Craig-Wood v. Time Warner Cable

Filing 61

ORDER granting in part and denying in part 53 Motion to Compel. Signed by Magistrate Judge Terence P Kemp on 7/6/12. (jcw1)

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

Kelley Craig-Wood,

:

Plaintiff,

:

v.

:
:

Time Warner NY Cable LLC,
Defendant.

Case No. 2:10-cv-906
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

ORDER
This employment discrimination case is before the Court to
consider a second motion to compel filed by plaintiff Kelley
Craig-Wood.

The motion is fully briefed.

For the following

reasons, the motion (#53) will be granted in part and denied in
part.
I. Background
The factual background of this case is set out in some
detail in the Court’s April 16, 2012 order which ruled on Ms.
Craig-Wood’s first motion to compel discovery, and that
background will not be repeated here.

However, it is helpful to

describe the events leading up to the issuance of that order,
because, as Ms. Craig-Wood states, the issue raised by her
current motion is “whether the Defendant must provide to
Plaintiff the discovery as ordered by the Court in Document #42
[the April 16, 2012 order].”

See Plaintiff’s Reply to

Defendant’s Response to Plaintiff’s Motion to Compel Discovery
and For a Status Conference for Continued Discovery, Doc. 60, at
1.
Ms. Craig-Wood’s prior motion to compel dealt with her
request for production of documents.

That motion sought,

generally, to compel responses to “a vast majority” of those
requests, which were served on December 27, 2011.

Production of

documents was delayed while the parties haggled over the need for
a protective order; when documents were finally produced, other
than 40 pages of documents relating to Ms. Craig-Wood’s
supervisor, Bianca Beckley, and about 100 pages relating to the
“Colley investigation,” all of the documents which Ms. Craig-Wood
received related to her - such as portions of her personnel file
and her medical records.

Her primary complaint, in the motion to

compel, was the lack of production of any documents relating to
similarly-situated employees who, Ms. Craig-Wood contended, were
treated differently than she was.
The motion to compel was fairly specific about what
documents Ms. Craig-Wood wanted the Court to order Time Warner to
produce, although it did not refer to the document requests by
number.

The documents described in the motion as relevant but

not yet produced included Tenesia Tyus’ personnel file, job
descriptions, job assignments, area assignments, and commissions
paid; information from Ms. Beckley’s file about her contact with
Ms. Craig-Wood and her follow-up contact with the human resources
department; documents showing the production of her coworkers,
including but not limited to Princess Powe; information from the
file of Ty Harris, the department manager, about the production
of both Ms. Craig-Wood and her coworkers; commission sheets
showing commissions paid to Ms. Craig-Wood and her co-workers;
and documents provided by Time Warner to the Ohio Department of
Job and Family Services explaining the reasons why the employment
of Ms. Craig-Wood, Ms. Beckley, Ms. Tyus, and Mr. Harris was
terminated.

See Plaintiff’s Motion to Compel Discovery, Doc. 35.

In her reply memorandum, Ms. Craig-Wood reiterated that the issue
raised by her motion was “whether Plaintiff is permitted to
conduct discovery on comparable coworkers and her departmental
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supervisors,” see Plaintiff’s Reply, Doc. 39, at 1, and she
reiterated her request for documents which would show that all of
her coworkers also engaged in fraudulent sales practices and that
this conduct was overlooked except in Ms. Craig-Wood’s case,
where it led to her termination.
In the order granting that motion in part, the Court
directed Time Warner to produce a number of additional documents.
Concluding that, as in most cases which involve claims of
employment discrimination, Ms. Craig-Wood was entitled to see
evidence about how similarly-situated coworkers were treated, the
Court directed Time Warner to respond to some of the document
requests at issue.

The requests which the Court discussed in its

order were Nos. 6-9 and 11-26 and No. 28.

Requests 6-9 all deal

with documents related to Bianca Beckley, and requests 11-26 are
identically-worded sets of requests for the “personnel file,”
“job descriptions,” “job assignments and area assignments,” and
“commissions paid” for Ms. Tyus, Carmela Weiser, Princess Powe,
and Ty Harris.

Request No. 28 was for the documents provided to

ODJFS explaining the various terminations.

The Court held that

documents from the various personnel files might be relevant to
the extent that they showed that other employees engaged in
similar fraudulent activity but received no discipline or
complained to human resources and had their complaints taken
seriously; that documents showing the number of addresses
assigned to these various employees might also be relevant; that
commission documents might be relevant; and that documents
relating to the unemployment claims made by these persons (other
than Mr. Harris) to ODJFS might also be relevant.

That is the

universe of documents Time Warner was ordered to produce.
II. The Current Motion
Among other arguments contained in its opposing memorandum,
Time Warner asserts that the current motion does not limit itself
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to documents which are covered by the April 16, 2012 order, but
goes far beyond that order and is a belated attempt to obtain
information which was either requested in the past but never
before the subject of a motion to compel, or never requested at
all.

To the extent that the motion asks for documents which were

not the subject of Ms. Craig-Wood’s prior motion, Time Warner
notes that the time for filing discovery-related motions has
passed, and asks the Court to hold that the motion simply cannot
be entertained, whatever its merit (or lack of merit).

Because,

as quoted above, Ms. Craig-Wood has described the key issue as
whether Time Warner has produced all of the documents which the
April 16, 2012 order directed it to produce, the Court will
compare in detail the documents which Ms. Craig-Wood discussed in
her second motion to compel with those which the Court ordered
Time Warner to produce, and will not devote any substantial
discussion to documents which were not the subject of the prior
order.
Ms. Craig-Wood’s motion asks for these documents: (1) a memo
from Bianca Beckley’s personnel file concerning her alleged
misconduct in the Athens area; (2) records of an investigation
which Time Warner allegedly conducted into Ms. Beckley’s
activities; (3) all of the commission reports for Ms. Beckley;
(4) the ODJFS documents; (5) a CD containing documents referred
to in the Colley investigation report; (6) documents responsive
to Requests Nos. 27 and 37 of her December, 2011 document
request, particularly records compiled by Marlo Richardson as
part of her investigation; and (7) either additional documents
from Ms. Craig-Wood’s personnel file, or an explanation for why
they are missing.
It is apparent from this description that, indeed, Ms.
Craig-Wood’s current motion goes well beyond the scope of both
her prior motion and the Court’s prior order.
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She did not ask

the Court to compel production of, and the Court did not order
production of, any investigative reports, any documents on a CD
associated with the Colley investigation, or anything having to
do with Ms. Richardson’s investigation, including her notes.

Her

prior motion also did not address alleged deficiencies in her own
personnel file.

Thus, documents in categories (2), (5), (6) and

(7) are not appropriate subjects for the current motion to
compel.

Further, whether any of these documents were the subject

of her December, 2011 document request - a separate argument made
by Ms. Craig-Wood - is irrelevant at this point.

The only issue

which the Court may now deal with is any noncompliance with the
April 16, 2012 order concerning the documents in categories (1),
(3), and (4).
III.

Discussion

The Court did order production of commission reports for,
among other employees, Bianca Beckley.
all of them have been produced.

Time Warner asserts that

The dispute appears to center

around some dates in 2008 and 2009 when, according to Ms. CraigWood, Ms. Beckley should have received commissions.

At this

point, the Court can only reiterate that if these documents
exist, they have to be produced, but it can go no further as to
these or any other documents which may have existed at one time.
If Time Warner has represented (and it has) that it has produced
all of the documents on this subject in its possession, that is
sufficient at this point.

Notably, Ms. Craig-Wood appears never

to have requested, by way of discovery, any explanation for any
missing documents, and she took depositions after the claimed
deficiency in this production became apparent.

Discovery is

closed, so the only order the Court can make is to direct Time
Warner to confirm, again, that it has produced everything in its
possession concerning Ms. Beckley that the Court ordered it to
produce.
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The same holds true for documents that are supposedly
missing from Ms. Beckley’s personnel file.

Although there may be

some evidence that they were there at one time, Time Warner says
it has produced everything from that file which the Court’s order
directed it to turn over.

If there is an issue about spoliation

of evidence, a motion for sanctions, if properly supported, might
be appropriate, but the Court is unable to compel a party to
produce documents that, for whatever reason, no longer exist.
The only issue which causes the Court some significant
concern is the ODJFS documents.

Time Warner apparently

acknowledges that it has produced only a handful of such
documents, but explains the lack of documentation about those
proceedings by stating that such claims were handled through a
third-party administrator and that Time Warner “has produced all
of the documents it received from the administrator for Plaintiff
and Tyus.”

Defendant’s Memorandum in Opposition, Doc. 59, at 12.

As Fed.R.Civ.P. 34 makes clear, a party responding to a
document request is required to produce not only documents which
it actually possesses, but also documents within its control.
Even if Time Warner has outsourced the handling of unemployment
claims to a third-party administrator, it presumably retains
control over the documents used by the administrator when it
represents Time Warner’s interests before the ODJFS.

It is not

clear from Time Warner’s response whether the documents it
“received” from its administrator are documents it received in
the ordinary course of business, or documents it received after
being served with the document request and after being ordered by
the Court to produce such documents.

If the latter is the case,

again, the Court cannot order production of any documents that no
longer exist.

If the former is the case, however, and if Time

Warner has never asked its administrator to provide it with
responsive documents even though it has the right to do so, it
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must pursue that course of action in order to be in compliance
with the Court’s prior order.

The Court will direct Time Warner

to address this issue and to produce additional responsive
documents if it indeed has the legal right to obtain them from
the administrator.
IV. Conclusion and Order
For these reasons, Ms. Craig-Wood’s second motion to compel
(Doc. #53) is granted in part and denied in part.

Time Warner is

ordered to (1) confirm that it has produced all responsive
commission reports and personnel records for Bianca Beckley; and
(2) obtain any ODJFS documents that are responsive to the Court’s
April 16, 2012 order from its unemployment claims administrator
that it has not already obtained, and produce those documents to
Ms. Craig-Wood, or, alternatively, confirm that it has done so
and that there are no additional documents in its control which
are responsive.

Given the current case schedule, it shall comply

with this order by July 13, 2012.

Ms. Craig-Wood is granted an

additional one-week extension of time, to July 26, 2012, to
respond to the pending summary judgment motion.
V. Procedure on Objections
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A);

Fed.R.Civ.P. 72(a); Eastern Division Order No. 91-3, pt. I., F.,
5.

The motion must specifically designate the order or part in

question and the basis for any objection. Responses to objections
are due fourteen days after objections are filed and replies by
the objecting party are due seven days thereafter.

The District

Judge, upon consideration of the motion, shall set aside any part
of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
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or District Judge. S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge

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