Lureen v. Holl et al

Filing 79

ORDER granting in part and denying in part plaintiff's 58 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 08/31/17. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

KERRI LUREEN, AS GUARDIAN AD
LITEM OF S.L., A MINOR;

4:17-CV-04016-LLP

Plaintiff,
ORDER DENYING IN PART AND
GRANTING IN PART PLAINTIFF'S
MOTION TO COMPEL

vs.

DOCKET NO. 58
CHRISTOPHER JOHN HOLL, IN HIS
PERSONAL CAPACITY AND AS
OWNER; METRO INITIATIVES, LLC,
DOCTOR'S ASSOCIATES, INC., JOHN
CLARK, IN HIS PERSONAL CAPACITY
AND AS OWNER; FRANCHISE WORLD
HEADQUARTERS, LLC, SUBWAY IP,
INC.,
Defendants.

INTRODUCTION
This matter is before the court on plaintiff Kerri Lureen's amended
complaint alleging sex discrimination, hostile work environment, constructive
discharge, negligence, and assault and battery. See Docket No. 46.
Jurisdiction is founded on the presence of a federal question, diversity of
citizenship of the parties, and the court's supplemental jurisdiction. See

28 U.S.C. §§ 1331, 1332, and 1367. Plaintiff has filed a motion to compel two
categories of discovery. See Docket No. 58. Defendants resist the motion. See
Docket No. 72. The Honorable Lawrence L. Piersol, United States District
Court Judge, referred plaintiff's motion to this magistrate judge for decision
pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 63.
FACTS
A.

Background and Parties
Plaintiff is the mother and guardian of S.L., a minor. S.L. worked for a

Subway restaurant on East Arrow Avenue NE in Watertown, South Dakota, for
approximately 9 months, from August, 2015, to March 16, 2016. S.L. was 15
years old at the time she went to work for Subway. S.L.'s claims center around
sexual contact perpetrated by her direct manager at Subway, Kiley Ramstorf, a
man 14 years older than she. The Watertown Subway was owed at the time by
Metro Initiatives, LLC ("Metro"), a business entity owned by defendants
Christopher John Holl and John Clark, together with Ramstorf. Metro owned
five separate Subway restaurants. Neither party has informed the court of the
locations of these restaurants or the dates during which Metro owned the
restaurants.
After the sexual contact between S.L. and Ramstorf came to light,
Ramstorf was charged criminally, convicted, and sentenced to two years'
imprisonment for the crime of sexual exploitation of a minor. Ramstorf had
been investigated in 2013 and 2014 for suspected sexual contact with minors,
apparently without any criminal charges ever being asserted.

Plaintiff alleges that defendants Doctor's Associates, Inc. ("DIA");
Franchise World Headquarters, LLC ("FWH"); and Subway IP (plaintiff
collectively characterizes these parties as "Subway"), provided franchise
training and ongoing managerial training of Ramstorf both online, regionally,
and at its corporate office in Connecticut. Plaintiff alleges these defendants
had substantial control over day-to-day activities of its franchisees, and
specifically, over Metro. Plaintiff asserts that the Subway defendants and
Metro should be considered a single employer, joint employers, or as principal
and agent.
Plaintiff alleges that defendants Holl, Clark, and Metro had prior
knowledge of at least one of Ramstorf's prior criminal investigations for sexual
contact with minors. Plaintiff alleges all defendants had been made aware of
multiple complaints about Ramstorf's inappropriate behavior toward female
employees at the Subway store where S.L. worked and that these complaints
were brought to defendants' attention prior to the time Ramstorf victimized S.L.
Despite this foreknowledge, plaintiff asserts none of the defendants took any
appropriate action to address Ramstorf's behavior toward female employees.
B.

Discovery Disputes
1.

Interrogatory Number 43

Plaintiff served two discovery requests which are the subject of this
motion to compel, one an interrogatory directed to DIA and the other a request
for the production of documents directed to defendants. The interrogatory
asked the following:

Interrogatory No. 43:
Identify any and all other claims of sexual harassment or any
inappropriate sexual behavior or contact between managers or any
other female employees at any of your franchises in the last 10
years including but not limited to formal complaints to the EEOC
or litigation resulted and state the manner of resolution of those
complaints.
See Docket No. 60-1 at p. 15.
DAI responded to the interrogatory with the objection that it was
overbroad, unduly burdensome, not proportional to the needs of the case, and
not relevant. Id. DAI explained that the request called for information about
franchisees, over which DAI disclaims any management authority regarding
managers of Subway franchises or sexual harassment. Id. Also, DAI asserted
the discovery request called for information about other franchisees and
locations not relevant to this lawsuit. Id.
In a subsequent letter to defense counsel, plaintiff's counsel asserted the
discovery request was relevant under Sandoval v. Amer. Bldg. Maint. Indus.,
Inc., 578 F.3d 787, 802 (8th Cir. 2009). See Docket No. 60-3 at p. 2. Plaintiff
did not address the overbreadth or burden objections made by DAI. Id. DAI
pointed this lapse out when it responded via letter. See Docket No. 60-4
at p. 2.
Plaintiff's counsel wrote a subsequent letter in response, but
misconstrued DAI's position and never addressed the overbroad/undue burden

issue. 1 See Docket No. 60-5 at p. 2. In another subsequent letter, plaintiff's
counsel wrote that DIA "ha[d] not provided case law supporting your position
that such information is not relevant. If this information is not provided by
July 7, 2017, we will have no choice but to file a motion to compel an answer to
this interrogatory." See Docket No. 60-7 at p. 1.
Defense counsel responded by pointing out, again, that plaintiff's counsel
had not addressed the objection to interrogatory number 43 on the basis that it
was overly broad, unduly burdensome, and not proportional to the needs of the
case. See Docket No. 60-9 at pp. 1-2. Defense counsel specifically asserted
the geographic scope and time limitations of the request were too broad and
unduly burdensome. Id. Counsel pointed out the request would require DIA to
investigate approximately 45,000 Subway restaurants. Id.
2.

Second Request for Production of Documents Number 3

Also at issue is plaintiff's request for production number 3, directed to
"defendants," which requested defendants to produce a copy of "all joint
defense agreements and/or common interest agreements between any of the
defendants in this case." See Docket No. 60-2 at p. 3. Defendants objected on
the grounds of relevancy and privilege. Id. Defendants asserted privilege
pursuant to the joint-defense, common-interest, work-product and attorneyclient privileges. Id.
DAI pointed out the interrogatory asked for information including thousands
of franchise restaurants, including international locations. See Docket
No. 60-4 at p.2. Plaintiff characterized DAI's position in its subsequent
position as "you essentially argue that you are refusing to answer this because
there may be instances of sexual harassment at franchise stores of which you
are unaware." See Docket No. 60-5 at p.2.
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Plaintiff responded with a letter intended as a good faith effort to discuss
discovery disputes. See Docket No. 60-6 at p. 5. Plaintiff's counsel
represented that "courts have required the text of a joint defense agreement to
be disclosed to opposing counsel." Id. In support of this proposition, plaintiff
cited five district court cases, none of which were from within the Eighth
Circuit. Id. In another subsequent letter, plaintiff's counsel provided citation
to South Dakota state authority to the effect that a settlement agreement
among some, but not all, parties should be disclosed upon request to any
party. See Docket No. 60-7 at pp. 1-2. Plaintiff asserted that the joint defense
agreement was relevant to defendants' credibility. Id. Plaintiff then suggested
the parties agree to submit the joint defense agreement to the court for in
camera inspection. Id.
Defense counsel responded that the South Dakota case cited applied to
settlement agreements, not joint defense agreements. See Docket No. 60-9 at
p. 2. Defense counsel did not address plaintiff's suggestion for in camera
viewing. Id. In a later email exchange, defense counsel indicated if plaintiff's
counsel would identify what types of provisions in the joint defense agreement
plaintiff believed were relevant to defendants' credibility, defense counsel would
review the agreement and confirm whether such provisions existed. See
Docket No. 60-10 at p. 1 (email from defense counsel Adam Chandler dated
July 25, 2017, to plaintiff's counsel Sara Show and Steve Johnson). Plaintiff's
motion to compel was filed two days later with no further communication
documented in the court's record.

DISCUSSION
A.

Good Faith Effort to Resolve the Discovery Dispute
1.

The Standard

A motion to compel answers to interrogatories or requests for the
production of documents is governed by Fed. R. Civ. P. 37. That rule provides
in pertinent part as follows:
On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.
See Fed. R. Civ. P. 37(a)(1).
Likewise, the local rules in this district require a movant to attempt to
informally resolve matters with his or her opponent before filing a discovery
motion:
No objection to interrogatories, or to requests for admissions, or to
answers to either relating to discovery matters shall be heard
unless it affirmatively appears that counsel have met, either in
person or by telephone, and attempted to resolve their differences
through an informal conference. Counsel for the moving party
shall call for such conference before filing any motion relating to
discovery matters. . . .
See D.S.D. LR 37.1.
Case law puts “flesh on the bone” of the meet-and-confer requirement.
The certification mentioned in Rule 37 must include “the names of the parties
who conferred or attempted to confer, the manner by which they
communicated, the dispute at issue, as well as the dates, times, and results of

their discussions, if any.” Shuffle Master, Inc. v. Progressive Gams, Inc., 170
F.R.D. 166, 170-171 (D. Nev. 1996). “Good faith” requires that the parties
made a genuine attempt to resolve the discovery dispute without involving the
court. Id. Finally, “conferment” requires the parties “to have had an actual
meeting or conference.” Id. Hence, prior to making a motion to compel, “a
moving party must personally engage in two-way communication with the
nonresponding party to meaningfully discuss each contested discovery dispute
in a genuine effort to avoid judicial intervention.” Id. Unilaterally sending
correspondence demanding that the other side comply with a discovery request
does not satisfy the requirement. Id. at 172.
Thus, where there is no legitimate reason for expediency, counsel calling
opposing counsel and leaving a vague message two hours before filing the
discovery motion does not satisfy the meet-and-confer requirement. Alexander
v. Federal Bureau of Investigation, 186 F.R.D. 197, 198-199 (D.D.C. 1999).
Nor is the meet-and-confer requirement rendered moot merely because when
counsel did file the discovery motion it was opposed by the other party. Id.
The purpose of the meet-and-confer requirement is to “force litigants to attempt
to resolve, or at least narrow, the disputed issues to prevent the unnecessary
waste of time and effort on any given motion.” Id. at 199.
Nor is the meet-and-confer requirement satisfied by the sending of a
letter that indicated that a motion to compel would be filed if the opposing
party did not comply with discovery requests. Bolger v. District of Columbia,

248 F.R.D. 339, 343-344 (D.D.C. 2008). Likewise, in Ross v. Citifinancial, Inc.,
203 F.R.D. 239 (S.D. Miss. 2001), the court specifically held that sending a
letter discussing the discovery issue did not satisfy the meet-and-confer
requirement or the prerequisite of a certification of having conferred in good
faith. Id. at 239-240. The court noted that the requirement was not “an empty
formality,” and that, in a large number of cases, obliging the attorneys to meet
and confer resulted in resolution of the discovery dispute. Id.
The decision in Cotracom Commodity Trading Co. v. Seaboard Corp., 189
F.R.D. 456 (D. Kan. 1999), illustrates how fact-dependent the inquiry is. In
that case, four telephone calls by the movant on a motion to compel were not
enough to satisfy the meet-and-confer requirement where all four calls took
place while opposing counsel was out of the country on vacation. Id. at 458459. As the court explained, the meet-and-confer requirement is intended to
require counsel to “converse, confer, compare views, consult and deliberate.”
Id. at 459. Therefore, sending a letter or making an oral request that simply
demands compliance with the discovery request generally does not satisfy the
meet-and-confer requirement. Id. The court frowned upon the movant’s
setting of an arbitrary deadline for the filing of a motion to compel because the
facts showed that the parties were not at impasse. Id. They had yet to engage
in a discussion of the genuineness of the opposing party’s objections, what, if
any, documents the discovering party was reasonably capable of producing,
and what specific, genuine issues remained that could not be resolved without
the court’s intervention. Id.

In RLI Insurance Co. v. Conseco, Inc., 477 F. Supp. 2d 741 (E.D. Va.
2007), a party was being deposed and refused to answer nine questions during
the deposition on the basis of attorney-client privilege or work product
doctrine. Id. at 745. The deposing party sought an order compelling the
deponent to answer the questions. Id. The party who had refused to answer
argued that the motion to compel should be denied because the movant had
failed to comply with the meet-and-confer requirement prior to filing the
motion. Id. at 745-746. The court found that the movant had satisfied the
meet-and-confer requirement by making several suggestions for compromise,
both by telephone contact and by letter, and by supplying the resisting party
with a list of the specific questions the movant would be seeking to compel. Id.
On the other hand, courts have, in very limited circumstances, excused a
moving party’s failure to satisfy the meet-and-confer requirement. In Freiria
Trading Co. v. Maizoro S.A. de C.V., 187 F.R.D. 47 (D.P.R. 1999), the court
excused the movant’s failure to satisfy the meet-and-confer requirement where
the opposing party’s conduct was not just a refusal to provide requested
discovery, but also constituted a direct violation of an order from the court. Id.
at 48. See also Bolger, 248 F.R.D. at 343-344 (excusing the failure of the
movant to satisfy the meet-and-confer requirement because of the longstanding record of the opposing party’s refusal to comply with both the
plaintiff’s requests and the court’s specific orders to produce certain discovery).
In Oleson v. Kmart Corp., 175 F.R.D. 570 (D. Kan. 1997), the court
excused the movant’s failure to meet and confer before filing a motion to

compel where it was apparent to the court based on the number and tenor of
discovery disputes which were the subject of the motion that it was unlikely
the parties would have resolved their differences. Id. at 571.
2.

Application of the Standard to Interrogatory 43

It is clear that plaintiff met the standard for trying to resolve the
relevancy issue by supplying defendants with on-point, binding case law to the
effect that other claims of discrimination in the same office where plaintiff
worked are relevant. However, plaintiff's counsel consistently dodged
discussing defendants' obvious and more weighty objection that the
interrogatory was too broad both as to time and geographic scope.
Defendants explained that there are over 44,000 Subway restaurants,
many of them not even in the United States, and that it would be unduly
burdensome to document all the sexual discrimination complaints made in
each of those restaurants over the course of 10 years. Plaintiff's counsel never
offered to restrict their interrogatory to Subway restaurants owned by Metro, or
to Subway restaurants in the midwest, or even to Subway restaurants in the
United States. Plaintiffs never offered to restrict their request to anything less
than a 10-year period. Plaintiff did not satisfy the meet and confer requirement
because it never addressed defendants' overbreadth/undue burden objection at
all.
Where a discovery request is wholly supported by the law, the requesting
party need not make any concessions in its good faith effort to resolve the
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matter. There are times when a responding party's objections are not being
made in good faith or are not well supported by the law. In such a case, the
court would not fault the requesting party for failing to amend its discovery
request in the conciliation efforts.
But here, a request that encompasses 44,000 restaurants all over the
world and encompasses a 10-year period is simply misplaced—a fact that is
facially apparent. Nationwide discovery is not available, let alone worldwide
discovery, absent a class action or some specialized showing of a pattern or
practice of discrimination at a level higher than the plaintiff's employment
unit—as where, for example, the perpetrator of the discriminatory conduct has
a wide area of authority. See, e.g., Carmen v. McDonnell Douglas Corp., 114
F.3d 790, 791-92 (8th Cir. 1997); E.E.O.C. v. Woodmen of the World Life Ins.
Society, 2007 WL 1217919 at *1-3 (D. Neb. Mar. 15, 2007); Owens v.
Sprint/United Mgmt. Co., 221 F.R.D. 649, 653-54 (D. Kan. 2004); Burns v. HyVee, Inc., 2002 WL 31718432, **1-3 (D. Minn. Nov. 21, 2002).
By failing altogether to address the overbreadth/undue burden objection,
plaintiff has failed to make a good faith effort to resolve the discovery dispute
over interrogatory number 43. Plaintiff should have offered to limit the scope of
its request or, alternatively, explained the specialized need for worldwide
discovery in this case involving a 15-year old girl employed for 9 months who
was alleged to have been discriminated against by a man who was part owner
of 5 restaurants, one of which was in a town of approximately 22,000 people.

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The court finds plaintiff has not satisfied the precondition for good faith
attempts to resolve the issue as to interrogatory 43.
Additionally, the court notes that this case is not an older case with a
well-established track record of the parties failing to cooperate with each other
on discovery matters. The court does not reach the conclusion, then, that it
would be futile to send the parties back to the drawing board on interrogatory
number 43 in hopes they can work the matter out between themselves. The
court notes that the practice of sending letters and emails back and forth like
so many shots fired across the bow is not nearly as helpful as discussing the
matter live, in real time, either face to face or on the telephone.
The court notes that plaintiff did finally address the overbreadth/undue
burden issue in its reply brief. That is too late. This discussion should have
occurred prior to plaintiff filing her motion to compel, not in the final brief due
on the motion. 2

In this regard, the court notes plaintiff cited in its reply brief to Murphy v.
Kmart, 5:07-cv-05080-JLV, in support of its 10-year lookback request.
Murphy is clearly distinguishable from the facts in this case. First, the Murphy
court authorized only a five-year lookback period. Murphy v. Kmart Corp., 255
F.R.D. 497, 510 (D.S.D. 2009). Second, the Murphy court did not authorize
nationwide, let alone international discovery, but instead limited discovery to
the Western Region where Murphy was employed. Id. at 510-11. Third,
Murphy involved a plaintiff who had worked for the defendant for 30 years, not
9 months. Murphy, 5:07-cv-05080-JLV, Docket No. 1, p. 2 at ¶ 9. This is
relevant to the requirement of Rule 26 that the discovery request be
proportional to the needs of the case. Finally, the court notes that, without a
special showing of some kind, discovery would in any case be limited to the
period of time the Metro defendants owned a Subway franchise, a time frame
that neither party has placed in the record. Plaintiff should take this law into
account in engaging in a good faith effort to resolve the dispute over the scope
of Interrogatory 43.
2

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2.

Application of the Standard to 2d Request for Production 3

The court finds plaintiff did satisfy the good faith effort to resolve the
discovery dispute as to her request for the joint defense agreement among the
defendants. Plaintiff addressed defendants' assertion of privilege directly, by
citing to a number of cases indicating that, in those cases, no privilege was
found. Although none of the on-point cases were binding precedent from either
the Eighth Circuit or South Dakota, plaintiff went on to cite to analogous South
Dakota law. The court, accordingly, will address plaintiff's motion to compel on
her second request for production of documents number 3.
B.

Motion to Compel Disclosure of the Joint Defense Agreement
The Federal Rules of Civil Procedure are very specific about what a party

must do to assert a claim of privilege:
(5) Claiming Privilege or Protecting Trial-Preparation
Materials.
(A) Information Withheld. When a party withholds information
otherwise discoverable by claiming that the information is
privileged or subject to protection as trail-preparation material, the
party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications,
or tangible things not produced or disclosed—and do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.
See Fed. R. Civ. P. 26(b)(5)(A). Defendants have clearly failed to satisfy the
requirements of Rule 26 for asserting privilege. They have not described the
document in any way—not even to confirm whether such an agreement exists.

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They only assert a string of names of asserted privileges, with no information to
allow the court or plaintiff to assess those claims.
Because defendants have not properly asserted their claim of privilege as
required by Rule 26(b)(5)(A), the court grants plaintiff's motion to compel.
Defendants shall provide discovery of the document to plaintiff within 21 days
of the date of this order. If a protective order is desired, the parties are
encouraged to stipulate to terms of a protective order that are mutually
agreeable to them. If the parties are unable to agree upon terms for such an
order, defendants may propose an order to the court whereupon plaintiff will
have an opportunity to respond before the court decides whether to grant such
an order and, if so, what terms should be included.
CONCLUSION
Based on the foregoing law, facts, and analysis, the court hereby grants
in part and denies in part plaintiff's [Docket No. 58] motion to compel. The
motion to compel defendants to answer interrogatory 43 is denied for failure by
plaintiff to satisfy the requirement of engaging in a good faith effort to resolve
this discovery dispute prior to filing the instant motion to compel. The motion
to compel defendants to produce the joint defense agreement in response to the
second request for the production of documents number 3 is granted because
defendants failed to properly support their assertion of privilege.

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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED August 31, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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