Shappley v. Amedica
Filing
56
MEMORANDUM DECISION granting 44 Motion to Compel. Within fourteen (14) days of the date of this order, Shappley shall fully respond to Amedicas Interrogatory No. 15 and Request for Production No. 17. Signed by Magistrate Judge Paul M. Warner on 08/29/2012. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BEN R. SHAPPLEY,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
Case No. 2:11-cv-1198-DB-PMW
v.
AMEDICA CORPORATION,
Defendant.
District Judge Dee Benson
Magistrate Judge Paul M. Warner
District Judge Dee Benson referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is Amedica Corporation’s (“Amedica”)
motion to compel.2 The court has carefully reviewed the written memoranda submitted by the
parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court
for the District of Utah, the court has concluded that oral argument is not necessary and will
determine the motion on the basis of the written memoranda. See DUCivR 7-1(f).
In its motion, Amedica seeks compelled responses from Ben R. Shappley (“Shappley”) to
Amedica’s Interrogatory No. 15 and Request for Production Nos. 6 and 17-20. In his response,
Shappley has indicated that he responded to Request for Production Nos. 6 and 18-20 by
objecting and indicating that he did not have any responsive documents in his possession,
1
See docket no. 47.
2
See docket no. 44.
custody, or control. In its reply memorandum, Amedica appears to abandon its arguments with
respect to Request for Production Nos. 6 and 18-20 and asks for compelled responses to only
Interrogatory No. 15 and Request for Production No. 17.3 Consequently, the court will address
only Interrogatory No. 15 and Request for Production No. 17.
ANALYSIS
The following general standards govern civil discovery in federal court. “The district
court has broad discretion over the control of discovery, and [the Tenth Circuit] will not set aside
discovery rulings absent an abuse of that discretion.” Sec. & Exch. Comm’n v. Merrill Scott &
Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (quotations and citations omitted). The
general scope of discovery is governed by rule 26(b)(1) of the Federal Rules of Civil Procedure,
which provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense. . . . Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery under the federal rules is broad
and . . . ‘discovery is not limited to issues raised by the pleadings, for discovery itself is designed
to help define and clarify the issues.’” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520
(10th Cir. 1995) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
“Although the scope of discovery under the federal rules is broad, however, parties may not
engage in a ‘fishing expedition’ in an attempt to obtain evidence to support their claims or
3
See docket no. 51 at 9.
2
defenses.” Richards v. Convergys Corp., No. 2:05-cv-00790-DAK & 2:05-cv-00812-DAK, 2007
U.S. Dist. LEXIS 9131, at *10 (D. Utah Feb. 6, 2007) (quoting Munoz v. St. Mary-Corwin Hosp.,
221 F.3d 1160, 1169 (10th Cir. 2000)).
The court now turns to the two discovery requests that are the subject of Amedica’s
motion. Both Interrogatory No. 15 and Request for Production No. 17 seek information from
Shappley about his employment search after his termination from Amedica in November 2011.
Interrogatory No. 15 seeks information from Shappley concerning each company he has
contacted since November 2011 concerning potential employment. Request for Production No.
17 seeks from Shappley all documents and communications pertaining to any income received by
Shappley from November 2011 to the present.
In support of its motion to compel, Amedica presents three arguments. First, Amedica
argues that Shappley’s post-termination employment search is relevant to Amedica’s defense of
resume fraud. Second, Amedica argues that Shappley’s post-termination employment search is
relevant to Shappley’s causes of action for declaratory judgment and specific
performance/injunctive relief. Finally, Amedica argues that Shappley’s post-termination
employment search is relevant to the issue of Shappley’s mitigation of damages. Because the
court has determined that Amedica’s first and second arguments are dispositive of the instant
motion, the court declines to reach Amedica’s final argument concerning the issue of mitigation
of damages. The court will address Amedica’s first and second arguments in turn.
In response to Amedica’s first argument, Shappley contends that information about his
post-termination employment search is not relevant to Amedica’s resume fraud defense.
3
Specifically, Shappley argues that any such information or evidence would not be admissible and
that production of such information would be burdensome and would not have any material
importance in resolving the issues in this case. For the following reasons, Shappley’s arguments
on this point fail.
First, under the broad scope of discovery defined above, the court concludes that
information about Shappley’s post-termination employment search is indeed relevant to
Amedica’s defense of resume fraud. Evidence about the information Plaintiff has provided in his
resume to prospective employers since his termination from Amedica could either support or
undermine Amedica’s resume fraud defense. As such, the court concludes that said information
is discoverable.
Second, Shappley’s arguments about admissibility are premature at this stage of the case.
The issue before this court is whether information about Shappley’s post-termination
employment search is discoverable, not whether such information will eventually be admissible.
Admissibility determinations will be made by the trial judge, if necessary, at the appropriate
phase of this case.
Third, the court is not persuaded either that production of the information sought would
be unduly burdensome to Shappley or that production of the information would not have any
material importance in resolving the issues in this case. With respect to the burden imposed on
Shappley, he has provided no support for that argument other than a conclusory statement that
the discovery would impose some burden on him. Further, given the court’s conclusion that the
4
information sought is relevant and discoverable, it logically follows that the court views the
information as having importance in resolving the issues in this case.
The court now turns to Amedica’s second argument, which is that information about
Shappley’s post-termination employment search is relevant to Shappley’s causes of action for
declaratory judgment and specific performance/injunctive relief. As part of those causes of
action, Shappley alleges that his termination from Amedica has damaged his reputation and
ability to obtain future employment.
In response to Amedica’s argument, Shappley first asserts that his allegations about
damage to his reputation and ability to find future employment are no longer at issue because the
court denied his motion for a temporary restraining order. The court disagrees. As noted by
Amedica, Shappley’s complaint contains the above-referenced allegations and causes of actions,
and those causes of action have not been dismissed. As such, those claims are still pending.
Shappley also argues that the discovery requests at issue would not help in resolving the
issues in this case and are overly broad. Again, the court disagrees. Shappley has made the
allegations that his reputation and ability to obtain future employment have been damaged.
Amedica is entitled to test those allegations by discovering all information about Shappley’s
post-employment search, not just the narrow category of information identified by Shappley. In
the court’s view, the information sought by Amedica is directly relevant to the allegations and
causes of action asserted by Shappley and, consequently, will help in resolving the issues in this
case.
5
Based on the foregoing, the court concludes that the information and documents sought
by Interrogatory No. 15 and Request for Production No. 17 are relevant to the claims and
defenses in this case and, therefore, are discoverable. Accordingly, Amedica’s motion to compel
is granted, and Shappley shall be required to fully respond to the discovery requests at issue
within fourteen (14) days of the date of this order.
As a final matter, the court addresses Amedica’s request for an award of reasonable
expenses, including attorney fees, incurred in connection with its motion to compel. Pursuant to
rule 37(a)(5)(A) of the Federal Rules of Civil Procedure, if a motion to compel is granted “the
court must, after giving an opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). However, “the court must not order this payment if . . . the opposing party’s
nondisclosure, response, or objection was substantially justified.” Fed R. Civ. P. 37(a)(5)(A)(ii).
In this case, the court concludes that Shappley’s arguments and objections with respect to
Interrogatory No. 15 and Request for Production No. 17 were substantially justified.
Consequently, Amedica’s request for reasonable expenses is denied.
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CONCLUSION AND ORDER
In summary, IT IS HEREBY ORDERED that Amedica’s motion to compel4 is
GRANTED. Within fourteen (14) days of the date of this order, Shappley shall fully respond to
Amedica’s Interrogatory No. 15 and Request for Production No. 17.
IT IS SO ORDERED.
DATED this 29th day of August, 2012.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
4
See docket no. 44.
7
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