ROBERT J. BRYAN, District Judge.
THIS MATTER comes before the Court on Plaintiff's Motion to Compel Discovery Responses. Dkt. 23. The Court has considered Defendant's Response (Dkt. 25), Plaintiff's Reply (Dkt. 27), and the remainder of the file herein.
Facts alleged in the Complaint are recited herein because of their relevance to resolving the discovery dispute.
Defendant employed Plaintiff as a crane mechanic at the Port of Tacoma for approximately 11 years. On September 16, 2015, Plaintiff informed a state inspector for the Division of Occupational Safety and Health (DOSHA) that a component on some cranes was blowing fuses and overheating. The safety inspector "red-tagged" the components from use until their repair, which later prevented the cranes from being used. During the next several months, Plaintiff's union took steps to confront Defendant about safety issues initially raised by Plaintiff, including threatening work stoppages. Dkt. 1-1 at ¶¶4, 6, 7.
The Complaint alleges that Defendant took a series of actions against Plaintiff in retaliation, such as removing Plaintiff from a lead position, giving Plaintiff less desirable work assignments, and denying Plaintiff's bid for a night shift position in May 2016. It is further alleged that Defendant filed baseless "complaints" against Plaintiff, for multiple reasons: failing to report an injury, leaving work early to attend work-related meetings, improperly calling in sick, and not reporting equipment damage. The stress of Defendant's actions allegedly became intolerable, ultimately forcing Plaintiff to leave his work. Dkt. 1-1 at ¶¶8-12.
The Complaint alleges claims for retaliation in violation of the Washington Industrial Safety and Health Act, RCW 49.17, and constructive discharge/termination in violation of public policy. Dkt. 1-1 at ¶¶16-21.
Plaintiff served Defendant with his first discovery requests on February 9, 2017. Defendant responded to the request on March 13, 2017, and produced approximately fourhundred pages of discovery. Dkt. 2t at 1, 2. The produced discovery contained a copy of Plaintiff's personnel file, including copies of performance evaluations, employee grievances, and non-privileged internal communications about Plaintiff. Dkt. 29 at 1, 2. Defendant supplemented its response on May 26, 2017 with approximately five-hundred pages of personnel and workers compensation records produced by third parties. Dkt. 26 at 2.
Plaintiff also served a discovery request on Plaintiff's union, which produced email correspondence between Plaintiff and his managers or supervisors. Dkt. 29 at 2. These emails were not found in discovery produced by Defendant. Id.
Prior to the filing of the motion to compel, the parties engaged in two telephonic discovery conferences. Dkt. 24 at 3. Per Plaintiff's counsel, defense counsel "told [Plaintiff's counsel] that his client refused to negotiate on any of [sic] disputed requests and would not produce responsive documents." Id.
At issue are Defendants' responses to Interrogatory Nos. 3, 7, and 13-16, and Requests for Production Nos. 4, 7, 13, 16. The discovery requests and responses at issue are quoted verbatim below as they are discussed.
Courts have broad authority to conduct discovery, but are also duty-bound to follow the Federal Rules of Civil Procedure. Under Fed. R. Civ. P. 26(b)(1), which governs the scope of discovery:
Fed. R. Civ. P. 26(b)(1). The proportionality factor is not "intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional." Id., Cmt to 2015 Amendment.
The Court considers and should rule on each discovery request individually. However, in general, Defendant did not demonstrate exemplary efforts. Boilerplate language appears throughout, including the phrase, "not calculated to lead to admissible evidence," which closely resembles an outdated standard. See Cmt. to 2015 amendment to Fed. R. Civ. P. 26(b)(1); VHT, Inc. v. Zillow Grp., Inc, No. C15-1096JLR, 2016 WL 7077235, at *1, FN 4 (W.D. Wash. Sept. 8, 2016); In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016). Although at least two of the discovery requests are specific and directly related to key issues in the case, Defendant responded with stock language without further explanation. Defendant can and should do better.
According to Plaintiff, the purpose of these requests is to counter the Defendant's stated basis for its adverse employment actions, namely, that Plaintiff failed to report the hearing loss injury of another employee when under an obligation to do so. Plaintiff appears to theorize that other employees have filed hearing loss injury claims with the Office of Worker's Compensation Program (OWCP) without previously reporting the injury beforehand, yet those employees' superiors, unlike Plaintiff, were not subjected to adverse employment consequences. Dkt. 27 at 4.
Defendant makes several arguments in defense of its discovery responses. According to Defendant, Plaintiff is not entitled to discovery relating to others' hearing loss claims, because (1) the records impinge on third parties' privacy interests and should be protected; (2) the records are irrelevant to Plaintiff's claims, because they would be comparator evidence, and Plaintiff does not allege claims for disability or disparate treatment, and (3) the request is "grossly" overbroad. Dkt. 25 at 4-6.
Defendant's arguments are unavailing. First, to the extent hearing loss records would involve third parties' privacy interests, Defendant can rely on the parties' stipulated protective order (Dkts. 21, 22), make redactions as allowable under the rules, or seek protection of the Court. Next, although Plaintiff does not bring claims for disability or disparate treatment, the evidence sought is relevant to the claims alleged. The legitimacy of Defendant's adverse employment actions could be disproved if Plaintiff could show that other Lead Position employees were not terminated for failing to report hearing loss injuries. Finally, this request is not overbroad. Defendant has not shown to the contrary, and the Court need not accept Defendant's legal conclusion at face value.
As to these two discovery requests, Plaintiff's motion to compel is granted and the discovery compelled.
According to Plaintiff, these discovery requests seek disciplinary records of other employees disciplined "for the conduct Plaintiff was disciplined for . . . includ[ing] that he was disciplined . . . for reporting his safety concerns." Dkt. 23 at 3.
Defendant responds that, similar to Interrogatory No. 4, these two discovery requests infringe on third parties' privacy interests and should be protected, and they are overbroad and irrelevant to Plaintiff's claims. Dkt. 25 at 4-6.
To reach the issue of what discovery is actually sought, consideration must extend beyond Interrogatory No. 7 and Request for Production No. 7 to Interrogatory No. 6
Plaintiff's motion adds the helpful clarification that the two discovery requests seek records of other employees similarly disciplined for reporting safety concerns. Dkt. 23 at 3. This is not what the requests, on their own terms, seek. Parenthetically, the Court notes that even if the requests had been better drafted to reflect Plaintiff's apparent intent, it would seem doubtful that Defendant would self-report disciplining its employees for reporting safety concerns. Other means of discovery may have better gathered the information desired.
As to these two discovery requests, Plaintiff's motion to compel is denied.
According to Plaintiff, this request for crane records is clear on its face, and Defendant's verbal assertion at a discovery conference that it does not know what is being sought is "inconceivable at best." Dkt. 23 at 3.
Defendant argues that the crane records are irrelevant, because Plaintiff need not prove that a safety violation actually occurred, but rather need only prove that he was terminated for reporting a safety complaint. Dkt. 25 at 6, 7. Defendant also argues that the request is overbroad, because it seeks crane records back to 2012, but the incident occurred in 2015-2016. Id.
In the context of a claim for wrongful discharge in violation of public policy, Ellis v. City of Seattle, 142 Wn.2d 450 (2000) sets out the elements in the four-part test. When discussing the second element, the "jeopardy element," the Ellis court highlighted that "[i]n considering this element . . . there has been some question as to whether a plaintiff must prove an actual violation of the public policy or must simply have an objectively reasonable belief that the policy may be violated[.]" Id. at 460-61. The Court rejected the former in favor of the latter. Id. Applied here, the Court finds that the crane records sought are relevant to the issue of whether Plaintiff had an objectively reasonable belief about the safeness of the cranes. Other than highlighting the date range, Defendant made no showing as to why the request is overbroad.
As to this discovery request, Plaintiff's motion to compel is granted and the discovery compelled.
Plaintiff represents that Mr. Gyldenedge is the crane inspector to whom Plaintiff complained of safety concerns, and the discovery seeks email communication between Mr. Gyldenedge and Defendant's employees about the safety complaints made by Plaintiff.
It appears that Defendant devotes a single paragraph in response to Plaintiff's motion for this discovery request. Dkt. 25 at 7. The paragraph represents that Defendant has not withheld discovery, but rather has produced "all communications" with other parties relating to Plaintiff. Id.
In Reply, Plaintiff argues Defendant has misrepresented the extent of its production, because Defendant's production of "all communications" has not yielded any email communications with Mr. Gyldenedge, a result that "strains credulity." Dkt. 27 at 5, 6. By means of a third party subpoena, Plaintiff has obtained emails that Plaintiff believes should have also been produced by Defendant. Id.
This discovery request should be compelled. Its relevance to the case is obvious. If, as Defendant represents, Defendant has already produced all responsive discovery, then there is nothing left to produce and the request will not be unduly burdensome to Defendant.
As to this discovery request, Plaintiff's motion to compel is granted and the discovery compelled.
Defendant defends its response to the discovery requests by arguing that these "contention interrogatories," which ask for "each and every fact" are an abuse of the discovery process and are overbroad and unduly burdensome. Further, Defendant argues, the contention interrogatories serve only to uncover Defendant's litigation strategy and "border too closely to protected work-product." Dkt. 25 at 7, 8. Finally, Defendant reminds the Court that the deadline for discovery had not yet elapsed. (This argument is now moot, since the deadline elapsed on August 14, 2017.)
Defendant's arguments exaggerate what was actually asked for in the interrogatories. The interrogatories ask Defendant to articulate the facts, not the legal theories, that support its defenses. The interrogatories are consistent with the Fed. R. Civ. P. 33(a)(2), which permits interrogatories "relate[d] to any matter that may be inquired into under Rule 26(b)," which defines the scope of discovery generally. The Court is optimistic that counsel for Defendant can set out the facts in such a way that would not reveal privileged material. Defendant should be compelled to respond to these interrogatories, but should Defendant need additional relief, e.g., because a response would require hundreds of hours of attorney labor, Defendant can make a timely motion and proper showing.
Authority cited by Defendant is only persuasive authority, and the cases can easily be distinguished. Defendant cites several cases for the proposition that contention interrogatories "which systematically track all of the allegations . . . and that ask for `each and every fact' . . . are an abuse of discovery process." Dkt. 25 at 7. In this case, Plaintiff's interrogatories seek facts relating only to Defendant's affirmative defenses, not the Answer in its entirety, and Plaintiff seeks to compel discovery for only three of ten affirmative defenses.
As to these discovery requests, Plaintiff's motion to compel is granted and the discovery compelled.
The Court agrees with Defendant that this interrogatory is duplicative of Interrogatory No. 15.
As to this discovery request, Plaintiff's motion to compel denied.
Ordering payment of costs associated with filing a motion to compel is permissible under the rules. Fed. R. Civ. P. 37(a)(5). While Defendant did respond to Plaintiff's initial discovery request, and while Defendant does maintain the right (and has the obligation) to supplement discovery, Defendant's efforts, on the whole, left much to be desired. Plaintiff should file a declaration detailing costs for this motion by September 1, 2017.
All discovery responses shall be served by Defendant on Plaintiff by September 8, 2017. For that limited purpose, the discovery deadline should be extended.
Because of the production of additional discovery near to the current dispositive motions deadline, the dispositive motions deadline should be extended to Tuesday, September 26, 2017.
THEREFORE, Plaintiff's Motion to Compel Discovery Responses (Dkt. 23) is GRANTED IN PART and DENIED IN PART.
Plaintiff shall file a declaration for costs associated with this motion by September 1, 2017.
The Discovery Deadline of August 14, 2017, is HEREBY EXTENDED IN PART to Friday, September 8, 2017, for Defendant to respond to discovery consistent with this order.
The Dispositive Motions Deadline of September 12, 2017, is HEREBY EXTENDED to Tuesday, September 26, 2017.
IT IS SO ORDERED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.
Answer: Objection. Vague and confusing interrogatory. Without waiving any objections, PCMC states that plaintiff had performance problems at this time, including failure to follow supervisor directions, failure to follow policies, failure to timely complete assignments, failure to perform required job duties, and not working as directed [sic] PCMC reserves the right to supplement this response as discovery is just starting. Dk. 24-1 at 6.
