Sturtz v. JPMorgan Chase & Co dba JPMorgan Chase Bank, National Association et al

Filing 29

OPINION AND ORDER denying 21 Motion to Quash; denying 28 Motion for Leave to File Reply. Signed by Magistrate Judge Norah McCann King on 5/22/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEBORAH STURTZ,
Plaintiff,
vs.

Civil Action 2:13-cv-236
Judge Sargus
Magistrate Judge King

JPMORGAN CHASE & CO. dba
JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on the motion of non-party Sara
Finn Kriger, Ph.D., to quash defendants’ subpoena to appear for a
deposition on June 5, 2014, Doc. No. 21 (“Motion to Quash”) and
Defendants’ Motion for Leave to File a reply to Plaintiff’s Response
to Dr. Kriger’s Motion to Quash Subpoena Instanter, Doc. No. 28
(“Motion for Leave to File Reply”).

For the reasons that follow, the

Motion to Quash and Motion for Leave to File Reply are DENIED.
I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff Deborah Sturtz worked at Bank One (a predecessor of

defendant JP Morgan Chase Bank, NA) (“Chase”) from 1990 until her
employment was terminated in or around November 2003.
No. 1, ¶ 8.

Complaint, Doc.

Chase rehired plaintiff on or about January 2005 as a

consultant and she was later hired as a Technology Project Manager on
June 22, 2005.

Id.

Plaintiff alleges that her supervisor in 2009,

Thomas Dowell, treated her differently in terms of employment

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opportunities, supervision and evaluations because of her age.1
¶ 10.

Id. at

Plaintiff also alleges that, although she is qualified for her

position, performed her work in a satisfactory manner and completed
education and training, Chase did not promote her or other older
employees.

Id. at ¶¶ 9-13.

Although plaintiff applied for several

jobs at Chase for which she was qualified, Chase rejected her
applications and did not consider her for these positions.
13.

Id. at ¶

Plaintiff also alleges that Chase retaliated against her for

taking FMLA leave in 2011 by placing her on a performance improvement
plan and terminating her employment on July 8, 2011.
22, 29.

Id. at ¶¶ 12,

Plaintiff was 55 years old at the time of her termination and

replaced by a younger man.

Id. at ¶¶ 2, 22.

Plaintiff was treated by Dr. Kriger, a psychologist, at least
four times in 2010 and on one occasion in 2011.2
1.

Motion to Quash, p.

According to Dr. Kriger,
[t]he subject matter of the visits pertained to the stress
that the Plaintiff was experiencing at work, as a result of
being told that her company wanted her to retire, even
though she had worked for the company for 19 years, and was
not ready to retire. When I saw her, she manifested
symptoms of depression and anxiety. These emotional
reactions were evident in her test results (MMPI-2 and
MCMI-III), and were consistent with the stress that she was
feeling at that time.

Motion to Quash, p. 1.
On March 13, 2013, plaintiff filed the instant action, alleging
that she was discriminated against and that her employment was
terminated on account of her age in contravention of the Age

1

Plaintiff was born on May 17, 1956 and is currently age 56. Id. at ¶ 2.
Dr. Kriger represents that she had a clinical practice “till the end of
2013.” Motion to Quash, p. 1.
2

2

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, et seq.
Id. at ¶¶ 23-24.

Plaintiff also alleges that her employment was

terminated in retaliation for having taken leave under the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.
30.

Id. at ¶¶ 27-

Plaintiff also asserts supplemental state law claims of age

discrimination in violation of O.R.C. §§ 4112.02(A), 4112.99.

Id. at

¶¶ 25-26.
On May 29, 2013, this Court conducted a preliminary pretrial
conference pursuant to Fed. R. Civ. P. 16.
Order, Doc. No. 11.

Preliminary Pretrial

Following that conference, the Court ordered,

inter alia, that all discovery be completed by April 15, 2014.
3.

Id. at

Thereafter, in light of on-going settlement discussions, the Court

modified the pretrial schedule by requiring, inter alia, that all
discovery be completed by June 30, 2014 and that dispositive motions
be filed no later than July 31, 2014.

Order, Doc. No. 20, p. 1.

In

extending the case schedule by more than two months, the Court
specifically warned the parties that these dates would not be further
extended.

Id. at 2.

On April 29, 2014, defendants served a subpoena on Dr. Kriger,
directing her to appear for a deposition on June 5, 2014, at 10:00
a.m. at defense counsel’s law office in Columbus, Ohio.

See Subpoena,

Doc. No. 21-1, attached to Motion to Quash (“the subpoena” or
“defendants’ subpoena”).

Dr. Kriger has moved to quash the subpoena,

arguing that to require her to undergo a deposition would impose an
undue burden on her.

After the Court expedited briefing, Order, Doc.

No. 22, Defendants’ Response to Dr. Sara Finn Kriger’s Motion to Quash
Subpoena, Doc. No. 25 (“Defendants’ Response”), was filed, indicating

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that defendants had proposed certain accommodations to plaintiff
related to the use of Dr. Kriger as a witness in this case.

After the

Court established a deadline of May 27, 2014 for plaintiff to respond
to Defendants’ Response or to the Motion to Quash, Plaintiff’s
Response to Dr. Kriger’s Motion to Quash Subpoena, Doc. No. 27
(“Plaintiff’s Response”), was filed.

Defendants have now moved for

leave to file a reply memorandum in order “to correct certain
inaccuracies” in Plaintiff’s Response.
Reply.

Motion for Leave to File

Because the Court concludes that additional briefing is not

necessary, defendants’ Motion for Leave to File a Reply is DENIED.
II.

STANDARD
Dr. Kriger has moved to quash defendants’ subpoena directing her

to appear for a deposition on June 5, 2014.

Under Rule 45 of the

Federal Rules of Civil Procedure, parties may command a non-party to,
inter alia, attend a deposition and/or produce documents. Fed. R. Civ.
P. 45(a)(1).

Rule 45 further provides that “[o]n timely motion, the

court for the district where compliance is required must quash or
modify a subpoena that . . . subjects a person to undue burden.”
R. Civ. P. 45(d)(3)(A)(iv).

Fed.

Whether the burden on a proposed deponent

is undue requires weighing “the likely relevance of the requested
[information] . . . against the burden . . . of producing the
[information.]”
Cir. 1994).

EEOC v Ford Motor Credit Co., 26 F.3d 44, 47 (6th

Courts “have held that the scope of discovery under a

subpoena is the same as the scope of discovery under Rule 26.”
Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D.
Ohio 2011) (internal quotation marks omitted).

Rule 26 grants parties

the right to “obtain discovery regarding any nonprivileged matter that

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is relevant to any party’s claim or defense. . . .”
26(b)(1).

Fed. R. Civ. P.

Relevance for discovery purposes is extremely broad.

Lewis

v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998).
However, “district courts have discretion to limit the scope of
discovery where the information sought is overly broad or would prove
unduly burdensome to produce.”

Surles ex rel. Johnson v. Greyhound

Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (citing Fed. R. Civ. P.
26(b)(2)).

In determining the proper scope of discovery, a district

court balances a party’s “right to discovery with the need to prevent
‘fishing expeditions.’”

Conti v. Am. Axle & Mfg., No. 08-1301, 326

Fed. Appx. 900, at *907 (6th Cir. May 22, 2009) (quoting Bush v.
Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)). Finally, the
movant bears the burden of persuading the court that a subpoena should
be quashed.

See, e.g., Baumgardner v. La. Binding Serv., Inc., No.

1:11-cv-794, 2013 U.S. Dist. LEXIS 27494, at *4 (S.D. Ohio Feb. 28,
2013); Williams v. Wellston City Sch. Dist., No. 2:09-cv-566, 2010
U.S. Dist. LEXIS 122796, at *21 (S.D. Ohio Nov. 2, 2010).
III. DISCUSSION
Dr. Kriger moves to quash the subpoena, arguing that requiring
her to undergo a deposition would impose an undue burden on her in
light of her current professional and personal circumstances.
to Quash, p. 1.

Motion

At the end of 2013, she closed her clinical practice

after 40 years and is in the process of selling the building that
housed her practice and dismantling her professional corporation.
at 1-2.

Id.

She also suffered the unexpected “recent passing” of her

husband, who also functioned as the controller and manager of her
professional corporation.

Id. at 2.

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Dr. Kriger explains that these

difficult events have turned her grief into depression which, in turn,
negatively impacts, inter alia, her concentration, short-term memory
and emotional control.

Id.

Dr. Kriger, who is 71 years old, also

suffers from certain medical difficulties related to her vocal cords
and knee pain.

Id.

Dr. Kriger further represents that she previously

provided to counsel “all the pertinent information” she possessed
regarding plaintiff:
At the request of the Plaintiff’s attorney, in July 2013, I
submitted a summary of my contact with the Plaintiff, and
this included information on the dates of service, her
reported problem/emotional status, and her treatment. In
January 2014, I was asked to copy and submit the contents
of the Plaintiff’s file. My submission included all the
progress notes, the background form and a symptoms list. I
did not enclose the test data of the MMPI-2 and MCMI-III,
explaining in a note to the Plaintiff’s attorney that these
tests are protected by the Trade Secrets Act, which forbid
me from releasing them to anyone, including to another
psychologist. Please note, however, that the treatment
summary I had submitted to the attorney in July, included a
summary of the test findings, so that, in effect, all the
pertinent information I possess regarding the Plaintiff,
has already been disclosed to the attorneys in this case.
Id. at 1.

Under all these circumstances, Dr. Kriger asks the Court to

quash the subpoena.

Id. at 2.

Defendants, who were unaware of Dr. Kriger’s personal
circumstances at the time the subpoena was issued, do not object to
releasing Dr. Kriger from the subpoena should the Court limit
plaintiff’s ability to use Dr. Kriger as a witness.
Response, p. 1.

Defendants’

Specifically, defendants seek the following

conditions before releasing Dr. Kriger:

(1) plaintiff must limit any

affidavit or other testimony by Dr. Kriger to plaintiff’s claim for
compensatory emotional distress damages stemming from alleged age
discrimination; and (2) defendants must be given the opportunity to

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depose Dr. Kriger before plaintiff offers her testimony (whether by
affidavit or live testimony).

Id.

Plaintiff, too, does not object to releasing Dr. Kriger from the
subpoena, but opposes defendants’ proposed limitation on plaintiff’s
use of Dr. Kriger as a witness.

Plaintiff’s Response, pp. 1-2.

Plaintiff argues that she “should not be prejudiced by Dr. Kriger’s
current unavailability or limited in the testimony that Dr. Kriger may
be able to present in this litigation.”

Id. at 1.

Plaintiff proposed

that, should she proffer Dr. Kriger’s affidavit at the summary
judgment stage or testimony at trial, the Court could determine at
that time whether defendants may appropriately depose Dr. Kriger.

Id.

at 2-3.
Dr. Kriger’s deposition testimony falls within the ambit of
discoverable information.

See Fed. R. Civ. P. 26(b)(1).

Plaintiff

and Dr. Kriger concede that Dr. Kriger’s treatment of plaintiff
related to the stress that plaintiff allegedly experienced while in
defendants’ employ and

plaintiff is presently unwilling to limit her

claims to exclude reliance on Dr. Kriger’s testimony. The production
of Dr. Kriger’s records is simply not an adequate substitute for her
deposition testimony, to which defendants are unquestionably entitled.
Although plaintiff urges the Court and defendants to defer Dr.
Kriger’s deposition until plaintiff unilaterally determines – after
the discovery completion date – whether and to what extent she will
rely on Dr. Kriger’s testimony, neither plaintiff nor Dr. Kriger can
assure either the Court or defendants that Dr. Kriger will be
reasonably available for deposition at that time.

Indeed, the record

presents no reason to believe that the burden on Dr. Kriger would be

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any less should she be required to undergo a deposition at a later
date.
Although the Court is sympathetic to Dr. Kriger’s professional
and personal circumstances, the Court cannot conclude that the burden
to her of appearing for a deposition outweighs the defendants’ need
for her deposition.

See, e.g., Ford Motor Credit Co., 26 F.3d at 47.

WHEREUPON, Defendants’ Motion for Leave to File a Reply to
Plaintiff’s Response to Dr. Kriger’s Motion to Quash Subpoena
Instanter, Doc. No. 28, and non-party Dr. Sara Finn Kriger’s motion to
quash defendants’ subpoena to appear for a deposition on June 5, 2014,
Doc. No. 21, are DENIED.3

May 22, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

3

Defendants are urged to attempt to accommodate Dr. Kriger’s schedule.
However, the Court will not extend the current discovery deadline.

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