Anderson v. Consolidation Coal Company et al

Filing 200

ORDER/OPINION granting 170 Motion to Compel. Consol shall serve adequate and complete responses to the discovery requests at issue, as modified above, within fourteen (14) calendar days following entry of this Order/Opinion. The Court further ORDERS that the responses be disclosed subject to the Agreed Protective Order previously entered by the Court 85 . Signed by Magistrate Judge John S. Kaull on 4/23/14. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOYCE ANDERSON,
Plaintiff,
v.

Civil Action No. 1:11-cv-138

CONSOLIDATION COAL COMPANY,
Defendant.
ORDER/OPINION
This matter is before the Court pursuant to Plaintiff Joyce Anderson’s (“Anderson”) “Motion
to Compel Responses to Plaintiff’s Ninth and Tenth Sets of Combined Discovery Requests,” filed
on April 1, 2014. (Docket No. 170.) Defendant Consolidation Coal Company (“Consol”) filed a
response on April 18, 2014. (Docket No. 194.) Anderson filed a reply on April 22, 2014. (Docket
No. 198.) This matter was referred to the undersigned by United States District Judge Frederick P.
Stamp, Jr. on December 30, 2013. (Docket No. 103.)
I.

Relevant Procedural History

On August 2, 2011, Anderson filed a Complaint in the Circuit Court of Marion County, West
Virginia, asserting that Consol and Consol Energy, Inc. engaged in workers’ compensation
retaliation and violations of the West Virginia Human Rights Act. (Docket No. 3-1.) The matter
was removed to this Court by Consol on September 1, 2011. (Docket No. 3.) On May 18, 2012,
Consol and Consol Energy, Inc. filed a motion to dismiss. (Docket No. 19.) Anderson subsequently
filed a motion for leave to amend her Complaint. (Docket No. 34.) On October 25, 2012, District
Judge Stamp denied the motion to dismiss and granted Anderson’s motion for leave to amend her
Complaint. (Docket No. 37.)

Anderson filed her First Amended Complaint on October 25, 2012. (Docket No. 38.) On
November 8, 2012, Consol and Consol Energy, Inc. filed a motion to dismiss. (Docket No. 39.) On
February 11, 2013, District Judge Stamp entered an Order approving the parties’ stipulation to
dismiss Consol Energy, Inc. as a party to this matter. (Docket No. 56.) District Judge Stamp denied
the motion to dismiss Anderson’s First Amended Complaint on May 8, 2013. (Docket No. 64.)
Anderson served her Ninth Set of Combined Discovery Requests on February 20, 2014.
(Docket No. 147.) The two following discovery requests at issue from that service are:
REQUEST NO. 3: Produce the quarterly reports for the years 2008, 2009, and 2010
with information about workers’ compensation costs described by Pamela Layton at
her deposition in this case.
REQUEST NO. 4: State, by name, position and job location, the person(s) to whom
the reports in the above request were distributed and how they were distributed (mail,
facsimile, e-mail, etc.).
(Docket No. 170 at 1; Docket No. 194 at Ex. A, pg. 2.) Consol responded:
OBJECTION [to Request No. 3]: The Defendant objects to this request on the
grounds that it is vague, overly broad, unduly burdensome, and not reasonably
calculated to lead to the discovery of admissible evidence insofar as it is irrelevant
and not sufficiently limited to issues, conditions, or locations relevant to the
Plaintiff’s claims. This request also seeks irrelevant information regarding the
workers’ compensation claim costs for non-parties after Ms. Anderson’s termination.
OBJECTION [as to Request No. 4]: The Defendant objects to this request on the
grounds that it is vague, overly broad, unduly burdensome, and not reasonably
calculated to lead to the discovery of admissible evidence insofar as it is irrelevant
and not sufficiently limited to issues, conditions, or locations relevant to the
Plaintiff’s claims.
(Id. at Ex. A, pg. 2-3.)
Anderson served her Tenth Set of Combined Discovery Requests on March 3, 2014. (Docket
No. 150.) The only request contained in that set is as follows:

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REQUEST NO. 1: At her deposition on February 28, 2014, Paulette Gailey testified
that there were documents prepared for each mine every six (6) months that included,
among other things, the workers’ compensation costs for prior periods of time.
Provide copies of these documents for the West Virginia mines of the Consolidation
Coal Company for the years 2006 through 2010.
(Docket No. 170 at 5; Docket No. 194 at Ex. B.) Consol responded:
OBJECTION: The Defendant objects to this request on the grounds that it is vague,
overly broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence insofar as it is irrelevant and not sufficiently limited
to issues, conditions, or locations relevant to the Plaintiffs [sic] claims. This request
also seeks irrelevant information regarding the workers’ compensation claims costs
for non-parties after Ms. Anderson’s termination.
(Docket No. 194, Ex. D.)
Having failed in “good faith negotiations,” Anderson filed the instant motion to compel.
II.

Contentions

Anderson contends that the Court should compel responses to the discovery requests cited
above for the following reasons:
1.

Consol’s objections “include the type of boilerplate objections that have been
rejected by this Court”;

2.

The requests for the reports is neither vague nor unduly burdensome;

3.

The information requested may “support an inference that the employer’s
decisions were tainted by its concern to reduce workers’ compensation cases
rather than its alleged concern for . . . Anderson’s well being”; and

4.

The information sought would be covered by the protective orders previously
entered in this case.

(Docket No. 170 at 2-6.)
Consol argues that the Court should deny Anderson’s motion to compel because:
1.

The requested workers’ compensation cost reports are irrelevant;

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2.

The plaintiff’s requests are overbroad on their face in that they seek
significantly more information than could ever relate to Plaintiff’s case; and

3.

Production of the workers’ compensation cost reports would unduly prejudice
the defendant.

(Docket No. 194 at 3-9.)
In her reply, Anderson argues:
1.

The requested workers’ compensation cost reports are reasonably calculated
to lead to the discovery of admissible evidence;

2.

The plaintiff’s requests are not overbroad on their face; and

3.

Production of the cost reports would not “unduly” prejudice the defendant.

(Docket No. 198 at 3-8.) Furthermore, as to Request No. 3, Anderson “is willing to modify this
Request to reports from January 1, 2008 through July 1, 2010.” (Id. at 2.) As to Request No. 1, she
is willing to “limit the Request to those [reports] prepared before July 1, 2010.” (Id. at 3.)
III.

Discussion

Fed. R. Civ. P. 26(b)(1) provides:
Parties may obtain discovery regarding any non-privileged 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.
“The scope and conduct of discovery . . . are within the sound discretion of the district court.”
Erdmann v. Preferred Research, Inc., 852 F.2d 788, 792 (4th Cir. 1988). A party may file a motion
to compel when another party “fails to respond that inspection will be permitted–or fails to permit
inspection–as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). When a motion to compel
is filed, the party opposing the motion bears the burden of showing why it should not be granted.
See Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980); Rogers v. Tri-State
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Materials Corp., 51 F.R.D. 234, 247 (N.D. W. Va. 1970).
A.

“Boilerplate Objections”
A party may object to a discovery request that the party believes exceeds the scope of

allowable discovery, but “the party resisting discovery has the burden of clarifying, explaining and
supporting its objections.” Herbalife Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., No. 05-CV-41,
2006 WL 2715164, at *1, *5-6 (N.D. W. Va. Sept. 21, 2006). “The mere recitation of the familiar
litany that an interrogatory or document production request is overly broad, burdensome, oppressive
and irrelevant will not suffice.” PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293 (N.D. W. Va.
2004). Such objections are highly disfavored in the Fourth Circuit. See, e.g., Hager v. Graham, 267
F.R.D. 486, 492 (N.D. W. Va. 2010) (“[G]eneral objections to discovery, without more, do not
satisfy the burden of the responding party . . . because they cannot be applied with sufficient
specificity to enable courts to evaluate their merits.”); Mills v. East Gulf Coal Prep. Co., 259 F.R.D.
118, 132 (S.D. W. Va. 2009) (“[B]oilerplate objections regurgitating words and phrases from Rule
26 are completely unacceptable.”). The “[f]ailure to state objections specifically in conformity with
the Rules will be regarded as a waiver of those objections.” Mills, 259 F.R.D. at 132.
Here, the undersigned finds that Consol’s objection that the discovery requests are “vague”
and “unduly burdensome” are the type of “boilerplate” objections that have been previously rejected
by this Court. Consol has not made any attempt to describe how these requests are “vague.”
Furthermore, the Court can limit a discovery request if it finds that “the burden or expense of the
proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount
in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii).
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“[T]he burden is on the party who has raised such an objection to prove that it is overly
burdensome.” Byard v. Verizon W. Va., Inc., No. 1:11CV132, 2013 WL 30068, at *11 (N.D. W.
Va. Jan. 2, 2013). Here, Consol has also not made any attempt to demonstrate that the disputed
discovery requests are unduly burdensome. Accordingly, the undersigned finds that Consol’s
objections based upon vagueness and undue burden are without merit.
B.

Relevancy
As noted above, Fed. R. Civ. P. 26(b)(1) provides that “[p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” In her First
Amended Complaint, Anderson’s first cause of action is as follows:
The decisions of CCC and CONSOL to require Ms. Anderson to undergo medical
examinations, to schedule those examinations with physicians who lacked expertise
in osteoporosis, to contest Ms. Anderson’s doctor’s release for her to return to work,
and/or to terminate Ms. Anderson’s employment were motivated, in whole, or in
substantial part, by an animus arising out of Ms. Anderson’s filing of a Workers’
Compensation claim and/or her future eligibility to file a Workers’ Compensation
claim in violation of West Virginia Code § 23-5A-1 et seq., including the definition
at W. Va. Code § 23-5A-3(b), and the public policy set forth in § 23-1-1 et seq., and
the decisions of the Supreme Court of Appeals of West Virginia.
(Docket No. 38 at ¶ 66.)
The West Virginia Supreme Court of Appeals has held that
[i]n order to make a prima facia case of discrimination under W. Va. Code, 23-5A-1,
the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings
were instituted under the Workers’ Compensation Act, W. Va. Code 23-1-1 et seq.;
and (3) the filing of a workers’ compensation claim was a significant factor in the
employer’s decision to discharge or otherwise discriminate against the employee.
Syl. Pt. 1, Powell v. Wyoming Cablevision, Inc., 184 W. Va. 700, 701, 403 S.E.2d 717, 718 (1991).
As the Powell Court went on to note,
“[i]n a case premised on an alleged violation of a statute purposed to counter
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retaliation or other discrimination, we must keep in mind that those engaged in such
conduct rarely broadcast their intentions to the world. Rather, employers who
practice retaliation may be expected to seek to avoid detection, and it is hardly to be
supposed that they will not try to accomplish their aims by subtle rather than obvious
methods[.]”
Id., 184 W. Va. at 704, 403 S.E.2d at 721 (quoting Axel v. Duffy-Mott Co., 47 N.Y.2d 1, 6, 389
N.E.2d 1075, 1077 (1979)).
The undersigned finds that the requested information is relevant to whether Anderson’s
workers’ compensation claim was a “significant factor in [Consol’s] decision to discharge or
otherwise discriminate against [Anderson].” Id., 184 W. Va. at 701, 403 S.E.2d at 718. However,
the undersigned agrees with Consol that the requests are overly broad as to their temporal scope. As
noted above, Anderson is willing to modify Request No. 3 to reports covering the period from
January 1, 2008 through July 1, 2010. (Docket No. 198 at 2.) Accordingly, Request No. 3 will be
modified to state:
REQUEST NO. 3: Produce the quarterly reports for the period from January 1, 2008
until July 1, 2010, with information about workers’ compensation costs described by
Pamela Layton at her deposition in this case.
With that modification, Consol is directed to provide adequate and complete responses to Requests
No. 3 and 4.
As to Request No 1 in Anderson’s Tenth Set of Combined Discovery Requests, Anderson
is willing to limit the request to those reports prepared before July 1, 2010. (Docket No. 198 at 3.)
However, the undersigned finds that further limiting the request to reports covering the period from
January 1, 2008 through July 1, 2010 provides a more tightly focused temporal scope for the request.
Accordingly, Request No. 1 will be modified to state:
REQUEST NO. 1: At her deposition on February 28, 2014, Paulette Gailey testified
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that there were documents prepared for each mine every six (6) months that included,
among other things, the workers’ compensation costs for prior periods of time.
Provide copies of these documents for the West Virginia mines of the Consolidation
Coal Company for the period from January 1, 2008 until July 1, 2010.
With that modification, Consol is directed to provide adequate and complete responses to Request
No. 1.
The undersigned notes that in its response, Consol argues that “even if it is found that the
reports are relevant on some level, they are extremely misleading for the purposes intended by
[Anderson] and, therefore, prejudicial to [Consol]. Accordingly, the reports would be inadmissible
in Court.” (Docket No. 194 at 8.) Consol further states that Anderson “must request evidence
reasonably likely to lead to discovery of admissible evidence, rather than irrelevant documentation
whose only use at trial would unduly prejudice [Consol].” (Id. at 9.) However, as noted above, Fed.
R. Civ. P. 26(b)(1) provides that “[r]elevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” (emphasis
added). Furthermore, the undersigned notes that the question of admissibility pursuant to Fed. R.
Evid. 403 is a question for the trial judge, which he is not, to determine. Accordingly, the question
of whether the requested information will be admissible at trial has no bearing at this juncture of the
case on Anderson’s right to receive the information as part of discovery.
IV.

Conclusion

In sum, the undersigned finds that the information Anderson has requested regarding
workers’ compensation costs is relevant to her claim that Consol retaliated against her for filing a
workers’ compensation claim. Accordingly, Consol is directed to provide adequate and complete
responses to the following modified requests:

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REQUEST NO. 3: Produce the quarterly reports for the period from January 1, 2008
until July 1, 2010, with information about workers’ compensation costs described by
Pamela Layton at her deposition in this case.
REQUEST NO. 4: State, by name, position and job location, the person(s) to whom
the reports in the above request were distributed and how they were distributed (mail,
facsimile, e-mail, etc.).
REQUEST NO. 1: At her deposition on February 28, 2014, Paulette Gailey testified
that there were documents prepared for each mine every six (6) months that included,
among other things, the workers’ compensation costs for prior periods of time.
Provide copies of these documents for the West Virginia mines of the Consolidation
Coal Company for the period from January 1, 2008 until July 1, 2010.
V.

Decision and Order

For the foregoing reasons, Anderson’s “Motion to Compel Responses to Plaintiff’s Ninth and
Tenth Sets of Combined Discovery Requests” (Docket No. 170) is GRANTED. Consol shall serve
adequate and complete responses to the discovery requests at issue, as modified above, within
fourteen (14) calendar days following entry of this Order/Opinion. The Court further ORDERS that
the responses be disclosed subject to the Agreed Protective Order previously entered by the Court.
(Docket No. 85.)
In accord with Fed. R. Civ. P. 37(a)(5)(A), Anderson shall submit and serve on counsel of
record for Consol its claim for “reasonable expenses,” if any, including attorneys’ fees, necessitated
by the conduct of the party and/or party’s attorney which necessitated the filing and prosecution of
the subject motion to compel within fourteen (14) days following entry of this Order/Opinion.
Consol shall have fourteen (14) days following the filing of Anderson’s claim to file any written
objections she may have to the reasonableness of the claimed expenses. Only in the event Anderson
files a claim for expenses and Consol timely objects, will the Court schedule “an opportunity to be
heard” hearing on the reasonableness of the fees and costs claimed.
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It is so ORDERED.
The Clerk is directed to remove Docket No. 170 from the docket of motions actively pending
before the Court.
The Clerk is further directed to provide copies of this Order/Opinion to all counsel of record.
DATED: April 23, 2014

John S. Kaull
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE

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