Minke v. Page County, Virginia

Filing 59

MEMORANDUM OPINION and ORDER granting in part and denying in part Third MOTION to Compel 47 filed by Lynda L. Minke, MOTION to Quash Subpoena to Amity Moler 37 filed by Page County, Virginia, Second MOTION to Compel 46 filed by Lynda L. Minke. Signed by Magistrate Judge Joel C. Hoppe on 6/7/19. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
LYNDA L. MINKE,
Plaintiff,
v.
PAGE COUNTY, VIRGINIA,
Defendant.

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Civil Action No. 5:18-cv-00082
MEMORANDUM OPINION & ORDER
By:

Joel C. Hoppe
United States Magistrate Judge

Before the Court are three discovery motions: Third Party Amity Moler’s and Defendant
Page County, Virginia’s motion to quash subpoena (“Motion to Quash”), ECF No. 37, and
Plaintiff Lynda L. Minke’s motion to compel production of personnel records, ECF No. 46, and
motion to compel interrogatory responses, ECF No. 47. The Court held a hearing on the record
by conference call, and the parties appeared by counsel.
As brief background, Minke worked for many years as the solid waste manager and
landfill director for Page County. In 2016, Minke’s supervisory duties were removed. On June
20, 2017, the Page County Board of Supervisors voted to eliminate Minke’s position, and she
was terminated. Minke alleges that her termination was impermissibly based on gender
discrimination and retaliation. Page County asserts that Minke was a poor supervisor and
manager and that she had mistreated numerous subordinates, causing them to quit their jobs.
I.

Moler’s and Page County’s Motion to Quash
Moler is the County Administrator for Page County. Minke issued a third-party subpoena

to Moler for various documents. ECF No. 39-1. Moler and Page County moved to quash the
subpoena under Rules 26 and 45 of the Federal Rules of Civil Procedure, arguing that the
subpoena seeks irrelevant, privileged, or nonexistent information. Mot. to Quash 1.

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Rule 26 provides that “[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). Under Rule 45(a), a party may serve on a non-party to the litigation a subpoena
for the production of discoverable material in the non-party’s possession, custody, or control.
Fed. R. Civ. P. 45(a)(1)(A)(iii); In re Subpoena of Am. Nurses Ass’n, 643 F. App’x 310, 314 (4th
Cir. 2016) (per curiam). The scope of discovery from a non-party is “‘the same as the scope of a
discovery request made upon a party to the action,’ and ‘a party is entitled to information that is
relevant to a claim or defense in the matter’ at issue.” Bell, Inc. v. GE Lighting, LLC, No.
6:14cv12, 2014 WL 1630754, at *6 (W.D. Va. Apr. 23, 2014) (quoting Smith v. United Salt
Corp., No. 1:08cv53, 2009 WL 2929343, at *5 (W.D. Va. Sept. 9, 2009)); see also Brown v.
Mountainview Cutters, LLC, No. 7:15cv204, 2016 WL 3045349, at *3 (W.D. Va. May 27, 2016)
(“The scope of discovery allowed under a [Rule 45] subpoena is the same as the scope of
discovery allowed under Rule 26.”).
A.

Topics 1 through 4

Minke requests that Moler produce the job application, cover letter, and résumé that
Moler submitted in January 2015 for the County Administrator position as well as her résumé
from her personal computer. Counsel for Moler and Page County represents that she and her
clients conducted a reasonable search, that they produced some documents, and that no
additional responsive documents exist. This response is sufficient, but, as Minke requests, Moler
must provide a response in writing stating that no additional documents exist.
B.

Topics 5 and 6

Minke requests all documents and communications, including electronically stored
information, created since January 1, 2016, related to Minke, her employment by Page County,

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her work performance, her lawsuit against Page County, and the elimination of her position.
Moler and Page County respond that Moler’s work computer and email account have been
searched and responsive documents provided. They object, however, to searching Moler’s
personal cell phone and computer. Counsel for Moler and Page County represented that Moler
did not use her personal computer for any work-related matters, but she did use her personal cell
phone. Thus, it is likely that Moler’s cell phone contains work-related communications and
information that may be relevant to the issues in this case. Indeed, Moler and Page County
concede that Moler communicated by text message with Pamela Emmons, who was not
employed by Page County, about Minke’s job performance and matters at the landfills.
Accordingly, Moler must produce responsive documents, as discussed below, that are stored on
applications or accounts on her personal cell phone.
Moler and Page County also object to the scope of the requests as overbroad in time and
that they cover all events at the landfills. Minke’s requests are somewhat overbroad. She has
offered a reasonable approximation of the beginning date––January 1, 2016––for the events at
issue in this lawsuit. The problem with her date range is the indefinite end date. Minke has not
offered a persuasive reason to show that events at the landfills occurring after she was terminated
have any bearing on this case, and I can find no reason to support the expansive timeframe she
proposes. Thus, to be relevant, documents or communications must relate to actions that
occurred on or before Minke’s termination on June 21, 2017. Relevant documents may have
been created after June 21, 2017, but they must discuss actions that occurred during the period
from January 1, 2016, to June 21, 2017.
The subject matter of Minke’s requests is, for the most part, tailored to obtain relevant
information. Documents about Minke, her job performance, and the elimination of her position

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are plainly relevant. Not every document or communication about the operation of the landfill,
however, is relevant. That subject must be limited to documents or communications related to the
management of the landfills and overall performance of operations at the landfills, i.e. whether
there were problems or whether things at the landfills were going well. As a manager of the
landfills, Minke’s individual performance would have some correlation to the overall operational
performance of the landfills.
Thus, as to Topics 5 and 6, Moler must produce all documents and communications
relating to Minke’s employment by Page County and her job performance, the performance of
landfill operations, and the elimination of Minke’s position from January 1, 2016, to June 21,
2017. Such documents related to significant issues in the case, and their importance to Minke
outweighs the burden placed on Moler and Page County in producing them. Moreover, the
search for electronically stored information is common in litigation and not overly burdensome.
Moler must also produce documents about the lawsuit, but may withhold privileged
communications identified in a privilege log.
C.

Topics 7 and 8

Minke seeks communications between Moler and six individuals relating to work, work
performance, or management issues at the landfills. The Court finds that the scope for Topics 5
and 6, as set forth above, is also appropriate for Topics 7 and 8. Any significant work
performance issues for these six individuals that relate to Minke are likely to be in their
personnel files and should be disclosed as discussed below.
D.

Topic 9

Minke requests all communications and electronically stored information from March 1,
2017, to June 30, 2017, between Moler and Pamela Emmons relating to Minke, her job

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performance, the elimination of her position, and work at the landfills. Moler and Page County
respond that they have provided a text message exchange between Moler and Emmons relating
to Emmons’s request for a meeting in June 2017 to discuss her concerns about Minke’s
performance. Emmons was an outside contractor for Page County, and Minke notes that
contractors were constructing a new cell at one of the landfills during the period from March to
June 2017. It seems likely that Emmons’s professed concerns about Minke developed over some
time, and Minke’s request for communications during a four-month period is a reasonable
approximation of events or things that may have given rise to those concerns. Communication of
any such information to Moler may be relevant to the decision to eliminate Minke’s position. As
with Topics 5 though 8, the scope of work at the landfills should be narrowed to the overall
performance of operations at the landfills. Thus, Moler shall produce all communications and
electronically stored information from March 1, 2017, to June 21, 2017, between Moler and
Emmons relating to Minke, her job performance, the elimination of her position, and the overall
performance of operations at the landfills.
E.

Topic 10

Moler and Page County represented that all responsive documents had been produced by
Page County, and Minke accepted that representation.
II.

Personnel Files
In its second supplemental initial disclosures, Page County identified twenty-eight

individuals who have information about Minke’s work performance issues, complaints about her,
and her poor treatment of co-workers. See ECF No. 46-1, at 1–8. Minke moves to compel Page
County to produce the entire personnel file of any of these twenty-eight individuals who
Defendant contends “will testify about [Minke’s] performance problems” as well as eleven other

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named individuals,1 all of whom also are among the witnesses identified in Page County’s initial
disclosures. ECF No. 46-3, at 1–2. Although Minke requested the entire personnel file, she has
since narrowed her request and clarified that she seeks health information only for Melissa
Higginbotham, but not the others, and she does not seek tax information for any of these
potential witnesses. Page County objects that the request is overbroad and invades the privacy
interests of these individuals.
Generally, “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
P. 26(b)(1). The rules of discovery are “to be accorded broad and liberal construction.” Eramo v.
Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016). “Personnel files are discoverable only
in limited circumstances given that personal privacy and accurate, employee evaluations are
important public policy concerns.” EEOC v. McCormick & Schmick’s Seafood Rests., No. 112695, 2012 WL 3563877, at *4 (D. Md. Aug. 16, 2012) (internal quotation marks omitted).
Material in personnel files may be discoverable if it is relevant to the claims and defenses in a
case and the court balances the non-party employee’s privacy interests with the requesting
party’s need for the material. See Kirkpatrick v. Raleigh Cty. Bd. of Educ., No. 95-2491, 1996
WL 85122, at *2 (4th Cir. Feb. 6, 1996); Marlow v. Chesterfield Cty. Sch. Bd., No. 3:10cv18,
2010 WL 3660770, at *5 (E.D. Va. Sept. 15, 2010).
First, for a requesting party to obtain information in a non-party’s personnel file, the
information must be relevant to some issue in the case. Considering the claims and defenses in
this case, information in a non-party’s employment file may be relevant if it is related to Minke’s
work performance; her supervision of others, including disciplinary action she initiated or had
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The eleven individuals are Mark Lauzier, James Hilliard, Eric Knight, Bruce Gray, Eric Cubbage,
Melissa Higginbotham, James Frazier, Walter Buster Stanley, Travis Addison, Tobey Longanecker, and
Mike Foltz.

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some involvement in; and information that an employee left his or her employment at Page
County, voluntarily or by termination, or discussed doing so because of Minke, during the period
of January 1, 2016, to June 21, 2017. Information about Minke’s conduct or the effect of her
conduct on others that occurred before 2016 may also be relevant if Page County intends to
introduce evidence about it. Information that falls within this scope may be documented in
various forms such as performance evaluations, disciplinary actions, and employee grievances.
This information is potentially relevant to Minke’s job performance and her co-workers’ abilities
to work with her, which are central issues in this case. Thus, Minke has shown a significant need
for the information, and that need outweighs the non-party employees’ privacy concerns so long
as the information is produced under the protective order entered in this case. See Armitage v.
Biogen, Inc., No. 1:17cv1133, 2019 WL 79037, at *5 (M.D.N.C. Jan. 2, 2019).
Some additional information about specific employees is also relevant. Page County has
identified Melissa Higginbotham as a former employee who reported concerns about Minke’s
conduct in 2014. Defendant asserts that Higginbotham’s health was adversely affected by her
interactions with Minke, and Higginbotham filed a grievance related to her problems with
Minke. The full scope of Higginbotham’s complaints about Minke are thus at issue in the case.
While medical information is particularly sensitive, McCormick & Schmick’s, 2012 WL
3563877, at *5, Page County apparently intends to defend against Minke’s discrimination claims
by relying on Higginbotham’s contentions that Minke’s workplace conduct harmed her health.
Minke is entitled to all relevant information to oppose these contentions. Page County must
produce all information from Higginbotham’s personnel file relating to Minke and
Higginbotham’s grievance against her, as well as Higginbotham’s medical information from
2010 to 2014.

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Amity Moler was a decision-maker in the elimination of Minke’s position. Some courts
have allowed discovery of decision-makers’ personnel files, see McCormick & Schmick’s, 2012
WL 3563877, at *6; Eckhardt v. Bank of Am., No. 3:06cv512, 2008 WL 111219, at *7
(W.D.N.C. Jan. 9, 2008), as Minke requests. I cannot agree with Minke, however, that Moler’s
entire personnel file is relevant to the issues in this case or that Minke’s need for the file
outweighs Moler’s privacy interests. Personnel files may contain large amounts of personal
information, and Minke has not shown that every part of Moler’s file is likely to contain relevant
information. Nonetheless, some additional parts of Moler’s personnel file may be relevant, such
as information related to performance issues about the operation of the landfills from January 1,
2016, to June 21, 2017, and any information about past allegations or instances of discrimination
leveled against Moler. See Marlow, 2010 WL 3660770, at *5.
Minke identifies Jeff Blevins as a potential comparator. An alleged comparator’s
qualifications are potentially relevant and discoverable in employment-discrimination cases.
Armitage, 2019 WL 79037, at *5; Marlow, 2010 WL 3660770, at *5. Page County asserts that it
has already produced Blevins’s résumé and his job description and duties. This production is
insufficient. Blevins’s entire application packet surely contains additional information about his
qualifications. Additionally, any evaluations or performance appraisals that preceded Minke’s
termination are also relevant.
Although Minke seeks additional information, production of documents from personnel
files beyond the scope of the categories identified above as relevant to a specific issue in the case
is not warranted, primarily because Minke has not shown a particularized need for the
information. In Marlow, the plaintiff, seeking information solely for impeachment purposes,
requested discovery of personnel files for all witnesses identified in the defendant’s Rule 26

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initial disclosures. 2010 WL 3660770, at *6. Judge Dohnal recognized that some courts had
allowed such discovery, but he found that the plaintiff had failed to “articulate any specific
parameters of impeachment evidence.” Id. (applying Kirkpatrick, 1996 WL 85122). Thus,
plaintiff had not shown a particular need for the possibly impeaching information, and her need
for this information did not outweigh the other “employees’ legitimate privacy interests.” Id. at
6.
I agree with Judge Dohnal’s application of Kirkpatrick. To obtain a personnel file for
impeachment purposes, the requesting party must show that particular information in that file
may be relevant to an issue in the case, and the court then must balance the employee’s privacy
interests with the requesting party’s need for the information. In this case, Minke has requested
general access to the personnel files of the twenty-eight potential witnesses. Absent a showing
that particular information has some bearing on an issue in the case or is likely to produce
impeaching evidence, I find that the employee’s privacy interests outweigh Minke’s need for the
information.
Within fourteen (14) days, Page County shall produce documents related to Minke’s
work performance; her supervision of others, including disciplinary action she initiated or had
some involvement in; and information that an employee left his or her employment at Page
County, voluntarily or by termination, or discussed doing so because of Minke, during the period
from January 1, 2016, to June 21, 2017, from the personnel files for any of the individuals
identified in Defendant’s second supplemental initial disclosures. Page County must also
produce the information discussed above from Higginbotham’s, Moler’s, and Blevins’s
personnel files. Additionally, if Page County intends to rely on information about Minke’s
conduct or the effect of her conduct on others that occurred before 2016, it must produce such

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information from the individual’s personnel file. Any information produced from a personnel file
shall be subject to the protective order entered in this case, which I find will adequately protect
the employees’ privacy interests in the information that the Court has found to be otherwise
discoverable. See Armitage, 2019 WL 79037, at *5. Defendant need not, however, produce entire
personnel files.
Lastly, in Interrogatory No. 8, Minke requests, “[f]or each person identified in your Rule
26(a)(1) initial disclosures, state the substance of the knowledge of each person on whom you
intend on relying to support your denials or defenses in this case.” ECF No. 46-4 at 2. This
request is more proper for a deposition; thus, Defendant’s objection to responding to the
interrogatory is sustained.
III.

Interrogatories
Minke moved to compel Page County to respond to Interrogatories 1, 2, and 3 from her

third set of interrogatories. ECF No. 47. Page County contends its responses are adequate.
In Interrogatories 1 and 3, Minke asks Page County to describe the alleged turmoil
caused by Minke’s inability to interact with subordinates and to identify instances where Minke
came across as condescending. ECF No. 47-1. Page County responded to Interrogatories 1 and 3
with objections and by asserting that the instances of turmoil and condescending behavior were
detailed in Minke’s personnel file and Moler’s deposition testimony.
A party may produce business records as its response to an interrogatory where the
answer may be determined by examining the records and the burden on either party would be
substantially the same. Fed. R. Civ. P. 33(d). The responding party must specify business
“records that must be reviewed, in sufficient detail to enable the interrogating party to locate and
identify them as readily as the responding party could.” Fed. R. Civ. P. 33(d)(1). If challenged,

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the producing party must show that the documents actually contain all of the information
requested in the interrogatories. U.S. Sec. & Exch. Comm’n v. Elfindepan, S.A., 206 F.R.D. 574,
576 (M.D.N.C. 2002). “Crucial to this inquiry is that the producing party have adequately and
precisely specified[,] for each interrogatory, the actual documents where information will be
found.” Id.
Page County’s responses to Interrogatories 1 and 3 refer generally to Moler’s deposition
transcript and to categories of documents in Minke’s personnel file. A deposition transcript is not
a business record. Thus, Page County may not satisfy its obligation to respond to an
interrogatory by referring to a deposition transcript. See Elfindepan, 206 F.R.D. at 577–78.
Moreover, Page County did not identify any specific documents in Minke’s personnel file.
Although a single personnel file cannot fairly be described as a “document dump,” Defendant’s
responses nonetheless are impermissibly vague and lack the specificity required under Rule
33(d) because they do not precisely identify “the actual documents where information will be
found.” Id. at 576. Additionally, unless Page County can identify documents from Minke’s
personnel file that describe every instance it relies upon to show that she acted condescendingly
or caused turmoil, then Page County’s use of Rule 33(d) will not provide a sufficient answer to
Minke’s interrogatories. I will not preclude Page County from again responding under Rule
33(d), but whatever means it choses, its response must be complete and specific. Page County
shall respond to Interrogatories 1 and 3 within fourteen (14) days.
In Interrogatory 2, Minke asks for a description of “the cost of time and money” that
Defendant attributes to dealing with turmoil created by Minke. ECF No. 47-1, at 1. Minke
explains that this interrogatory arose from Defendant’s response to an earlier interrogatory that
the “turmoil . . . was costing [Page] County too much time and money.” ECF No. 25-4, at 4; Pl.’s

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Third Mot. to Compel Disc. 6, ECF No. 47. Page County responded to Interrogatory 2 with
objections, but also answered that it had not kept track of this information. Defendant’s sworn
statement acknowledging that it has no information to quantify the purported lost time and
money is an adequate response to the interrogatory. Accordingly, no further response is required.
For the foregoing reasons, each of the motions, ECF Nos. 37, 46, 47, is GRANTED IN
PART and DENIED IN PART.
It is so ORDERED.
ENTERED: June 7, 2019

Joel C. Hoppe
United States Magistrate Judge

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