Bibbs v. New River Community and Technical College et al
Filing
54
MEMORANDUM OPINION AND ORDER: denying Plaintiff's 32 MOTION to Compel Disclosure of Discovery Requests; denying Defendants' 37 MOTION for Protective Order; denying Plaintiff's 40 MOTION for Protective Order; Plaintiff is directed to respond to the specified interrogatories by 10/12/2012. Signed by Magistrate Judge R. Clarke VanDervort on 9/12/2012. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
RICHARD L. BIBBS,
Plaintiff,
v.
NEW RIVER COMMUNITY AND
TECHNICAL COLLEGE, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Civil Action No. 5:11-0519
MEMORANDUM OPINION AND ORDER
Pending before the Court are the following Motions: (1) Plaintiff’s “Motion to Compel
Disclosure of Discovery Requests”(Document No. 32.), filed on August 6, 2012; (2) Defendants’
Motion for Protective Order (Document No. 37.), filed on August 14, 2012; and (3) Plaintiff’s
Motion for Protective Order (Document No. 40.), filed on August 20, 2012. Having thoroughly
considered the issues raised by these Motions, the undersigned concludes that Plaintiff’s “Motion
to Compel Disclosure of Discovery Requests” (Document No. 32.) should be denied, Defendants’
Motion for Protective Order (Document No. 37.) should be denied, and Plaintiff’s Motion for
Protective Order (Document No. 40.) should be denied.
PROCEDURAL BACKGROUND
On August 1, 2011, Plaintiff, acting pro se, filed a Complaint claiming Defendants
discriminated against him in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§2000e), the Civil Rights Act of 1991, Title 42 U.S.C. § 1981, and the Equal Protection Clause.1
1
Because Plaintiff is acting pro se, the documents which he has filed are held to a less
stringent standard than if they were prepared by a lawyer and therefore construed liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
(Document No. 2.) Plaintiff names the following as Defendants: (1) New River Community and
Technical College; (2) Ted D. Spring, President; and (3) Leah A. Taylor, Human Resource Director.
(Id., pp. 1 - 2.) Plaintiff alleges that Defendants denied him certain job positions “due to his sex
and/or race.” (Id., pp. 2 - 4.) As an Exhibit, Plaintiff attaches a copy of the EEOC’s “Dismissal and
Notice of Rights” dated May 13, 2011. (Document No. 2-1.)
By Order entered on April 23, 2012, the undersigned granted Plaintiffs’ Application to
Proceed Without Prepayment of Fees and directed Plaintiff to serve the Summonses and Complaint
upon Defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Document No. 7.) The
Clerk issued Summonses for Defendants on April 23, 2012. (Document No. 8.) On May 3, 2012, the
Summons and Complaint addressed to Defendants Spring and Taylor were delivered by certified
mail to New River Community and Technical College. (Document Nos. 10-1, 10-2, 10-3 and 13, p.
6.) On May 7, 2012, Defendant New River Community and Technical College’s Advanced
Technology Center, located in Ghent, West Virginia, received by certified mail a Summons and
Complaint addressed to New River Community and Technical College. (Document Nos. 10-1, 10-3,
and 13, p. 6.)
On May 10, 2012, Defendants filed their “Motion to Dismiss Plaintiff’s Complaint” and
Memorandum in Support. (Document Nos. 10 and 11.) Defendants argued that Plaintiff’s Complaint
should be dismissed based upon the following: (1) “Plaintiff’s Complaint should be dismissed as
service of process was not effected upon any Defendant within 120 days of the filing of the
Complaint;” (Document No. 11, pp. 2 - 3.); (2) “In addition to being untimely, service of process
against Defendants Ted Spring and Leah Taylor was improper because delivery was not restricted
to these individuals and the clerk apparently did not issue the certified mail” (Id., pp. 3 - 6.); and (3)
2
“In addition to being untimely, service of process against Defendant New River Community and
Technical College was improper because the Summons and Complaint were not delivered to an
officer of New River Community and Technical College” (Id., pp. 6 - 8.).
Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff
on May 11, 2012, advising him of the right to file a response to the Defendants’ Motion to Dismiss.
(Document No. 12.) On May 14, 2012, Plaintiff filed his “Response to Defendants’ Motion to
Dismiss.” (Document No. 13.) First, Plaintiff argued that service was not untimely because “plaintiff
could not proceed with service until the court ruled on his Application to Proceed without
Prepayment of Fees on April 23, 2012, therefore there is no issue regarding the 120 day
requirement.” (Id., p. 2.) Second, Plaintiff asserted that Defendants Spring and Taylor were properly
served. (Id., pp. 2 - 3.) Third, Plaintiff stated that for service of New River Community and
Technical College, “plaintiff used information obtained from the website of the West Virginia
Secretary of State and should not be held accountable if the defendants did not have a correct listing
with the Secretary of State as is required of business.” (Id., p. 3.) As Exhibits, Plaintiff attached the
following: (1) The Affidavit of Richard L. Bibbs (Id., p. 5.); and (2) The Certified Mail Return
Receipts cards for Defendants (Id., p. 6.).
On May 22, 2012, Defendants filed their Reply. (Id., p. 16.) Defendants continued to argue
that attempted service upon Defendants was untimely under Rule 4(c)(1) and (m) of the Federal
Rules of Civil Procedure. (Id., p. 1.) Next, Defendants asserted that “Plaintiff did not properly effect
service of process on any of the Defendants.” (Id., p. 2.) Finally, Defendants stated that William J.
Loope is listed as the agent for service of process on the New River Community and Technical
College Foundation, Inc., which is a separate entity from New River Community and Technical
College.” (Id.)
3
By Proposed Findings and Recommendation entered on June 5, 2012, the undersigned
recommended that Defendants’ Motion to Dismiss be denied as premature because Plaintiff had until
August 21, 2012 to properly serve the Defendants. (Document No. 20.) By Order also entered on
June 5, 2012, the undersigned granted Plaintiff’s Motion for an Officer of the Court to Serve the
Summonses and Complaint. (Document No. 18.) On June 22, 2012, Defendants filed their Answer
to Plaintiff’s Complaint. (Document No. 25.) On July 16, 2012, Plaintiff served on Defendants his
First Set of Interrogatories, Requests for Production of Documents, and Requests for Admissions.
(Document No. 26.) By Memorandum Opinion and Order entered on July 19, 2012, United States
District Judge Irene C. Berger adopted the undersigned’s recommendation and denied Defendant’s
Motion to Dismiss as premature. (Document No. 27.) The District Court entered a Scheduling Order
on July 24, 2012, requiring that all discovery be completed by November 20, 2012. (Document No.
30.) Defendants filed their Responses to Plaintiff’s Requests for Admissions on July 27, 2012.
(Document No. 31.)
On August 6, 2012, Plaintiff filed his “Motion to Compel Disclosure of Discovery Requests.”
(Document No. 32.) Defendants filed a Response to Plaintiff’s Motion to Compel on August 13,
2012. (Document No. 36.) On August 14, 2012, Defendants filed a Motion for Protective Order.
(Document No. 37.) Plaintiff filed his Response to Defendants’ Motion for Protective Order on
August 20, 2012. (Document No. 39.) Also on August 20, 2012, Plaintiff filed a Motion for
Protective Order. (Document No. 40.) Defendants filed their Response in Opposition to Plaintiff’s
Motion for Protective Order on August 24, 2012. (Document No. 44.) Also on August 24, 2012,
Defendants filed their Reply to Plaintiff’s Response in Opposition to Defendant’s Motion for
Protective Order. (Document No. 45.)
4
STANDARD
The Federal Rules of Civil Procedure contemplate that in conjunction with disclosure, civil
discovery is a process of elucidation and clarification of facts and circumstances relevant to claims
and defenses as presented in pleadings through which the claims and defenses are validated, defined
and shaped and issues are sharpened and refined for consideration at the dispositive motion stage
and trial of a civil case. The civil discovery process is to be engaged in cooperatively. Violation of
the Rules undermines the process.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:
Parties 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. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery is generally limited therefore to nonprivileged information which is relevant to any
party’s claims or defenses, and relevant information is information which is admissible at trial or
might reasonably lead to the discovery of information which is admissible at trial. See State ex rel.
Erie Ins. Property and Cas. Co. v. Mazzone, 218 W.Va. 593, 596, 625 S.E.2d 355, 358 (2005)(“A
threshold issue regarding all discovery requests is relevancy. This is so because ‘[t]he question of
the relevancy of the information sought through discovery essentially involves a determination of
how substantively the information requested bears on the issues to be tried.’” quoting Syllabus Point
4 of State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).) Rule 26(g)
provides as follows:
(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1)
or (a)(3) and every discovery request, response, or objection must be signed by at
5
least one attorney of record in the attorney’s own name - - or by the party personally,
if unrepresented . . .. By signing, an attorney or party certifies that to the best of the
person’s knowledge, information, and belief formed after a reasonable inquiry:
(A)
with respect to a disclosure, it is complete and correct as of the time
it is made; and
(B)
with respect to a discovery request, response, or objection, it is:
(i)
(ii)
(iii)
consistent with these rules and warranted by existing law or
by a nonfrivolous argument for extending, modifying, or
reversing existing law, or for establishing new law;
not interposed for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of
litigation; and
neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case,
the amount in controversy, and the importance of the issues
at stake in the action.
(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure,
request, response, or objection until it is signed, and the court must strike it unless
a signature is promptly supplied after the omission is called to the attorney’s or
party’s attention.
(3) Sanction for Improper Certification. If a certification violates this rule without
substantial justification, the court, on motion or on its own, must impose an
appropriate sanction on the signer, the party on whose behalf the signer was acting,
or both. The sanction may include an order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.
When parties request relevant nonprivileged information in Interrogatories under Rules 33,
their request “must be answered:(A) by the party to whom they are directed; or (b) if that party is
a private corporation, . . . by any officer or agent, who must furnish the information available to the
party.” Fed.R.Civ.P. 33(b)(1). Federal Rule of Civil Procedure 33(b)(3) through (5) state further as
follows:
(3) Answering Each Interrogatory. Each Interrogatory must, to the extent it is not
objected to, be answered separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with
specificity. Any ground not stated in a timely objection is waived unless the court,
for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and the attorney
who objects must sign any objections.
6
“Generic non-specific objections will not suffice when posed in response to reasonable
Interrogatories. Objections to reasonable Interrogatories must be specific to each Interrogatory and
explain or demonstrate precisely why or how the party is entitled to withhold from answering.” Vica
Coal Co., Inc., v. Crosby, 212 F.R.D. 498, 503 (S.D.W.Va. 2003). The Court requires strict
adherence to these Rules. Saria v. Massachusetts Mutual Life Insurance Company, 228 F.R.D. 536,
538 (S.D.W.Va. 2005).
When parties request relevant nonprivileged information in a Request for Production or
Inspection of Documents under Rule 34, “[t]he party to whom the request is directed must respond
in writing . . ..” Fed.R.Civ.P. 34(b)(2)(A). Federal Rule of Civil Procedure 34(b)(2)(B) and (C)
provide as follows:
(B) Responding to Each Item. For each item or category, the response must either state that
inspection and related activities will be permitted as requested or state an objection to the
request, including the reasons.
(C) Objections. An objection to part of a request must specify the part and permit inspection
of the rest.
Objections to Rule 34 requests must be stated specifically, and boilerplate objections regurgitating
words and phrases from Rule 26 are completely unacceptable. Frontier-Kemper Constructors, Inc.,
v. Elk Run Coal Company, Inc., 246 F.R.D. 522, 528 - 529 (S.D.W.Va. 2007).
The Rules anticipate that each objection to a discovery request will state precisely why the
request is objectionable in view of the claims and defenses presented in the litigation. In most if not
all cases, an objection to a discovery request in conformity with the Rules will contain (1) a recital
of the parties’ claims and defenses, (2) a summary of the applicable statutory and/ or case law upon
which the parties’ claims and defenses are predicated including the elements of each claim or
defense, (3) a discussion of Court decisions considering the breadth or scope of discovery and any
7
limitations upon discovery in the same or a similar type of case and (4) a statement respecting how
and/or why the request seeks information which is irrelevant or will not likely lead to the discovery
of relevant information or is vague, overly broad, burdensome or interposed for an improper
purpose. Failure to state objections specifically in conformity with the Rules will be regarded as a
waiver of those objections. Sabol v. Brooks, 469 F.Supp.2d 324, 328 (D.Md. 2006).
Federal Rule of Civil Procedure 37(a)(1) provides that if a party fails to cooperate in
discovery, “[o]n notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Rule 37(a)(4) provides that an incomplete
answer or response “must be treated as a failure to . . . answer, or respond.” Rule 37 (a)(5)(A) – (C)
provide as follows:
(A) If the Motion is Granted (or Disclosure or Discovery is Provided After Filing).
If the motion is granted – or if the disclosure or requested discovery is provided after
the motion was filed – the court must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees. But the court must not order this
payment if:
(i)
(ii)
(iii)
the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
the opposing party’s nondisclosure, response, or objection was
substantially justified; or
other circumstances make an award of expenses unjust.
(B) If the Motion is Denied. If the motion is denied, the court may issue any
protective order authorized under Rule 26(c) and must, after giving an opportunity
to be heard, require the movant, the attorney filing the motion, or both to pay the
party or deponent who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees. But the court must not order this
payment if the motion was substantially justified or other circumstances make an
8
award of expenses unjust.
(C) If the Motion is Granted in Part and Denied in Part. If the motion is granted in
part and denied in part, the court may issue any protective order authorized under
Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable
expenses of the motion.
DISCUSSION
1.
Plaintiff’s Motion to Compel (Document No. 32.):
In his “Motion to Compel Disclosure of Discovery Requests,” Plaintiff requests that the
Court “deny defendants’ Proposed Protective Order and compel the Defendants to disclose
plaintiff’s discovery requests.” (Document No. 32, p. 4.) Plaintiff explains that on July 16, 2012,
he “served various discovery requests to the defendants necessary for trial preparation and within
the scope of the allegations contained in the plaintiff’s complaint.” (Id., p. 1.) Plaintiff complains
that in response, he “received a Proposed Agreed Protective Order from Defendants.” (Id.) Plaintiff
objects to the protective order stating that “defendants’ use of the concept of confidentially is overzealous.”(Id., pp. 2 - 3.) Plaintiff asserts that “this case is not about national security, it is a civil case
about discrimination, retaliation and applicant qualifications at an institution of higher learning that
should be open and transparent to the public.” (Id., pp. 3 - 4.) As Exhibits, Plaintiff attaches the
following: (1) A copy of a “News Release” from New River Community and Technical College
dated December 1, 2010, entitled “Three Staff Positions Filled at New River” (Id., p. 5.); (2) A copy
of a “News Release” from New River Community and Technical College dated December 8, 2009,
entitled “Three Join New River Community and Technical College” (Id., p. 6.); and (3) Newspaper
articles concerning new employees at New River Community and Technical College (Id., pp. 7 - 8.)
In Response to Plaintiff’s Motion to Compel, Defendants first argue that they timely filed
Responses to Plaintiff’s Requests for Admissions on July 27, 2012. (Document No. 36, p. 1.)
9
Second, Defendants state that Plaintiff’s Motion to Compel is premature because “Defendants’
Responses to Plaintiff’s Interrogatories and Requests for Production of Documents are not due until
August 15, 2012.” (Id., pp. 1 - 2.) Defendants note that in Plaintiff’s Request for Production of
Documents, Plaintiff requests “application materials, interview notes, interview rankings, and other
personal information concerning the successful applicants for four employment positions at New
River Community and Technical College.” (Id. p. 2.) Defendants state that on August 3, 2012,
“counsel for Defendants sent a proposed Protective Order along with a letter to the Plaintiff seeking
Plaintiff’s agreement to maintain the confidentiality of this information.” (Id.) Defendants note that
“[i]nstead of responding to the Defendants’ letter and proposed Protective Order, the Plaintiff
proceeded to file a Motion to Compel Disclosure of Discovery Requests, which presumably seeks
to compel the Defendants’ responses to discovery, on August 6, 2012.” (Id.) Third, Defendants state
“Plaintiff’s request for the Court to deny the Defendants’ proposed Protective Order is improper as
the Defendants have not yet filed a Motion for Protective Order.” (Id.) Finally, Defendants argue
that “Plaintiff’s Motion to Compel does not contain a certification that he has in good faith conferred
or attempted to confer with the Defendants, as required by Rule 37(a)(1) of the Federal Rules of
Civil Procedure.” (Id.)
As Exhibits, Defendants filed the following: (1) A copy of a letter from defense counsel to
Plaintiff dated August 3, 2012, regarding the requested information and Protective Order (Document
No. 36-1, pp. 1 - 2.); and (2) A copy of the proposed “Agreed Protective Order” (Id., pp. 3 - 6.)
The Court will first consider whether Plaintiff’s Motion to Compel is premature. According
to Rule 33(b)(2) of the Federal Rules of Civil Procedure, the “responding party must serve its
answers and any objections within 30 days after being served with the interrogatories.” Concerning
10
Requests for Production of Documents, Rule 34(b)(2)(A) provides that “[t]he party to whom the
request is directed must respond in writing within 30 days after being served.” Plaintiff served his
First Set of Interrogatories and Requests for Production of Documents on July 16, 2012. Thus,
Defendants had until August 15, 2012, to respond to Plaintiff’s First Set of Interrogatories and
Requests for Production of Documents. Plaintiff filed his Motion to Compel on August 6, 2012.
Clearly, Plaintiff filed his Motion to Compel prior to Defendants’ deadline for responding to the
discovery requests. Therefore, Plaintiff’s Motion to Compel is premature.
Notwithstanding the foregoing, the undersigned further finds that Plaintiff failed to comply
with Rule 37 of the Federal Rules of Civil Procedure. Rule 37 of the Federal Rules of Civil
Procedure provides that if a party fails to answer an Interrogatory or Request for Production, the
discovering party may move for an Order compelling the answer or production. See Fed. R. Civ. P.
37(a)(3)(B). Additionally, the Rule requires a certification “that the movant has in good faith
conferred or attempted to confer with the person or party failing to make disclosure or discovery in
an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). This Court’s Local Rules
provide in greater detail that “each party shall make a good faith effort to confer in person or by
telephone to narrow the areas of disagreement to the greatest extent possible.” See L. R. Civ. P.
37.1(b); also see Frontier-Kemper Constructors, Inc., v. Elk Run Coal Company, Inc., 246 F.R.D.
522, 526 (S.D.W.Va. 2007)(“[I]t is mandatory for parties to meet and confer in person or by
telephone prior to filing a motion to compel . . .”). Based on a review of the record, Plaintiff failed
to file a certification in compliance with Rule 37. Accordingly, it is hereby ORDERED that
Plaintiff’s Motion to Compel (Document No. 32.) is DENIED.2
2
The undersigned notes that Plaintiff’s argument that Defendants’ Motion for Protective
Order should be denied because “this case is not about national security,” is without merit. Rule
11
2.
Defendants’ Motion for Protective Order (Document No. 37.):
In their Motion for Protective Order, Defendants first argue that Plaintiff’s Request for
Production of Documents requests “application materials, interview notes, interview rankings, and
other personal information concerning the successful applicants for four employment positions at
New River Community and Technical College.” (Document No. 37, p. 1.) Defendants note that they
“have no objection to identifying the successful applicants by name, gender and race, [but] the
documents requested by Plaintiff contain notes and interview rankings of applicants that are not
publicly disseminated and that are not disclosed to applicants.” (Id., pp. 1 - 2.) Defendants argue that
a Protective Order is necessary because “the requested documents contain personal, non-public
information that may be sensitive or even embarrassing for the applicants who are not parties to this
litigation.” (Id., p. 2.) Next, Defendants request the Court to deny Plaintiff’s request that New River
produce its interview questions. (Id., p. 3.) Specifically, Defendants states that they “do not object
to providing the Plaintiff the Post Interview Summary Guides and the Committee Chairs Overall
Candidate Summary Sheets, with an appropriate Protective Order in place; however, New River
Community and Technical College objects to producing its master set of competency based
interview questions and the Competency Rating Sheets, which contain the interview questions, as
such information constitutes a trade secret, confidential research, development or commercial
information of Defendant New River and could cause irreparable harm to its interview and selection
process should the questions be known in advance to any of the applicants.” (Id., p. 4.) Defendants
note that “[p]roduction of the Post Interview Summary Guides and the Committee Chairs Overall
26(c) of the Federal Rules of Civil Procedure provides that “[t]he court may, for good cause, issue
an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense.”
12
Candidate Summary Sheets will allow the Plaintiff to ascertain the outcomes of the interviews and
the rankings of the candidates without requiring the Defendant to reveal its propriety information.”
(Id.) Finally, Defendants state that they “sent the proposed Protective Order and letter to the Plaintiff
in accordance with Rule 26(c), which requires a party to attempt to confer with the other party to
resolve the dispute without court action prior to moving for a protective order.” (Id., p. 2.)
As Exhibits, Defendants attach the following: (1) A copy of a letter from defense counsel
to Plaintiff dated August 3, 2012, regarding the requested information and Protective Order
(Document No. 37-1, p. 1.); (2) A copy of the proposed “Agreed Protective Order” (Id., pp. 2 - 5.);
and (3) A copy the “Certification of Defendants” (Document No. 37-2.).
In Response, Plaintiff argues that “the information requested by Plaintiff is essential to make
a comprehensive analysis of the qualifications of the selected applicants by being able to review the
same information that was available to any of the individuals involved in the selection and hiring
process.” (Document No. 39, p. 1.) Plaintiff explains that “[t]he requested discovery could determine
if any bias may have been present in the evaluation of the selected applicant’s qualifications by the
selection committee, whether the selected applicant indeed possessed the required qualifications and
if the criteria relied upon the selection committee and hiring officials is at all objective.” (Id., pp.
1 - 2.) Plaintiff states that “[t]he documents submitted by the selected applicant regarding their
qualifications, the search committees examination of documents and interview process, (including
notes, summary sheets, rating sheets, questions asked, applicant responses, etc.), were all factors
taken into consideration by the hiring officials in the selection process.” (Id.) Next, Plaintiff
contends that he does not want the Master List of Competency Based Questions, but wants “the
questions asked of the selected applicants, as well as the Plaintiff, their responses and the search
13
committees notes regarding those responses.” (Id., p. 4.) Finally, Plaintiff argues that Defendant did
not attempt to confer. (Id., pp. 3 - 4.)
In Reply, Defendants continue to argue that they “are agreeable to providing Plaintiff
application materials, Post Interview Summary Guides and Committee Chairs Overall Candidate
Summary Sheet once an appropriate Protective Order is in place.” (Document No. 45, pp. 1 - 2.)
Defendants explain that the “Post Interview Summary Guides and Committee Chairs Overall
Candidate Summary Sheets will allow Plaintiff to see the interview rankings of each interviewed
applicant without requiring Defendant New River Community and Technical College to disclose
proprietary information that is still in use at New River.” (Id., p. 2.) Finally, Defendants argue that
a Protective Order is appropriate “[b]ecause Plaintiff has requested non-public, personal information
of non-party applicants and because the Plaintiff has requested proprietary information from
Defendant New River Community and Technical College.” (Id.)
First, the Court will consider whether Defendants made a good faith effort to resolve the
discovery dispute before filing the Motion for Protective Order. In support of their Motion,
Defendants attach a Certificate indicating that they satisfied the requirements of Rule 26(c)(1) by
sending Plaintiff the proposed Protective Order with a letter requesting that Plaintiff agree to protect
the confidentiality of non-parties . (Document No. 37-2.) Defendants state that they “were not able
to resolve this issue absent Court intervention” because “Plaintiff failed to respond to the
Defendant’s letter, refused to agree to the proposed Protective Order, and proceeded to file a Motion
to Compel with this Court rather than communicating with the Defendants’ counsel about the
confidentiality issues.” (Id., p. 2.) Rule 26(c)(1) of the Federal Rules of Civil Procedure provides
that a motion for protective order “must include a certification that the movant has in good faith
14
conferred or attempted to confer with other affected parties in an effort to resolve the dispute without
court action.” Local Rule 37.1(b) provides that “[b]efore filing any discovery motion, including any
motion for sanctions or for a protective order, counsel for each party shall make a good faith effort
to confer in person or by telephone to narrow the areas of disagreement to the greatest possible
extent.” The undersigned finds that Defendants’ letter and proposed Protective Order fails to meet
the requirements of Rule 26(c)(1) of the Federal Rules of Civil Procedure and Local Rule 37.1(b).
The Court finds that the parties never met and conferred in person or by telephone concerning the
actual issues in dispute in an attempt to obtain the discovery material without Court action.
Accordingly, it is hereby ORDERED that Defendants’ Motion for Protective Order (Document No.
37.) is DENIED.
3.
Plaintiff’s Motion for Protective Order (Document No. 40.):
In his Motion for Protective Order, Plaintiff argues that Defendants’ discovery requests
served on August 10, 2012, are “beyond the scope and limitation of discovery, . . . unduly
burdensome, intended to harass and not designed to lead to useful or relevant evidence considering
the issues at hand in the present action.” (Document No. 40, p. 1.) First, Plaintiff objects to
Defendants’ Interrogatories Nos. 16, 17, 18, 19, 20, 27, and 28. (Id., pp. 2 - 3.) Next, Plaintiff objects
to Defendants’ Requests for Production of Documents Nos. 8, 10, 13, 14, 15, 16, 17, and 18. (Id.,
pp. 3 - 4.) Plaintiff alleges that the interrogatories and requests for production of documents are “not
limited to time to the period relevant to this litigation,” “overly broad,” “not reasonably calculated
to lead to the discovery of admissible or relevant evidence,” “call for the production of documents
not in the custody, control, or possession of Plaintiff,” and “seeks the production of documents that
are more readily available to defendants than Plaintiff.” (Id., p. 3.) Plaintiff states “there is no
15
relevant evidence to be obtained from plaintiff’s job search over a four year time span.” (Id., p. 4.)
Plaintiff argues “there is no relevance to the requests as it relates to prior EEOC complaints against
other parties, if in fact there were any.” (Id.) As an Exhibit, Plaintiff files a “Certification of
Plaintiff” stating that he met and conferred with Defendants regarding the above dispute. (Id., pp.
6 - 7.) Plaintiff states that he “called August 14, 15, or 16, 2012 (unsure of date) to ‘confer’ with the
defendants, spoke with Ashley Justice, and was told regarding the nature of their requests that the
discovery sought was typical and not unusual for this kind of case.” (Id., p. 6.)
In their Response in Opposition, Defendants argue that “the requests in question are within
the scope of Rule 26 and are therefore proper.” (Document No. 44, p. 3.) Defendants note that “the
case at hand concerns alleged racial and gender-based discrimination in an employment situation.”
(Id.) Defendants argue that “Interrogatories 16 - 19 and Requests 13 - 15 pertain to prior instances
of legal action regarding allegations of discrimination by Plaintiff.” (Id.) Defendants claim that the
information “is relevant in that it can show the legitimacy of the Plaintiff’s current lawsuit,”
“Plaintiff’s history of similar claims and allegations,” and “to determine if prior complaints were
made against any entity that did not give rise to litigation.” (Id.) Defendants state that
“Interrogatories 20 and 27 as well as Requests 8, 16, 17, and 18 seek to discover information
relevant to Plaintiff’s work history.” (Id.) Defendants note that the above seeks “information
regarding the Plaintiff’s work experience, qualifications, education, on-the-job training as well as
any negative factors, such as his criminal history, that would have been used during the employment
decision-making process.” (Id.) Defendants argue that the above is relevant as Plaintiff alleges “he
was more qualified than the selected applicants.” (Id., pp. 3 - 4.) Defendants assert that Interrogatory
28 and Request 10 are relevant. (Id., p. 4.) Defendants explain that “Interrogatory 28 seeks a list of
16
witness Plaintiff intends to call during trial” and “Request 10 seeks communication between Plaintiff
and Defendant.” (Id.) Defendants argue that Interrogatory 28 “directly seeks discoverable evidence
regarding the Plaintiff’s claim and also seeks to find parties who have direct knowledge of the facts
alleged.” (Id.) Defendants assert that Request 10 “seeks information directly relating to the subject
of the current litigation.” (Id.) Finally, Defendants argue that “Plaintiff has failed to show good
cause to support the issuance of a protective order.” (Id., pp. 4 - 5.)
a.
Interrogatory Nos. 16 - 19 and Request Nos. 13 - 15:
The Court will first consider Interrogatory Nos. 16 - 19 and Request Nos. 13 - 15, which
pertain to prior legal actions by Plaintiff regarding allegations of discrimination. Specifically, the
Interrogatories and Requests state as follows:
INTERROGATORY NO. 16. Please identify all lawsuits Plaintiff has been involved
in either as a plaintiff or as a defendant. For each, list the plaintiff(s), the name of the
defendant(s), the nature of the action, the civil action number, the court in which it
was filed and the outcome of the action.
INTERROGATORY NO. 17. Please identify each and every complaint, claim and
allegation Plaintiff has made based upon allegations of discrimination. For each state
the following:
(a)
The individual and/or entity accused of discrimination;
(b)
The date of the alleged discrimination;
(c)
A detailed description of the alleged discrimination;
(d)
The identity of the organization, entity, court or other agency to
whom Plaintiff’s allegation was reported; and
(e)
The outcome of Plaintiff’s complaint, claim or allegation.
INTERROGATORY NO. 18. Please identify, including the identity of the entity or
person accused, the subject of the complaint, the substance of the complaint, the date
and the outcome, for each and every complaint, claim and allegation Plaintiff has
made to the EEOC.
INTERROGATORY NO. 19. Please identify, including the identity of the entity or
person accused, the subject of the complaint, the substance of the complaint, the date
and the outcome, for each and every complaint, claim and allegation Plaintiff has
made to the Human Rights Commission.
17
REQUEST NO. 13. Copies of all complaints and other documents Plaintiff has
submitted to the EEOC, regardless of whether such complaint pertains to NRCTC
or another individual or entity.
REQUEST NO. 14. Copies of all complaints and other documents Plaintiff has
submitted to the Human Rights Commission, regardless of whether such complaint
pertains to NRCTC or another individual or entity.
REQUEST NO. 15. Copies of all complains concerning all lawsuits Plaintiff has
been a party to.
The Court first finds that Plaintiff’s general objections to above Interrogatories and Requests
are inappropriate. Plaintiff objects to the above claiming the requests to be overly broad, irrelevant,
and “seeks the production of documents that are more readily available to defendants than Plaintiff.”
Plaintiff’s objections, however, are non-specific and fail to demonstrate precisely why Plaintiff is
entitled to withhold from responding. See Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D.
118, 132 (S.D.W.Va. 2009). The Court further finds that the above Interrogatories and Requests seek
relevant information. Defendants explain the information is relevant to their defense that Plaintiff
has a litigious history. Information concerning prior lawsuits filed by or against Plaintiff is
potentially admissible or could lead to admissible evidence. See Cornelius v. Consol. Rail Corp.,
169 F.R.D. 250, 251 - 252 (N.D.N.Y. 1996)(evidence of prior claims and lawsuits is relevant and
discoverable, regardless that it later may be inadmissible at trial). Finally, Plaintiff’s argument that
he is not required to provide information that is already known or equally available to Defendants
is incorrect. See Clean Earth of Maryland, Inc. v. Total Safety, Inc., 2011 WL 4832381, * 7
(N.D.W.Va. Oct. 12, 2011)(“The fact that the information sought is already known to the
interrogator is not a valid ground for objection to the interrogatories . . . [and the] fact that the
information sought is equally available to the interrogator . . . does not render the interrogatories
objectionable.”)(citing Rogers v. Tri-State Materials Corp., 51 F.R.D. 234, 245 (N.D.W.Va. 1970).
18
Based on the foregoing, it is hereby ORDERED that Plaintiff’s Motion for Protective Order as to
Interrogatory Nos. 16 - 19 and Request Nos. 13 - 15 is DENIED. Plaintiff is DIRECTED to
respond to Interrogatory Nos. 16 - 19 and Request Nos. 13 - 15 by Friday, October 12, 2012.
b.
Interrogatory Nos. 20 and 27 and Request Nos. 8, 16 - 18:
Next, the undersigned will consider Interrogatory Nos. 20 and 27 and Request Nos. 8, 16 18, which pertain to Plaintiff’s work experience, qualifications, education, on-the-job training, and
criminal history. Specifically, the Interrogatories and Requests state as follows:
INTERROGATORY NO. 20. Please describe the Plaintiff’s employment history
from high school to present including:
(a)
Name of employer;
(b)
Dates of employment;
(c)
Name, address, and telephone number of supervisor;
(d)
Title and job duties;
(e)
Rate of pay; and
(f)
Reason for leaving employment.
INTERROGATORY NO. 27. Please state whether the Plaintiff has ever been
charged with a crime. If in the affirmative, please state the charge, the date, the
charging agency, and the disposition of the charge.
REQUEST NO. 8. Copies of all materials submitted with your applications for
employment for the Administrative Secretary, Human Resource Representative,
Human Resources Assistant III, and Financial Aid Counselor.
REQUEST NO. 16. All applications, cover letters, resumes and other submissions
sent to any prospective employer by Plaintiff from 2008 to present.
REQUEST NO. 17. A list of all positions and applications Plaintiff has made for
employment (other than to NRCTC) from 2008 to present.
REQUEST NO. 18. A copy of all criminal complaints, if any, involving Plaintiff.
The Court first finds that Plaintiff’s general objections to above Interrogatories and Requests
are inappropriate. Plaintiff objects to the above claiming the requests to be overly broad, irrelevant,
and “seeks the production of documents that are more readily available to defendants than Plaintiff.”
19
Plaintiff’s objections, however, are non-specific and fail to demonstrate precisely why Plaintiff is
entitled withhold his response. See Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D. at 132.
Next, Plaintiff states “[t]he only information regarding Plaintiff’s work history that he was better
qualified than the selected applicants is the work history contained on documents provided to the
Defendants at the time Plaintiff applied for the positions in question.” The Court, however, finds that
the above Interrogatories and Requests seek relevant information. Defendants explain the
information is relevant to their defense that Plaintiff was not more qualified than the selected
applicants. An individual’s work experience, qualifications, education, on-the-job training, and
criminal history is clearly relevant when comparing applicants’ qualifications. Finally, Plaintiff’s
argument that he is not required to provide information that is already known or equally available
to Defendants is incorrect. See Clean Earth of Maryland, Inc., 2011 WL 4832381 at 7. Based on the
foregoing, it is hereby ORDERED that Plaintiff’s Motion for Protective Order as to Interrogatory
Nos. 20 and 27 and Request Nos. 8, 16 - 18 is DENIED. Plaintiff is DIRECTED to respond to
Interrogatory Nos. 20 and 27 and Request Nos. 8, 16 - 18 by Friday, October 12, 2012.
c.
Interrogatory No. 28 and Request No. 10:
Finally, the undersigned will consider Interrogatory No. 28 and Request No. 10.
Specifically, the Interrogatory and Request state as follows:
INTERROGATORY NO. 28. Please state the name, address and telephone number
of every witness Plaintiff intends to call for testimony at trial.
REQUEST NO. 10. All correspondence to or from Defendant.
The Court first finds that Plaintiff’s general objections to Interrogatory No. 28 and Request
No. 10 are inappropriate. Plaintiff objects to the above claiming the requests to be overly broad,
irrelevant, and “seeks the production of documents that are more readily available to defendants than
20
Plaintiff.” Plaintiff’s objections, however, are non-specific and fail to demonstrate precisely why
Plaintiff is entitled withhold his response. See Mills v. East Gulf Coal Preparation Co., LLC, 259
F.R.D. at 132. The Court further finds that Interrogatory No. 28 seeks relevant information.
Defendants are entitled to a list of witnesses Plaintiff intends to call at trial. See Fed. R. Civ. P.
26(a)(1) and (3). Concerning Request No. 10, the undersigned finds Plaintiff’s argument that he is
not required to provide information that is already known or equally available to Defendants is
incorrect. See Clean Earth of Maryland, Inc., 2011 WL 4832381 at 7. Based on the foregoing, it is
hereby ORDERED that Plaintiff’s Motion for Protective Order as to Interrogatory No. 28 and
Request No. 10 is DENIED. Plaintiff is DIRECTED to respond to Interrogatory No. 28 and
Request No. 10. by Friday, October 12, 2012.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the parties are hereby
notified that the rulings set forth above may be contested by filing objections to this Order within
14 days. If objections are filed, the District Court, United States District Judge Irene C. Berger
presiding, will consider the objections and modify or set aside any portion of the Order which it
finds to be clearly erroneous or contrary to law.
The Clerk is hereby directed to mail a copy of this Order to Plaintiff, who is acting pro se,
and to counsel of record.
ENTER: September 12, 2012.
R. Clarke VanDervort
United States Magistrate Judge
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?