KENNETH G. GALE, Magistrate Judge.
Now before the Court is Defendant's "Motion to Compel Responses to Defendant's First Interrogatories and First Requests for Production of Documents from Plaintiff-Intervenor" Kent Duty (Doc. 124). For the reasons set forth below, the Court
This is an employment discrimination case brought under the Americans with Disabilities Act. Plaintiff-Intervenor Kent Duty ("Mr. Duty") applied for a position with Defendant railroad as a locomotive electrician. Mr. Duty was hired subject to a medical examination. He was then denied the position after a medical examination by Defendant opined that he is unable to perform essential functions of the job because of a physical impairment in one of his hands.
Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.
"`Discovery relevance is minimal relevance,' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence."
The scope of discovery is broad, but not unlimited. If the proponent has failed to specify how the information is relevant, the Court will not require the respondent to produce the evidence.
These two interrogatories seek a list of "every action" by Defendant that Plaintiff contends constituted disability discrimination (No. 1) and retaliation (No. 2). (Doc. 125-2, at 2-6.) Plaintiff objects that both interrogatories call for a narrative response.
As an initial matter, Courts in this District have looked with disfavor at "blockbuster" narrative interrogatories, which "require the responding party to provide the equivalent of a narrative of its entire case together with identification of virtually all supporting evidence for each and every fact."
The Court finds that Interrogatories Nos. 1 and 2 ask about specific aspects of Plaintiff's claims and, thus, are "sufficiently narrow so as to not be unduly burdensome or overly broad on [their] face." Id. Further, it is imperative for Defendant to be aware of all factual bases for Plaintiff's claims for discrimination and retaliation. As such, the "each and every" language is appropriate and justified in this instance.
In response to Plaintiff's objections, Defendant argues that it has not requested a narrative, but rather has requested a "list" of discriminatory or retaliatory actions. Defendant argues that Plaintiff has provided a narrative response, however, which Defendant contends is improper. Defendant argues it "needs to know what specific adverse actions are at issue to move for summary judgment." (Doc. 125, at 3.) Defendant also argues that Plaintiff's narrative response makes "unclear" as to whether he "is actually seeking relief for every alleged BNSF action he mentions or simply providing a narrative of the facts surrounding his claims." (Id., at 3-4.)
The Court finds that Plaintiff's response contains an abundance of factual information. The fact that Plaintiff did not enumerate these facts in bullet points (or whatever type or format of "list" Defendant would prefer) is irrelevant. The Court reminds Plaintiff, however, that he is bound — and limited — by the sworn discovery responses to these interrogatories. The interrogatories request information on "every" discriminatory or retaliatory action by Defendant. Plaintiff will not be allowed to subsequently ambush Defendant with additional examples of discrimination or retaliation in response to dispositive motions and/or at trial.
This interrogatory seeks identification of the sections of the Americans with Disabilities Act ("ADA") and/or other regulations Plaintiff contends Defendant violated and "facts that you believe support your contentions." (Doc. 125-2, at 7.) Plaintiff argues that this is improper because it asks him, as a non-lawyer, "to perform Defendant's research of the law and/or to obtain this research from his attorneys, seeking to disclose attorney client communications and the mental impressions and legal conclusions protected as opinion work product." (Doc. 134, at 5.)
Plaintiff has chosen to sue Defendant for violations of the ADA. In order to do so, Plaintiff and/or his counsel are required to know the legal basis for their lawsuit — and they have a duty to inform Defendant of said basis. Further, it is improper to object that an interrogatory requests a legal conclusion. Plaintiff's objections are
Interrogatory No. 6. seeks information regarding "every oral communication" Plaintiff Duty has had with the EEOC. (Doc. 125-2, at 8.) Plaintiff raises the "common interest privilege," which the Court previously addressed in a prior discovery order in this case. (See Doc. 150.) The doctrine was explained by Magistrate David Waxse in the case of
No. 05-2192-JWL-DJW, 2006 WL 3715927, at *2 (D. Kan. Dec. 12, 2006) (citations omitted); see also Doc. 150, at 25-26.
As it did in regard to the discovery requests at issue in its prior motion to compel against the EEOC, Defendant has limited its inquiry to "communications that occurred prior to the earliest possible date on which the EEOC and Duty could have had a common-interest for privilege purposes — the day that EEOC announced that conciliation had failed." Defendant continues that
(Doc. 125, at 7-8 (internal citations omitted).)
As it found in the prior discovery Order, the Court agrees with Plaintiff that a common interest exists between the EEOC and Duty — but the Court agrees with Defendant that the common interest between the EEOC and Duty did not exist until the conciliation efforts of the EEOC were unsuccessful and the agency decided to bring suit in its name, giving the EEOC and Duty an identical legal interest. (Doc. 150, at 27.) Plaintiff's common interest privilege objection is
Plaintiff's objection based on the work product doctrine is also
Finally, for the reasons discussed in the Court's prior discovery Order, the Court finds that Plaintiff incorrectly relies on 42 U.S.C. § 2000e-5(b) as a statutory basis for the privilege.
As such, Defendant's motion is
This interrogatory seeks facts supporting Plaintiff's "contention that Defendant is liable for punitive damages . . . ." (Doc. 125-2, at 9.) Plaintiff objects on the basis of work product. For the reasons discussed in section B, supra, regarding Interrogatory No. 5, Plaintiff's objections are
Interrogatory No. 14 asks for information regarding health care professionals who have treated Plaintiff in the past seven years. (Doc. 125-2, at 12-13.) Plaintiff objects that this information is protected by the physician-patient privilege. (Id., at 13.) Plaintiff also contends that he has he "is not presently seeking recovery for any diagnosable medical or psychological condition resulting from the discriminatory and retaliatory actions of Defendant . . . ." (Id.)
The Court agrees with Defendant that the physician-patient privilege is not an appropriate basis to withhold the requested information.
This Interrogatory requests information regarding Defendant's employees that have been interviewed by, or on behalf of, Plaintiff. (Doc. 125-2, at 13.) Plaintiff objects that the information is protected by the work product doctrine, arguing that
(Doc. 134, at 14.) Plaintiff's arguments are thoroughly misguided. The information requested in purely factual (who was interviewed, when they were interviewed, who was present).
Interrogatory No. 16 inquires as to oral or written statements by Defendant or its employees that "evidence or support any allegation or claim" made by Plaintiff's objections that the interrogatory is overly broad and calls for a narrative response are
This interrogatory seeks information regarding non-expert opinion testimony Plaintiff intends to offer. (Doc. 125-2, at 14-15.) Plaintiff objects that the interrogatory is beyond the scope of the Federal Rules of Civil Procedure and would implicate information protected from disclosure by the work product doctrine. (Id., at 15.) For the reasons set forth in section A.6., supra, the Court
Requests Nos. 34 and 35 seek information regarding Plaintiff's "physical, mental, or emotional condition, treatment, care, counseling and/or hospitalizations" over the past seven years as well as any "counseling or treatment" he has received as a result of the incident at issue. (Doc. 125-1, at 12.) Plaintiff argues that he has received no health care or mental health care as a result of the allegations in this lawsuit. (Doc. 134, at 17.) While this may be true, this does not mean that any other medical or mental health care treatment he has received is irrelevant or non-discoverable. See
Request No. 24 seeks documents regarding Plaintiff's communications and payments to Terry L. Cordray, a former employee of Defendant who provides vocational rehabilitation services who was retained and paid by the EEOC to compile a report on Plaintiff during the EEOC's investigation process. (Doc. 125-1, at 9.) Defendant is aware that Plaintiff contemplates naming Cordray as an expert witness. To the extent he is to be designated as an expert by Plaintiff, all required, discoverable information will be produced in accordance with the relevant portions of the Court's Scheduling Order (which will be entered in this case following the resolution of the outstanding discovery disputes). Defendant's pre-designation awareness of Cordray's involvement in this case is irrelevant in regard to when information governed by Fed.R.Civ.P. 26(b)(4) should be produced. (Doc. 125, at 22-23.) The Court agrees, however, that any non-privileged, pre-litigation information relating to Cordray should be produced presently. Defendant's motion is
Request No. 25 seeks information regarding to Scott Woods, Dsc, PT. (Doc. 125-1, at 9.) This information, is discoverable absent attorney work product materials, such as reports written by Plaintiff's counsel containing counsel's mental impressions regarding Woods and/or their bearing on Plaintiff's claims. Based on representations of Plaintiff's counsel (Doc. 134, at 19-20), the Court is comfortable that no such documents exist. To the extent Plaintiff locates documentation regarding payment he made for Woods assessment, the same is to be produced.
Requests Nos. 40-45 seek information regarding certain communications Plaintiff had with the EEOC. For the reasons set forth in section A.3, supra, Plaintiff's objections regarding the common interest privilege and work product doctrine are
Defendant acknowledges that Plaintiff has indicated he has no documents responsive to Requests Nos. 48 and 50. Even so, Defendant asks for the Court to determine two issues relating to the document requests. Because Plaintiff has no responsive documents, and is therefore not withholding responsive information, the Court declines Defendant's request for what would amount to an impermissible advisory opinion. See
Plaintiff argues, in part, that the information sought by Request No. 52 relating to attorneys fees (Doc. 125-1, at 19) is premature. The Court agrees. The information is irrelevant, and not discoverable, unless and until Plaintiff is awarded attorney's fees.
Fed.R.Civ.P. 54(d)(2) provides that a "claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages." D. Kan. Rule 54.2(f) states that "discovery may not be conducted with motions for awards of attorney's fees unless the court permits upon motion and for good cause."
The principal of D.Kan. Rule 54.2 is that motions for attorney's fees should not usually require discovery, thus discovery is permitted only for good cause after a motion has been made for fees, and after the consultation requirements of the rule have been satisfied. Defendant's discovery request is premature. If a motion for attorneys' fees is ultimately made in this case, and if the parties are unable to reach an agreement by consultation as required by the rule, Defendant may move to conduct discovery upon a showing of good cause. The discovery, at this point, is simply not yet relevant. See
Now that Plaintiff's deposition has occurred, he is required to supplement his response to Request No. 55, which seeks "documents reviewed by you to refresh recollection in connection with any deposition of you to be taken in this case." (Doc. 125-1, at 20.) Defendant's motion is