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limiting scope of discovery to Kansas employees of defendant's PCS unit
Summary of this case from Collins v. Wal-Mart Stores, Inc.Opinion
No. 00-2053-KHV.
June 5, 2001
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's Motion to Compel Discovery (doc. 58). Plaintiff moves for an order compelling Defendants to fully respond to requests for admissions, requests for production of documents and interrogatories. For the reasons stated below, Plaintiff's Motion is granted in part and denied in part.
Relevant Factual Background
Plaintiff brings this employment discrimination suit against Sprint Corporation and Sprint PCS (collectively "Sprint"or "Defendants") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., for violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615, and for wrongful discharge in violation of Kansas public policy. Relevant to the pending motion, Plaintiff's First Amended Complaint (doc. 43) alleges the following facts:
Plaintiff was employed with Sprint as a financial analyst from October 1996 to April 1999. Throughout Plaintiff's employment, Plaintiff alleges various employees harassed her, which "exacerbated or perhaps precipitated" her disabilities. See Plaintiff's First Amended Complaint at ¶ 12 (doc. 43). Plaintiff's alleged disabilities include bi-polar disorder, hypothyroidism and adult Attention Deficit Disorder. Plaintiff was under the care of Dr. Urdaneta, a psychiatrist, for these disorders.
In November 1997, Plaintiff reported the alleged harassment to her supervisor, Lorrie McCurdy ("McCurdy"), and to Bridget Carson ("Carson"), a director above McCurdy. The alleged harassment continued and relations between Plaintiff, her coworkers and McCurdy continued to deteriorate. On July 22, 1998, Plaintiff received a written warning for inappropriate workplace behavior. The following day, Dr. Urdaneta placed Plaintiff on a medical leave of absence until August 10, 1998, which was later extended through September 28, 1998. Plaintiff returned to work on that date.
Two months later, on December 4, 1998, Plaintiff received another written warning. On December 7, 1998, Plaintiff lodged a complaint with Sprint's Human Resources Department, alleging harassment and discrimination based on her disability, and Dr. Urdaneta placed Plaintiff on a second medical leave. Around this same time, Plaintiff applied for disability benefits under Sprint's short-term disability plan. On the application form, Plaintiff indicated her illness was work related. See Plaintiff's First Amended Complaint at Ex. J. (doc. 43). In a letter dated January 14, 1999, Sprint's Human Resources Department sent workers' compensation forms to Plaintiff "in case [she was] interested in applying for workers compensation benefits." Id. On March 11, 1999, Plaintiff returned to work after her second medical leave. Approximately five weeks later, Sprint terminated Plaintiff's employment. Plaintiff subsequently filed this lawsuit against Defendants.
Discussion
• Requests for Admissions
Plaintiff seeks an Order compelling Defendants to withdraw their objections and/or to fully respond to Plaintiff's Request for Admission Nos. 2, 7-8, 10-11 and 13-16. These requests are summarized as follows:
Plaintiff also sought to compel Defendants to adequately respond to Request for Admission Nos. 17 and 18. Exhibit B to Defendants' Memorandum in Opposition to Plaintiff's Motion to Compel (doc. 69), however, is a letter from counsel for Defendants to Plaintiff's counsel indicating their willingness to withdraw the qualified responses to Request for Admission Nos. 17 and 18, thereby admitting the truth of the matters presented in those requests. Accordingly, Plaintiff's Motion with regard to Request for Admission Nos. 17 and 18 will be denied as moot.
Request Nos. 2 and 13-16: Plaintiff asks Defendants to admit that, during various years of her employment, she received "merit pay increases." Defendants admit these facts but have added a subordinate clause at the end of each response that reads: "but note that she did not receive the highest possible increase."
Request Nos. 7 and 8: Plaintiff asks Defendants to admit that she was never "demoted" or "suspended" for any problem related to her job performance. Defendants admit these facts but have added a subordinate clause at the end of each response that reads: "but note that she was placed on corrective action due to issues arising from her job performance."
Request Nos. 10 and 11: Plaintiff asks Defendants to admit that Plaintiff received "an overall satisfactory written performance appraisal" during various years. Defendants essentially admit these facts (stating that Plaintiff's job rating indicated that she "meets objectives") but add the following sentence to their response: "Defendants state that this was not the highest rating available."See Defendants' Response to Plaintiff's First Request for Admissions at Exhibit "A" to Plaintiff's Motion to Compel Discovery Responses (doc. 58).
Rule 36 of the Federal Rules of Civil Procedure addresses requests for admissions, which states, in relevant part, that:
A party may serve upon any other party a written request of the admission . . . of the truth of any matters within the scope of Rule 26(b) set forth in the Request that relate to statement or opinions of fact or the application of law to fact. . . . The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the request of admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.
Fed.R.Civ.P. 36(a) (emphasis added).
Regardless of the subject matter of the Rule 36 request, the statement of the fact itself should be in simple and concise terms in order that it can be denied or admitted with an absolute minimum of explanation or qualification. 4A Moore's Federal Practice, 2d Ed. 36.05 [a] at 35-36. The request, "except in a most unusual circumstance, should be such that it [can] be answered yes, no, the answerer does not know, or a very simple direct explanation given as to why he cannot answer, such as in the case of `privilege.'" Johnstone v. Cronlund, 25 F.R.D. 42 (E.D.Pa. 1960); see also, United States v. Watchmakers of Switzerland Information Center, Inc., 25 F.R.D. 197 (S.D.N.Y. 1959); Securities and Exchange Commission v. Micro-Moisture Control, Inc., 21 F.R.D. 164 (S.D.N.Y. 1957). A requesting party should not state "half a fact," or "half-truths" which require the answering party to qualify responses. See, e.g., Johnstone v. Cronlund, supra; Knowlton v. Atchison, Topeka Santa Fe Ry., 11 F.R.D. 62 (W.D.Mo. 1951).
Plaintiff's Request for Admission Nos. 2, 7-8, 10-11 and 13-16 do not appear to be so complex or imprecise so as to necessitate qualified responses. In fact, the Court finds Plaintiff's statements of fact are couched in unequivocal terms, which appear to facilitate unequivocal admissions or denials. Thus, the qualifying verbiage included within Defendants' answers fails to meet the substance of the requested admission, and Defendants will be ordered to serve amended responses to these requests.
• Requests for Production of Documents
1. Privilege Issues
As a preliminary matter, Plaintiff seeks to compel production of documents withheld by Defendants on the grounds that such documents are protected from disclosure by the attorney-client privilege and the work product doctrine. Defendants' privilege log, attached as Exhibit C to Defendants' Memorandum in Opposition to Plaintiff's Motion to Compel (doc. 69), describes each of the documents Defendants seek to protect from disclosure and states the grounds upon which each is being withheld from disclosure.
a. Attorney-Client Privilege
Because this action arises under a federal statutory scheme, federal law provides the rule of decision as to application of the attorney-client privilege. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1368-69 (10th Cir. 1997) (federal privilege law applies to federal claims). Under federal common law, the essential elements of the attorney-client privilege are:
With that said, the Court notes that there is no real conflict between federal and Kansas law regarding the attorney-client privilege. See Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 405 (D.Kan. 1998); Marten v. Yellow Freight Sys., Inc., No. Civ.A. 96-2013-GTV, 1998 WL 13244, at *4-6 (D.Kan. Jan. 6, 1998). "[T]he Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions." In re A.H. Robins Co., 107 F.R.D. 2, 8 (D.Kan. 1985) (citation omitted.) Whether the court applies federal or Kansas law generally makes no difference in determining whether the attorney-client privilege applies. See Great Plains Mut. Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 196 n. 3 (D.Kan. 1993) (citing K.S.A. 60-426; Wallace, Saunders, Austin, Brown Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, 824 P.2d 933 (1992)).
(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.Marten v. Yellow Freight Sys., Inc., No. 96-2013-GTV, 1998 WL 13244, at * 5 (D.Kan. Jan.6, 1998) (quoting Great Plains Mut. Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 196 n. 4 (D.Kan. 1993)). The privilege "protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his capacity as a legal advisor." Marten, 1998 WL 13244, at *6 (quoting Jones v. Boeing Co., 163 F.R.D. 15, 117 (D.Kan. 1995)). The privilege also protects advice given by the lawyer in the course of representing the client. See Upjohn Co. v. United States, 449 U.S. 383, 390 (1981) ("[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1370-71 (10th Cir. 1997) (finding protection of communications from an attorney to a client in the course of providing legal advice is within the scope of the federal rule). The privilege, however, "is to be extended no more broadly than necessary to effectuate its purpose." Great Plains Mut. Ins. Co., 150 F.R.D. at 196 (citation omitted). The party asserting the privilege bears the burden of establishing its existence. Id.
Defendants argue Plaintiff is not entitled to discover any of the documents listed in the privilege log because such documents represent communications relating to legal advice sought by a client and are protected by the attorney-client privilege. In their brief, Defendants categorize most, but not all, of the documents listed in the privilege log that they believe are protected by the attorney-client privilege:
Documents bearing bates stamp numbers DOE000954, DOE000963, DOE0001296, DOE0001297, DOE0001298, DOE0001299 and DOE0001300, or the redacted portions thereof, are communications between Sprint employees and Sprint in-house counsel regarding legal advice with respect to the draft of a final written warning to be delivered to Plaintiff;
Documents bearing bates stamp numbers DOE0001000, DOE0001001, DOE0001244, DOE0001245, DOE0001248 and DOE0001249, or the redacted portions thereof, are communications between Sprint managers and Sprint in-house counsel regarding legal advice with respect to the draft of a letter responding to Plaintiff's requests for work accommodations.
Documents bearing bates stamp numbers DOE000986 and DOE0001252 are communications between Sprint employees and Sprint in-house counsel seeking legal advice regarding job opportunities for Plaintiff and hierarchies within Plaintiff's work unit.
Documents bearing bates stamp numbers DOE000996, DOE0001266 and DOE0001267 are communications between Sprint employees and attorneys for Sprint seeking legal advice regarding Plaintiff's ability to have her work computer at home while on leave.
The document bearing bates stamp number DOE0001246 is a communication between Sprint employees and attorneys for Sprint seeking advice regarding Plaintiff's ability to work overtime while on work restrictions from her physician.
Documents bearing bates stamp numbers DOE000643, DOE000950, DOE0001233, DOE0001234-DOE0001236 and DOE0001237 are documents, prepared by counsel after Plaintiff's termination and filing of her charge of discrimination with the EEOC, discussing Defendants' legal options in light of Plaintiff's administrative charge.
Defendants state that this particular document is a draft of the written warning from Lorrie McCurdy with suggested revisions to the letter written by counsel.
Defendants state that documents DOE0001001, DOE0001245 and DOE0001248 are drafts of such letter with suggested revisions written by counsel.
Although the following three documents are included in their privilege log, Defendants do not discuss them their brief:
DOE000135 (dated 03/08/99): Notes of Lorrie McCurdy taken during conversation with Don Prophete, counsel for Sprint, re: Jacqueline Doebele medical condition/performance.
DOE000998 (dated 03/02/99): E-Mail from Anne Kinney to Bridget Carson and Ellen Martin responding to e-mail from Ellen martin re: Jacqueline Doebele's health and insurance status.
DOE0001247 (dated 03/08/99): E-Mail from Lorrie McCurdy to Bridget Carson, Anne Kinney, Don Prophete re: draft of letter responding to Jacqueline Doebele's request for specific work accommodations.
Upon consideration of the arguments presented, as well as the description of the documents as set forth in the privilege log, the Court finds that, with the exception of the document bearing bates stamp number DOE0001248, the communications within such documents appear to relate to legal advice sought by a client from its attorney as defined by existing law and thus are protected by the attorney-client privilege. The description of DOE0001248 set forth in the privilege log states that it is a "draft of letter responding to Jacqueline Doebele's request for specific work accommodations." The description of this document does not support a finding that it relates to legal advice sought from a professional legal advisor. Therefore, Defendants have failed to meet their burden to establish that such document is protected by the attorney-client privilege.
Although the documents bearing bates stamp numbers DOE 000643 and DOE000950 are addressed to legal analysts within the Sprint in-house legal department and not the attorneys themselves, the attorney-client privilege protects communications made to an attorney's staff employed in rendering the attorney's legal services. See generally, Jack B. Weinstein, Margaret A. Berger, Weinstein's Federal Evidence § 503.07[1], at 503-26 (2d ed. 1997).
The privilege log description of document bearing bates stamp DOE0001245 also fails to establish that such document relates to legal advice sought by a client from its attorney. The description does, however, state that DOE0001245 is a duplicate of DOE0001001 and the description of DOE0001001 states that it is a draft letter edited by Sprint attorney Don Prophete. Thus, Defendants adequately establish that the document relates to legal advice sought by clients from their attorney.
b. Work Product
Defendants assert Plaintiff is not entitled to discover documents bearing bates numbers DOE0001000, DOE0001001, DOE0001234, DOE0001235, DOE0001236, DOE0001244, DOE0001245, DOE0001248, DOE0001267 and DOE0001298 listed in their privilege log because such documents were drafted in anticipation of litigation. Notably, documents bearing bates numbers DOE0001000, DOE0001001, DOE0001234, DOE0001235, DOE0001236, DOE0001244, DOE0001245, DOE0001267 and DOE0001298 have been found by the Court in the preceding subsection to be protected from disclosure by the attorney-client privilege; thus, it is not necessary for the Court to determine whether such documents enjoy work product protection as well. Given these circumstances, the only issue presented in this subsection is whether the document bearing bates stamp number DOE0001248 is protected from disclosure on the grounds that it is work product.
As the asserting parties, Defendants have the burden of establishing work product protection. See McCoo v. Denny's, Inc., 192 F.R.D. 675, 683 (D.Kan. 2000); Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D. Kan 1995). To carry that burden, Defendants must make a "clear showing" that the asserted objection applies. See McCoo, 192 F.R.D. at 683; Ali v. Douglas Cable Communications, Ltd. Partnership, 890 F. Supp. 993, 944 (D.Kan. 1995). A "blanket claim" as to the applicability of the work product doctrine does not satisfy the burden of proof. McCoo, 192 F.R.D. at 680. It is well settled that the party seeking to invoke work product immunity has the burden to establish all elements of the immunity and that this burden can be met only by an evidentiary showing based on competent evidence. Id. "That burden cannot be "discharged by mere conclusory or ipse dixit assertions." Id. (quotations and citations omitted). A party's failure to meet this burden when the trial court is asked to rule upon the existence of the work product immunity is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made. Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984); McCoo, 192 F.R.D. at 680.
To establish work product protection, Defendants must show that "(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party." Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000) (citations omitted). Defendants appear to have established elements one and three — DOE0001248 is a document and, because it is described as a response to Plaintiff's request for work accommodations, it appears to have been prepared by Defendants or a representative of Defendants. The second element, however, is in dispute: were the documents prepared in anticipation of litigation?
This second element was extensively analyzed by Magistrate Judge Rushfelt in Marten v. Yellow Freight System, Inc., No. 96-2013-GTV, 1998 WL 13244 (D.Kan. Jan. 6, 1998). The Court stated:
The work product standard has two components. The first is what may be called the "causation" requirement. This is the basic requirement of the Rule that the document in question be produced because of the anticipation of litigation, i.e., to prepare for litigation or for trial. The second component is what may be termed a "reasonableness" limit on a party's anticipation of litigation. Because litigation can, in a sense, be foreseen from the time of occurrence of almost any incident, courts have interpreted the Rule to require a higher level of anticipation in order to give a reasonable scope to the immunity.
The court looks to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work product doctrine. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be "real and imminent." To determine the applicability of the work product doctrine, the court generally needs more than mere assertions by the party resisting discovery that documents or other tangible items were created in anticipation of litigation.Id., at *10 (citations and quotations omitted).
DOE0001248 is described in Defendants' privilege log as a "[d]raft of letter responding to Jacqueline Doebele's request for specific work accommodations." The privilege log notes that the document was prepared on March 8, 1999. In support of their assertion that DOE0001248 was drafted in anticipation of litigation, Defendants argue that
[P]rior to Plaintiff's termination from Defendants' employ, she made it very clear that she was dissatisfied with her treatment by Defendants. Plaintiff corresponded with her supervisors and Defendants' human resources department alleging discrimination and maltreatment. She also discussed her concerns regarding Defendants' alleged discrimination with her co-workers. In fact, Plaintiff told her supervisors that she was considering a lawsuit.
Defendants' Memorandum in Opposition to Plaintiff's Motion to Compel at p. 10 (doc. 69).
Upon consideration of the facts presented, the court finds Defendants' assertion that DOE0001248 was created in anticipation of litigation is insufficient to establish that the threat of litigation was "real and imminent." The Court concludes DOE0001248 is not protected from discovery by the work product doctrine and Defendants will be ordered to produce it.
Defendants' assertions here are all in the form of argument and are not supported by factual evidence (i.e., documentation, affidavits etc.). Defendants' burden to establish work product protection must be met by an evidentiary showing based on competent evidence. McCoo v. Denny's, Inc., 192 F.R.D. 675, 680 (D.Kan. 2000).
2. Request 25
In Request 25, Plaintiff seeks "documents compiling or reflecting information submitted by employees in `employee attitude survey forms' for the Tables Department for calendar years 1996 through 1999." Although Defendants originally objected to this request on the grounds that it was overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence, Defendants attach to their brief written documentation noting that they have agreed to give Plaintiff the "employee attitude survey forms" upon execution by Plaintiff of a protective order regarding confidentiality. Based on this fact, it appears Defendants have abandoned their objections based on overbreadth and undue burden and instead solely relies on the confidential nature of the documents as grounds for refusing to produce them.
Confidentiality does not equate to privilege. Folsom v. Heartland Bank, No. Civ. A. 98-2308-GTV, 1999 WL 322691, *2 (May 14, 1999) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979)). Although information is not shielded from discovery on the sole basis that the information is confidential, a party may request the court enter a protective order pursuant to Fed.R.Civ.P. 26(c) as a means to protect such confidential information. While the decision whether to enter a protective order is within the Court's discretion, see Thomas v. International Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995), Fed.R.Civ.P. 26(c) nevertheless requires that the party seeking the protective order provide "good cause" for the order. Specifically, Rule 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense." The party seeking a protective order has the burden to demonstrate good cause. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996).
In determining whether good cause exists to issue a protective order that prohibits the dissemination of documents or other materials obtained in discovery, "the initial inquiry is whether the moving party has shown that disclosure of the information will result in a `clearly defined and very serious injury.'" Zapata v. IBP, Inc., 160 F.R.D. 625, 627 (D.Kan. 1995) (quoting Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 480 (S.D.N.Y. 1982)) (internal quotations omitted). The moving party must also make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
Defendants have not yet requested a protective order permitting Defendants to withhold the discovery at issue in the event the Court grants Plaintiff's Motion to Compel. Without such a request, the Court is not in a position to determine whether the requisite good cause exists to issue a protective order under Fed.R.Civ.P. 26(c). Accordingly, and in the interest of justice, the Court will direct the parties to submit an agreed protective order protecting the confidentiality of the documents at issue within five (5) days from the date of the filing of this Order. Defendants shall then provide the documents within five (5) days after entry of the protective order. If the parties are unable to agree upon such a protective order, the Court will allow Defendants five (5) days from the date of the filing of this Order to move for a protective order protecting the confidentiality of the survey forms upon disclosure. Plaintiff shall have five (5) days thereafter to respond. If neither an agreed-upon protective order nor a motion for protective order is filed within the time period specified, disclosure will be required without the protection of any such order.
Request 35
Plaintiff requests documents "reflecting any investigation undertaken by the defendant[s] regarding any claim of harassment, hostile working environment or retaliation submitted in writing to defendants' human resources department at any time during Jacqueline Doebele's employment with defendant[s]." Defendants object to this request on the grounds that it is overly broad and unduly burdensome as it seeks information regarding claims of individuals not similarly situated to Plaintiff. Overly Broad Discovery in discrimination cases should not be narrowly circumscribed. Rich v. Martin Marietta Corp., 522 F.2d 333, 343-44 (10th Cir. 1975). The scope of discovery is particularly broad in a Title VII case and "an employer's general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment." Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (citing Scales v. J.C. Bradford Co., 925 F.2d 901, 906 (6th Cir. 1991)). "As a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer's discriminatory intent." Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). A plaintiff may be allowed "extensive" discovery in order to prove his or her case. Rich v. Martin Marietta Corp., 522 F.2d at 343. "In determining the geographic scope of discovery for non-class action complaints, [however], the `most natural focus is upon the source of the complained discrimination — the employing unit or work unit.'" Mackey v. IBP, Inc., 167 F.R.D. 186, 195 (D.Kan. 1996) (quoting Heward v. Western Elec. Co., No. 83-2293, 1984 WL 15666, at *6 (10th Cir. July 3, 1984) (citations omitted)).
Upon review of the facts, the Court is persuaded Request 35 is overly broad in geographic scope and should be limited to investigations relating to Kansas employees of Sprint PCS, the work unit within Sprint that employed Plaintiff. Thus, the Court will limit the scope of Request 35 to Kansas employees of Sprint PCS. The Court also will limit the request to those investigations undertaken by the Defendants regarding the same type of discriminatory conduct alleged by Plaintiff: discrimination and harassment on the basis of disability as well as retaliation for engaging in protected activity. See Jackson v. Montgomery Ward Co., Inc., 173 F.R.D. 524, 528 (D.Nev. 1997) (limiting discovery to same types of discrimination alleged by plaintiff); Gheesling v. Chater, 162 F.R.D. 649, 651 (D.Kan. 1995) (same).
Undue Burden
As the party resisting the discovery, Defendants have the burden to show facts justifying their objections. See Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D.Kan. 1991). Those resisting discovery must demonstrate that the time or expense involved in responding to requested discovery is unduly burdensome. Moreover, the party resisting discovery has the obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to produce the requested documents. This information is necessary to enable the Court to determine the burden imposed by the discovery.
Defendants have submitted no explanation, let alone an affidavit or other proof, demonstrating that responding to Request 35 would impose an undue burden. The Court will not speculate that the requested discovery causes undue burden; therefore, Defendants' objection with regard to undue burden will be overruled.
C. Plaintiff's First Set of Written Interrogatories
Verification
Plaintiff objects to Defendants' interrogatory responses on the ground that Defendants did not transmit a signed verification for the interrogatories until approximately one week after serving their answers. Based on Defendants' failure to timely serve the verification page, Plaintiff argues Defendants have waived any objections to the interrogatories and therefore must answer them without objection. The Court is not persuaded by Plaintiff's argument. The facts demonstrate that Defendants supplied a verification page for their answers to Plaintiff's interrogatories within seven days of serving the actual answers — well before Plaintiff filed this Motion. There is no evidence that Plaintiff was prejudiced by the delay in receiving Defendants' verification page and there is no precedent for a finding of waiver in these circumstances. See Williams v. Board of County Comm'rs, 192 F.R.D. 698, 704 (D.Kan. 2000) (in ruling on motion to compel in which one of the issues was plaintiff's failure to provide verifications to interrogatory responses, court refused to impose sanctions and ordered plaintiff to provide requested verifications within ten days of court's order).
Defendants do not dispute that the signed verification page was sent one week after the discovery responses were served.
2. Interrogatory 10
In Interrogatory 10, Plaintiff seeks information concerning salaries paid to analysts and senior analysts in the Tables Department. Defendants object to the interrogatory on the grounds that it seeks proprietary, confidential information about individuals not similarly situated to Plaintiff and is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. The Court will address Defendants' relevancy objections first.
a. Relevancy
Prior to December 1, 2000, a request for discovery would be considered relevant if there was "any possibility" that the information sought may be relevant to the subject matter to the action. Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D.583, 585 (D.Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999). A request for discovery would be allowed "unless it [was] clear that the information sought [could] have no possible bearing on the subject matter of the action." Scott, 190 F.R.D. at 585 (quoting Snowden v. Connaught Lab. , Inc., 137 F.R.D. 336, 341 (D.Kan. 1991)) (emphasis added by Scott).
The pre-December, 2000 version of Rule 26 governs this dispute, as the Scheduling Order in this case was issued prior to December 1, 2000. The conclusions reached by the Court here, however, would be the same regardless of whether the Court utilized the "old version" of Rule 26(b)(1), which defined the scope of discovery broadly to include any matter, not privileged, that was relevant to the "subject matter" of the litigation, or the "new version" of Rule 26(b)(1), which defines the scope more narrowly as unprivileged facts relevant to the claims and defenses raised in the litigation.
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott, 190 F.R.D. at 585 (citations omitted). Similarly, a party resisting discovery on the grounds that a request is overly broad has the burden to support its objection, unless the request is overly broad on its face. Etienne v. Wolverine Tube, Inc., 185 F.R.D. at 656; Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan. 1997). When the relevancy of propounded discovery is not apparent, however, its proponent has the burden to show the discovery relevant. Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 309 (D.Kan. 1996).
The Court finds Interrogatory 10 is relevant and/or reasonably calculated to lead to the discovery of admissible evidence with respect to Plaintiff's claims. As a preliminary matter, the interrogatory relates only to the specific department in which Plaintiff worked during her tenure with Defendants. And, although Plaintiff never held the position of senior analyst, Plaintiff alleges she "often complained to management that she should be promoted to senior analyst." Plaintiff's Reply at p. 10 (doc. 77).
b. Undue Burden
Defendants fail to submit any facts, affidavit or other proof to demonstrate that responding to Interrogatory 10 would be unduly burdensome. The Court will not speculate that the requested discovery causes undue burden; therefore, Defendants' objection on this ground will be denied.
c. Confidentiality
As noted earlier, confidentiality does not equate to privilege. Folsom v. Heartland Bank, No. Civ. A. 98-2308-GTV, 1999 WL 322691, *2 (May 14, 1999) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979)). Defendants have not yet requested a protective order permitting Defendants to withhold the discovery at issue in the event the Court grants Plaintiff's Motion to Compel. Without such a request, the Court is not in a position to determine whether the requisite good cause exists to issue a protective order under Fed.R.Civ.P. 26(c). Again, the Court will direct the parties to submit an agreed protective order protecting the confidentiality of the information at issue within five (5) days from the date of the filing of this Order. Defendants shall then provide the information within five (5) days after entry of the protective order. If the parties are unable to agree upon such a protective order, the Court will allow Defendants five (5) days from the date of the filing of this Order to move for a protective order protecting the confidentiality of the information upon disclosure. Plaintiff shall have five (5) days thereafter to respond. If neither an agreed-upon protective order nor a motion for protective order is filed within the time period specified, disclosure will be required without the protection of any such order.
3. Interrogatories 12-17
Interrogatories 12 and 13 request identification of all individuals employed by Defendants in the State of Kansas who, within the past seven years, have been disciplined within six months of their taking a medical leave of absence or making a request for reasonable accommodation under the Americans with Disabilities Act. Interrogatories 14-16 request identification of all EEOC charges alleging disability discrimination, retaliation and hostile work environment filed against Defendants in the State of Kansas within the past ten years. Interrogatory 17 requests Defendants identify all complaints filed in federal court against Defendants on the basis of discrimination within the ten years preceding the Complaint filed by Plaintiff.
For the reasons set forth in section B(3), supra, the Court is persuaded Interrogatories 12-17 are overly broad in geographic scope and should be limited to the Kansas employees of Sprint PCS and will limit these interrogatories accordingly. The Court also will limit the Interrogatories 14-17 to the same type of discriminatory conduct alleged by Plaintiff: discrimination and harassment on the basis of disability as well as retaliation for engaging in protected activity. See Jackson v. Montgomery Ward Co., Inc., 173 F.R.D. 524, 528 (D.Nev. 1997) (limiting discovery to same types of discrimination alleged by plaintiff); Gheesling v. Chater, 162 F.R.D. 649, 651 (D.Kan. 1995) (same).
D. Sanctions
Plaintiff seeks to recover fees and expenses incurred in connection with this motion to compel. Fed.R.Civ.P. 37(a)(4)(C) provides that "the court may . . . apportion reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Upon review of the circumstances presented here, justice requires that each party be responsible for their own costs and expenses incurred.
Conclusion
Based on the discussion above, it is hereby ordered that Plaintiff's Motion is granted in part and denied in part as follows:
Plaintiff's Motion is denied as moot with respect to Request for Admission Nos. 17-18;
Plaintiff's Motion is granted with respect to Request for Admission Nos. 2, 7-8, 10-11 and 13-16 and Plaintiff shall serve amended responses within seven (7) days from the date of this Order;
Plaintiff's Motion is denied with respect to the documents within Defendants' privilege log bearing bates numbers DOE000954, DOE000963, DOE0001296, DOE0001297, DOE0001298, DOE0001299 DOE0001300, DOE0001000, DOE0001001, DOE0001244, DOE0001245, DOE0001249, DOE000986, DOE0001252, DOE000996, DOE0001266, DOE0001267, DOE0001246, DOE000643, DOE000950, DOE0001233, DOE0001234, DOE0001235, DOE0001236, DOE0001237, DOE000135, DOE000998 and DOE0001247;
Plaintiff's Motion is granted with respect to the document within Defendants' privilege log bearing bates number DOE0001248 and Defendants shall produce such document within seven (7) days from the date of this Order;
Plaintiff's Motion is granted with respect to Plaintiff's Request for Production of Document 25 with the provision that the parties shall submit an agreed protective order protecting the confidentiality of the documents at issue within five (5) days from the date of the filing of this Order and Defendants shall then provide the documents within five (5) days after entry of the protective order. If the parties are unable to agree upon such a protective order, the Court will allow Defendants five (5) days from the date of the filing of this Order to move for a protective order protecting the confidentiality of the survey forms upon disclosure and Plaintiff shall have five (5) days thereafter to respond. If neither an agreed-upon protective order nor a motion for protective order is filed within the time period specified, disclosure will be required without the protection of any such order;
Plaintiff's Motion is granted with respect to Plaintiff's Request for Production of Document 35 to the extent that Defendants shall, within seven (7) days of the date of this Order, respond to Request 35 for investigations relating to Kansas employees of Sprint PCS and for those investigations undertaken by Defendants regarding discrimination and harassment on the basis of disability and retaliation for engaging in protected activity;
The fact that Defendants did not transmit a signed verification for interrogatories until approximately one week after serving answers shall not result in waiver of Defendants' objections;
Plaintiff's Motion is granted with respect to Plaintiff's Interrogatory 10 with the provision that the parties shall submit an agreed protective order protecting the confidentiality of the information at issue within five (5) days from the date of the filing of this Order and Defendants shall then provide the information within five (5) days after entry of the protective order. If the parties are unable to agree upon such a protective order, the Court will allow Defendants five (5) days from the date of the filing of this Order to move for a protective order protecting the confidentiality of the information upon disclosure and Plaintiff shall have five (5) days thereafter to respond. If neither an agreed-upon protective order nor a motion for protective order is filed within the time period specified, disclosure will be required without the protection of any such order;
Plaintiff's Motion is granted with respect to Plaintiff's Interrogatories 12-17 to the extent that Defendants shall, within seven (7) days of the date of this Order, respond to such interrogatories for Kansas employees of Sprint PCS and for instances of discrimination and harassment on the basis of disability and retaliation for engaging in protected activity; and
Plaintiff's Motion is denied with respect to her request for costs and fees associated with filing this Motion.
IT IS SO ORDERED.