Kennington v. United States Department of Treasury et al

Filing 88

MEMORANDUM DECISION and ORDERgranting 79 Defendant's Motion for Protective Order; denying 80 Plaitiff's Motion to Compel. Signed by Magistrate Judge Brooke C. Wells on 02/20/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
TERRY KENNINGTON,

v.

MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANT’S MOTION FOR
PROTECTIVE ORDER AND DENYING
PLAINTIFF’S MOTION TO COMPEL

JACOB J. LEW, Secretary of the Department
of the Treasury,

Case No. 1:10-cv-184 RJS BCW

Plaintiff,

Defendant.

District Judge Robert J. Shelby
Magistrate Judge Brooke Wells

Before the Court are two motions. First, a Motion for Protective Order filed by
Defendant 1 Secretary Jacob J. Lew (Secretary) and second, a Motion to Compel Interrogatories
filed by Plaintiff Terry Kennington. 2 After carefully reviewing the motions and the written
memoranda submitted by the parties, the Court has concluded that oral argument is unnecessary
and decides the motions on the basis of the written memoranda. 3 The Court finds the Secretary
has met the burden for a protective order and that Plaintiff has failed to demonstrate the
information he seeks is relevant or would lead to the discovery of admissible evidence.
Accordingly as outlined below the Court GRANTS Defendant’s Motion for a Protective Order
and DENIES Plaintiff’s Motion to Compel.
BACKGROUND
This case concerns Mr. Kennington’s probationary employment as a manager in the
Wage and Investment Submission Processing Division at the Internal Revenue Service (IRS) in

1

Docket no. 79.

2

Docket no. 80.

3

See DUCivR 7-1(f) (2013).

Ogden, Utah. Mr. Kennington was terminated on June 18, 2009 for aberrant behavior regarding
extraterrestrial beings, disruptions at work and making fellow employees feel unsafe. 4
On October 9, 2012, Mr. Kennington filed an amended complaint. 5 Mr. Kennington’s
amended complaint alleges inter alia: (1) discrimination based on gender and religion under
Title VII; (2) retaliation under Title VII, the Whistleblower Protection Act, and the False Claims
Act; (3) various violations of Title 18 of the United States Code; and (4) “Opposing
Constitutional Rights.” 6 Mr. Kennington named the Secretary, individual IRS employees, and
employees of a separate agency from the IRS called the Treasury Inspector General for Tax
Administration (TIGTA) as Defendants. 7
The Secretary moved to dismiss Mr. Kennington’s Amended Complaint. 8 Following
briefing, the Court dismissed every claim in Mr. Kennington’s Amended Complaint except for
those “claims under Title VII for disparate treatment and for retaliation.” 9 Discovery was
permitted to commence on those two remaining issues.
During discovery, Mr. Kennington issued twenty-five interrogatories, five document
requests, and sought to depose eight people. 10 In response to Defendant’s motion, Mr.
Kennington concedes that based on answers received during certain depositions that certain

4

Amended Complaint, p. 2, 54, 61, 76, 91, 120, docket no. 39.

5

Docket no. 39.

6

Amended Complaint p. 8 listing “cause of actions.”

7

See id. at p. 6-7. The IRS Restructuring and Reform Act of 1998 created TIGTA. Pub. L. No. 105-206 (July 22,
1998). Section 1103 of the Act authorizes TIGTA to exercise the duties and responsibilities of an Inspector General
for the Department of the Treasury insofar as they relate to the IRS. TIGTA is an entirely separate organization
from the IRS and is part of the Department of Treasury. As such, TIGTA has no authority to take any personnel
actions with respect to IRS employees. See 5 U.S.C. App’x. 3 §§ 2(3)(B)(ii) and 8D; Treasury Order 115-01.
8

Docket no. 53.

9

Minute Entry, docket no. 74.

10

See generally, Motion for Protective Order, docket no. 79; Motion to Compel, docket no. 80.

2

document requests are now moot because some requested documents do not exist. 11 Therefore
only document requests #1 and #5 remain as well as Mr. Kennington’s request to depose Bruce
Mason and Lexie White are at issue in Defendant’s Motion for a Protective Order. Also at issue
are requested answers to interrogatories in Plaintiff’s Motion to Compel.
DISCUSSION
At this stage in the instant case relevance is broadly construed and relevant information
need not be admissible at trial. “Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense” and “[r]elevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” 12 But, discovery is not without limits.13
Indeed, the Advisory Committee’s note to the 2000 Amendment of Rule 26(b)(1) states
that ‘[t]he rule change signals to the court that it has the authority to confine discovery to
the claims and defenses asserted in the pleadings, and signals to the parties that they have
no entitlement to discovery to develop new claims or defenses that are not already
identified in the pleadings. 14
Thus, if there is “too tenuous a connection between the requested documents and the allegations
involved in [a] case” 15 then the court should deny requested discovery. With these principles in
mind the Court now turns to the motions before it.

11

Response p. 2, docket no. 84.

12

Fed. R. Civ. P. 26(b)(1); see also United States v. Shaw, 2005 WL 3418497 (D.Kan. 2005) (stating that relevancy
is broadly construed so “as a general proposition, a request for discovery should be considered relevant if there is
‘any possibility’ that the informations ought may be relevant to the claim or defense of any party”) (quoting Sheldon
v. Vermonty, 203 F.R.D. 679, 689-90 (D.Kan. 2001)).

13

See e.g., James v. Frank’s Westates Servs., Inc., 2008 WL 2714206 (D.Utah 2008) (denying in part a motion to
compel because some of the requests were over broad and not reasonably calculated to lead to the discovery of
admissible evidence).

14
15

Fed.. R. Civ. P. 26(b)(1) advisory committee’s note to 2000 Amendment, subdivision (b)(1).
James, 2008 WL 2714206 *3.

3

I.

Motion for a Protective Order
In light of Mr. Kennington’s concessions, 16 Defendant moves for a protective order that

would preclude Mr. Kennington from (1) obtaining responses to document requests #1 and #5;
“(2) deposing Bruce Mason, an employee of the Treasury Inspector General for Tax
Administration (“TIGTA”); and (3) deposing Lexie White, an employee of the Internal Revenue
Service (“IRS”).” 17 Before addressing these specific requests, however, the Court must first
addresses Mr. Kennington’s timeliness argument.
Mr. Kennington asserts that Defendant failed to timely oppose his notice of deposition
arguing that although Defendant did file a motion for protective order, it was after his second
notification of depositions. Thus, this Court should deny Defendant’s motion as untimely. The
Court is not persuaded by Mr. Kennington’s position for two reasons. First, Mr. Kennington
never provided a subpoena or a deposition notice to any of the deponents. Instead, Mr.
Kennington simply emailed Defense counsel informing him as to whom he would like to depose.
Thus the typical procedures outlined in the Federal Rules of Civil Procedure were not at issue. 18
Second, Mr. Kennington sought documents and depositions during the government shutdown.
During this time counsel for Defendant was precluded from working even on a voluntary basis,
“except for emergencies involving the safety of human life or the protection of property.” 19 Mr.
Kennington’s desire to obtain discovery did not represent an emergency or a threat to human life
or property. Thus the Court rejects Mr. Kennington’s timeliness arguments.

16

See fn. 11 supra.

17

Motion for Protective Order p. 1, docket no. 79.

18

See Fed. R. Civ. P. 26.

19

31 U.S.C. § 1342.

4

a. Document requests #1 and #5
Document request #1 seeks the production of the 8111 Forms signed by the employees
that were questioned and interviewed in Plaintiff’s case. In a November 4, 2013 email Mr.
Kennington stated that he wanted the 8111 forms “that TIGTA may have obtained from people
they interviewed during an investigations. (sic)” 20
Mr. Kennington argues he needs the documents in request #1 because without them it
“will create an injustice and obstruct justice in a pending case with the [Merit Systems Protection
Broard (“MSPB)] in which TIGTA is a party.” 21 The Court is not persuaded by this argument
because Mr. Kennington’s fails to show that the requested discovery is relevant to the instant
case. TIGTA is not a party to this litigation nor is the MSPB. Mr. Kennington has never worked
for either of these organizations and this discovery is not related to the remaining claims in this
litigation. There simply is “too tenuous a connection between the requested documents and the
allegations involved in this case.” 22 Accordingly, the Court GRANTS Defendant’s Motion for
Protective Order pertaining to Document request #1 finding that it is irrelevant.
In Document request #5 Mr. Kennington seeks a copy of “any deposition taken by
TIGTA from any employee that may have given an oral or written explanation of events that
took place during my employment. This evidence is relative to my case as it is concerning
situations while I was employed.” 23
Once again the Court finds that the requested discovery is not relevant to the remaining
claims brought under Title VII for disparate treatment and for retaliation. TIGTA is not a party

20

Motion for Protective Order p. 11. The request is also attached as exhibit A to Defendant’s motion.

21

Reply to Motion to Compel, p. 2, docket no. 84.

22

James, 2008 WL 2714206 *3.

23

Motion for Protective Order at 12. The request is also attached as exhibit A to Defendant’s motion.

5

to this case and simply lacks any authority to take personnel actions with respect to IRS
employees. Therefore, the Court GRANTS Defendant’s Motion for Protective Order pertaining
to Document request #5 finding that it is irrelevant.
b. Depositions of Bruce Mason and Lexie White
Mr. Kennington seeks to depose Bruce Mason, who is an employee of TIGTA and Lexie
White, who is an employee of the IRS in an office outside of Utah. Defendant opposes arguing
neither individual has relevant discoverable information for this case. Plaintiff responds making
similar arguments regarding Mr. Mason’s importance to this case as those he made in response to
Defendant’s opposition to his document requests. Plaintiff argues Mr. Mason’s testimony is
important to the MSPB case in which TIGTA is a party. 24 As noted previously TIGTA is not a
party to this action nor is the MSPB and thus the Court finds Mr. Mason’s testimony is irrelevant
to the instant matter and would not lead to the discovery of admissible evidence.
Next, Mr. Kennington argues that the Ogden processing center where he works is one of
the locations with a chapter of a religious organization originally founded by Ms. White.
According to Mr. Kennington, the Court should compel her deposition because Ms. White has
“expert knowledge regarding the protections and rights that her group provide and educate IRS
employee's concerning their religious rights in the Ogden Submission Processing Center.” 25 Mr.
Kennington argues not allowing him to take her deposition would “prevent me from discovering
how other employee's that are not a part of my protected group as a "Mormon" are treated.” 26
The Court is not persuaded by Mr. Kennington’s arguments.

24

Reply to Motion to Compel, p. 2.

25

Reply to Motion to Compel, p. 2.

26

Id.

6

Mr. Kennington has never worked with Ms. White nor is she a similarly-situated
employee. Instead, Plaintiff appears to seek Ms. White’s knowledge in her capacity as the
founder of a nonprofit religious organization. Defendant cannot be compelled to produce Ms.
White, an employee of the IRS, as a fact witness to testify regarding matters not pertinent to her
work responsibilities. Thus Ms. White’s testimony is irrelevant to the facts of this particular case
and she cannot act as an expert witness.
II.

Motion to Compel
The Court has considered Plaintiff’s Motion to Compel and finds that it pertains to some

of the matters outlined in Defendant’s Motion for a Protective Order. To the extent that they
overlap, the Court DENIES Plaintiff’s motion for the same reasons outlined above.
In addition, the Court has reviewed Plaintiff’s interrogatories that are the subject of his
Motion to Compel and finds them to be unduly burdensome. Many of the interrogatories are
also indefinite. For example Interrogatory #1 asks “what religious rights are CFIRE members
allowed to express?”27 Interrogatory 1 does not define religious rights nor provide which
government entity it pertains to. In similar fashion, the remaining interrogatories are also
unanswerably vague and unduly burdensome. As such, the Court DENIES Plaintiff’s Motion to
Compel. 28

27

CFIRE is an acronym that stands for Christian Fundamentalist Internal Revenue Employees. This is a nonprofit
religious employee group which Ms. White was involved in founding.
28

See e.g., Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan. 1997) (declining to compel responses to interrogatories
that were overly broad and unduly burdensome because they sought each and every fact no matter how insignificant
or minor); Barry v. Felker, 2010 WL 4782133 *1 (E.D.Cal. Dec. 14, 2010) (finding certain interrogatories not
specific enough for the defendant to be able to identify the information that was being sought).

7

CONCLUSION
The Court finds the Secretary has met his burden for a protective order. The Court
further finds the discovery sought by Plaintiff is irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence. Finally, the Court finds Plaintiff’s interrogatories are
unduly burdensome and vague.
ORDER
For the foregoing reasons, it is ORDERED that
Defendant’s Motion for Protective Order is GRANTED and Plaintiff’s Motion to Compel
is DENIED.

DATED this 20 February 2014.

Brooke C. Wells
United States Magistrate Judge

8