Reish v. The Pennsylvania State University et al

Filing 57

MEMORANDUM OPINION AND ORDER - For the foregoing reasons, Reishs motions for discovery, (Docs. 40 , 42 , 44 , 46 , 48 , 50 ) are GRANTED in part and DENIED in part as follows: 1. The motions for discovery filed as Docs. 40, 44, 46, 48 and 50 ar e DENIED. 2. The motion for discovery filed as Doc. 42, is GRANTED with respect to any performance evaluations and disciplinary records relating to Susan Rutan, Gregory Anderson and Steve Brisker employees from 2006 through 2010. To the extent that no such records exist, the Defendants shall certify the non-existence of these records, which shall constitute a complete response to this particular inquiry. In all other respects, the motion is DENIED. Signed by Magistrate Judge Martin C. Carlson on May 24, 2011. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN REISH,
Plaintiff
v.
PENNSYLVANIA STATE
UNIVERSITY, et al.,
Defendants

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Civil No. 4:09-CV-1273

(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Statement of Facts and of the Case

This is an employment discrimination action brought by John Reish against the
Pennsylvania State University and other individual Defendants. (Doc. 1) In his
complaint Reish alleges that the Defendants engaged in acts of age discrimination
against him in violation of the Age Discrimination in Employment Act, 29 U.S.C.
§621, and the Pennsylvania Human Relations Act, 43 Pa.C.S. §951. (Id.)
According to Reish’s complaint, in 2006 the Plaintiff was employed as a
supervisor in the Office of Physical Plant at the Pennsylvania State University, where
he was responsible for the maintenance and upkeep of Penn State facilities. In 2006,
the parties agree that Penn State commenced progressive disciplinary proceedings,
referred to by the acronym HR-78 proceedings, against Reish, proceedings that

culminated in Reish’s demotion. While the parties agree to these facts, their
interpretation of these events is the stuff of this litigation.
For his part, Reish insists that these HR-78 proceedings masked an attempt to
discriminate and retaliate against him because of his age and his assertion of his
rights. Reish further alleges that, following these proceedings, Penn State officials
engaged in elaborate efforts to conceal and cover-up these alleged discriminatory
practices. Penn State, in turn, asserts that this disciplinary proceeding was nothing
more than an effort to use progressive discipline to address work-place deficiencies
by Reish, and the events which Reish sees as proof of a conspiratorial cover-up are
nothing more than enforcement of routine document destruction policies.
These competing views of what transpired at Penn State in Reish’s case are
now presented to the Court in the context of a multi-faceted discovery dispute
between the parties. Reish, who was previously represented by counsel but is now
proceeding pro se, has filed a battery of different motions, styled as discovery
motions, which seek an array of information and relief from the Defendants. (Docs.
40, 42, 44, 46, 48, and 50.) Reish has briefed these manifold discovery motions,
(Docs. 41, 43, 45, 47, 49 and 51), and the Defendants have filed a consolidated
response in opposition to these requests. (Doc. 55.)

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Reish, in turn, has filed a 220 page document which he has styled as a reply.
(Doc. 56.) Despite its length, this reply adds little clarity to this dispute. Indeed, in
some respects, the thrust of this pleading is difficult to discern, since the document
seems to argue the merits of various disputes the Plaintiff has with the Defendants,
rather than articulating why Reish is entitled to discovery under the Federal Rules of
Civil Procedure. Further, Reish’s pleadings actually seems to contradict his
complaints regarding the adequacy of discovery in this case, since Reish attaches
hundreds of pages of material, apparently gleaned from discovery, to this reply. Reish
should remain mindful both of the value of brevity, and the importance of addressing
the specific issues before the Court, as he pursues this pro se litigation in the future.
Having reviewed these pleadings, for the reasons set forth below, Reish’s
motions will be granted, in part, and denied, in part.
II.

Discussion

Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. . . .

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Fed. R. Civ. P. 37(a).
The scope of what type of discovery may be compelled under Rule 37 is
defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which
provides as follows:
(1) Scope in General. Unless otherwise limited by court order, the scope
of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense –
including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)( C ).
Fed. R. Civ. P. 26(b)(1)
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding Rule 37 motions are
“committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus,

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a court’s decisions regarding the conduct of discovery, and whether to compel
disclosure of certain information, will be disturbed only upon a showing of an abuse
of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).This
far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys.
Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's broad definition of that which can be obtained through

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discovery reaches only “nonprivileged matter that is relevant to any party’s claim or
defense.” Therefore, valid claims of relevance and privilege still cabin and restrict the
court’s discretion in ruling on discovery issues. Furthermore, the scope of discovery
permitted by Rule 26 embraces all “relevant information” a concept which is defined
in the following terms: “Relevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”
A party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth., 203
F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting
the discovery has the burden to establish the lack of relevance by demonstrating that
the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the
potential harm occasioned by discovery would outweigh the ordinary presumption in
favor of broad disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573
(D.Kan. 2009).
One other immutable rule defines the court’s discretion when ruling on motions
to compel discovery. It is clear that the court cannot compel the production of things
that do not exist. Nor can the court compel the creation of evidence by parties who
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attest that they do not possess the materials sought by an adversary in litigation. See,
e.g., AFSCME District Council 47 Health and Welfare Fund v. Ortho-McNeilJanssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL 5186088 (E.D.Pa. Dec. 21,
2010); Knauss v. Shannon, No. 08-1698, 2009 WL 975251 (M.D.Pa. April 9, 2009).
With these legal guideposts in mind, we turn to consideration of Reish’s various
discovery motions.
B.

Resolution of Reish’s Discovery Motions
1.

Reish May Not Compel Production of Materials That Do Not
Exist

At the outset, Reish has filed three speculative discovery motions which seek
an array of data. For example, Reish surmises that someone provided information
from his HR-78 proceedings to University counsel, who allegedly used that
information to cross examine Reish in the course of other proceedings. Reish
demands disclosure of the identities of those responsible for this alleged misconduct.
(Doc. 40.) In addition, Reish asserts that he has been denied access to records that he
believes exist which he describes as “William Sotter’s Scott Dunlap and Kerry
Phillip’s Sexual harassment grievance.” Reish then calls for production of these
records. (Doc. 44.) Finally, Reish demands production of other records that he
speculates exist; specifically, records detailing access to Penn state personnel files.
(Docs. 50 and 51.)
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With respect to each of these discovery requests the Defendants have
represented that no such documents or information exists. (Doc. 55, pp. 10-11, 14-15,
and 21.) As we have noted, this Court cannot compel the production of things that do
not exist. Nor can the Court compel the creation of evidence by parties who attest that
they do not possess the materials sought by an adversary in litigation. See, e.g.,
AFSCME District Council 47 Health and Welfare Fund v. Ortho-McNeil-Janssen
Pharmaceuticals, Inc., No. 08-5904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010);
Knauss v. Shannon, No. 08-1698, 2009 WL 975251 (M.D.Pa. April 9, 2009).
Therefore, the Defendants’ assertion that they do not possess any responsive records
that meet the description of the records sought by Reish in these motions compels us
to deny these specific requests. While we deny these particulars requests, we note that
the parties have an on-going responsibility to supplement their discovery disclosures.
Rule 26 of the Federal Rules of Civil Procedure imposes this obligation on all parties
and provides that:
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule 26(a)--or
who has responded to an interrogatory, request for production, or
request for admission--must supplement or correct its disclosure or
response:
(A) in a timely manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect, and if the
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additional or corrective information has not otherwise been made known
to the other parties during the discovery process or in writing; or
(B) as ordered by the court
Fed. R. Civ. P. 26(e). Thus, while we deny these motions at this time in light of the
Defendants’ response, all parties are directed to continue to comply with the
provisions of Rule 26(e) and make prompt disclosure of any additional relevant,
responsive materials which they may encounter in the course of this litigation.
2.

Reish is Entitled to Limited Disclosure of Personnel File
Information

Reish has also filed a discovery motion (Doc. 42) which seeks the disclosure
of the Penn State personnel files of two Defendants–Susan Rutan and Gregory
Anderson–as well as the personnel file of another Penn State employee, Steve
Brisker. Reish attempts to justify this request on two grounds: first, claiming that
these parties lost their privacy rights when they were sued by Reish, and, second,
asserting that he seeks disciplinary documents from these files relating to alleged
mishandling of records of his HR-78 proceedings. (Doc. 43.)
To the extent that Reish claims that he is entitled to wholesale discovery of
these personnel files because these individuals forfeited their privacy rights when
they were sued by Reish, we disagree. Defendants and witnesses do not forfeit their

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personal privacy in personnel records when they are sued. Quite the contrary, courts
have long recognized that:
Although personnel files are discoverable, they contain confidential
information and discovery of them should be limited. See, e.g., ReaganTouhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.2008) (“Personnel
files often contain sensitive personal information ... and it is not
unreasonable to be cautious about ordering their entire contents
disclosed willy-nilly.... This is not to say personnel files are
categorically out-of-bounds.”); Miles v. Boeing Co., 154 F.R.D. 112,
115 (E.D.Pa.1994) (“[P]ersonnel files are confidential and discovery
should be limited.”). The Court must weigh the right to relevant
discovery against the privacy interest of non-parties. The Court finds
that Plaintiff is not entitled to the entire personnel records of all the
individuals without a more particularized showing of relevance
Harris v. Harley-Davidson Motor Co. Operations, Inc, No. 09-1449, 2010 WL
4683776, *5 (M.D.Pa Nov. 10, 2010). Miles v. Boeing Co., 154 F.R.D. 112, 115
(E.D. Pa. 1994)(“personnel files are confidential and discovery should be limited.”).
However, to the extent that Reish alleges that he seeks disciplinary documents
relating to alleged mishandling of records of his HR-78 proceedings from these
personnel files, Reish sets forth an appropriately defined discovery request.
Therefore, we will grant this request, in part, and direct the Defendants to disclose
any performance evaluations and disciplinary records relating to these Penn State
employees from 2006 through 2010. To the extent that no such records exist, the
Defendants shall certify the non-existence of these records, which shall constitute a

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complete response to this particular inquiry. See, e.g., AFSCME District Council 47
Health and Welfare Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 085904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698,
2009 WL 975251 (M.D.Pa. April 9, 2009).
3.

Reish’s General Request For “Additional Documents” Lacks
Sufficient Detail to Compel Production of Specific Material

Reish has also filed an omnibus discovery request which makes a general,
unspecified demand for “additional documents.” (Doc. 48.) While the scope of
discovery permitted by Rule 26 embraces all “relevant information” a concept which
is defined broadly, a party moving to compel discovery still bears the initial burden
of proving the relevance of the requested information. Morrison v. Philadelphia
Housing Auth., 203 F.R.D. 195, 196 (E.D.Pa. 2001). Here, Reish has made no proffer
of relevance. Therefore, he may not simply demand disclosure of additional, and
unspecified, documents. Of course, Rule 26(e) of the Federal Rules of Civil
Procedure imposes an on-going obligation on all parties to promptly disclose any
relevant documents they may uncover. However, this obligation does not translate
into an entitlement to all documents and records possessed by a party. Since Reish’s
undefined demand for additional documents is tantamount to a limitless discovery
request it must, therefore, be denied.
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4.

The Court Will Treat Reish’s Request to Have the
Defendants’ Answer and His HR-78 Charges Thrown Out As
a Request for Spoliation Sanctions and Will Deny That
Request Without Prejudice

Finally, Reish has filed a motion which describes the alleged destruction of
documents, and then demands that “the HR-78 charges [be] thrown out as well as the
Answer of Defendants.” (Doc. 46.) While the precise tenor of this motion is unclear,
we will regard Reish’s motion as a request for spoliation sanctions, and will deny that
motion without prejudice since Reish’s pleadings do not carry his burden of proof on
the question of whether any culpable spoliation has occurred here.
Evidentiary rulings, including rulings regarding whether a spoliation inference
is appropriate, rest in the sound discretion of the court. Ward v. Lamanna, 334
F.App’x 487, 492 (3d Cir. 2009). That discretion is guided, however, by settled legal
tenets, tenets which define both the fundamental nature of spoliation and the
appropriate sanctions for acts of spoliation. “Spoliation is the destruction or
significant alteration of evidence, or the failure to preserve property for another's use
as evidence in pending or reasonably foreseeable litigation. Mosaid Techs., Inc. v.
Samsung Elecs. Co., Ltd., 348 F.Supp.2d 332, 335 (D.N.J.2004).” Fortune v. Bitner.

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No. 01-111, 2006 WL 839346, *1 (M.D.Pa. March 29, 2006); see Ogin v. Ahmed,
563 F.Supp.2d. 539, 542 (M.D. Pa. 2008). In assessing a spoliation claim:
[R]elevant authority requires that four (4) factors be satisfied for the rule
permitting an adverse inference instruction to apply: 1) the evidence in
question must be within the party's control; 2) it must appear that there
has been actual suppression or withholding of the evidence; 3) the
evidence destroyed or withheld was relevant to claims or defenses; and
4) it was reasonably foreseeable that the evidence would later be
discoverable. Mosaid, 348 F.Supp.2d at 336 citing Brewer, 72 F.3d at
334; Scott v. IBM Corp., 196 F.R.D. 233, 248-50 (D.N.J.2000); Veloso
v. Western Bedding Supply Co., 281 F.Supp.2d 743, 746 (D.N.J.2003).
Additionally, the United States District Court for the District of New
Jersey recognized: “While a litigant is under no duty to keep or retain
every document in its possession, even in advance of litigation, it is
under a duty to preserve what it knows, or reasonably should know, will
likely be requested in reasonably foreseeable litigation.” Mosaid, 348
F.Supp.2d at 336 (quoting Scott, 196 F.R.D. at 249).
Ogin,563 F.Supp.2d at 543.
Thus, “[a] party which reasonably anticipates litigation has an affirmative duty to
preserve relevant evidence. Baliotis v. McNeil, 870 F.Supp. 1285, 1290
(M.D.Pa.1994). Where evidence is destroyed, sanctions may be appropriate, including
the outright dismissal of claims, the exclusion of countervailing evidence, or a jury
instruction on the ‘spoliation inference.’ This inference permits the jury to assume
that ‘the destroyed evidence would have been unfavorable to the position of the
offending party.’ Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d
Cir.1994).” Howell v. Maytag, 168 F.R.D. 502, 505 (M.D.Pa. 1996)
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If the Court finds that there is a culpable destruction or spoliation of evidence,
the question then becomes determining the appropriate sanction for this act of
spoliation. In this respect:
The United States Court of Appeals for the Third Circuit has applied
three (3) key considerations to determine whether a sanction for
spoliation of evidence is appropriate. Schmid, 13 F.3d at 79. The
considerations are: 1) the degree of fault of the party who altered or
destroyed the evidence; 2) the degree of prejudice suffered by the
opposing party; and 3) whether there is a lesser sanction that will avoid
substantial unfairness to the opposing party and, where the offending
party is seriously at fault, will serve to deter such conduct by others in
the future. Id. When appropriate, a court may impose any potential
sanction including: 1) dismissal of a claim or granting judgment in favor
of a prejudiced party; 2) suppression of evidence; 3) an adverse
inference, referred to as the spoliation inference; 4) fines; and 5)
attorneys' fees and costs. Mosaid, 348 F.Supp.2d at 335.
Ogin, 563 F.Supp.2d at 545.
In this case, we find that Reish has not carried his threshold burden of showing
any culpable spoliation of evidence at this time. Quite the contrary, the Defendants
have made a substantial showing that no spoliation has occurred here, and that the
document destruction that Reish claims took place either never occurred or was a
function of routine document destruction policies. Since Reish has not carried his
threshold burden of demonstrating culpable spoliation of evidence, we will deny this
motion at this time, but we deny this motion without prejudice to Reish renewing a
spoliation motion if he possesses further competent proof of spoliation.
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III.

Conclusion

For the foregoing reasons, Reish’s motions for discovery, (Docs. 40, 42, 44, 46,
48, 50) are GRANTED in part and DENIED in part as follows:
1.

The motions for discovery filed as Docs. 40, 44, 46, 48 and 50 are
DENIED.

2.

The motion for discovery filed as Doc. 42, is GRANTED with respect
to any performance evaluations and disciplinary records relating to
Susan Rutan, Gregory Anderson and Steve Brisker employees from
2006 through 2010. To the extent that no such records exist, the
Defendants shall certify the non-existence of these records, which shall
constitute a complete response to this particular inquiry. In all other
respects, the motion is DENIED.

So ordered this 24th day of May, 2011.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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