Nathan v. Ohio State University et al

Filing 47

DISCOVERY ORDER granting in part and denying in part 32 Defendants' Motion to Compel; granting in part and denying in part 39 Defendants' Motion to Strike Plaintiff's Reply, or in the Alternative, Motion For Leave to File Sur-Reply Instanter; denying 29 Plaintiff's Motion to Quash Subpoenas to Non-Partie, or in the Alternative, for Protective Order. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/17/2012. (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 E.A. Preston Deavers

v.

THE OHIO STATE UNIVERSITY, et al.,
Defendants.

DISCOVERY 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., 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, 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 Quash Subpoenas to
Non-Parties, or in the Alternative, for Protective Order (ECF No. 29), Defendants’ Memorandum
in Opposition and Motion to Compel Plaintiff’s Discovery Responses (ECF No. 32), Plaintiff’s
Reply (ECF No. 38), Defendants’ Motion to Strike Plaintiff’s Reply, or in the Alternative,
Motion for Leave to File Sur-Reply Instanter (ECF No. 39), and Plaintiff’s Memorandum in
Opposition (ECF No. 41). For the reasons that follow, Defendants’ Motion to Strike Plaintiff’s
Reply, or in the Alternative, Motion for Leave to File Sur-Reply Instanter (ECF No. 39) is
GRANTED IN PART AND DENIED IN PART, Plaintiff’s Motion to Quash Subpoenas to
Non-Parties, or in the Alternative, for Protective Order (ECF No. 29) is DENIED,

and Defendants’ Motion to Compel (ECF No. 32.) is GRANTED IN PART AND DENIED
IN PART.
I.
Plaintiff is a cardiac anesthesiologist. In May 2005, Defendants employed Plaintiff as an
Associate Professor and as a practicing physician. In July 2009, Defendants terminated
Plaintiff’s clinical employment, preventing her from practicing medicine and limiting her to
work temporarily as an associate professor. When Plaintiff obtained another position,
Defendants terminated her academic employment. Plaintiff subsequently filed this employment
action, alleging that Defendants unlawfully created a hostile work environment, refused her
opportunities for advancement, prevented her from practicing medicine, and wrongfully
terminated her employment. Defendants deny these allegations, asserting that Plaintiff was
terminated for an number of legitimate, non-discriminatory reasons, including for manipulating
and abusing her leave time.
As part of their discovery, Defendants submitted interrogatories and requests for
production of documents to Plaintiff relating to her travel. Plaintiff objects to these discovery
requests, asserting that they are overly broad and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, Plaintiff challenges the following interrogatories
and request for production of documents:
INTERROGATORY NO. 2:
Please state the name of each and every airline Plaintiff Nadia Nathan has
utilized for travel from January 1, 2007 to July 1, 2009.
INTERROGATORY NO. 3:
Please state the name, address and telephone number of any travel agent or
any similar service used for travel or to arrange travel for the plaintiff from
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January 1, 2007 to July 1, 2009.
INTERROGATORY NO. 4:
Please state with particularity the dates of each and every trip taken by
Plaintiff outside the State of Ohio from January 1, 2007 to July 1, 2009,
regardless of, or the purpose for, the trip or travel.
*

*

*

REQUEST FOR PRODUCTION NO. 2:
Please produce copies of any travel itineraries, airline tickets, hotel
confirmation receipts, or reservations for any travel or trip referred to in
Interrogatory #4 above.
(Defs.’ Sec. Combined Disc. Reqs. 2–5, ECF No. 29-1.) Plaintiff contends that at a minimum,
the Court should limit discovery to dates Defendants allege she abused her leave time.
Defendants have moved the Court for an order compelling Plaintiff to respond to these discovery
requests.
Defendants also issued subpoenas duces tecum to major airlines, requesting production of
the following documents and records:
(1) All records from January 1, 2007 to July 1, 2009 pertaining to Dr. Nadia Salama
Ibrahim Nathan, including, but not limited to, flight records and account activity. (2)
All of Dr. Dr. Nadia Salama Ibrahim Nathan’s frequent flyer number(s). (3) All
records from January 1, 2007 to July 1, 2009 pertaining to Dr. Nadia Salama Ibrahim
Nathan’s frequent flyer number(s), including, but not limited to, flight records and
account activity.
(Airline Subpoenas, ECF No. 29-1.) The third-party airlines have not objected to the subpoenas.
Plaintiff, however, has moved to quash the subpoenas, asserting that her constitutional rights and
right to individual privacy are implicated. Plaintiff further asserts that the subpoenas are
overbroad and “appear to be nothing more than a fishing expedition to harass Plaintiff . . . .”
(Pl.’s Mot. to Quash 3, ECF No. 29.) Plaintiff also asks the Court to quash the subpoenas as a

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sanction for Defendants’ failure to provide notice to her before serving them upon the airlines in
violation of Federal Rule of Civil Procedure 45(b)(1). Alternatively, Plaintiff asks the Court to
enter a protective order precluding the subpoenaed discovery. Plaintiff again asserts that a
protective order is appropriate given that the subpoenas are overbroad, irrelevant, and
“apparent[ly] intent[ed] . . . to harass Plaintiff and interfere with her privacy.” (Id. at 5.) The
Court ordered that the third-party airlines refrain from producing the documents requested in the
subpoenas pending resolution of Plaintiff’s Motion. (ECF No. 30.)
Defendants counter that the discovery relating to Plaintiff’s travel is directly related to
one of its affirmative defenses. Specifically, Defendants contend that the discovery is relevant to
its affirmative defense that it terminated Plaintiff for numerous legitimate, non-discriminatory
reasons, including her abuse of her leave time.
II.
A.

Motion to Strike
As a preliminary matter, Defendants’ Motion to Strike Plaintiff’s Reply, or in the

Alternative, Motion for Leave to File Sur-Reply Instanter is GRANTED IN PART AND
DENIED IN PART. (ECF No. 39.) Although Plaintiff did raise new factual and legal
arguments in her Reply (ECF No. 38), that briefing also served as her opposition to Defendants’
Motion to Compel Plaintiff’s Discovery Responses (ECF No. 32). The Court, therefore, declines
to strike Plaintiff’s Reply. The Court, however, grants Defendants’ Motion for Leave to File
Sur-Reply Instanter. Thus, in deciding the discovery disputes, the Court has considered all of
the parties’ filings.

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B.

Defendants’ Motion to Compel
Defendants have moved the Court for an order compelling Plaintiff to respond to their

discovery requests. 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
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.
Determining the scope of discovery is within this Court’s discretion. Bush v. Dictaphone
Corp., 161 F.3d 363, 367 (6th Cir. 1998). As the United States Court of Appeals for the Sixth
Circuit has recognized, “[t]he scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998). In
particular, discovery is more liberal than the trial setting, as Rule 26(b) allows any “line of
interrogation [that] is reasonably calculated to lead to the discovery of admissible evidence.” Id.
(quoting Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)). In other terms, the
Court construes discovery under Rule 26 “broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In considering the scope of
discovery, the Court may balance Plaintiffs’ “right to discovery with the need to prevent ‘fishing
expeditions.’” Conti v. Am. Axle & Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009) (quoting
Bush, 161 F.3d at 367).
The Court concludes that Defendants’ requests relating to Plaintiff’s travel records are
discoverable, but limits the scope of the requests to those dates for which she requested sick,
administrative, and/or research/meeting time leave. As narrowed, it is evident that the requests
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are “reasonably calculated to lead to the discovery of admissible evidence.” Lewis,135 F.3d at
402. In her Reply, Plaintiff strenuously argues that the records Defendants seek constitute afteracquired evidence and that Defendants should only be able to use such evidence to bar certain
types of recovery as opposed to escaping liability. (See Pl.’s Reply 3–4, ECF No. 38.) Plaintiff
confuses discoverability with admissibility. Plaintiff’s arguments challenge the manner in which
Defendants may use any information obtained rather than whether it is discoverable.1 Moreover,
in making such an argument, Plaintiff has implicitly acknowledged that the information sought is
relevant for at least one purpose, i.e., to use as after-acquired evidence.
Consistent with the foregoing, Defendants’ Motion is granted in part and denied in part.
Fourteen days after Defendants supply Plaintiff with those dates for which she requested sick,
administrative, and/or research/meeting time leave, she must produce the requested information,
limiting production to those dates Defendants identified.
C.

Third-Party Subpoenas
Plaintiff asks the Court to quash the subpoenas Defendants served on the third-party

airlines. Rule 45 of the Federal Rules of Civil Procedure governs third-party subpoenas. Fed. R.
Civ. P. 45. Rule 45 permits parties in legal proceedings to command a non-party to attend a
deposition, produce documents, and/or permit inspection of premises. Fed. R. Civ. P. 45(a)(1).
The Rule provides that the non-party commanded to produce documents may serve an objection
on the party or attorney designated in the subpoena within the earlier of fourteen days after the
subpoena is served or the time specified for compliance. Fed. R. Civ. P. 45(c)(2)(B). Typically,
a party does not have standing to challenge a subpoena issued to a non-party. Where a party

1

At this juncture, the Court declines to opine on whether Defendants should be limited in
the manner it utilizes any evidence obtained through discovery.
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successfully asserts “‘some personal right or privilege with regard to the documents sought,’”
however, that party will have standing. Mann v. University of Cincinnati, Nos. 95-3195 and 953292 , 1997 WL 280188, at *4 (6th Cir. May 27, 1997) (quoting 9A Charles Alan Wright and
Arthur R. Miller, Federal Practice and Procedure § 2459 (1995)); see also Hackmann v. Auto
Owners Ins. Co., No. 2:05-cv-876, 2009 WL 330314, at *1 (S.D. Ohio Feb. 6 2009) (citations
omitted) (noting that a party would have standing to move to quash a subpoena served upon a
nonparty if that party had “a claim of some sort of personal right or privilege”).
The Court concludes that Plaintiff has not demonstrated that she has standing to quash
the subpoenas. In reaching this conclusion, the Court rejects Plaintiff’s assertion that the
subpoenas implicate her “‘constitutional right to travel from one State to another.’” (Pl.’s Mot.
to Quash 3, ECF No. 29 (quoting United States v. Guest, 393 U.S. 745, 757 (1966).) Plaintiff
fails to articulate how an airline’s production of its travel records would impede her interstate
travel. Plaintiff likewise fails to support her assertion that the subpoenas invade her personal
privacy. In United States v. Phibbs, the United States Court of Appeals for the Sixth Circuit
concluded that a party did not have standing to challenge subpoenas issued to third-party
businesses where “[t]he information contained within the [subpoenaed] materials was readily
accessible to employees during the course of business.” 999 F.2d 1053, 1077–78 (6th Cir.
2010). The material sought in Phibbs included credit card statements and telephone records.
The Court reasoned that an individual cannot have “an actual and justifiable privacy interest” in
these types of business records. Id. at 1078. In this case, the subpoenas request the airlines’
business records reflecting Plaintiff’s travel. Plaintiff has no legitimate expectation of privacy in
these airlines’ business records. See State v. Key, No. 3:09CR-179-S, 2010 WL 3463756, at
*1–2 (W.D. Ky. Sept. 1, 2010) (finding no grounds to challenge subpoena issued to airline
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because no “expectation of privacy attaching to records”); Melgarejo v. 24 Hour Prof. Janitorial
Srvcs., No. 3:07-CV-1847-B, 2009 WL 55705 (N.D. Tex. Jan. 6, 2009) (rejecting party’s
arguments that subpoenas to airlines were harassing and an invasion of privacy).
The Court declines to quash Defendants’ third-party subpoenas as a sanction for their
alleged failure to provide adequate notice to Plaintiff. Rule 45(b)(1) provides that “[i]f the
subpoena commands the production of document . . . then before it is served a notice must be
served on each party.” Fed. R. Civ. P. 45(b)(1). The 1991 Advisory Committee Notes to Rule
45 indicate that the purpose of this notice requirement is to provide parties with the opportunity
to object to the subpoena. In this case, beyond seeking sanctions for Defendants’ purported
violation of the notice requirement of Rule 45(b)(1), Plaintiff offers no facts or explanation from
which the Court can conclude that Defendants violated the Rule. In contrast, Defendants offer
evidence suggesting that their counsel sent notice to Plaintiff’s counsel via a letter on the same
day that they issued the subpoenas to the airlines. The letter Defendants’ counsel sent, however,
does not identify the method of delivery. Thus, the Court is unable to determine whether or not
Plaintiff received notice prior to or at least simultaneous with the service of the subpoenas.
Nevertheless, the Court declines to wade further into the question of whether Defendants timely
provided notice of the subpoenas because consistent with the stated purpose of the notice
requirement, Plaintiff had an opportunity to and did, in fact, object to the subpoenas.
Finally, the Court denies Plaintiff’s request for a protective order. Federal Rule of Civil
Procedure 26(c) affords district courts with discretion to issue a protective order “forbidding
inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters” to
prevent “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1)(D). In moving for a protective order, Plaintiff makes the same relevancy and
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interference of privacy arguments that the Court has addressed above. The Court, therefore,
concludes that Plaintiff has not established that good cause exists for issuing a protective order.
III.
For the reasons set forth above, Defendants’ Motion to Strike Plaintiff’s Reply, or in the
Alternative, Motion for Leave to File Sur-Reply Instanter is GRANTED IN PART AND
DENIED IN PART. (ECF No. 39.) The Court declines to Strike Plaintiff’s Reply, but grants
Defendants leave to file its Sur-Reply Instanter. Plaintiff’s Motion to Quash Subpoenas to NonParties, or in the Alternative, for Protective Order is DENIED. (ECF No. 29) The third-party
airlines are DIRECTED to respond to Defendants’ subpoenas WITHIN FOURTEEN DAYS
FROM THE DATE OF THIS ORDER.2 Finally, Defendants’ Motion to Compel is
GRANTED IN PART AND DENIED IN PART. (ECF No. 32.) Defendants are to supply
Plaintiff with the dates for which she requested sick, administrative, or research/meeting time
leave. Upon receipt of these dates, Plaintiff must respond to Defendants’ discovery requests
WITHIN FOURTEEN DAYS, limiting its responses to the dates provided.
IT IS SO ORDERED.

Date: April 17, 2012

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

2

Defendants are DIRECTED to forward a copy of this Order to the subpoenaed third-

parties.
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