Knight v. Domtar Paper Company LLC

Filing 47

ORDER granting in part and denying in part 29 Motion to Compel: No later than May 1, 2013, Plaintiff must provide complete responses to Defendant's Interrogatory #10 and #11, Request for Production #23 and #24, Supplemental Interrogatory #1, and Supplemental Request for Production #1. Defendant is entitled to reopen the deposition of Plaintiff and fact witness Popowich by telephone for the limited purposes set forth herein. Plaintiff is to bear the costs of these continued depositions, with each party bearing its own attorneys' fees. Defendant's Motion is denied as to its request as to its request for other sanctions and relief. Signed by Magistrate Judge Kaymani D West on 4/17/2013.(mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Glinda K. Knight,

)
)
Plaintiff, )
)
vs.
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Domtar Paper Company, LLC,
)
)
Defendant. )
)

C/A No. 4:12-1979-MGL-KDW

ORDER

This matter comes before the court on Defendant Domtar Paper Company, LLC’s
Motion to Compel and/or for Rule 37 Sanctions (“Motion”), ECF No. 29, to which Plaintiff
filed a response, ECF No. 32. The court conducted a hearing for April 10, 2013, at which
Plaintiff, Plaintiff’s counsel, and defense counsel appeared.1 On April 15, 2013, Defendant
submitted the affidavit of its counsel in support of Defendant’s claim for attorneys’ fees, ECF
No. 45. Plaintiff provided her response to that affidavit on April 16, 2013, ECF No. 46.
Having considered these filings and the arguments of counsel, the court grants in part and
denies in part Defendants’ Motion as set forth herein.
I.

Brief Background
Plaintiff, a former technician at a paper mill owned by Defendant, brings this

employment case asserting the following Title VII causes of action: sexual harassment—quid
pro quo; sexual harassment—hostile work environment; sex discrimination; and retaliation.

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  The court ordered Plaintiff to attend the hearing with her counsel. ECF No. 31. Plaintiff’s
counsel informed the court that Plaintiff had relocated to Colorado and requested permission
for her to attend the hearing by telephone if she was unable to obtain an “affordable plane
ticket” so she could attend the hearing in person. See ECF No. 34. Although the court granted
Plaintiff permission to appear by telephone, ECF No. 35, she appeared at the hearing in
person.

See generally Compl., ECF No. 1. Plaintiff began working for Defendant in April 2007 and
was terminated on November 8, 2011, “allegedly for sleeping on the job.” Compl. ¶¶ 13, 38.
Plaintiff argues she was terminated because of her attempts to break off a relationship with
her “supervisor or co-worker, Joel Oliver.” See Compl. ¶ 14 (describing Oliver as “supervisor
or co-worker”). According to Plaintiff’s Complaint, after Plaintiff broke off her relationship
with Oliver, he continued going to her house and trying to talk to her at work. See Compl. ¶¶
17-18. In September 2011, Plaintiff obtained an Order of Protection against Oliver from a
North Carolina state court, about which she informed Defendant’s Human Resources
representatives. Compl. ¶¶ 22-26. She claims Oliver was behind her firing. Compl. ¶¶ 28-29.
Defendant disputes Plaintiff’s claims and filed an answer that includes multiple defenses.
ECF No. 5. Defendant brings this Motion asserting Plaintiff has not complied with discovery.
II.

Analysis
In considering discovery matters, the court is mindful that parties in civil litigation

generally enjoy broad discovery, as detailed in Federal Rule of Civil Procedure 26(b)(1):
(b) Discovery Scope and Limits.
(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 the 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). “[T]he discovery rules are given ‘a broad and liberal treatment.’”
Nat’l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co., Inc., 967 F.2d 980,
983 (4th Cir. 1992) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)).
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Pursuant to Rule 37 of the Federal Rules of Civil Procedure Defendant moves for the
court’s order compelling Plaintiff to fully respond to its discovery requests. See Fed. R. Civ.
P. 37(a)(1) and (a)(3)(B) and (C). Defendant asks the court to deem Plaintiff’s prior
responses and deposition testimony incomplete pursuant to Rule 37(a)(4) of the Federal
Rules of Civil Procedure, which provides that an “evasive or incomplete disclosure, answer,
or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P.
37(a)(4). In addition, Defendant seeks to have sanctions levied against Plaintiff pursuant to
Rule 37(d)(1)(A)(ii) and Rule 37(d)(3). Rule 37(d)(1)(A)(ii) provides that the court may
order sanctions if “a party, after being properly served with interrogatories under Rule 33 or a
request for inspection under Rule 34, fails to serve its answers, objections, or written
response.” Rule 37(d)(3) provides that when a party fails to appropriately disclose, answer or
respond in discovery, the court may impose any of the sanctions listed in Rule
37(b)(2)(A)(i)-(vi), including the preclusion of designated matters being introduced into
evidence; striking pleadings in whole or in part; staying proceedings; and/or dismissing the
action in whole or in part. Rule 37(d)(3) further provides that, in addition to or instead of
those sanctions, “the court must require the party failing to act, the attorney advising that
party, or both to pay the reasonable expenses, including attorneys’ fees, caused by the failure,
unless the failure was substantially justified or other circumstances make an award of
expenses unjust.” Defendant also seeks an award of appropriate expenses of the Motion
pursuant to Rule 37(a)(5), which concerns the court’s ordering of expenses incurred in
conjunction with motions to compel.

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In its Motion Defendant catalogues difficulties it has encountered in obtaining
information from Plaintiff2 for purposes of discovering information related to her claim for
emotional/mental distress, physical and mental pain and suffering. The court has reviewed
these factual details set forth by the parties in their briefs and does not repeat them here.
Summarized, Defendant argues Plaintiff was extremely slow to respond to its written
discovery requests at all, and that, when she did respond, her responses were deficient and
untimely. Defendant also complains that Plaintiff did not provide full, accurate responses to
direct questions at her deposition concerning her medical providers and treatment. In an
attempt to locate all information about Plaintiff’s medical treatment, Defendant engaged in
its own investigation to some extent, by sending subpoenas to providers referenced in
documents provided by Plaintiff or otherwise obtained. Defense counsel noted at the hearing
that Plaintiff’s failure to forthrightly identify all providers made it impossible for Defendant
to have all discovery to which it is entitled. In other words, Defendant asserts it would be
difficult to be satisfied that it had ever obtained all records relevant to Plaintiff’s claims and
damages and to its defenses.
For example, records subpoenaed from one hospital included a vague reference to a
“Dr. Hall” as Plaintiff’s “primary care provider.” See Mot. 4, ECF No. 29. Plaintiff had
provided no information regarding a such a provider. When asked about Dr. Hall in her
January 9, 2013 deposition, Plaintiff said he had been her primary physician “at one point,”
but noted she had not sent Defendant any records from him because she only saw him a
“couple of times” and he had never diagnosed her or given her prescriptions that she could
recall. Id. at 4-5 (citing Pl. Dep. 16:56-57:16, ECF No. 29-16). Through other pharmacy

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  Defendant points that its Motion relates to “the acts and omissions of Plaintiff, not

Plaintiff’s counsel.” Def.’s Mot. 1, ECF No. 29.
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records, however, Defendant determined Plaintiff had visited Dr. Hall’s office 18 times since
October 31, 2007, and that she had visited Dr. Hall’s office on January 4, 2013, five days
before her deposition. See id. at 10-11. Plaintiff identified Dr. Hall in supplemental discovery
responses dated March 15, 2013—the same day Defendant filed its Motion. See Pl.’s Resp. 6,
ECF No. 32.
Defendant asks that the court enter the sanction of dismissal of Plaintiff’s case or, in
the alternative, Defendant asks that the court strike Plaintiff’s damages claim for “emotional
and mental distress, physical and mental pain and suffering, medical counseling expenses,
[and] loss of enjoyment of life[,]” and to exclude evidence of such damages at trial. Defs.’
Mot. 14-15, ECF No. 29. As another alternative, Defendant seeks the court’s order
compelling Plaintiff to fully respond without objection to Defendant’s Interrogatory #10 and
#11, Request for Production #23 and #24, Supplemental Interrogatory #1, and Supplemental
Request for Production #1, and warning Plaintiff that future discovery abuse shall result in
the imposition of Rule 37 sanctions. Defendant also requests an extension of the remaining
deadlines in the case so that Defendant may fully discover the issues raised in its Motion. Id.
at 15.
Defendant also requests an order reopening the deposition of Plaintiff so that
Defendant may inquire about her previously undisclosed medical and prescription history.
Additionally, Defendant seeks the court’s order permitting the reconvening of the deposition
of one of Plaintiff’s named fact witnesses, Steve Popowich. As explained at the hearing on
this matter, through discovery materials obtained subsequent to Mr. Popowich’s deposition,
Defendant learned that Plaintiff had previously been romantically involved with him, a
former co-worker. Because this case involves issues regarding Plaintiff and her relationship

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with another former co-worker, Defendant submits it should be permitted to further question
Mr. Popowich about information learned through Plaintiff’s tardy discovery responses.
Pursuant to Rule 37(a)(4)-(5), (d)(1)(A)(ii), and (d)(3) of the Federal Rules of Civil
Procedure, Defendant requests Plaintiff be required to pay all reasonable expenses, including
attorneys’ fees, caused by Plaintiff’s deficient discovery responses, document production,
and deposition testimony. In support of this request, counsel for Defendant has provided a
detailed affidavit setting forth attorneys’ fees and costs sought. See ECF No. 45. Defendant
also asks that the court require Plaintiff to pay all reasonable expenses, including attorney’s
fees and court reporter costs, incurred as a result of reopening the depositions of Plaintiff and
Mr. Popowich.
Plaintiff responds to Defendants’ Motion, explaining that she responded to discovery
requests and deposition questions to the best of her ability. In her brief, she includes factual
details about what she provided and when. Pl.’s Resp., ECF No. 32. At the hearing, her
counsel indicated that Plaintiff provided information she recalled and that she may have not
provided some information because she knew Defendant would already be aware of it. In the
brief, Plaintiff noted that she and Oliver had jointly attended sessions with a mental health
professional that provided detail that made, or should have made Defendant “fully aware of
all past facts which arguably could affect Plaintiff’s mental or emotional health, including
Defendant’s wrongful termination from her job.” Id. at 1, 3-4. She submits that records from
that provider “clearly demonstrate that Defendant is fully aware of the past events in
Plaintiff’s life.” Id. at 4, n.2. Further, in specific response to Defendant’s complaint about not
identifying Dr. Hall, Plaintiff’s counsel explained that Plaintiff rarely, if ever, saw Dr. Hall;
rather, she typically saw another provider in Dr. Hall’s practice. In response to Defendant’s

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concern that it could not be satisfied it had obtained all relevant information, Plaintiff’s
counsel said he had instructed Plaintiff to provide any information that could be responsive
and that Plaintiff has done so. Plaintiff submits she has not acted in bad faith and that nothing
would support the drastic sanctions of dismissal sought by Defendant. See Pl.’s Resp. 10,
ECF No. 32. Both in her brief and at the hearing, Plaintiff agreed to submit to a second
deposition relating only to medical/counseling records Defendant says it did not have at the
time of her first deposition. Pl.’s Resp. 1-2, ECF No. 32. Plaintiff submits Defendant should
bear its own costs for any reconvened deposition. Plaintiff further argues she is financially
unable to pay any sanction or any fee award.  
Having fully considered the parties’ filings and arguments, the court grants in part
and denies in part Defendant’s Motion to Compel and for Sanctions. No later than May 1,
2013, Plaintiff is hereby ordered to fully respond to Defendant’s Interrogatory #10 and #11,
Request for Production #23 and #24, Supplemental Interrogatory #1, and Supplemental
Request for Production #1.3 Also by May 1, 2013, Plaintiff is to provide any additional
medical authorization consent forms that may be required for Defendant to obtain her
medical information. Plaintiff is reminded her continued duty to comply with the court’s
orders, to supplement discovery responses pursuant to Rule 26(e) of the Federal Rules of
Civil Procedure, and to fully cooperate with her counsel in providing information. Plaintiff is
admonished that future findings that she abused the discovery process or failed to participate
in the process in good faith will result in the imposition of Rule 37 sanctions, which could
include dismissal of all or part of her case.

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  To the extent Defendant seeks Plaintiff be ordered to fully respond without objection to

these discovery requests, that portion of its Motion is denied. Plaintiff must provide all
responsive information that is not privileged or otherwise protected; however, Plaintiff may
make such responses subject to any good-faith objections.
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Further, Defendant is permitted to reconvene Plaintiff’s deposition and the deposition
of fact witness Popowich for the limited purpose of questions related to information that had
not been provided prior to the first depositions of Plaintiff and Mr. Popowich. As Plaintiff
now resides in Colorado, she may appear at the continuation of her deposition by telephone.
Defendant’s request that Plaintiff pay costs and attorneys’ fees associated with these
depositions is granted only as to the costs of the continued depositions. Each party is to bear
its own attorneys’ fees.
As indicated during the hearing on this matter, the court does not find the drastic
sanction of dismissal of Plaintiff’s case to be appropriate. Similarly, the court does not find it
appropriate to strike Plaintiff’s request for “emotional and mental distress, physical and
mental pain and suffering, medical counseling expenses, [and] loss of enjoyment of life[,]”
from her Complaint or to determine at this juncture that evidence regarding such damages
will necessarily be excluded from any trial. Further, the court finds it would be unjust to
require Plaintiff to pay expenses, including attorneys’ fees requested pursuant to Rule
37(d)(3).
Additionally, having granted in part and denied in part Plaintiff’s Motion to Compel,
Rule 37(a)(5) instructs that the court “may, after giving an opportunity to be heard, apportion
the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5). Having has considered the
affidavit provided by defense counsel setting forth detailed support for Defendant’s request
for attorneys’ fees, ECF No. 45, as well as Plaintiff’s responsive filing, ECF No. 46, the court
determines not to reapportion expenses related to this Motion other than to require Plaintiff to
pay costs of her reconvened deposition and that of Mr. Popowich.

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In determining what, if any, Rule 37 sanction is appropriate, the court has considered
the following factors set out by the Fourth Circuit Court of Appeals: “(1) whether the noncomplying party acted in bad faith, (2) the amount of prejudice that noncompliance caused
the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4)
whether less drastic sanctions would have been effective.” Belk v. Charlotte–Mecklenburg
Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001).
The court considers Plaintiff’s in-person appearance at the hearing, incurring the
expense of a nearly cross-country airplane ticket, to demonstrate her good faith and her
resolve to comply with her discovery responsibilities. Combined with her counsel’s
discussion of additional steps Plaintiff has taken to fully comply with Defendant’s discovery
requests, the court does not find Plaintiff acted in bad faith. Although Defendant has been
required to spend more time and resources on discovery, the court’s extension of the time to
complete discovery and other relief ordered herein minimize any prejudice to Defendant in
preparing its dispositive motions and preparing for any trial. Further, the undersigned finds
the relief ordered and the admonishment of Plaintiff are sufficient sanctions to effectively
deter such a failure to fully respond.
III.

Conclusion
Defendant’s Motion to Compel and/or for Sanctions, ECF No. 29 is granted in part

and denied in part. No later than May 1, 2013, Plaintiff must provide complete responses to
Defendant’s Interrogatory #10 and #11, Request for Production #23 and #24, Supplemental
Interrogatory #1, and Supplemental Request for Production #1. Defendant is entitled to
reopen the deposition of Plaintiff and fact witness Popowich by telephone for the limited
purposes set forth herein. Plaintiff is to bear the costs of these continued depositions, with

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each party bearing its own attorneys’ fees. Defendant’s Motion is denied as to its request for
other sanctions and relief.
IT IS SO ORDERED.

April 17, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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