Opinion
Civil Action No. 00-2053-KHV.
April 10, 2001.
MEMORANDUM AND ORDER
Jacqueline M. Doebele brings suit against Sprint Corporation and Sprint PCS (collectively referred to as "Sprint") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615, and for wrongful discharge. This matter comes before the Court on Plaintiff's Motion To Review Order Of Magistrate Judge Dated February 22, 2001 (Document 78) And Memorandum In Support Thereof (Doc. #81) filed February 27, 2001. For reasons stated below, plaintiff's motion is sustained in part.
Factual Background
In their first request for production of documents, defendants asked plaintiff to produce all documents identified in her Rule 26(a)(1) initial disclosures. Plaintiff objected to the immediate production of tape recordings of conversations and voice messages of various Sprint employees, but agreed to produce the recordings and messages within a reasonable time after such employees were deposed. Plaintiff further objected to producing tape-recorded information that was of a personal and confidential nature, privileged or not relevant. On December 18, 2000, plaintiff asked the magistrate judge to postpone the production of (1) audio tapes created by plaintiff, which reflect conversations between plaintiff and supervisors employed by defendants; and (2) audio tapes saved by plaintiff, which contain messages left on plaintiff's telephone answering machine by several of defendants' employees. See Plaintiff's Motion For Protective Order (Doc. #49). On February 22, 2001, the magistrate judge overruled plaintiff's motion. See Order (Doc. #78). Plaintiff now asks the district court to review the magistrate's ruling.
Standards For Review Of A Magistrate Order Regarding Discovery
A party may object to a magistrate judge's order pertaining to a discovery matter. See Fed.R.Civ.P. 72(a). Upon objection, the district court may "modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636(b)(1)(A).
Analysis
The magistrate judge ruled that because plaintiff did not establish in the first instance that the audio tapes qualified as work product under Rule 26(b)(3), he did not have authority to address the timing of any such disclosure. See Order (Doc. #78) at 6. The Court disagrees. Even absent a showing that the tapes initially qualify as work product, the magistrate judge had authority to regulate the timing of their disclosure under Rules 26(c)(2) and 26(d), Fed.R.Civ.P. See Pro Billiards Tour Ass'n, Inc. v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229, 230 (M.D.N.C. 1999) ("Disputes involving the timing of specific depositions in relation to other discovery fall directly within the provisions of Rule 26(c)(2), although other rules do touch on the issue."); Roberts v. Americable Int'l, Inc., 883 F. Supp. 499, 505 (E.D.Cal. 1995) (pursuant to Rules 26(c)(2) and 26(d), court has authority to control sequence of discovery to promote fair and just litigation practices). For good cause shown, the Court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c). Such an order may include a requirement that discovery may be had only at a specified time or only in a specified sequence. See Rules 26(c)(2), 26(d). Nothing in Rules 26(c)(2) or 26(d) require an initial showing of work product protection. In addition, several courts have issued orders regulating the timing of party's statements pursuant to Rules 26(c) or 26(d) without any discussion whether the opposing party satisfied the standard for work product protection. See, e.g., Poppo v. Aon Risk Servs., Inc., No. 00-4165(HB), 2000 WL 1800746, at *1-2 (S.D.N.Y. Dec. 6, 2000); Baggs v. Highland Towing, No. 99-1318, 1999 WL 539459, at *1-3 (E.D.La. July 22, 1999).
Rule 26(b)(3) provides that even if a party's statement constitutes work product, it must be produced. The magistrate judge apparently relied on the Advisory Committee Notes to Rule 26(b)(3), which provide that "[i]n appropriate cases the court may order a party to be deposed before his statement is produced." Although the Advisory Committee assumed that courts have discretion to enter such orders where the recorded statement constitutes work product, they did not express any opinion whether the same rule should apply for statements that do not constitute work product. Indeed, the two cases cited by the Advisory Committee do not draw any distinction between statements which constitute work product and those which do not. See Smith v. Cent. Linen Serv. Co., 39 F.R.D. 15, 16-17 (D.Md. 1966); McCoy v. Gen. Motors Corp., 33 F.R.D. 354, 355-56 (W.D.Pa. 1963). Rule 26(b)(3) simply does not address the timing of the disclosure of a party's statement. A court therefore has discretion to issue a protective order regarding the timing for disclosure of such statements under Rule 26(c)(2) or 26(d). See Baggs v. Highland Towing, No. 99-1318, 1999 WL 539459, at *2 (E.D.La. July 22, 1999) ("appropriate cases" referred to by Advisory Committee in Notes to Rule 26(b)(3) "may be identified by reference to Fed.R.Civ.P. 26(c)(2)") (citing 8 Charles Alan Wright et al., Federal Practice Procedure § 2028 at 413 (1994)).
Plaintiff asks the Court to order that the audio tapes do not have to be disclosed until after the depositions of defendants' employees who are on the tapes. The magistrate judge had authority to issue such an order, but he was not required to do so. See Pro Billiards Tour, 187 F.R.D. at 230 ("Protective orders sought under Rule 26(c)(2) which seek to regulate the terms, conditions, time or place of discovery are wholly within the court's discretion."). Compare Walls v. Int'l Paper Co., 192 F.R.D. 294, 298-99 (D.Kan. 2000) (delaying disclosure of statement until after deposition); Poppo, 2000 WL 1800746, at *1-2 (same); Matter of Complaint of L.L.P. D. Marine, Inc., Nos. 97-1668, 97-2992, 97-3349, 1998 WL 113937, at *1-2 (E.D.La. Mar. 11, 1998) (same) with Pro Billiards Tour, 187 F.R.D. at 232 (requiring disclosure of statement before deposition); Baggs, 1999 WL 539459, at *3 (same); and Roberts, 883 F. Supp. at 505-08 (same). Accordingly, the Court will refer the matter to the magistrate judge to decide whether such an order is appropriate. The Court expresses no opinion whether plaintiff has satisfied the requirements of Rules 26(c)(2) or 26(d) on the present record.
IT IS THEREFORE ORDERED that Plaintiff's Motion To Review Order Of Magistrate Judge Dated February 22, 2001 (Document 78) And Memorandum In Support Thereof (Doc. #81) filed February 27, 2001 be and hereby is SUSTAINED in part. Consistent with the Court's findings above, the magistrate judge is directed to reconsider his order overruling plaintiff's motion for protective order.