Nathan v. Ohio State University et al
Filing
135
ORDER granting 133 Defendants' Motion for Leave to File Sur-reply and granting in part and denying in part 122 Plaintiff's Motion to Compel and for Sanctions. Defendants must produce the documents at issue WITHIN THIRTY (30) DAYS of the date of this Order. Plaintiff's response to Defendants' Motion for Summary Judgment is due on or before 6/24/2013. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/23/2013. (er1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NADIA NATHAN,
Plaintiff,
Civil Action 2:10-cv-872
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers
v.
THE OHIO STATE UNIVERSITY, et al.,
Defendants.
OPINION AND ORDER
Plaintiff, Dr. Nadia Nathan, brings this employment action against Defendants, The Ohio
State University, The Ohio State University Medical Center, and Ohio State University
Physicians, Inc. (collectively “OSUMC”), pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., the Age Discrimination and Employment Act, 29 U.S.C. § 626 et seq.,
and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615 et seq., asserting
discrimination and retaliation claims. This matter is before the Court for consideration of
Plaintiff’s Motion to Compel and for Sanctions (ECF No. 122), Defendants’ Memorandum in
Opposition (ECF No. 125), Plaintiff’s Reply (ECF No. 132), Defendants’ Motion for Leave to
File Sur-reply (ECF No. 133), and Plaintiff’s Response to Defendants’ Sur-Reply (ECF No.
134). For the reasons that follow, Plaintiff’s Motion to Compel is GRANTED IN PART AND
DENIED IN PART, and Defendants’ Motion to file a Sur-Reply is GRANTED.
I.
On October 29, 2012, the Court issued a Discovery Order, compelling Defendants
to respond to Plaintiff’s discovery requests. (ECF No. 110.) The Court incorporates by
reference herein the October 29, 2012 Discovery Order. After the Court overruled their
objections to the Discovery Order (ECF No. 120), Defendants produced approximately 30,000
documents. Upon review of these documents, Plaintiff’s counsel notified Defense counsel that
Defendants failed to produce a number of responsive documents. (Feb. 20, 2013 Loring Corres.,
ECF No. 122-2.) In correspondence dated February 22, 2013, Plaintiff’s counsel provided a
detailed list of more than twenty categories of documents she believed to be missing from
Defendants’ production. Defense counsel subsequently acknowledged that the production was
lacking with regards to several types of documents, but maintained that the remainder of the
documents had been provided to the extent they existed. (Feb. 25, 2013 Corl Corres., ECF No.
122-3.) On March 25, 2013, Defendants produced approximately 5,000 additional documents.
Upon review of these documents, Plaintiff’s counsel again informed Defense counsel that she
believed the production to be deficient in a number of regards. (Mar. 29, 2013 Lorring Corres.,
ECF No. 122-5.) The parties have been unable to resolve their disputes regarding the sufficiency
of Defendants’ production, prompting the subject Motion to Compel.
In her Motion, Plaintiff asks the Court to issue an order compelling Defendants to
produce various categories/types of documents that she maintains were compelled in the Court’s
October 29, 2012 Discovery Order, but never Produced. These documents include the
following:
1.
All complaints about anesthesiologists during the c ompelled time frame,
including all event reports and/or all correspondence to the Qualit
y
Control/Assurance Committee, Professionalism Committee, PEC committees
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and/or those com mittee’s member and/or any other m ember of hospital
management.
2.
All email and other documentation of pager response times and failures;
3.
All performance-related documents not contained in the “personnel file,”
whether or not those docum ents are kept in paper copy or electronically,
including evaluation comment spreadsheets, employee relations files, bonus
letter and reports for teaching, CRNA e valuations, timeliness of surgery
starts, research, clinical evaluations with comment spreadsheets, overall
evaluation score, and salaries.
(Pl.’s Mot. 8, ECF No. 122.) Plaintiff further asks the Court to sanction Defendants for their
repeated failure to comply with this Court’s October 29, 2012 Discovery Order.
Defendants oppose Plaintiff’s Motion. Defendants posit that Plaintiff limited her request
for performance-related documents to certain, discrete types of documents when she filed her
April 30, 2012 Motion to Compel (ECF No. 59). Defendants assert that their production is
sufficient because they produced these discrete types of documents Plaintiff listed as well as any
documents Dr. Harter represents were actually utilized to evaluate anesthesiologist performance.
Defendants maintain that Plaintiff is now, for the first time, seeking new types of performancerelated documents that were never the subject of a formal discovery request and were not
addressed in the Court’s October 29, 2012 Discovery Order. Defendants further represent that
all documents related to pager response times and failures have been produced.
In her Reply, Plaintiff asserts that she indisputably requested the performance-related
documents that are the subject of the instant Motion. She also asserts that Defendants
improperly limited the universe of performance-related documents to those Dr. Harter represents
were utilized for performance evaluations. Finally, Plaintiff attaches examples of the types of
documents she maintains Defendants have failed to produce, such as documents reflecting late
surgery start data and event reports.
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Defendants have moved for leave to file a sur-reply, attaching their proposed Sur-Reply.
(ECF No. 133.) Plaintiff does not oppose Defendants’ Motion, but responded in opposition to
the substance of the Sur-Reply. (ECF No. 134.) In their Sur-Reply, Defendants re-assert their
position that the Court’s October 29, 2012 Discovery Order did not compel them to produce all
discovery documents, emphasizing that Plaintiff did not request all performance documents in
the first instance and that such a request would be overbroad. Defendants also re-assert that they
have produced all responsive documents, including the late-surgery start documents. In her
Response to Defendants’ Sur-Reply, Plaintiff continues to assert that she did not limit her
discovery requests to performance-related documents actually utilized or specifically identified,
explaining that she cannot be expected to know what types of performance-related data and
documents Defendants possess. With regard to the late-start documents, Plaintiff asserts as
follows: “If . . . Defendants offer an affidavit from its IT Department affirming that the two
reports measure the same data and briefly describing the data measured, Plaintiff will obviously
be satisfied with this explanation.” (Pl.’s Resp. to Defs.’ Sur-Reply 3, ECF No. 134.)
II.
As a threshold matter, the Court GRANTS Defendants’ Motion for Leave to File a SurReply because the proposed Sur-Reply potentially resolves an issue of the existence of late-start
documents. (ECF No. 133.) The Court now considers the sufficiency of Defendants’ production
before turning to the issue of sanctions.
A.
Sufficiency of Defendants’ Production
Federal Rule of Civil Procedure 37 permits a party to file a motion for an order
compelling discovery if another party fails to respond to discovery requests, provided that the
motion to compel includes a certification that the movant has, in good faith, conferred or
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attempted to confer with the party failing to respond to the requests. Fed. R. Civ. P. 37(a)(1).
The Court is satisfied that this prerequisite to a motion to compel has been met in this case. For
purposes of Rule 37, “an evasive or incomplete disclosure, answer, or response must be treated
as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
As both of the parties appear to agree, resolution of Plaintiff’s Motion turns on whether
the October 29, 2012 Discovery Order compelled Defendants to produce all performance-related
documents for Plaintiff’s comparators as contrasted with only those types of documents Plaintiff
specifically identified or that Dr. Harter represents were utilized for performance evaluations.
Defendants’ first contention, that Plaintiff never formally requested the performancerelated documents, lacks merit. Plaintiff initially requested all performance-related documents
for herself and her comparators in multiple discovery requests, including her Request for
Production Numbers One and Twenty-One. (Pl.’s First Doc. Reqs. 4–6, ECF No. 59-1 at Ex. D;
Pl.’s Sec. Doc. Reqs. 4, ECF No. 59-1 at Ex. F). Plaintiff then moved to compel production of
performance-related documents in her April 30, 2012 Motion to Compel Discovery. (ECF No.
59 at 8–10.) Plaintiff’s listing of specific types of performance-related documents in her Motion
to Compel in no way limited her request for an order compelling Defendants to produce other
performance-related documents. (See id., (under heading “Documents in Dispute That are the
Subject of This Motion,” Plaintiff lists, among other documents, “Performance-related
documents, including . . .”).)
Defendants’ second contention—that the Court’s October 29, 2012 Discovery Order
limited the universe of discoverable performance-related documents—equally lacks merit.
Defendants objected to Plaintiff’s April 30, 2012 Motion to Compel Discovery on the grounds
that her document requests lacked relevance and were overbroad, among others. The Court
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rejected both of these arguments with the exception of Plaintiff’s request for personnel files.
With regard to Defendants’ overbreadth objection, the Court reasoned as follows:
Defendants next challenge the s cope of the comparator discovery Plaintiff
seeks to compel, asserting that it is overbroad and unduly burdensom Defendants
e.
assert that “there is no question that Plaintiff’s document requests relating to every
anesthesiologists employed by Defendants over a five year period of tim e (which
would consist of nearly one hundred individuals) is overly broad and unduly
burdensome on i ts face.” ( Id. at 17.) Defendants fail to develop this argum ent
beyond this conclusory assertion.
*
*
*
With the exception of personnel files, the Court finds that the docum ents
Plaintiff seeks to compel are not overbroad. Neither party identifies what types of
documents Defendants include in the
personnel files of anesthesiologists.
“[P]ersonnel files might contain highly personal information such as an individual’s
unlisted address and telephone number, marital status, wage information, medical
background, credit history (such as requests for garnishm ent of wages), and other
work-related problems unrelated to [a] plaintiff’s claims.” Knoll v. AT&T, 176 F.3d
359, 365 (6th Cir. 1999). For this reason, the Court declines to order production
simply on the personnel file designation. Rather, the Court limits production to only
those documents in the comparators’ personnel files that are relevant to this action.
These could include any docum ents relating to the com parators’ performance or
performance issues as well as any docum
ents that would be responsive to any of the
other categories of documents Plaintiff seeks to compel in her Motion. For exam
ple,
if a com parator’s personnel file contained resident evaluations or rankings,
Defendants must produce those evaluations and rankings.
Defendants have not dem
onstrated that provision of the requested inform
ation
would prove unduly burdensom e. Beyond asserting broad a
llegations of
burdensomeness, Defendants fail to offe specific examples or evidence revealing the
r
nature of its burden. It is, therefore, impossible for the Court to determine whether
the alleged burden outweighs the benefit of the requested comparator information,
which is critical to Plaintif f’s claims. Accordingl y, Defendants’ objection to
production on the grounds that it would be unduly burdensome is overruled.
(Oct. 29, 2012 Disc. Order 19–20.) Nothing in the foregoing language limits the scope of the
performance-related documents Plaintiff requested to those documents that Dr. Harter identifies
as having been actually utilized to evaluate anesthesiologist performance.
Defendants’ Objections to the October 29, 2012 Discovery Order reveal the
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disingenuousness of their assertion that the Court limited the scope of the discoverable
performance-related documents. In their Objections, Defendants argued as follows: “[t]he
Discovery Order erroneously requires [Defendants] to produce every “performance related’
record of every anesthesiologist who was employed by OSU in the Department of
Anesthesiology at the College of Medicine from August 2006 though May 2011.” (Defs.’ Objs.
to Oct. 29, 2012 Disc. Order 1, ECF No. 113 (emphasis added).) Thus, their current position is
completely at odds with their earlier acknowledgment that the Court’s Discovery Order required
them to produce every performance-related record for each of Plaintiff’s comparators. The
Court overruled Defendants’ Objections to the October 29, 2012 Discovery Order, affirming the
Discovery Order in its entirety. (Jan. 10, 2013 Order 7–8, ECF No. 120.) Moreover, in
compelling discovery of the peer review documents, the Court explicitly rejected Defendants’
argument that Plaintiff is only entitled to obtain comparators’ performance-related documents if
Dr. Harter actually utilized them in his annual evaluations. (Oct 29, 2012 Disc. Order 20–21,
ECF No. 110.)
In sum, Defendants are again DIRECTED to produce all performance-related documents
for Plaintiff and her comparators, without regard to whether the documents are stored
electronically, housed in Dr. Harter’s office, or utilized in annual evaluations WITHIN
THIRTY (30) DAYS OF THE DATE OF THIS ORDER. To the extent Defense counsel
insists that a certain type of performance document is wholly irrelevant to this action, she should
consult with Plaintiff’s counsel to see if they can reach an agreement as to whether this category
of documents should be produced. Absent any such agreement, Defendants must produce the
documents.
Defendants and/or Defense counsel are further DIRECTED to set forth, in affidavits, the
7
steps they took to locate and produce responsive documents, including disclosure of the
departments and individuals Defendants contacted, any leads upon which they followed up, and
the parameters of their electronic searches. Defense counsel must execute an affidavit certifying
that Defendants have completed a reasonable inquiry in locating and producing responsive
documents and that all responsive documents of which they are aware have been produced.
Defense counsel’s affidavit must specify the steps taken in identifying departments likely to have
relevant information, the substance of the requests sent to each department, and any follow-up
conducted on any perceived inadequacies or in order to locate responsive documents. The
affidavits must confirm that their efforts in locating responsive documents are complete.
Defendants’ and Defense counsel’s full disclosure of their search methodology is necessary here
given their refusal to comply with this Court’s discovery orders.1
Of course, Defendants have no obligation to create documents that do not exist. Further,
in the event Defendants indicate that, after a reasonable inquiry, particular types of performancerelated documents Plaintiff seeks do not exist, the Court will accept Defendants’ efforts as
complete. Put another way, Plaintiff’s speculation that additional documents must exist will be
insufficient to compel judicial involvement unless she offers evidence that Defendants are
improperly withholding documents.
B.
Sanctions
Plaintiff asks the Court to impose a number of harsh sanctions on Defendants for their
failure to comply with this Court’s discovery orders. Rule 37(b)(2) sets forth a laundry list of
sanctions, including dismissal, that a court could impose when a party fails to comply with its
This will also resolve parties’ dispute regarding whether Defendants have adequately
searched for and produced the late-start documents.
1
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discovery orders. Fed. R. Civ. P. 37(b)(2). Rule 37(b)(2) adds that “the court must order the
disobedient party, the attorney advising that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
Here, the Court concludes that Defendants lacked justification, let alone substantial
justification for their evasive and incomplete discovery responses. The Court, therefore,
concludes that sanctions in the form of attorneys’ fees and expenses under Rule 37(b)(2)(C) are
appropriate. Defendants’ failure to comply with the Court’s discovery orders has necessitated
numerous phone calls and email exchanges between counsel as well as the filing of the subject
Motion to Compel. Accordingly, Defendants and Defense Counsel are jointly ORDERED to
pay Plaintiff her reasonable attorneys’ fees associated with bringing this Motion, as well as fees
associated with pursuit of performance-related documents subsequent to this Court’s October 29,
2012 Discovery Order. The Court encourages the parties to reach an agreement concerning the
appropriate amount of fees to be awarded. In the event the parties cannot reach such an
agreement, Plaintiff shall file a supplemental memorandum in support of her requested attorneys’
fees and expenses, setting forth information including the timekeeper, rate, and explanation of
work, to the extent counsel may do so without violating the attorney-client privilege, WITHIN
FOURTEEN (14) DAYS OF THE DATE OF THIS ORDER.
III.
For the reasons set forth above, Defendants’ Motion for Leave to File Sur-reply (ECF
No. 133) is GRANTED, and Plaintiff’s Motion to Compel and for Sanctions (ECF No. 122) is
GRANTED IN PART AND DENIED IN PART. Defendants must produce the documents at
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issue WITHIN THIRTY (30) DAYS of the date of this Order. Plaintiff’s response to
Defendants’ Motion for Summary Judgment is due ON OR BEFORE JUNE 24, 2013.
Defendants and/or Defense counsel are further DIRECTED, as set forth above, to file
affidavits detailing their efforts to locate and produce responsive documents, certifying that they
have completed a reasonable inquiry in locating and producing responsive documents, and
further certifying that they have produced all of the responsive documents of which they are
aware.
Finally, Defendants and Defense Counsel are jointly ORDERED to pay Plaintiff her
reasonable attorneys’ fees associated with bringing this Motion, as well as fees associated with
pursuit of performance-related documents subsequent to this Court’s October 29, 2012
Discovery Order. In the event the parties are unable to reach an agreement concerning the
appropriate amount of fees to be awarded, Plaintiff shall file a supplemental memorandum in
support of her requested attorneys’ fees and expenses WITHIN FOURTEEN (14) DAYS OF
THE DATE OF THIS ORDER.
IT IS SO ORDERED.
Date: May 23, 2013
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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