding the information he claims is
privileged, has not provided either Target or this Court with a
privilege log identifying the documents he believes to be
privileged, and has not identified which privilege protects the
documents in question.
In response to Mr. Grant’s email, on August 1, 2011, counsel
for Target replied to Mr. Grant that he was required to respond
to the interrogatories and provide responsive documents under the
Federal Rules; that if documents were privileged, he had failed
to so designate this fact in his responses and had failed to seek
a protective order; and that he had failed to provide a privilege
log. The letter concluded, “Given this impasse, we see no other
option than to seek the court’s intervention in this matter and
to seek our attorney’s fees and costs in doing so.” (Doc. #30,
Ex. H).
9

On August 18, 2011 this Court held a telephone conference
and ordered the parties to attempt to resolve their disputes
without judicial intervention and to bring all requested
discovery to the mediation scheduled for September 12, 2011. At
the mediation, Mr. Grant produced two more documents: a 2009 W2
from Target and a W2 from a temporary agency indicating that Mr.
Grant earned approximately $5,000.

Mr. Grant told the mediator

that he would produce answers to Target’s requests for production
and provide the requested documents by Thursday, September 15,
2011.

According to the motion to compel, Mr. Grant did not do

so.
Target filed its motion to compel discovery on September 26,
2011. Mr. Grant then produced to Target a document that appeared
to be Mr. Grant’s second attempt to answer Target’s
interrogatories, which was signed by Mr. Grant on October 5,
2011.

(Doc. #34, Exhibit I).

Mr. Grant again did not respond to

the requests for production of documents, but did attach a number
of additional documents to his interrogatory responses. On
October 13, 2011, Mr. Grant filed with this Court a third set of
responses to Target’s interrogatories (Doc. #33) that contained
answers that varied from those contained in his second set of
responses, although attaching the same documents.

Mr. Grant also

sent this third set of responses to Target with a handwritten
note advising Target to “disregard” his second set of responses.
(Doc. #34, Ex. J).
In what appears to be a sur-reply to Target’s motion to
compel (Doc. #35), Mr. Grant has alleged that his responses,
while brief, have been truthful and factual, that Target itself
has failed to produce documents showing that the “racial
incident” was investigated, that certain individuals were not
included in Target’s initial disclosures, and that Target had
misplaced a portion of Mr. Grant’s W2 form. Attached to his sur10

reply is an email string describing graffiti in the Target
central receiving break room, three pictures of what appear to be
bathroom toilet paper dispensers, and a copy of Target’s initial
disclosures.
It is important for all litigants, including those
proceeding without counsel, to understand that the Federal Rules
of Civil Procedure authorize extremely broad discovery.

United

States v. Leggett & Platt, Inc., 542 F.2d 655, 657 (6th Cir.
1976), cert. denied 430 U.S. 945 (1977).

Therefore, Fed. R. Civ.

P. 26 is to be liberally construed in favor of allowing
Dunn v. Midwestern Indemnity, 88 F.R.D. 191, 195

discovery.

(S.D.Ohio 1980).

Any matter that is relevant, in the sense that

it reasonably may lead to the discovery of admissible evidence,
and is not privileged, can be discovered.

The concept of

relevance during discovery is necessarily broader than at trial,
Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-501 (6th Cir.
1970), and “[a] court is not permitted to preclude the discovery
of arguably relevant information solely because if the
information were introduced at trial, it would be ‘speculative’
at best.”

Coleman v. American Red Cross, 23 F.3d 1091, 1097 (6th

Cir. 1994).

A district court enjoys broad discretion in managing

discovery.

Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993).

Information subject to disclosure during discovery need not
relate directly to the merits of the claims or defenses of the
parties.

Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the
litigation.
(1978).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

On the other hand, the Court has the duty to deny

discovery directed to matters not legitimately within the scope
of Rule 26, and to use its broad discretionary power to protect a
party or person from harassment or oppression that may result
even from a facially appropriate discovery request.
11

See Herbert

v. Lando, 441 U.S. 153, 177 (1979).

Additionally, the Court has

discretion to limit or even preclude discovery which meets the
general standard of relevance found in Rule 26(b)(1) if the
discovery is unreasonably duplicative, or the burden of providing
discovery outweighs the benefits, taking into account factors
such as the importance of the requested discovery to the central
issues in the case, the amount in controversy, and the parties’
resources.

See Fed. R. Civ. P. 26(b)(2).

Finally, the Court

notes that the scope of permissible discovery which can be
conducted without leave of court has been narrowed somewhat by
the December 1, 2000 amendments to the Federal Rules. Rule 26(b)
now permits discovery to be had without leave of court if that
discovery “is relevant to the claim or defense of any party ....”
Upon a showing of good cause, however, the court may permit
broader discovery of matters “relevant to the subject matter
involved in the action.”

Id.

Although Mr. Grant is acting pro se without counsel, this
does not excuse him from producing discovery.

In re Family

Resorts of America, Inc., No. 91-4127, 1992 WL 174539, *3 (6th
Cir. July 24, 1992).

See also McNeil v. United States, 508 U.S.

106, 113 (1993); Black v. Columbus Public Schools, No.
2:96–cv–326, 2011 WL 1990579, *3 (S.D. Ohio May 23, 2011).

The

Court of Appeals has made clear that “while pro se litigants may
be entitled to some latitude when dealing with sophisticated
legal issues, acknowledging their lack of formal training, there
is no cause for extending this margin to straightforward
procedural requirements that a layperson can comprehend as easily
as a lawyer.”
1991).

Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir.

Pro se litigants are not to be accorded any special

consideration when they fail to adhere to readily-comprehended
court deadlines.

Id. at 110.

Target has moved this Court to compel Mr. Grant to respond
12

to its discovery requests. Under Fed. R. Civ. P. 37, a party
seeking discovery may move for an order compelling an answer,
designation, production or inspection.

Such a motion may be made

if, among other things, “a party fails to answer an interrogatory
submitted under Rule 33" or “a party fails to respond that
inspection will be permitted--or fails to permit inspection--as
requested under Rule 34.”
This Court has reviewed all the interrogatories and requests
for production of documents and has concluded that they are
relevant or, at the very least, may lead to the discovery of
admissible evidence.

Because Mr. Grant submitted a second set of

interrogatories that he later requested be “disregarded,” this
Court will only look to the answers he provided in his third set
of interrogatory responses when deciding this motion.
As an introductory matter, the Court notes that Target takes
issue with Mr. Grant’s responses to interrogatory nos. 6, 14, and
17.

It claims that the responses in one version are inconsistent

with the responses in another version. These inconsistencies,
however, are not appropriately addressed in a motion to compel
discovery.

Mr. Grant has provided answers, so there is nothing

to compel.

Target has other remedies at its disposal if it

believes that it has received conflicting information in response
to interrogatories.
Target has also asked this Court to compel Mr. Grant to sign
a number of forms authorizing the release of certain information.
This Court declines to compel Mr. Grant to sign the Authorization
for Release of Employment Records.

Such records are not within

Mr. Grant’s custody or control, and therefore he has no
obligation to produce them in response to discovery requests.
See Fed.R.Civ.P. 34(a)(1).

Target may obtain these records

itself through subpoenas.
Target also asks for an order compelling Mr. Grant to sign
13

an Authorization for Release of Mental Health Records and
Information, the Authorization for Release of Medical Records and
Information, and to execute a Form 4506- Request for a Copy of
Tax Returns.

Unlike records from other employers, Mr. Grant has

control of his medical and tax records to the extent that he (and
only he) can authorize either his doctors or the Internal Revenue
Service to release this information; that is, he has the “legal
right to obtain the documents on demand.”
Co., 61 F.3d 465, 469 (6th Cir. 1995).

In re Bankers Trust

Further, to the extent

that he claims either emotional suffering due to Target’s
actions, or loss of income, documents which pertain to medical
and mental health information or tax information are
discoverable.

However, the Court believes the appropriate way

for such documents to be produced is not through the signing of
releases or authorizations to be used by an opposing party, but
by the party who has been asked for these records (i.e. Mr.
Grant) to obtain them himself and then produce the relevant
documents to Target.

Mr. Grant is warned that if he does not

produce relevant and responsive documentation, he will be
precluded from himself relying on that information in this
litigation to show either that he obtained medical treatment for
any emotional injury he attributes to Target, or that he suffered
wage loss, and if he does not produce complete information about
the wages he has earned since leaving Target - information that
will define his economic damages - he could be prevented from
testifying about this entire subject matter.
As to Mr. Grant’s July 29, 2011 objection to providing
additional documents because they were “highly privileged in
nature” and “not for public viewing,” any party who claims that
information is not subject to discovery because it is privileged
must expressly assert the specific privilege involved (e.g., the
attorney-client privilege, the self-incrimination privilege found
14

in the Fifth Amendment, or some other applicable privilege) and
then list the documents being withheld on grounds of privilege in
a “privilege log.”

Fed. R. Civ. P. 26(b)(5)(a) requires that

this log be produced to the opposing party and that it describe
the nature of the documents, communications or tangible things
not produced in a manner that, without revealing information
itself that is privileged or protected, will enable that party to
assess the claim of privilege.

Under Local Rule 26.1(b), any

privilege log produced must cross reference the specific request
to which each assertion of privilege pertains and shall list
documents withheld in chronological order, beginning with the
oldest document for which a privilege is claimed.

If Mr. Grant

simply feels these matters are “confidential” and do not fall
into the traditional privilege categories, his proper recourse is
to seek an agreed protective order from Target or to ask this
Court for a protective order pursuant to Fed. R. Civ. P. 26(c),
which would allow Target to see these documents but not to use
them for any purpose not related to this case.
As far as interrogatory answers are concerned, although Mr.
Grant has attempted to answer Target’s interrogatories three
times, many of his answers are still incomplete.

Further, he has

never properly responded to any of Target’s requests for
production of documents because Fed.R.Civ.P. 34(b)(2)(B) requires
a written response which indicates, by request or category,
either that the documents will be produced or that the party
objects to producing that category of documents.
As a final introductory matter, the Court is aware that Mr.
Grant’s deposition has already been taken.

To the extent that

Target’s motion to compel addresses matters that were also
covered in Mr. Grant’s deposition, Mr. Grant need not repeat what
he has already testified to.

If he believes that the answers to

interrogatories are contained in his deposition, he may simply
15

refer to the appropriate pages of his deposition as his answer.
It is certainly not the Court’s intention to force him to provide
multiple answers to the same set of questions.
This Court will now advise Mr. Grant of his discovery
obligations with respect to each interrogatory and document
request at issue.

This Court first turns to Mr. Grant’s

obligations to answer Target’s interrogatories.
2. Interrogatories
a. Interrogatory 1
This Interrogatory asks for all names by which Mr. Grant has
been known, the place and date of his birth, drivers’ license
numbers, and residency addresses of the past ten years.

In Mr.

Grant’s response, he listed his name and current address and,
citing his right to privacy, gave no other information requested.
The right to privacy is not a recognized privilege in this
context, and this information is discoverable.

Mr. Grant is

ordered to provide the additional information requested.
b. Interrogatory Nos. 3-5 and 13
Interrogatory no. 3 seeks the identity of each person Mr.
Grant contacted, questioned, or interviewed concerning facts
alleged in his complaint.

Mr. Grant responded “see witness list”

and attached a witness list to his responses.

The witness list,

however, is simply a list of 17 names (only 7 of which have last
names and 7 of which have phone numbers), briefly describing each
person’s involvement with Mr. Grant’s claims.

That does not

fully respond to what Target has asked, and it is entitled to
know what others may know about this case.

Mr. Grant is ordered

to provide more complete information regarding the identity of
each individual, including each individual’s last name, in
response to this question.

Moreover, Mr. Grant is ordered to

list these individuals’ names specifically in his response to
interrogatory no. 3 instead of grouping them together in a list
16

that also includes answers to other interrogatories.
Interrogatory no. 4 asks for the full name, address, and
telephone number of any person who provided Mr. Grant with a
written or verbal statement concerning his claims, the date each
statement was made, the full name and address of the person
taking each statement, whether the statement was written, oral,
videotaped and/or tape recorded, and the full name and address of
the present custodian of each statement. It then asks Mr. Grant
to identify all non-privileged documents relating to such
statements.
list.”

In response, Mr. Grant again stated “see witness

The witness list, brief as it is, does not answer this

question either.

Mr. Grant is ordered to provide this complete

information in response to Target’s interrogatory no. 4 and is
additionally ordered specifically to list these individuals in
his response to interrogatory no. 4 instead of grouping them
together in a list that also includes answers to other
interrogatories.
Interrogatory no. 5 asks Mr. Grant for the date he had any
conversations, meetings, or written communications with any
present or former Target employee concerning the topic of his
lawsuit, the identity of persons present, and a summary of the
statements made.

He is also asked to identify any documents

related to such contacts.

Mr. Grant again responds “see witness

list,” which, for the same reasons stated above, is not fully
responsive.

Mr. Grant is ordered to provide this complete

information in response to Target’s interrogatory no. 5 and is
additionally ordered specifically to list this information in
response to interrogatory number 5, instead of grouping it
together in a list that also includes answers to other
interrogatories.
Interrogatory no. 13 asks Mr. Grant to identify any
admissions made by Target; when and where the admission was made;
17

the persons present when the admission was made; any notes, tapes
or recordings of the admission; and the identity of the custodian
of the documented admissions.

Again, in response to this

question, Mr. Grant says “see witness list.” If Mr. Grant
believes any Target employee admitted anything of relevance to
this case to him, he must provide complete information in
response to interrogatory no. 13 and must specifically list this
information in response to interrogatory no. 13 instead of
grouping it together in a list that also includes answers to
other interrogatories.
c. Interrogatory No. 8
Interrogatory no. 8 asks Mr. Grant to identify any other
complaints, claims, or lawsuits he has initiated in which he
alleged unlawful workplace practices, including, but not limited
to, race discrimination. Mr. Grant responded “not applicable.”
However, this Court’s own docket reveals a 1999 lawsuit for race
discrimination in employment against his former employer, Friends
of the Homeless.

See Mark Grant v. Friends of the Homeless, et

al., No. 2:99-cv-00235 (S.D. Ohio).

This information may be

relevant. Mr. Grant is ordered to respond completely to
interrogatory no. 8 and provide information about any other
claims or lawsuits he has filed in which he alleged unlawful
workplace practices.
d. Interrogatory No. 11
Interrogatory no. 11 requests that Mr. Grant identify any
computer, fax machine, mobile phone, printer, PDA, or other
electronic communication device that he used from 2007 to the
present to communicate with any person regarding his claims.
Although Target took issue with Mr. Grant’s original response to
this interrogatory in its motion to compel, Mr. Grant has since
changed his answer to state that “No cell phone records of
communication is available or related emails” and Target has not
18

addressed this change in its Reply Brief to this Court.

Thus,

the Court will assume Target is satisfied with Mr. Grant’s new
answer and Mr. Grant need not provide additional information to
interrogatory no. 11.
e. Interrogatory No. 12
In interrogatory no. 12, Target asks Mr. Grant to identify
by name all individuals known to him that have personal knowledge
regarding the facts and circumstances of his allegations and to
describe each document that supports his allegations.

It then

goes on specifically to list the allegations from Mr. Grant’s
complaint. Mr. Grant answered “I was assigned special project
every week by Mark Nealon.
affidavits.

See witness list and forthcoming

Still awaiting request for copies of pictures taken,

complaint, and formal complaint.”

Other than identifying Mark

Nealon, Mr. Grant did not identify any persons who or describe
any documents that support the allegations in his Complaint.

Mr.

Grant is therefore ordered to identify all individuals known to
him that have personal knowledge regarding the facts and
circumstances of his allegations and to describe each document
that supports his allegations to the extent that his answers to
other interrogatories do not supply this information.
f. Interrogatory No. 14
In interrogatory no. 14 Mr. Grant was asked to state with
particularity the nature and amount of all damages he was seeking
from Target as a result of the allegations in his complaint.

It

asks for the specific amount of damages he is seeking for his
violation of Title VII, loss of wages and fringe benefits, loss
of future earnings and benefits, compensatory damages, punitive
damages, costs, and all other such relief and it asks him to
describe the means by which each figure was calculated.

Mr.

Grant responded “There is no price tag for trying to destroy
someone’s self esteem and family life. . . Loss of wages due to
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termination. Difficulty finding employment.

Loss of the ability

to provide a good Christian education for children.” (Doc. #33,
p.9). Mr. Grant did not provide the specific amount of damages he
is seeking for each category of damages listed in interrogatory
no. 14, nor did he describe the means by which each figure was
calculated.

Although some of these categories of damages may be

difficult to quantify, Mr. Grant must still state how much he
will be asking for in each category.

If the category of damages

is something that can be calculated, such as lost wages, he does
have to provide that calculation.

In fact, this type of

information is also the subject of the mandatory disclosures
described in Fed.R.Civ.P. 26(a)(1).

Mr. Grant is therefore

ordered to provide this information.
g. Interrogatory No. 15
Interrogatory no. 15 asks Mr. Grant if he was claiming
injury to his physical or mental health, including emotional
distress, as a result of any treatment by or decision of Target.
If so, it asks him to state the full name and address of any
medical providers who have treated him for such conditions and
the dates on which expenses were incurred, when the services were
rendered, the person providing the services, whether he has an
appointment to return, and to identify documents relating to
those services.

In response, Mr. Grant stated “There is no true

price for the damages Target has caused for me and my family.
Extreme stress due to the major financial changes in life.

Did

not seek medical attention.” This answer does appear to respond
to Target’s request.

Mr. Grant has stated he is claiming injury

for extreme stress and that he did not seek medical attention.
Because he did not seek medical attention, the remainder of
Target’s questions are not relevant.
h. Interrogatory No. 16
Interrogatory no. 16 asks Mr. Grant if he was in any way
20

impaired in his ability to work due to his own or someone else’s
physical and/or mental condition since his separation from
Target.

If so, he must state the dates he was impaired; the

nature of each condition or treatment; the employer (if any) for
whom he was working when the condition first arose; identify all
persons responsible for treating him; any hospitals or facilities
where he was treated; and all documents that refer, relate to, or
describe his condition and treatment.

Mr. Grant responded by

stating “Plaintiff will never ever forget what transpired during
employment with Target.

Plaintiff will never be able to trust or

based on what happened exit my memory while in a working
environment. Extreme stress due to the major financial changes in
life.

Did not seek medical attention.”

Mr. Grant’s response

does not answer the specific questions regarding whether or not
he was actually unable to work for a time because of his own or
someone else’s physical or mental condition.

This is relevant

because, for example, if Mr. Grant became ill or had to care for
a family member and was not able to work for a period of time,
Target would not be responsible for any wages lost due to those
circumstances (unless Mr. Grant claims the illness was related to
Target’s treatment of him - and then, of course, he would have to
provide details about such a claim).

Therefore, Mr. Grant is

ordered to respond to all the specific questions in interrogatory
no. 16.
i. Interrogatory No. 17
Interrogatory no. 17 asks Mr. Grant to identify additional
sources of income he has received since January 1, 2007,
excluding his income from Target, and the dates of commencement
and termination of such income and the total amount of each
source.

He answered that he “received unemployment benefits . .

.” (Doc. #33, p. 11).

He did not list, however, the dates of

commencement and termination of his unemployment benefits or the
21

total amount.

He also did not list any other income, although it

appears he may have had some.

Again, this relates to his lost

wage claim and it is discoverable information.

He is therefore

ordered to provide this additional information in his response to
interrogatory no. 17.
j. Interrogatory No. 18
Interrogatory no. 18 asks Mr. Grant to identify what steps
he has taken to obtain new employment and/or mitigate his damages
since his job with Target.

It asks him to list every application

for employment he made, including the position, the potential
employer, the date he applied for the position, how he applied or
inquired into the position, salary information and other
employment benefits of the position, the person with whom he
communicated regarding each position, whether he was offered the
position, the terms and conditions of any offer or employment or
business proposal made to him, whether he accepted or declined
the position, and his reason for rejecting any offer.

Mr. Grant

answered “As of July 7, 2011, Plaintiff was offered permanent
employment. See attached.” This answer does not address other
information requested in interrogatory no. 18 and is therefore
incomplete.

Mr. Grant is ordered to provide Target with the

additional information requested in interrogatory no. 18,
although the Court also assumes that this was explored during his
deposition, since this kind of questioning usually takes place at
a deposition.
k. Interrogatory No. 19
Interrogatory no. 19 asks Mr. Grant to state the name and
address of all employers by whom he has been employed before,
during, and since his employment with Target ended, the positions
in which he was employed, the dates of employment, the identity
of individuals to whom he reported in each job, the salary and/or
compensation provided in such position, the benefits provided by
22

such employer, whether he participated in such benefit programs,
whether he was counseled or disciplined, and if his employment
ended, the reason why.

In response, Mr. Grant has answered

“Target has all of Plaintiff’s personnel records on file which
contains my past employment from the application for employment
along with a copy of Plaintiff’s resume.”

Mr. Grant’s records of

his employment may well be contained in his personnel file at
Target, but this does not excuse Mr. Grant’s obligation to
produce them and answer the additional questions posed by this
interrogatory.

Moreover, Target’s personnel file on Mr. Grant

would not have any information concerning Mr. Grant’s employment
after working for Target.

Mr. Grant is hereby required to answer

all of the questions outlined in Interrogatory no. 19, especially
those about employment obtained after he left Target.
l. Interrogatory No. 20
Interrogatory no. 20 asks Mr. Grant to identify, for each
element of damages, the nature of the damage claimed (e.g. each
category of lost wages, costs, interests, compensatory damages);
the amount claimed; identify all writings, documents or things,
including the location thereof, which will substantiate his claim
for such damages; state with particularity his method of
computing his claimed damages; and identify all documents
relating to his claimed damages. Mr. Grant replied “$300,000 in
damages for racial discrimination, retaliation, and wrongful
termination.”

Again, some breakdown of this number is asked for,

and if Mr. Grant’s answer to a previous interrogatory about
damages does not provide that information, he must provide it
here.
m. Interrogatory No. 22
Interrogatory no. 22 asks Mr. Grant to identify each
document responsive to Target’s requests for production of
documents, but which was not produced.
23

It asks him to identify

the document request to which the document was responsive but not
produced, a brief description of the document, and the reasons
for the non-production.

Mr. Grant’s response was “Plaintiff does

not trust anyone with anything to do with Target when it comes to
my personal or financial information.
documents plaintiff has provided.”
information is not privileged.

Please see attached

Personal and financial

See De Marco v. C & L Masonry,

Inc., 891 F.2d 1236, 1240 (6th Cir. 1989); Credit Life Ins. Co.
v. Uniworld Ins. Co., 94 F.R.D. 113, 121 (S.D. Ohio 1982).

Mr.

Grant is being ordered to produce this and other information he
deems sensitive, although, of course, he and Target can agree to
a protective order restricting its use (or he can ask for one,
something he has not done).

If, after he produces additional

documents, he still has documents which Target has asked for but
which he will not produce, he should describe them in response to
this interrogatory.
n. Interrogatory No. 24
In its original motion to compel, Target argued that Mr.
Grant’s response to interrogatory no. 24 is insufficient.

That

interrogatory asks Mr. Grant to identify whether he used e-mail,
other web-based communication services, or text messaging to
communicate with any of the persons identified in interrogatory
nos. 2-5 about topics identified in those interrogatories.
so, he was asked to state the name of each provider.

If

In his

original answers, Mr. Grant stated that the request was an
“invasion of privacy” and that he would not give access to his
“personal information.” Mr. Grant, however, has since changed his
answer to “Plaintiff rarely uses computer and does not
participate in social networking. Questions are not applicable.”
Mr. Grant’s new answer indicates that he has not used any of
these types of devices to communicate regarding this case.
Because Target did not raise an objection to Mr. Grant’s most
24

recent response in its reply, this Court deems such a response
sufficient.
3. Requests for Production of Documents
Fed. R. Civ. P. 34 permits a party to serve on any other
party a request within the scope of Rule 26(b) to produce and
permit the requesting party to inspect, copy, test, or sample any
designated documents or electronically stored information within
the responding party’s possession, custody, or control. Rule 34
requires that the responding party respond in writing within 30
days and state that the inspection or related activities will be
permitted as requested or state an objection to the request,
including the reasons.

An objection to part of a request must

specify the part being objected to and permit inspection of the
rest.

When producing documents, a party must produce them as

they are kept in the usual course of business or must organize
and label them to correspond to the categories in the request.
At this point, Mr. Grant has produced a number of documents
to Target, but he has never indicated which requests these
documents were responsive to, making it difficult for Target and
this Court to know to which requests for production of documents
Mr. Grant responded and to which he did not.

He has never

provided the responses “in writing” that Rule 34 requires.

Nor

has he objected specifically to any of Target’s requests or
organized and labeled his documents so that each corresponds to
the categories in the request.

Mr. Grant is therefore ordered to

respond, in writing, to all of Target’s requests for production
of documents, to specifically object to those portions that he
has objections to, and to organize and label his documents so
that each document corresponds to the categories in the requests.
Mr. Grant’s responses and objections need not be detailed.

He

can simply state the grounds for his objections, for example,
that he does not have these types of documents or that these
25

documents do not exist.
4. Mr. Grant’s Sur-Reply
Instead of giving this Court reasons why his discovery
responses are sufficient, Mr. Grant shifts blame from himself to
Target by alleging that Target has failed to produce certain
information or misplaced Mr. Grant’s W2 form.

But “[t]he rules

governing discovery do not permit one party to condition his
discovery obligations on the other party’s discovery responses.”
Moses v. Sterling Commerce (America), Inc., No. Civ.A.
2:99-CV-1357, 2003 WL 23412984, 3 (S.D. Ohio July 1, 2003).

If

Mr. Grant take issue with Target’s responses to his discovery,
his remedy is not to withhold his own responses, but to file his
own motion to compel pursuant to Fed. R. Civ. P. 37.
Mr. Grant is therefore ordered to provide the above
discovery responses to Target.

Again, he should be aware that

there are potentially serious consequences for not cooperating in
discovery which could include an order which prohibits him from
introducing, referring to, or relying upon documents or
information which he failed to produce during pretrial discovery,
or even an order dismissing his action in whole or in part.

The

Court assumes that now that it has given Mr. Grant some
additional direction concerning discovery, he will fully comply
with his obligations.
5. Attorneys’ Fees
With respect to Target’s request for attorneys’ fees
associated with the filing of its Motion to Compel, Fed. R. Civ.
P. 37(a)(5) authorizes an award of expenses, including attorneys’
fees, unless any opposition to the motion is substantially
justified, or other circumstances make an award of expenses
unjust. Under the specific circumstances of this case, which
indicate that Mr. Grant did make an effort to provide discovery
but may have misunderstood some portion of his legal obligations,
the Court finds Mr. Grant’s opposition to be substantially
26

justified and no attorneys’ fees will be awarded.

That may not

be the case, however, if Target is forced to file additional
motions about discovery.
III. Target’s Motion for an Order Extending the Discovery
Schedule (Doc.#38)
Target has filed a motion (Doc. #38) requesting this Court
to extend the discovery schedule and dispositive motion deadlines
by 60 days.

Because Mr. Grant has been permitted to file his

amended complaint and Target’s Motion to Compel has been granted,
effectively reopening discovery, this Court orders that case
schedule be extended as follows:
1.

All discovery shall be completed within six months from

the date of this order.
2.

Any motions for summary judgment shall be filed within

one month after the completion of discovery.
The current trial date is vacated.
IV. Target’s Motion for Summary Judgment (Doc. #41), Target’s
Motion to Strike Four Affidavits (Doc. #44), Target’s Motion to
Strike Plaintiff’s Opposition to Target’s Motion to Strike or in
the Alterative, a Reply in Support of Defendant’s Motion to
Strike (Doc. #55), and Target's Motion to Strike Plaintiff’s
Response to Target's Reply in Support of its Motion for Summary
Judgment (Doc. #56)
Given that this order allows Mr. Grant to amend his complaint
to add four additional defendants and reopens discovery, this
Court denies Target’s motion for summary judgment (Doc. #41)
without prejudice, subject to refiling in accordance with the new
dispositive motions deadline set by this Court.

Similarly,

Target’s motion to strike four affidavits (Doc. #44), its motion
to strike Mr. Grant’s opposition to the motion to strike or
alternatively a reply in support of Target’s motion to strike
(Doc. #55), and Target’s Motion to strike Mr. Grant’s response to
Target’s reply in support of its motion for summary judgment
(Doc. #56), are also denied without prejudice subject to refiling

27

in connection with its motion for summary judgment.
V. Target’s Motion for Order to Schedule Status Conference
and Final Pre-Trial (Doc. #52)
Target has recently requested that this Court hold a status
conference to discuss the pendency of the motions addressed in
this order and the effect of the pending motions on the trial
date.

It also requests that this Court set a final pre-trial

conference 30 days in advance of the April 16, 2012 trial in this
case.

Given the fact that the trial date is being vacated, this

Court denies Target’s Motion for order to schedule status
conference and final pre-trial as moot (Doc. #52).
VI. Conclusion
Based on the foregoing, Mr. Grant’s renewed motion to amend
his complaint (Doc. #29) is granted; Target’s motion to compel
discovery (Doc. #30) is granted; Target’s motion to extend the
discovery schedule (Doc. #38) is denied as moot; Target’s Motion
for Summary Judgement (Doc. #41), Target’s motion to strike four
affidavits (Doc. #44), Target’s motion to strike Mr. Grant’s
opposition to the motion to strike or alternatively a reply in
support of Target’s motion to strike (Doc. #55), and Target’s
Motion to strike Mr. Grant’s response to Target’s reply in
support of its motion for summary judgment (Doc. #56), are denied
without prejudice; and Target’s motion to schedule a status
conference and final pre-trial conference (Doc. #52) is denied as
moot.

/s/ Terence P. Kemp
United States Magistrate Judge

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