Summary
finding that a motion to compel supplemental responses filed after the discovery cutoff date was not untimely because parties remain under a continuing duty to supplement prior discovery responses pursuant to Rule 26(e); see also Advisory Committee Notes to 1993 Amendments ("Supplementations need not be made as each new item of information is learned but should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches.")
Summary of this case from Dayton Valley Investors v. Union Pacific Railroad CompanyOpinion
Case No. 2:07-cv-01195-RLH-PAL.
August 12, 2009
ORDER (M/Compel — Dkt. #113) (M/Compel — Dkt. #115)
This matter is before the court on Defendant Bill Heard Chevrolet Corporation's ("Defendant" or "Bill Heard") Motion to Compel Production of Medical Expense Documentation (Dkt. #113) (the "Medical Expense Motion"), Plaintiff U.S. Equal Opportunity Commission's ("EEOC") Response (Dkt. #130), and Defendant's Reply (Dkt. #132), Defendant's Motion to Compel Production of Questionnaire Response, or Alternatively, the Underlying Factual Information (Dkt. #115) (the "Questionnaire Motion"), Plaintiff's Response (Dkt. #134), and Defendant's Reply (Dkr. #138). The court has considered the Motions, Responses, and Replies.
DISCUSSION
I. Background
A. Procedural History
The Complaint in this case was filed September 5, 2007 (Dkt. #1). The EEOC claims the Defendant subjected its employees to class wide sex harassment, sex discrimination, and retaliation. The Complaint was originally brought on behalf of charging parties Kellie Prince and Amanda Hall and a class of similarly situated individuals adversely affected by defendant's employment policies. Eight class members were initially identified, one of whom has passed away since this lawsuit was filed. After the court granted a prior motion to compel, the EEOC mailed a sample letter and questionnaire to employees of Defendant, asking for information relevant to this case and inviting them to join this class action.
The parties have had four prior extensions of the discovery cutoff and case management deadlines. The court has heard and resolved numerous discovery disputes while this case has been pending. On February 2, 2009, the District Judge entered a Minute Order (Dkt. #75) setting this case for trial September 16, 2009 and referred the matter to the undersigned to conduct a settlement conference after the close of discovery. A settlement conference is scheduled for Thursday, August 13, 2009. On March 6, 2009, the parties submitted their fourth request to extend the discovery plan and scheduling order deadlines and to continue the trial date (Dkt. #79). The court was not persuaded that the parties had been sufficiently diligent or established good cause for a fourth extension of the discovery cutoff. Additionally, the court conferred with the Chambers of the District Judge who was not inclined to continue the trial date. The court, therefore, granted the parties a final extension of the discovery cutoff but required the parties to file dispositive motions and the joint pretrial order whether or not the parties had received a ruling on any pending dispositive motions. The Order gave the parties until May 15, 2009 in which to complete discovery and set deadlines for filing dispositive motions, the joint pretrial order, and the settlement conference ordered by the District Judge. Notwithstanding this Order, Defendant filed an additional motion to extend the discovery deadlines (Dkt. #86), which the court denied, except that Defendant was permitted an additional two weeks to obtain written discovery from and depose two additional class members. On June 11 and 12, 2009, Defendant filed eight summary judgment motions (Dkt. ##97-104). On June 26, 2009, Defendant filed an additional motion for summary judgment (Dkt. #111).
B. Factual History
1. The Medical Expenses Motion
On November 16, 2007, Defendant served its First Request for Production of Documents upon the EEOC. Request No. 8 sought all documents showing any damages suffered by the class members allegedly caused by Bill Heard. On March 6, 2009, the EEOC and Bill Heard were involved in settlement negotiations, and the EEOC advised Bill Heard that Kadee Cinciarelli, Amanda Hall, Eva Schneider, and Pam Shifflett (the "Charging Parties") had incurred medical expenses in various amounts. On March 10, 2009, Defendant asked the EEOC to supplement its response to Request No. 8 to include documents to substantiate the medical expenses claim. The parties engaged in the meet and confer process, exchanging letters and meeting in person. They were unable to resolve their discovery dispute on this matter, and the Medical Expense Motion followed.
2. The Questionnaire Motion
On April 9, 2009, Bill Heard learned that the EEOC was sending a questionnaire to potential class members and former employees of Bill Heard. On April 10, 2009, Bill Heard served Defendant's Sixth Request for Production of Documents, which requested the copies of the questionnaire responses and a sample of the questionnaire that was sent. On April 16, 2009, Bill Heard also requested that the EEOC supplement its responses to Interrogatories 7, 8, 9 to incorporate factual information received in connection with the questionnaires. On May 13, 2009, the EEOC responded by objecting that the information sought was irrelevant, not reasonably calculated to lead to admissible evidence, and was protected by the attorney-client privilege or the work product doctrine as privileged communications with prospective class members. The parties engaged in the meet and confer process, exchanging letters and meeting in person. They were unable to resolve their dispute on this matter, and the Questionnaire Motion followed.
II. The Medical Expense Motion (Docket #113)
Defendant seeks to compel a response to its Request for Production of Documents No. 8 "Request No. 8"). Specifically, Defendant seeks documents relating to the medical expenses incurred by the Charging Parties. Defendant asserts that the EEOC has not produced documents to substantiate the medical expenses incurred by the Charging Parties. It asserts that, although this motion was filed after the discovery cut-off and after dispositive motions were filed, it is not untimely because there was no undue delay or prejudice to the EEOC.
Counsel for the EEOC asserts that it has produced all responsive documents prior to the filing of this motion, and there are no additional medical records or medical bills in the EEOC's possession, custody, or control. The EEOC also argues that this motion is untimely because it was filed after the close of discovery and after dispositive motions were filed. The EEOC seeks sanctions because Defendant's Medical Expense Motion seeks confidential information obtained from settlement discussions.
In reply, Defendant asserts that the thirty specific Bates stamped pages referenced in the Response were never produced, and Defendant never received any documents substantiating the damage claims of the Charging Parties. Defendant asserts that this motion does not disclose confidential settlement discussions but merely seeks discovery on matters learned during the course of settlement negotiations.
In Gault v. Nabisco Biscuit Company, 184 F.R.D. 620 (D. Nev. 1999), this court found that a motion to compel should typically be filed before the dispositive motion deadline. However, the court also noted that neither the Federal Rules of Civil Procedure nor the Local Rules set any particular deadline before which such motions must be filed, and the court must "establish a reasonable time for a party to bring a motion to compel." Id. at 622. The court must also consider whether there was undue delay in bringing the motion and whether the non-moving party would be substantially prejudiced by having to respond.
Here, the EEOC was served with Request No. 8 on November 16, 2007. Request No. 8 requests "[a]ny and all documents that demonstrate that any Charging Party or Similarly-Situated Employee suffered any damage as a result of Bill Heard's alleged actions." Exh. 1 to Exh. A to Medical Expense Motion. When Bill Heard learned on March 6, 2009 that various Charging Parties had incurred medical expenses in specified amounts, it requested that the EEOC supplement its response to Request No. 8. On April 27, the EEOC stated in an email to counsel for Bill Heard that it would supplement its response to Request No. 8. See Exh. 5 to Exh. A to Medical Expense Motion. Under these circumstances, the court finds that although this motion was filed after the discovery cutoff and after dispositive motions were filed it was not untimely. Pursuant to Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure, parties are under a continuing duty to supplement their responses to written discovery. The initial request and the request to supplement were both timely made, and Bill Heard filed this motion only five days after receiving correspondence from the EEOC that there were no additional documents to produce. Therefore, there was no undue delay, and the EEOC has not been substantially prejudiced by its filing.
However, the EEOC has repeatedly informed Bill Heard that all medical expense documents have been produced. In response to an e-mail from counsel for Bill Heard, counsel for the EEOC states that it has produced all medical records in its possession, custody, and control. See Exh. 8 to Exh. A to Medical Expense Motion. Moreover, the EEOC clarifies in its Response that there are also no medical bills that remain to be produced. See Response at 7:2-4. The court accepts the representation of counsel for the EEOC that it has produced all medical records and documents relating to medical expenses, and the motion is therefore denied. However, the EEOC will be precluded from offering any exhibits, documents, documents, or testimony regarding medical expenses incurred by the Charging Parties that were not produced to the Defendant.
III. The Questionnaire Motion (Docket #115)
Defendant seeks an order compelling the EEOC to produce questionnaire responses it received from prospective class members, or alternatively, the factual information contained in the responses. Bill Heard argues that the questionnaires and/or factual information contained in them is relevant because it relates to any harassment, discrimination, or retaliation-which is the basis of the Complaint in this matter. Defendant also asserts that even if the questionnaires themselves are privileged, the underlying factual information provided must be produced to Bill Heard in response to its Interrogatories. Bill Heard also asserts that the Questionnaire Motion is not untimely because there was no undue delay in requesting the information, and the EEOC would not be substantially prejudiced by having to respond.
In response, the EEOC asserts that the Questionnaire Motion is untimely because it was filed after the discovery deadline and after dispositive motions were filed. EEOC argues also that the questionnaires and the responses are protected from disclosure under the work product doctrine and/or the attorney client privilege. Last, EEOC states that Bill Heard has not established a substantial need to for the questionnaires and responses.
With regard to the timeliness argument asserted by the EEOC, Defendant requested the EEOC supplement its responses to Request for Production of Documents Nos. 1 and 2 and Interrogatories 7, 8, 9 within a week of learning that the questionnaires had been sent out. As set forth above, there is no deadline for filing a motion to compel set by the Federal Rules of Civil Procedure or the Local Rules, and Bill Heard filed the Questionnaire Motion promptly after realizing that the issue would not be resolved short of court intervention. There was no undue delay in filing the Questionnaire Motion or substantial prejudice to the EEOC.
With regard to the privilege arguments asserted, the EEOC is correct that the questionnaires themselves are privileged under both the attorney-client privilege or the work product doctrine. The attorney-client privilege protects confidential communications between a client and his or her attorney. See Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992). It protects all communications, including "correspondence, bills, ledgers, statements, and time records which reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided." Id. (citing In re Grand Jury Witness (Salas Waxman), 695 F.2d 359, 362 (9th Cir. 1982)). Courts have also applied this privilege specifically to communications between prospective class members and EEOC counsel. See Bauman v. Jacons Suchard, Inc., 136 F.R.D. 460, 462 (N.D. Ill. 1990). Thus, the questionnaires themselves are protected under the attorney-client privilege.
The work product doctrine announced in Hickman v. Taylor, 329 U.S. 495 (1947), and later codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, protects "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Fed.R.Civ.P. 26(b)(3). Here, the questionnaires were undisputedly prepared in anticipation of litigation and are themselves protected by the work product doctrine.
However, "the attorney-client privilege does not prevent the disclosure [of] facts communicated to an attorney, and the work product doctrine does not prevent the disclosure of facts communicated by an attorney to a client that the attorney obtained from independent sources." EEOC v. Caesars Entertainment, Inc., 237 F.R.D. 428, 433 (D. Nev. 2006) (citing Upjohn Co. v. U.S., 449 U.SS. 383, 395-96 (1981); Hickman, 329 U.S. at 508). Although the questionnaires and responses themselves are protected from disclosure, the underlying factual information is not. Defendant's Interrogatories 7, 8, 9 specifically ask for information about people with knowledge of the facts of this case concerning any alleged discrimination, harassment, and retaliation and the substance of that knowledge. Therefore, because of the continuing duty to supplement responses to written discovery imposed by Rule 26(e)(1)(A), the EEOC is obliged to supplement its responses to Interrogatories 7, 8, and 9 with any factual information it may have learned from the questionnaire responses. Therefore, the Questionnaire Motion will be granted in part and denied in part.
IT IS ORDERED:
1. Defendant's Medical Expenses Motion (Dkt. #113) is DENIED as counsel for the EEOC represents it has produced all responsive documents in its care, custody, or control. However, the EEOC will be precluded from offering any exhibits, documents, or testimony evidencing the medical expenses of Kadee Cinciarelli, Amanda Hall, Eva Schneider, and Pam Schifflet which have not been produced to Defendant.
2. Defendant's Questionnaire Motion (Dkt. #115) is GRANTED IN PART AND DENIED IN PART consistent with the provisions of this Order. The EEOC shall supplement its responses to Interrogatories 7, 8, 9 to provide any information not previously provided on or before August 28, 2009.