Tilghman v. Kirby et al

Filing 134

ORDER granting 104 Motion to Compel, as more fully set out. Signed by Honorable Timothy D. DeGiusti on 12/17/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MISTY TILGHAM, an individual,
Plaintiff,
v.
RON KIRBY, as a County Commissioner
and Individually, et al.,
Defendants.

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Case No. CIV-13-73-D

ORDER
Before the Court is Defendant Comanche County Commissioners’ Motion to Compel
Discovery and Brief in Support [Doc. No. 104]. Plaintiff has responded [Doc. No. 121] and
Defendant has replied [Doc. No. 131].
Plaintiff brings this action alleging violations of her rights under state and federal law
resulting from alleged sexual harassment to which she was subjected during her employment at the
Comanche County Commissioner’s Office.

During the course of discovery in this matter,

information indicating that Plaintiff gambles extensively has been discovered. Defendant contends
this information is relevant and seeks production of documents related thereto.
Defendant moves to compel Plaintiff to respond to its Request for Production of Documents.
See Defendant’s Motion, Exhibit 1. There are six production requests at issue and each cover a
separate year from 2009 through 2014. Otherwise, the production requests are identical. The
production requests seek any and all documents which support or show Plaintiff’s gambling
winnings or losses for the respective year, including “any diary, receipts, notes, ledger, log, book,
notebook, journal, W-2G, or record of any kind.”

Defendant states it is entitled to production of the requested documents as such information
may be relevant to Plaintiff’s claim for damages resulting from emotional distress she suffered as
a result of the alleged sexual harassment. Defendant contends evidence related to Plaintiff’s
gambling activities is relevant to establish that Plaintiff’s emotional distress may be due to her
gambling and not, as Plaintiff contends, the alleged sexual harassment she was subjected to in the
workplace. In addition, Defendant states the requested documents are relevant to the issue of
mitigation of damages.
Before responding to Defendant’s Motion to Compel, Plaintiff filed a stipulation of dismissal
[Doc. No. 117] as to her state law claim for intentional infliction of emotional dismiss. Plaintiff then
filed her response to Defendant’s Motion to Compel, objecting to the requested production, in part,
based on the dismissal of that claim. In addition, Plaintiff contends no evidence supports
Defendant’s allegation that she is a compulsive gambler and that Defendant has not identified an
expert to testify about whether she suffers from a gambling addiction. Therefore, Plaintiff contends
the evidence is not relevant. As to the temporal scope of the documents requested, Plaintiff contends
she was still working during the time period 2009 through 2011 and, therefore, the documents
sought during that time period are not relevant.
In its Reply, Defendant points out that despite Plaintiff’s dismissal of her claim for
intentional infliction of emotional distress, she has not dismissed her claim for damages based on
emotional distress, as evidenced throughout the allegations of the Second Amended Complaint [Doc.
No. 4], including her Prayer for Relief which seeks, inter alia, “mental anguish damages.”
Defendant concedes it does not intend to call an expert witness nor does it intend to establish, as a
medical matter, whether Plaintiff has a gambling addiction. Instead, Defendant states it intends to

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establish, through Plaintiff’s own testimony, that her gambling may have contributed to her
emotional suffering. Because Plaintiff’s claim for damages includes the time period 2009-2011,
Defendant contends documents requested during that time period are relevant.
Rule 26(b) of the Federal Rules of Civil Procedure governs the scope of discovery and allows
for discovery of any information that is “relevant to any party’s claim or defense[.]” In addition,
Rule 26(b) provides that “[r]elevant information need not be admissible at trial if the discovery
appears “reasonably calculated to lead to the discovery of admissible evidence.”
It is well-established in the context of claims arising from unlawful employment practices
that a plaintiff seeking to recover damages for emotional distress opens the door to evidence of other
probable causes of her distress. The Tenth Circuit has, for example, deemed admissible evidence of
a Title VII plaintiff’s stay in a psychiatric hospital, her filing for bankruptcy and her divorce
proceedings. York v. American Tel. & Tel. Co., 95 F.3d 948 (10th Cir.1996). As the Tenth Circuit
explained:
In this case, the district court did not abuse its discretion by admitting the evidence.
York sought damages for emotional distress allegedly suffered as a result of not
obtaining the positions that she sought. She contended that she had become
emotionally strained and had lost her self-esteem and enjoyment of life. The
defendants maintained that much, if not all, of York's emotional distress was rooted
in her past, stemming from events that occurred well before her unsuccessful bid for
the Operating Engineer position in 1992. In particular, they note that her
hospitalization in a psychiatric facility in 1988 was necessitated by various sources
of stress in her life. Because York chose to raise a claim of emotional distress, it was
entirely appropriate for the court to allow the defendants to introduce evidence of
alternate or multiple causes of such distress. The jury must be permitted to consider
such relevant evidence of causation where damages are claimed for emotional
distress. Moreover, it would be inequitable to allow the plaintiff to introduce selected
evidence on the matter but to disallow the defendants to present evidence supporting
their theories of causation. For these reasons, the district court did not abuse its
discretion in denying York's motions in limine regarding the evidence of alternate
causes of emotional distress.

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Id. at 957–58 (citation omitted).
Here, the Court is not addressing the admissibility of the evidence sought by the requested
document production, but only whether it is subject to discovery. The Court finds the information
requested by Defendant is relevant to Plaintiff’s claim for emotional distress damages and the
temporal period governing the request is not overly broad. Compare Mehus v. Emporia State
University, 326 F. Supp.2d 1213, 1220 (D. Kan. 2004) (finding evidence of plaintiff’s gambling
losses relevant to claim for damages for emotional distress in case brought by female coach alleging
violations of the Equal Pay Act); see also Raymond v. Ameritech Corp., No. 03 C 4509, 2004 WL
1381134 (N.D. Ill, May 7, 2004) (unpublished op.) (in employment discrimination suit, evidence
of gambling debts incurred by plaintiff and her husband for three years prior and one year after
layoff was subject to discovery as relevant to whether the gambling caused or exacerbated emotional
distress).
Plaintiff’s objections speak largely, if not exclusively, to the admissibility of the information
sought by Defendant rather than its discoverability. Moreover, Plaintiff cites no authority to support
her contention that the discoverability of the requested documents is conditioned on the presentation
of expert testimony regarding her purported gambling addiction. Compare Sims v. Unified Govt.
of Wyandotte County / Kansas City, Kansas, No. CIV. A. 99-2406-JWL, 2001 WL 1155302 at * 3)
(D. Kan. May 1, 2001) (unpublished op.) (plaintiff placed her mental and emotional state at issue
by claiming damages for emotional distress and mental anguish; fact that plaintiff did not plan to
call expert as to her mental health did not make discoverability of information about her health care
providers any less relevant). Plaintiff can raise objections to the admissibility of the information
obtained from the requested document production by filing a motion in limine, as may be

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appropriate. At this time, the Court expresses no opinion as to the issue of the admissibility of the
evidence obtained through the requested document production.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel [Doc. No. 104] is
GRANTED. Plaintiff is directed to produce the subject documents within twenty-one (21) days of
the date of this Order.
IT IS SO ORDERED this 17th day of December, 2014.

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