Stowers v. Supreme Court of Appeals of West Virginia

Filing 66

ORDER The 48 Motion for Protective Order is GRANTED with respect to topics 2-14, requesting information Defendant has with regard to certain allegations in the complaint and DENIED as to topics 15-23, requesting facts Defendant uses to assert its affirmative defenses; the 60 Motion to Compel is GRANTED IN PART and DENIED IN PART; Defendant is directed to disclose any information in Roberts's personnel file related to her educational background and credentials, as well as information re lated to her alleged request to transfer to another position or to take over Plaintiff's position; Plaintiff has failed to demonstrate why any other materials in the file are relevant to his claims for gender discrimination and retaliation. Signed by Magistrate Judge Dwane L. Tinsley on 5/29/2019. (cc: counsel of record) (kew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

SCOTT STOWERS,
Plaintiff,
v.

Civil Action No. 2:18-cv-00560

SUPREME COURT OF APPEALS OF
WEST VIRGINIA,
Defendant.
ORDER
This is a wrongful termination case in which Plaintiff Scott Stowers (“Plaintiff”) alleges
that he was terminated from his employment as a probation officer with Defendant Supreme Court
of Appeals of West Virginia (“Defendant”) because Defendant sought to retain a female probation
officer instead. (ECF No. 1.) Before this Court are Defendant Supreme Court of Appeals of West
Virginia’s Motion for Protective Order (ECF No. 48) and Plaintiff’s First Motion to Compel (ECF
No. 60). Each is addressed in turn.
A. Defendant’s Motion for Protective Order (ECF No. 48)
Defendant seeks a protective order with respect to some of the topics Plaintiff has
designated for his Federal Rule of Civil Procedure 30(b)(6) deposition of Defendant. (See ECF
No. 49 at 3.) The specific inquiries to which Defendant objects concern two sets of topics: one
set, topics 2–14, requests information Defendant has with regard to certain allegations in the
complaint; the second set, topics 15–23, requests facts Defendant uses to assert its affirmative
defenses. (ECF No. 43.)

Defendant argues that the proposed topics seek information protected by the attorney–
client privilege and the work product doctrine. (ECF No. 49 at 9–10.) The attorney–client
privilege shields from disclosure the communications between a party and its counsel made for the
purpose of securing legal assistance. See NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501–02
(4th Cir. 2013) (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per curiam)).
The work product doctrine similarly protects “documents and tangible things that are prepared in
anticipation of litigation or for trial by . . . a party or its representative.” Fed. R. Civ. P.
26(b)(3)(A). Defendant bears the burden to demonstrate that either attorney–client privilege or
the work product doctrine applies. Interbake Foods, 637 F.3d at 501.
The mere fact that counsel must prepare a witness for a deposition does not inherently
implicate these protections.

The attorney–client privilege “only protects disclosure of

communications; it does not protect the disclosure of the underlying facts by those who
communicated with the attorney.” Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). And
the work product doctrine safeguards “documents and tangible things,” not witness testimony.
Fed. R. Civ. P. 26(b)(3)(A). However, proposed topics 15, 16, 17, 18, 22, and 23 are, as written
in the notice of deposition, inappropriate inquires for a Rule 30(b)(6) deposition insofar as they
ask the witness to offer a legal opinion. Defendant’s motion for a protective order is GRANTED
with respect to these topics.
Defendant also urges this Court to require Plaintiff to obtain information about Defendant’s
denials of certain allegations in the complaint and about its affirmative defenses through the use
of contention interrogatories. (ECF No. 49 at 11–14.) However, although couched in quotes from
the complaint and answer, these topics are appropriate inquiries for a Rule 30(b)(6) deposition.
For example, topics 5–8 seek information related to the suggestion of Plaintiff’s supervisor that

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Plaintiff obtain a bachelor’s degree and Defendant’s awareness of Plaintiff’s enrollment in a
bachelor’s degree program. (See ECF No. 43 at 1–2.) And topics 19–21 ask Defendant to explain
why it believed Plaintiff was not qualified for his position and that he misrepresented his
educational background. (Id. at 4.) These are fact-based inquiries that may be asked of a Rule
30(b)(6) witness. This Court declines to force Plaintiff to use an alternate discovery mechanism
merely for Defendant’s convenience when Plaintiff’s chosen discovery tool is proper. Defendant’s
motion for a protective order is DENIED in this respect.
The remainder of Defendant’s objections are without merit.

Therefore, Defendant

Supreme Court of Appeals of West Virginia’s Motion for Protective Order (ECF No. 48) is
GRANTED IN PART and DENIED IN PART.
B. Plaintiff’s Motion to Compel (ECF No. 60)
Plaintiff seeks to compel Defendant to turn over the official personnel file and any related
notes that may constitute an “unofficial” personnel file for Stacia Roberts (“Roberts”), the
individual whom Plaintiff alleges replaced him shortly after he was fired. (ECF No. 60 at 1.)
Plaintiff claims that Roberts expressed concern to Plaintiff’s supervisor that her position was
“about to be de-funded,” and Plaintiff’s supervisor was attracted to Roberts, so he fired Plaintiff
in order to hire Roberts. (Id. at 2.) However, given that Roberts, a nonparty, retains a special
privacy interest in the contents of her personnel file, this Court declines to order Defendant to
disclose the entire file. See Weller v. Am. Home Assurance Co., No. 3:05-cv-00090, 2007 WL
1097883, at *6–*7 (N.D.W. Va. Apr. 10, 2007).
Instead, Defendant is ORDERED to disclose any information in Roberts’s personnel file
related to her educational background and credentials, as well as information related to her alleged
request to transfer to another position or to take over Plaintiff’s position. Plaintiff has failed to

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demonstrate why any other materials in the file are relevant to his claims for gender discrimination
and retaliation. Plaintiff’s First Motion to Compel (ECF No. 60) is GRANTED IN PART and
DENIED IN PART.
The Clerk is directed to transmit a copy of this Order to counsel of record.
Enter: May 29, 2019

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