Clehm v. BAE Systems Ordinance Systems, Inc. et al

Filing 133

ORDER granting in part and denying in part 113 Motion to Compel Discovery. Signed by Magistrate Judge Robert S. Ballou on 5/3/17. (sas)

IN THE
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CARLA A. CLEHM (formerly Blankenship), )
)
)
Plaintiff,
)
) Civil Action No. 7:16-cv-00012
v.
)
BAE SYSTEMS, INC., et al.,
)
)
Defendants.
)
ORDER

Plaintiff Carla A. Clehm moves for an order compelling discovery (Dkt. No. 113), to
which defendants object.1 This dispute centers around a document the plaintiff has termed
“document X” which described problems BAE employee Flo Bishop had related to other
employees’ purported sexual activities at work. Plaintiff wants to conduct additional discovery,
including depositions, related to BAE’s knowledge and investigation of the issues raised in the
document. In support, plaintiff argues that evidence that employees, including members of
management, were engaging in sexual activity at work supports their claim of a hostile work
environment and shows a dysfunctional sexual harassment policy. Plaintiff contends that this is
“sufficient to impose liability upon BAE for sexual harassment.” Pl’s. Reply at 2, Dkt. 131.
Defendant BAE characterizes document X as a “sideshow issue.” Defendant BAE maintains that
plaintiff was already generally aware of the supposed consensual sexual conduct described in
document X from the start of this litigation, and emphasizes that the author, Flo Bishop, testified
that she did not feel sexually harassed due to the activities described in document X. Rather,

1

In Dkt. No. 113, plaintiff also moved to continue the trial date in this case, which I granted, setting the
new trial date for August 28-September 1, 2017, and re-setting all applicable deadlines based on the new trial date.
See Dkt. No. 118.

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Bishop felt that the actions described in her letter affected her and others’ ability to do their jobs
properly. D’s Resp., Dkt. 126 at 5.
Plaintiff has narrowed her discovery requests related to document X to ask for the “cell
phone numbers and carrie[r]s for the individuals involved in the sex ring” so that plaintiff can
subpoena cell phone records. Plaintiff asserts she would use this information to verify whether
the “sex ring” existed. Plaintiff also seeks an ESI search of defendant BAE’s computer to
determine whether relevant documents have been withheld. Plaintiff seeks a second deposition of
BAE human resources employees Matt Linkous and Susanna Worrel because these individuals
investigated the allegations in document X. Plaintiff also wants to depose Walker Suthers related
to his investigation of the allegations in document X, as well as Virginia Robinson, who is
named in document X. Additionally, plaintiff seeks an order requiring defendant BAE to provide
“sufficient answers to plaintiff’s discovery requests concerning this issue, including . . . a
response as to why document [X] was not previously provided . . .” and “complete investigation
documents concerning the matter and/or permit additional discovery . . . .” Pl’s. Reply at 7–8,
Dkt. 131.
To establish a hostile work environment claim, plaintiff must show that she was subjected
to conduct that was: (1) unwelcome; (2) based on her gender; (3) sufficiently severe or pervasive
to alter the conditions of her employment and create an abusive work environment; and (4)
imputable to her employer. Stewart v. MTR Gaming Grp., Inc., 581 F. App’x 245, 247 (4th Cir.
2014) citing Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011). As I understand from
her brief, Plaintiff aims to use document X and related evidence to impute liability to BAE for
her hostile work environment claim, set forth in Count I of her Second Amended Complaint. See
Dkt. No. 59, at 9. When a plaintiff’s claim is based on the conduct of a co-worker, the employer

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is liable “only if it was negligent in controlling working conditions.” McKinley v. Salvation
Army, 192 F. Supp. 3d 678, 687–88 (W.D. Va. 2016), aff'd sub nom. McKinley v. The Salvation
Army, No. 16-2016, 2017 WL 1382547 (4th Cir. Apr. 18, 2017) quoting Vance v. Ball State
Univ., __U.S.__, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013). Thus, I grant such portions of
plaintiff’s motion to compel that are relevant and proportional to the claims and defenses in this
action. See Federal Rule of Civil Procedure 26(b).
Plaintiff’s second motion to compel discovery (Dkt. No. 113) is GRANTED in part and
DENIED in part and I hereby ORDER as follows:
(1) Plaintiff’s request for cell phone numbers and carriers is DENIED.
(2) Plaintiff’s request for an ESI search of defendant BAE’s computers is DENIED.
However, I note that Federal Rule of Civil Procedure 26(e) places a continuing duty
on all parties to timely supplement discovery responses.
(3) Plaintiff’s request for a second deposition of Matt Linkous and Susan Worrell limited
to issues related to document X is GRANTED. Plaintiff’s request to depose Walker
Suthers is also GRANTED. However, plaintiff’s request to depose Virginia
Robinson is DENIED.
(4) Plaintiff’s request that defendant BAE provide “sufficient answers to plaintiff’s
discovery requests” is DENIED. However, I note that document X is relevant for
discovery purposes and BAE has a continuing duty to supplement discovery
responses under FRCP 26(d).
(5) Plaintiff’s request that defendant BAE provide all the investigation documents
concerning the matters in document X is GRANTED and BAE shall produce, or
affirm that is has already produced, all non-privileged documents regarding its

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investigation of document X, and BAE shall identify, or affirm that it has already
identified, all withheld documents on a proper privilege log.
Entered: May 3, 2017

Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge

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