Summary
finding that in Title VII employment action, "[e]mployment records are relevant to the issues of mitigation and damages"
Summary of this case from Kimes v. Univ. of ScrantonOpinion
Civil Action 2:06-CV-259.
October 23, 2007
OPINION AND ORDER
This is an employment action under Title VII, 42 U.S.C. § 2000e-5, and 42 U.S.C. § 1981, in which plaintiff, who is proceeding without the assistance of counsel, alleges that he was subjected to a hostile work environment and was discriminated against because of his race, and was retaliated against for exercising his rights. Plaintiff also asserts a claim of race discrimination under O.R.C. §§ 4112.02, .99. The current discovery deadline is August 15, 2007; defendant's motion for summary judgment, timely filed on September 10, 2007, is pending. Doc. No. 39. This case is currently set for trial on January 7, 2008. Order, Doc. No. 31. This matter is now before the Court on the following motions: Defendant's Motion to Compel Discovery Responses and Memorandum in Support of Motion to Compel Discovery Responses, Doc. Nos. 28 and 29 (" Defendant's Motion to Compel"); Plaintiff's Motion to Extend Discovery By 45 Days, Doc. No. 35, (" Plaintiff's Motion to Extend"); and Plaintiff's Motion to Compel Discovery Responses, Doc. No. 36 (" Plaintiff's Motion to Compel"). For the reasons set forth below, Defendant's Motion to Compel is GRANTED; Plaintiff's Motion to Extend is GRANTED in part; and Plaintiff's Motion to Compel is DENIED as moot.
A. Standard of Review
Rule 37 of the Federal Rules of Civil Procedure authorizes the filing of a motion to compel discovery when a party fails to answer interrogatories submitted under Rule 33 or to provide proper response to requests for production of documents under Rule 34. Rule 37(a) expressly provides that "an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(3).
Rule 37 reads in pertinent part:
If . . . a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request.
Fed.R.Civ.P. 37(a)(2)(B).
The trial court has the right to control the discovery schedule. See, e.g., Kennedy v. Cleveland, 797 F.2d 297, 300-01 (6th Cir. 1986). Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). Rule 34 of the Federal Rules of Civil Procedure provides for discovery of documents in the "possession, custody or control" of a party, provided that the documents "constitute or contain matters within the scope of Rule 26(b)." Fed.R.Civ.P. 34(a). In turn, Rule 26(b) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1). Relevance for discovery purposes is extremely broad. Miller v. Fed. Express Corp., 186 F.R.D. 376, 383 (W.D. Tenn. 1999). "The scope of [inquiry] permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of [inquiry] is reasonably calculated to lead to the discovery of admissible evidence." Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).
B. Defendant's Motion to Compel
On April 4, 2007, defendant filed Defendant's Motion to Compel, seeking an order compelling plaintiff to respond to defendant's December 26, 2006, first set of interrogatories and requests for production of documents. Defendant's Motion to Compel, at 1-2. Defendant contends that plaintiff's responses, served on March 5, 2007, are inadequate. Id. at 2. Moreover, plaintiff suggested that he would wait until the close of discovery before determining whether supplementation of those responses was necessary. In response to defendant's assertion of inadequacy, plaintiff declined to respond further. Id. at 2-3.
Having reviewed plaintiff's responses to defendant's discovery requests, Exhibit C attached to Memorandum in Support of Defendant's Motion to Compel, Doc. No. 29, this Court agrees that plaintiff's responses are, in large part, inadequate.
Plaintiff refused to answer certain discovery requests on the basis of relevancy. The Federal Rules of Civil Procedure authorize discovery "regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Relevant information includes discovery that "appears reasonably calculated to lead to the discovery of admissible evidence. . . ." Id. Defendant's discovery requests seek information regarding the basic allegations underlying plaintiff's Complaint. Defendant's Motion to Compel, at 5-12 and Exhibit A, attached thereto. Plaintiff may not refuse to respond to these requests merely because he characterizes the information sought as irrelevant.
Plaintiff also refused to respond to other requests "until after his deposition." However, the fact that other discovery remains to be done "does not operate to delay any other party's discovery." F.R. Civ. P. 26(d).
Plaintiff refused to produce various documents on the basis that he is not "in possession" of those documents because they are located elsewhere ( e.g., in Cleveland, Toronto, Canada, or Maryland). Plaintiff must produce all responsive documents that are in his "possession, custody or control," Fed.R.Civ.P. 34(a)(1), not merely those documents in his current physical possession. See also United States v. Skeddle, 176 F.R.D. 258, 261 n. 5 (N.D. Ohio 1997) (citing Scott v. Arex, 124 F.R.D. 39, 41 (D. Conn. 1989) ("The word `control' is to be broadly construed. A party controls documents that it has the right, authority, or ability to obtain on demand.")).
Plaintiff further refuses to execute releases for his employment records, tax and Social Security records and medical records, taking the position that the information sought by these releases is not relevant to the issues in this action and accusing defendant of engaging in a "fishing expedition." Id. at 11-12. Employment records are relevant to the issues of mitigation and damages, as are plaintiff's tax and Social Security records. Plaintiff's medical records are relevant to any claim for emotional distress or mental anguish. Unless plaintiff affirmatively and unambiguously disclaims any claim based on alleged emotional distress or mental anguish, he must provide this discovery.
Plaintiff has produced income tax returns for the years 2000 through 2005, but failed to include the W-2 forms for those years.
The Complaint seeks "[c]ompensatory" and "[n]on-economic damages." Complaint, at 5.
Plaintiff also bases his refusal to provide the discovery properly sought by defendant on defendant's alleged failure to produce a list of employees for the Ruby Tuesdays restaurant in Powell, Ohio. "Once I have list I'll be better able to give the defendants better responses to some of their questions about who knows what, etc." Plaintiff's Response to Defendant's Worthless and Misleading Motion to Compel, Doc. No. 32, at 2. Plaintiff also asks the Court to order that defendant: (1) produce a copy of tape recorded voicemails referred to in Defendant's Motion to Compel; (2) produce a copy of the certified return receipt proving plaintiff's receipt of Defendant's Motion to Compel; and (3) pay to plaintiff $1,000.00 for expenses incurred in preparing a response to Defendant's Motion to Compel. Id. at 1-2. Defendant denies that plaintiff has previously requested a list of employees for the Powell, Ohio, Ruby Tuesday location. Reply to Plaintiff's Response to Motion to Compel, Doc. No. 34, at 2.
According to defendant, plaintiff previously asked only that defendant identify the individuals with knowledge of the allegations in the Complaint. Defendant's Reply, at 2. Defendant contends that it fully responded to this request, omitting the telephone numbers of its management personnel. Id.
The Federal Rules of Civil Procedure do not permit plaintiff to condition his discovery obligations on the defendant's response to discovery requests. See, e.g., Moses v. Sterling Commerce, No. 99-cv-1357, 2003 U.S. Dist. LEXIS 13390, at *9 (S.D. Ohio July 1, 2003); Land Ocean Logistics v. Aqua Gulf Corp., 181 F.R.D. 229, 235 (W.D. N.Y. 1998). Moreover, copies of his own voicemails and a return receipt do not appear to this Court to be relevant to any claim or defense in this action, and this Court bases no portion of this Order on those items.
Accordingly, as it relates to defendant's first set of interrogatories and request for production of documents, Defendant's Motion to Compel is GRANTED. Plaintiff is ORDERED to fully respond in writing to defendant's discovery requests, consistent with this Opinion and Order, within twenty (20) days from this date.
The Court DENIES defendant's request for monetary sanctions against the pro se plaintiff at this time. However, plaintiff is ADVISED that any future failure on his part to comply with this Opinion and Order or to participate fully in discovery may result in the imposition of sanctions against him, including monetary sanctions and dismissal of this lawsuit. See F.R. Civ. P. 37.
Plaintiff's request for an award of his expenses incurred in preparing a response to Defendant's Motion to Compel is DENIED.
C. Plaintiff's Motion to Extend Discovery
On August 14, 2007, plaintiff filed his Motion to Extend, asking the Court to extend discovery by 45 days from the date of its order because of the defendant's alleged willful refusal to produce a list of all employees at defendant's Powell, Ohio, facility. Defendant objects, in part, because plaintiff's discovery request seeking this information was not propounded sufficiently in advance of the current August 15, 2007, discovery completion date to permit its timely response.
The discovery deadline in this case was August 15, 2007. Order, Doc. No. 31, at 2. As noted, supra, a trial court has broad discretion to control discovery in a case, including discovery deadlines. In light of the Court's decision, supra, compelling plaintiff to respond to defendant's interrogatories and requests for production, the Court will extend the discovery cut-off for all parties for an additional thirty (30) days from the date of this Order. Accordingly, Plaintiff's Motion to Extend is GRANTED to that extent.
D. Plaintiff's Motion to Compel
In the August 14, 2007, Plaintiff's Motion to Compel, plaintiff seeks to compel defendant to respond to all discovery requests propounded by plaintiff on November 8, 2006, and in July 2007. Plaintiff's Motion to Compel, at 1. However, it appears that defendant responded to plaintiff's November 2006 discovery requests, and plaintiff has identified no deficiencies in those responses. As Plaintiff's Motion to Compel relates to his July 2007 discovery requests, plaintiff asks only that defendant be compelled to produce the list of all employees at the Powell, Ohio, facility and for additional time to "do discovery on the witnesses on the employee list." Id. at 1-2.
Plaintiff has offered no justification for his failure to meet the August 15, 2007, discovery deadline. However, and because this Court has granted a thirty day extension of time for both parties to conduct further discovery, plaintiff's request for production of the employee list is not untimely and defendant will be expected to respond to that request. In light of this extension of the discovery completion date, Plaintiff's Motion to Compel is DENIED as moot.
WHEREUPON, in light of the foregoing, Defendant's Motion to Compel, Doc. No. 28, is GRANTED; Plaintiff's Motion to Extend, Doc. No. 35, is GRANTED in part; and Plaintiff's Motion to Compel, Doc. No. 36, is DENIED as moot.
To summarize: ORDERED Opinion and Order. DENIES pro se DENIES Response Defendant's Motion to Compel Defendant's Motion to Compel. EXTENDED Opinion and Order. DENIES Plaintiff's Motion to Compel
A. Plaintiff is to fully respond to defendant's first set of interrogatories and requests for production within twenty (20) days from the date of this B. The Court defendant's request for monetary sanctions against the plaintiff and/or dismissal of the lawsuit at this time. C. The Court plaintiff's requests made in his in to , Doc. No. 32, that the Court order defendant to produce certain documents and to pay plaintiff's expenses incurred in preparing a response to D. The discovery completion deadline for both parties is for thirty (30) days from the date of this E. The Court as moot , Doc. No. 36. Plaintiff is ADVISED that his failure to strictly comply with this Opinion and Order or to fully participate in the discovery process will result in the imposition of sanctions, including monetary sanctions and the possible dismissal of this action.