Anthony et al v. Atlantic Group Inc, The
Filing
158
OPINION AND ORDER granting 106 Motion to Compel in case 8:09-cv-02383-JMC; granting 61 Motion to Compel in case 8:09-cv-02942-JMC. The court declines to award any fees associated with the filing of this motion. Signed by Honorable J Michelle Childs on 9/12/2012.Associated Cases: 8:09-cv-02383-JMC, 8:09-cv-02942-JMC(mbro)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
William Anthony, et al,
)
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Plaintiffs,
)
)
v.
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The Atlantic Group, Inc. d/b/a DZ Atlantic, )
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Defendant.
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____________________________________)
Charles Adams, et al,
)
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Plaintiffs,
)
)
v.
)
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The Atlantic Group, Inc. d/b/a DZ Atlantic, )
)
Defendant.
)
____________________________________)
Civil Action No. 8:09-cv-02383-JMC
Civil Action No. 8:09-cv-02942-JMC
OPINION AND ORDER
This matter is before the court on Defendant The Atlantic Group, Inc.’s (“DZ Atlantic”)
Motion to Compel Discovery [Dkt. No. 106, Civil Action No. 8:09-cv-02383-JMC and Dkt. No. 61,
Civil Action No. 8:09-cv-02942-JMC]1, pursuant to Rule 37(a) of the Federal Rules of Civil
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Plaintiffs contend that DZ Atlantic’s Motion to Compel Discovery is untimely. Because
the parties were participating in ongoing efforts to resolve the discovery disputes arising from
DZ Atlantic’s First Interrogatories and First Requests for the Production of Documents to
Plaintiffs, the court will allow DZ Atlantic to proceed with its motion. See Local Rule 37.01,
D.S.C. (extending the time allowed for filing a motion to compel to include the time in which the
parties have agreed to extend the time to complete discovery responses).
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Procedure. For the reasons stated herein, DZ Atlantic’s motions are granted.2
FACTUAL AND PROCEDURAL BACKGROUND
DZ Atlantic provides support services for various companies within the power generation
industry. As part of those support services, DZ Atlantic provides skilled craft and trade workers to
perform maintenance and modification work at nuclear and fossil electricity generating plants
operated by companies including Duke Energy Carolinas, LLC (“Duke Energy”).
Plaintiffs are former employees of DZ Atlantic. As part of their compensation as employees
of DZ Atlantic, each plaintiff claimed eligibility for certain per diem amounts which were paid based
on the plaintiff’s residency relative to the location of the plaintiff’s assigned workplace. Plaintiffs
claim that they were wrongfully terminated after DZ Atlantic determined that Plaintiffs had claimed
per diem amounts to which DZ Atlantic believed Plaintiffs were not entitled due to alleged
discrepancies in Plaintiffs’ residency information.
DZ Atlantic filed the instant motion seeking to compel Plaintiffs to produce certain
information related to Plaintiffs’ residency and per diem eligibility.3
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DZ Atlantic specifically requests information related to several individuals who are no
longer parties to this action. The court will not address any portion of DZ Atlantic’s motion
which relates solely to the terminated parties. Additionally, this order does not apply to any
party dismissed from the case prior to its issuance.
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DZ Atlantic urges the court to disregard Plaintiffs’ objections to the discovery requests
because Plaintiffs’ responses to certain of the discovery requests were untimely. Upon review of
the memoranda, the court finds that Plaintiffs have stated sufficient good cause to excuse their
late response. See Fed. R. Civ. P. 33(b)(4). Plaintiffs’ counsel relocated which resulted in delayed
delivery of the discovery requests, and Plaintiffs provided their initial response to DZ Atlantic
approximately three days to one week after the original due date.
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LEGAL STANDARD
The Federal Rules of Civil Procedure provide that a party may “obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense – including the existence,
description, nature, custody, condition and location of any books, documents or other tangible things
and the identity and location of persons who know of any discoverable matters.” Fed. R. Civ. P.
26(b)(1). “Relevant information need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Id. To be relevant, the discovery
sought simply must be “any matter that bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.” Oppenhiemer Fund, Inc. v. Sanders, 437 U.S.
340, 351 (1978). If a party fails to answer an interrogatory submitted pursuant to Rule 33 of the
Federal Rules of Civil Procedure or fails to produce a requested document, “a party seeking
discovery may move for an order compelling an answer, designation, production, or inspection.”
Fed. R. Civ. P. 37(a)(3).
DISCUSSION
Tax Return Information (First Request for Production of Documents No. 2)
DZ Atlantic requests the court compel Plaintiffs to produce the portions of Plaintiffs’ tax
returns showing Plaintiffs’ wages and address information. Plaintiffs do not dispute the propriety
of the requests concerning the tax documents, but merely argue that some Plaintiffs have not yet
been able to secure the documents for production. DZ Atlantic has explained that Plaintiffs may
obtain the relevant portions of the tax returns by submitting a Request for Transcript of Tax Return,
Form 4506-T, to the Internal Revenue Service (“IRS”). DZ Atlantic further asserts that there is no
cost associated with this request to the IRS. Because the portions of the tax returns that DZ Atlantic
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seeks from Plaintiffs is relevant to the issue of Plaintiffs’ residency claims, the court compels each
Plaintiff to fully respond to DZ Atlantic’s request within ten (10) days of this order. To the extent
that any Plaintiff does not have the information in his or her possession, such Plaintiff must submit
a Form 4506-T to the IRS, provide DZ Atlantic with proof of such submission within ten (10) days
of this order, and provide the tax information to DZ Atlantic no later than five (5) days after
receiving the information from the IRS.
Other Legal Proceedings and Audio, Video or Other Electronic Recordings (First Request for
Production of Documents Nos. 3 and 6, and First Interrogatory No. 17)
DZ Atlantic seeks clarification of Plaintiffs’ responses to DZ Atlantic’s requests for
information related to Plaintiffs’ participation in other legal proceedings and information related to
the existence of recorded statements. Plaintiffs have responded that they have no responsive
documents in their possession, but will continue to supplement their responses as more information
becomes available. Plaintiffs do not otherwise dispute the discoverability of this information. While
the court appreciates Plaintiffs’ recognition of their duty to supplement their discovery responses,
the court finds their responses to be equivocal. Therefore, the court compels Plaintiffs to provide
DZ Atlantic with a full and complete response to these requests, which requires Plaintiffs to disclose
details concerning the existence of the information and not simply whether they are in actual
possession of it, within ten (10) days of this order.
Electronically Stored Information Electronic Mail, and Social Networking Data (First Request
for Production of Documents Nos. 7, 15, 20, and 21)
DZ Atlantic has requested Plaintiffs ro produce social networking data (“SND”),
electronically stored information (“ESI”), and electronic mail (“email”) related to Plaintiffs
residences or receipt of per diem. The requests do not seek broad disclosure of any and all SND,
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ESI, and email, but instead, narrowly defines the responsive information as only those portions of
Plaintiffs’ SND, ESI and email which directly relates to the issues raised in this case. Although no
court within this district has addressed this matter in a published order or opinion, other courts have
concluded that such information is discoverable. See e.g., EEOC v. Simply Storage Mgmt, LLC, 270
F.R.D. 430, 434-35 (S.D. Ind. May 11, 2010) (holding that the plaintiffs' social media profiles,
postings, and messages made during the applicable time frame that were relevant to Plaintiffs' claims
in the case were discoverable). Other than their objection to the timeliness of DZ Atlantic’s motion,
Plaintiffs have not provided the court with any reason why this information is not subject to
discovery. Because Plaintiffs have direct access to their SND, ESI, and e-mail accounts, the court
does not find it appropriate to require DZ Atlantic to undertake the unnecessary burden of having
to seek this information from the relevant service providers as Plaintiffs suggest. Accordingly, the
court compels Plaintiffs to provide DZ Atlantic with a full and complete response to these requests,
including a clear indication of whether such information exists regardless of whether it is in
Plaintiffs’ actual possession, within ten (10) days of this order.
Job Seeking and Mitigation Efforts (First Request for Production of Documents No. 11, and
First Interrogatory No. 15)
DZ Atlantic contends that Plaintiffs have inadequately responded to its request for
information related to Plaintiffs’ efforts to find employment subsequent to their termination and
further assert that this information is directly related to Plaintiffs' mitigation efforts. Under South
Carolina law, an employee complaining of unlawful discharge or similar action may “recover only
damages for losses which, in the exercise of due diligence, he could not avoid. The employee's
so-called duty to mitigate his damages permits the employee to recover the amount of his losses
caused by the employer's breach reduced by the amount the employee obtains, or through reasonable
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diligence could have obtained, from other suitable employment.” Chastain v. Owens Carolina, Inc.,
310 S.C. 417, 419, 426 S.E.2d 834, 835 (Ct. App. 1993) (citing Smalls v. Springs Industries, Inc.,
300 S.C. 481, 388 S.E.2d 808 (1990)). This information is relevant to the issues raised in this case
and, therefore, discoverable. Accordingly, the court compels Plaintiffs to provide DZ Atlantic with
a full and complete response to these requests, including a clear indication of whether such
information exists regardless of whether it is in Plaintiffs’ actual possession, within ten (10) days
of this order.
Other Statements or Testimony (First Request for Production of Documents No. 13)
DZ Atlantic contends that Plaintiffs have not clearly responded to its request seeking copies
of depositions in Plaintiffs' possession or reasonably obtainable by Plaintiffs related to the
allegations in Plaintiffs' complaint. Specifically, DZ Atlantic claims that Plaintiffs first indicated
that the documents were available for review in Plaintiffs’ counsel’s office, but later supplemented
their response to indicate that they did not have any responsive documents. Because Plaintiffs have
provided inconsistent responses, the court compels Plaintiffs to provide DZ Atlantic with a full and
complete response to this request, including a clear indication of whether such information exists
regardless of whether it is in Plaintiffs' actual possession, within ten (10) days of this order.
Documents Related to Plaintiffs' Temporary and Permanent Residences (First Request for
Production of Documents Nos. 19 and 22, and First Interrogatories Nos. 3 and 4)
DZ Atlantic requests that the court compel Plaintiffs to identify information and produce all
documents responsive to certain discovery requests seeking information and documents that “show,
substantiate, or relate to each of the permanent and temporary residences listed on any of the
Certificates of Per Diem Eligibility Plaintiff submitted during Plaintiff’s employment with
Defendant, including but not limited to drivers’ licenses, voter registrations, utility bills, . . . and any
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other documents.” Plaintiffs responded by indicating that DZ Atlantic was already in possession
of the responsive documents because such documents were submitted to DZ Atlantic during
Plaintiffs’ employment. Based on Plaintiffs’ responses, it is apparent that Plaintiffs misconstrued
the requests. The requests clearly require the production of documentation beyond that which was
submitted to DZ Atlantic during Plaintiffs’ employment. Additionally, some of Plaintiffs indicated
in their depositions that they are in possession of, but haven't produced, responsive documents.
Therefore, the court compels Plaintiffs to provide DZ Atlantic with a full and complete response to
this request, including a clear indication of whether such information exists regardless of whether
it is in Plaintiffs' actual possession, within ten (10) days of this order.
Potential Witnesses (First Interrogatories Nos. 2, 8, 10, and 11)
DZ Atlantic requests the court to compel Plaintiffs (1) to identify persons residing with
Plaintiffs at their claimed addresses; (2) to identify witnesses and the facts known to them that
support Plaintiffs' claims; (3) to specifically identify individuals with whom Plaintiffs discussed their
claims; and (4) to identify DZ Atlantic employees with whom Plaintiffs communicated. DZ Atlantic
claims that Plaintiffs' failure to provide the requested information precludes DZ Atlantic from
determining which potential witnesses it wishes to depose. Plaintiffs argue that because DZ
Atlantic's motion was not timely filed, Plaintiffs cannot be compelled to provide this information.
However, Plaintiffs fail to assert any other argument to rebut DZ Atlantic's motion. In their response
to DZ Atlantic's interrogatory requesting identification of persons residing with Plaintiffs at their
claimed addresses, Plaintiffs state that they will supplement their response, thereby implicitly
agreeing that the information DZ Atlantic seeks is relevant. However, Plaintiffs have yet to fulfill
their promise to provide the requested information and ask the court to allow them to avoid
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providing the information solely on the basis that DZ Atlantic did not file its motion in a timely
manner. The court does not find Plaintiffs' argument persuasive and finds that DZ Atlantic is
entitled to the discovery. The court compels Plaintiffs to fully respond to DZ Atlantic's request
within ten (10) days of this order.
Damage Calculations (First Interrogatories Nos. 12 and 13)
DZ Atlantic requests the court to compel Plaintiffs to provide information regarding the
amount of their claimed damages and the specific documents on which Plaintiffs relied to arrive at
the amount of their claimed damages. In their response to the interrogatories at issue, Plaintiffs refer
generally to certain types of documents, but do not identify any specific documents on which they
have relied. Now, Plaintiffs argue that because DZ Atlantic's motion was not timely filed, Plaintiffs
cannot be compelled to provide this information. However, Plaintiffs fail to assert any other
argument to rebut DZ Atlantic's motion. The court does not find Plaintiffs' argument persuasive and
finds that DZ Atlantic is entitled to discovery of the amount of Plaintiffs' claimed damages, as well
as the specific documents on which Plaintiffs have relied to arrive at the amount of their claimed
damages. The court compels Plaintiffs to fully respond to DZ Atlantic's request within ten (10) days
of this order.
Other Employment History (First Interrogatories Nos. 17 and 18)
DZ Atlantic contends that Plaintiffs have failed to provide information regarding discharges,
demotions, and suspensions from employment. DZ Atlantic also seeks information regarding
Plaintiffs' employment subsequent to their termination from DZ Atlantic. DZ Atlantic argues that
this information is necessary to determine Plaintiffs' potential damages and Plaintiffs' efforts to
mitigate their damages. In their response to DZ Atlantic’s discovery requests, Plaintiffs simply refer
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to their response to Interrogatory No. 1, but this response does not provide the information that DZ
Atlantic requested. Now, Plaintiffs argue that DZ Atlantic's motion was not timely filed, and that
Plaintiffs cannot be compelled to provide this information. However, Plaintiffs fail to assert any
other argument to rebut DZ Atlantic's motion. The court does not find Plaintiffs' argument
persuasive and finds that DZ Atlantic is entitled to discovery of this information. Accordingly, the
court compels each Plaintiff to fully respond to DZ Atlantic's request within ten (10) days of this
order.
CONCLUSION
Based on the foregoing, and upon consideration of the record herein, Defendant’s Motion
to Compel Discovery [Dkt. No. 106, Civil Action No. 8:09-cv-02383-JMC and Dkt. No. 61, Civil
Action No. 8:09-cv-02942-JMC] is GRANTED. The court declines to award any fees associated
with the filing of this motion.
IT IS SO ORDERED.
United States District Judge
September 12, 2012
Greenville, South Carolina
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