Smith v. Bayer Material Science, LLC et al

Filing 36

ORDER Granting in part and Denying in part 21 Plaintiff's Motion to Compel Discovery;Def. has 30 days to fully comply with its terms; stipulated proposed protective order to be submitted within 30 days; written objections to this Order to be filed within 14 days. Signed by Magistrate Judge James E. Seibert on 6/19/13. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID A. SMITH,
Plaintiff,
v.

Civ. No. 5:12-cv-171

BAYER MATERIAL SCIENCE, LLC,
MARK J. DAVIS, CHARLES KOTSON,
and KATHY MADDEN,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL DISCOVERY
I. INTRODUCTION
This employment discrimination action was originally filed in the Circuit Court of Marshall
County, West Virginia, alleging a number of state law causes of action mostly arising under the
West Virginia Human Rights Act (WVHRA). Specifically, Plaintiff claims that he was subjected
to discrimination and ultimately fired for his disability—cancer. Defendants removed the action to
this Court because they assert that language in one of the counts in the complaint references the Fair
Labor Standards Act, and that this presents a federal question invoking this Court’s jurisdiction.
Plaintiff filed a motion to remand the case which is still pending in the District Court. The instant
dispute arises from Defendant Bayer Material Science’s (Bayer) responses and objections to
Plaintiff’s first set of discovery. After trying to resolve the dispute without Court intervention,
Plaintiff filed a motion to compel discovery.1 The Court held an evidentiary hearing and heard

1 The Court deemed Plaintiff’s initial motion deficient because it failed to set out verbatim the discovery
requests, responses, and objections, to which he took issue as required by the Court’s Local Rules. Plaintiff supplemented
his motion. Defendant contends that the motion is still deficient because it does not give the case, statute, or rule to
support each discovery request at issue. Although Defendant is correct that the motion still does not comply with the

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argument on the motion on June 5, 2013. Plaintiff appeared by P. Joseph Craycraft, Esquire.
Defendant appeared by Jana P. Grimm, Esquire. No testimony or other evidence was presented.
II. DISCUSSION
Plaintiff seeks to compel responses to a number of interrogatories and requests for production
of documents, of which the Court finds it most helpful to divide into four categories: (1) Plaintiff’s
employment information; (2) corporate information; (3) information about other legal actions taken
by employees; and (4) information about other employees. The Court will discuss each in turn, but
will first lay the all too familiar foundation for discovery.
Under the Federal Rules, [p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense—including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter.” FED. R. CIV. P. 26(b)(1). This evidence
need not be admissible at trial so long as it is “reasonably calculated to lead to the discovery of
admissible evidence. Id. It is well established that these Rules are to be given a “broad and liberal
treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). Of course, the Court can limit discovery
if it is irrelevant, duplicitous, or poses an undue burden on the party from whom the discovery is
sought.
Any objection to discovery requests must be lodged with some specificity so the requesting
party, and the Court if it becomes involved, can ascertain the basis for the objection. Accordingly,
generalized, boilerplate objections that regurgitate the language from Rule 26—irrelevant, overly
broad, and unduly burdensome—are highly disfavored and will usually result in a waiver of the
Local Rules to a tee, Plaintiff has provided some case law and as a matter of judicial economy the Court will resolve the
dispute.

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objection. See e.g. Mancia v. Mayflower Textile Servs. Co ., 253 F.R.D. 354, 364 (D. Md. 2008).
Mainstreet Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D. 238 (E.D.N.C. 2010) (mere recitation
of the familiar litany that a request is overly broad, burdensome, oppressive, and irrelevant does not
constitute a specific objection); Hager v. Graham, 267 F.R.D. 486, 492 (N.D.W.V. 2010) (“General
objections to discovery, without more, do not satisfy the burden of the responding party under the
Federal Rules of Civil Procedure to justify objections to discovery because they cannot be applied
with sufficient specificity to enable courts to evaluate their merits.”); Mills v. East Gulf Coast Prep.
Co ., LLC, 259 F.R.D. 118, 132 (S.D.W.V. 2009) (“[B]oilerplate objections regurgitating words and
phrases from Rule 26 are completely unacceptable.”); Frontier–Kemper Const., Inc. v. Elk Run Coal
Co., Inc., 246 F.R.D. 522, 530–31 (S.D.W.V. 2007) (finding that boilerplate objections to
defendant's requests for production of documents, which indicated simply that requests were
overbroad, unduly burdensome, and not reasonably calculated to lead to discovery of admissible
evidence, did not comply with the rule, which required specific objections).
Although Defendant maintains that Plaintiff has failed to comply with the Court’s Local
Rules, and is to a point correct, Defendant has been in noncompliance not only with the Federal
Rules as just outlined, but, as will be explained later, in violation of several other specific provision
of the Federal Rules. The most flagrant disregard for the specificity requirement is exemplified by
the following response to Interrogatory 21:
ANSWER: Objection. Defendant objects to this interrogatory to the
extent it seeks information which is irrelevant and which is not
reasonably calculated to lead to the discovery of admissible evidence.
The Court finds it important to recommend to Defendant that rather than chastising Plaintiff in its
response to the motion to compel, Defendant might better spend its time in making sure it is in

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compliance with the Rules.
A. Plaintiff’s Employment Information
In these requests,2 Plaintiff seeks information about the benefits he was eligible for, including
the valuation of those benefits, who made the decision to terminate his employment, his personnel
file, and any emails concerning his employment. It appears to the Court that Defendant has already
turned over Plaintiff’s personnel file to the tune of 416 Bates numbered pages, and has answered
Plaintiff’s interrogatory concerning the decision to terminate. With regard to the valuation of
benefits, Plaintiff has shown that lost benefits may be calculated into an award under the WVHRA.
See Alley v. Charleston Area Med. Ctr., Inc., 602 S.E.2d 506 (W. Va. 2004). Thus, the valuation is
relevant and discoverable.
The final issue is the emails. Defendant objected to the request as being “overly broad and
unduly burdensome” and that it “is not appropriately limited in time and scope.” Defendant further
objected “to the extent this information is irrelevant and [] is not reasonably calculated to lead to the
discovery of admissible evidence.” Finally, Defendant objected “to the extent the request seeks
emails protected from disclosure by the attorney-client work product doctrine.” Before addressing
the objections, the Court will first note that any emails regarding Plaintiff’s employment or
termination are clearly relevant; this is an employment discrimination action.
The first two objections are just as those described as impermissible and waived for lack of
specificity. However, not only does this objection lack the specificity required by the Federal Rules
of Civil Procedure, it is also in violation of several other provisions. First, if Defendant only objects
to the disclosure of emails protected by the attorney-client privilege or work product doctrine then

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Interrogatories 7 and 22, and Request for Production 1.

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it must produce the rest. FED. R. CIV. P. 34(b)(2)(C). Further, if a claim of privilege is expressly
made, then the party claiming the privilege must “describe the nature of the documents,
communications, or tangible things, not produced or disclosed—and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim”;
commonly referred to as a privilege log. FED. R. CIV. P. 26(b)(5)(A). Defendant has satisfied none
of these requirements.
Accordingly, the motion to compel all of these requests is GRANTED. If Defendant has
produced everything it has regarding the personnel file and decision to terminate as the Court has
surmised, then it only need to restate something to that effect in the supplemental responses.
Moreover, if there is a legitimate claim of privilege—it appears to be speculation by Defendant at
this point because it is apparent Defendant has not even attempted to search for any emails—then
Defendant must follow the Federal Rules and submit a privilege log.
B. Corporate Information
In these requests,3 Plaintiff wants to know the relationship between Defendant and Bayer
Credit Union. He contends that Bayer Credit Union was taking financial action against him during
his consideration of a severance agreement by Defendant, and insinuates that the financial actions
taken might have been to pressure him into entering into the severance agreement. Defendant
objected to the request as irrelevant and unlikely to lead to the discovery of admissible evidence.
Plaintiff further wants the personnel files of the individual named Defendants in this action because
he has raised claims of negligent hiring and supervision against Bayer and wants to know the
qualifications, training, and disciplinary records of these Defendants. Finally, he seeks to compel

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Interrogatory 24 and Requests for Production 6, 14 and 22.

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production of a copy of the job description of the position he and the individual named Defendants
held, and a copy of each work rule or labor agreement that Defendant contends he violated.
With regard to information about a relationship between Defendant and Bayer Credit Union,
the Court does not see the relevance. If Plaintiff contends that Bayer Credit Union is engaging in
these acts as retaliation, then he must file an action against them. But he cannot seek discovery from
a party to this lawsuit that would be relevant to a lawsuit against another party. Further, the Court
finds that information contained in the individual Defendants’ personnel files, specifically
disciplinary and training information, is relevant to Plaintiff’s claim of negligent hiring and
supervision. See e.g. D’Angelo v. United States, 588 F. Supp 9 (W.D.N.Y. 1983) (allowing, in a
negligent hiring action, Plaintiff to discovery specific information in three doctors’ personnel files).
Finally, the work rule or labor agreement that Defendant is relying on for its nondiscriminatory
termination of Plaintiff is clearly relevant. See FED. R. CIV. P. 26(b) (“Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense”) (emphasis
added). For the reasons stated, the motion to compel a response to Interrogatory 24 is DENIED. The
motion to compel responses to Requests for Production 6, 14, and 22 is GRANTED.
C. Other Legal Actions
In this request,4 Plaintiff wants to know whether Defendant has ever been a party to a
discrimination action in the past ten years, and if so details and records of the actions. Plaintiff
contends that this information is relevant because a showing of prior conduct could result in a higher
award of punitive damages. Defendant lodged the all too familiar objection, which was highlighted
above, that the information is irrelevant and not likely to lead to the discovery of admissible

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Interrogatories 21 and Request for Production 13.

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evidence. The Court finds that the request is relevant, or at least reasonably calculated to lead to the
discovery of admissible evidence, but as discussed more fully below, the requests must be limited
in scope to only the last five years and only at the facility where Plaintiff was employed. See e.g.
Gray v. Int’l Broth. of Elec. Workers, 1975 WL 248 (D.D.C. Oct. 21, 1975) (compelling similar
discovery); Johnson v. Southern Ry. Co., 1977 WL 91, *7 (N.D. Ga. Dec. 27, 1977) (same).
Accordingly, the motion to compel responses to Interrogatory 21 and Request for Production 13 is
GRANTED IN PART.
D. Other Employee Information
In these discovery requests,5 Plaintiff seeks the name and last known address for each
employee who, in the last ten years, was disciplined or terminated for (1) failing to report to the
infirmary, (2) being tardy, or (3) for being absent. For employees that were disciplined, Plaintiff
wants to know the level of disciple. Further, Plaintiff wants the name and last known address for
each employee who, in the last ten years, lost their right to use short notice time off, used “non-occ”
leave, worker’s compensation, FMLA leave, or was granted leave as an accommodation for a
disability under the WVHRA. Finally, Plaintiff wants to know whether any employee has been
diagnosed with cancer in the last ten years, and if so whether those employees are still employed.
Plaintiff contends that all of the employees revealed would be similarly situated to him, and that the
information is necessary to meet his burden of proof under the WVHRA.
Defendant lodged the same objections to these requests, stating that the information sought
is not relevant or reasonably calculated to lead to the discovery of admissible evidence because it
seeks information from individuals who are not party to this action. Further, they contend that

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Interrogatories 9-20 (13 and 15 are the same), and requests for production 11, 12, and 15.

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producing this information would reveal personal and private information of non-parties, and in
some instances run afoul of the protections contained in the Health Insurance Portability and
Accountability Act (HIPAA). Finally, they contend that scouring through ten years of employee
information would be unduly burdensome.
The West Virginia Supreme Court of Appeals has held that to establish disparate treatment
under the WVHRA, a plaintiff must establish a prima facie case of discrimination by showing: “(1)
that the complainant is a member of a group protected by the Act; (2) that the complainant was
discharged, or forced to resign, from employment; and (3) that a nonmember of the protected group
was not disciplined, or was disciplined less severely, than the complainant, though both engaged in
similar conduct.” Barefoot v. Sundale Nursing Home, 457 S.E.2d 152, 162–63 (W. Va. 1995). The
state’s highest court has “consistently held that cases brought under the West Virginia Human Rights
Act are governed by the same analytical framework and structures developed under Title VII.” Id.
at 159 (internal citation omitted). This framework is burden shifting, with a plaintiff bearing the
initial burden of showing a prima facie case, then shifting to a defendant to show a legitimate,
nondiscriminatory reason for the complained of employment action. Id.; see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
In employment discrimination cases, courts have consistently held that discovery is even
broader than that enjoyed in regular civil litigation, and that “‘the imposition of unnecessary
limitations on discovery is especially to be avoided in Title VII cases,’ because of the nature of the
proofs required to demonstrate unlawful discrimination may often be indirect or circumstantial.”
Miles v. Boeing Co., 154 F.R.D. 117, 119 (E.D. Pa. 1994) (quoting Robbins v. Camden City Bd. of
Educ., 105 F.R.D. 49, 55 (D.N.J.1985)); see also Pleasants v. Allbaugh, 208 F.R.D. 7, 9 (D.D.C.

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2002) (“[P]laintiffs have been permitted a very broad scope of discovery, extending to documents
and information pertaining to so-called workforce data, i.e., information regarding non-party
employees in plaintiff’s workplace.”). Moreover, the several Courts of Appeals that have addressed
the issue have held the same. See Sempier v. Johnson & Higgins, 45 F.3d 724, 734 (10th Cir. 1995)
(“[W]e frown upon unnecessary discovery limitations in Title VII, and hence ADEA, cases.”); Sweat
v. Miller Brewing Co., 708 F.2d 655, 658 (11th Cir. 1983) (“[W]e note that liberal discovery rules
are applied in Title VII litigation. Statistical information concerning an employer’s general policy
and practice concerning minority employment may be relevant to a showing of pretext, even in a
case alleging an individual instance of discrimination rather than a “pattern and practice” of
discrimination.”); Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983) (“The imposition
of unnecessary limitations on discovery is especially frowned upon in Title VII cases.”). Thus, it is
clear that broad discovery must be afforded to plaintiffs alleging Title VII claims, and, logically,
because the West Virginia Supreme Court has adhered to the framework in WVHRA cases, to those
cases as well. However, the evidence must still be relevant and not present an undue burden.
The United States Supreme Court has held that relevant evidence in Title VII cases may
include the employer’s “general policy and practice with respect to minority employment,” which
includes “statistics as to [employer’s] employment policy and practice” to establish a “pattern of
discrimination.” McDonnell Douglas, 411 U.S. at 804-05. These statistics can be important for a
Plaintiff to both establish a prima facie case of discrimination, which is the burden placed on a
Plaintiff, Mayor of Philadelphia v. Educ. Equality League, 415 U.S. 605, 620 (1974), and to
discredit the reasons given by an employer on a contested action. Furnco Const. Corp.v. Waters, 438
U.S. 567, 579 (1978). Further, “evidence of general patterns of discriminatory treatment by an

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employer is relevant even in the individual disparate treatment case.” Zahorik v. Cornell Univ., 98
F.R.D. 27, 31 (N.D.N.Y. 1983) (citing Lieberman v. Gant, 630 F.2d 60, 68 (2d Cir. 1980)).
Some of the information requested by Plaintiff is certainly relevant to meet his burden to
establish a prima facie case of discrimination, namely the statistical information regarding treatment
of other people not of the protected class. However, other information which seeks personal medical
information about current or former employees’ disabilities is not relevant to showing whether a
non-protected class employee received different treatment for the same actions as himself.
Moreover, the Court finds that the temporal scope and lack of geographic scope of Plaintiff’s
requests can become unduly burdensome on Defendant. Thus, the Court will put a reasonable
limitation to actions within the last five years and only at the facility where Plaintiff was employed.
For these reasons, the motion to compel responses to Interrogatories 9-20 and Requests for
Production 11 and 12 is GRANTED IN PART. The motion to compel Interrogatory 25 and Request
for Production 15 is DENIED.
E. Protective Order
The Court will note that there is not currently a protective order in place in this action.
Because some of the discovery might reveal sensitive information about Bayer’s employees and
policies, the Court believes that a protective order is needed. The parties are ORDERED to submit
a stipulated protective within thirty (30) days of the date of this Order.
III. CONCLUSION
For the reasons set forth, the Court GRANTS IN PART AND DENIES IN PART
Plaintiff’s motion to compel (CM/ECF Doc. 21). Defendant has thirty days (30) from the date of this
Order to fully comply with its terms. Further, the parties are ORDERED to submit a stipulated

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protective order within thirty (30) days of the date of this Order.
Filing of objections does not stay this Order.
Any party may, within fourteen [14] days of the filing of this Order, file with the Clerk of
the Court written objections identifying the portions of the Order to which objection is made, and
the basis for such objection. A copy of such objections should also be submitted to District Court
Judge of Record. Failure to timely file objections to the Order set forth above will result in waiver
of the right to appeal from a judgment of this Court based upon such Order.
The Clerk of the Court is directed to mail a copy of this Order to parties who appear pro se
and any counsel of record, as applicable.
IT IS SO ORDERED

/s/ James E. Seibert

DATED: June 19, 2013

JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

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