Busche v. URS Energy and Construction Inc et al

Filing 26

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PROTECTIVE ORDER; Ms. Busches Motion for Protective Order, ECF No. 20 , is GRANTED IN PART (RFA Nos.1-4) AND DENIED IN PART (RFA Nos. 5-7). Signed by Senior Judge Edward F. Shea. (LE, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER

v.

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CASE NO. CV-13-5016-EFS

DONNA BUSCHE, an individual,

URS ENERGY AND CONSTRUCTION, INC.,
an Ohio corporation, and BECHTEL
NATIONAL, INC., a Nevada
corporation,

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Defendants.
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Before

the

Court,

without

oral

argument,

is

Plaintiff

Donna

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Busche’s Motion for Protective Order, ECF No. 20.

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Court to enter a protective order specifying that she need not respond

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to Defendant URS Energy and Construction, Inc.’s (“URS”) Requests for

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Admission

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oppress, and embarrass Ms. Busche; 2) do not seek information relevant

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to any claim or defense in this litigation; and 3) are not likely to

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lead to the discovery of admissible evidence.

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counsel for URS, the parties were unable to reach agreement as to

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these RFAs; Plaintiff therefore filed the instant motion.

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the motion.

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Court is fully informed.

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grants in part and denies in part Ms. Busche’s motion.

(RFA)

Nos.

1-7

because

they

1)

Ms. Busche asks the

serve

only

to

harass,

After conferring with

URS opposes

After reviewing the record and relevant authority, the
For the reasons set forth below, the Court

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER- 1

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A.

Background

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In this lawsuit, Ms. Busche alleges she was retaliated against

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by URS management for reporting technical and safety issues at the

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Hanford Tank Waste Treatment and Immobilization Plaint (“WTP”).

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claims URS management retaliated against her by 1) reorganizing the

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management structure so as to strip her of decision-making authority,

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as

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communicate with key managers and DOE personnel, and 2) engaging in

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intimidation

well

as,

make

it

tactics

unnecessary

to

persuade

for

her

her

to

to

attend

change

She

meetings

her

and

position

on

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technical and safety issues.

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URS,

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management’s

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Accordingly, she seeks back pay and front pay in relation to her lost

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potential earnings, as well as emotional distress damages.

her

pay

and

Although Ms. Busche continues to work at

seniority

intentional

have

allegedly

manipulation

of

been
her

damaged

by

URS

responsibilities.

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In hopes of discovering information that would assist it in

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defending against Mrs. Busche’s claims, URS propounded thirteen RFAs

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on Ms. Busche.

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ECF No. 20-1, Ex. 2.

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Busche objects to certain terms as vague and to the relevance of the

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requested

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Thereafter, Ms. Busche filed the instant Motion for Protective Order,

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ECF No. 20, in regard to RFA Nos. 1-7, which state:

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ECF No. 20-1, Ex. 1.

information;

Ms. Busche answered the RFAs.

In her response to the first seven RFAs, Ms.

she

ultimately

denied

RFA

Nos.

REQUEST FOR ADMISSION NO. 1: Admit that, on or about July
2, 2010, you entered the WTP office that was previously
occupied
by
Dr.
Walter
Tamosaitis
and
placed
documents/papers into boxes.

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER- 2

1-7.

REQUEST FOR ADMISSION NO. 2: Admit that after boxing the
documents/papers described in Request for Admission No. 1,
you removed them from the WTP site.

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REQUEST FOR ADMISSION NO. 3: Admit that you did not examine
or review the nature or substance of the documents/papers
described in Request for Admission No. 1 prior to placing
them into boxes.

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REQUEST FOR ADMISSION NO. 4: Admit that you provided or
allowed Dr. Tamosaitis access to the documents/papers
described in Request for Admission No. 1.

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REQUEST FOR ADMISSION NO. 5: Admit that you have copied,
forwarded,
or
otherwise
transmitted
WTP
documents/information
to
drives,
servers,
or
other
electronic storage media is/are not part of the WTP's
computer system.

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REQUEST FOR ADMISSION NO. 6: Admit that you have, maintain,
have had, or have maintained "out of state backups" or
other archive(s) of WTP documents/information, outside of
the WTP's computer system.

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REQUEST FOR ADMISSION NO. 7: Admit that you have collected,
created, or maintained a file, notes, or other collection
of documents, papers, or other information regarding any
WTP personnel.

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URS contends the RFAs seek information relevant to challenge Ms.
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Busche’s claims and to support its after-acquired-evidence defense.
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B.

Standard

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Civil litigants may engage in discovery to seek relevant, non19
privileged

information.

Fed.

R.

Civ.

P.

26(b)(1).

A

litigant,

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however, may seek a protective order to protect that litigant from
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“annoyance, embarrassment, oppression, or undue burden or expense.”
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Id. at 26(c)(1).
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C.

Analysis

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At this time, the Court finds Ms. Busche established a need for
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a protective order in regard to RFA Nos. 1-4.

URS failed to identify

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER- 3

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how the requested admissions are relevant to Ms. Busche’s claims of

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retaliation regarding her disclosure of technical and safety issues at

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the WTP.

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there

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documents/papers in Dr. Tamosaitis’ former office that were placed

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into boxes and removed from the site has any bearing on Mrs. Busche’s

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retaliation claims.

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acquired evidence argument; however, URS fails to explain how this

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doctrine applies given that Ms. Busche is still employed by URS.

Dr. Walter Tamosaitis is not a party in this lawsuit, and

is

no

explanation

by

URS

as

to

why

the

suspected

URS submits that RFA Nos. 1-4 support its after-

See

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Brown v. Yellow Transp., Inc., No. 08-C-5908, 2009 WL 3270791 (N.D.

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Ill.

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doctrine in a case where all but plaintiff were current employees);

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see also O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761

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(9th Cir. 1996) (stating in the context of a lawsuit brought by a

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former employee, “An employer can avoid backpay and other remedies by

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coming

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misconduct,

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evidence that it would have fired the employee for that misconduct”).

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The motion is granted in this regard.

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Oct.

29,

forward
but

2009)

with
only

(declining

to

apply

after-acquired
if

it

can

prove

after-acquired-evidence

evidence
by

a

of

an

employee’s

preponderance

of

the

In regard to RFA Nos. 5-7, the Court finds they seek relevant

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information.

Whether Ms. Busche copied, forwarded, or maintained WTP

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documents or information; maintained archives of WTP documents and

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information; or collected information regarding WTP personnel, outside

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of the WTP’s computer systems, will provide information relevant to

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the discovery process in this litigation.

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RFA Nos. 5-7 will assist defense counsel in ascertaining what WTP-

Mrs. Busche’s answers to

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER- 4

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related information Ms. Busche has already and will assist counsel in

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structuring document discovery-requests and production.

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denied in this regard.

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D.

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The motion is

Conclusion
For the above-given reasons, IT IS HEREBY ORDERED:

Ms. Busche’s

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Motion for Protective Order, ECF No. 20, is GRANTED IN PART (RFA Nos.

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1-4) AND DENIED IN PART (RFA Nos. 5-7).

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IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

15th

day of October 2013.

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s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2013\5016.m.po.rfa.lc1.docx

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER- 5