Opinion
Civil Action No. 02-8385.
April 21, 2004
ORDER AND OPINION
I. Introduction
In this action, the plaintiff, N. Douglas Fluke ("Fluke"), has sued Heidrick Struggles, Inc., ("HS"), an entity which performs employment-related assessments and executive searches. Fluke alleges that HS's negative report to his employer, Cognis Corporation ("Cognis"), kept him from being selected as Cognis's North American president, and prevented his upward mobility within Cognis. He charges HS with negligence, defamation and tortious interference with business relationships.
Fluke has now moved to compel answers to certain interrogatories and requests for document production. As discussed below, his motion will be granted in part and denied in part.
II. Factual Background
Cognis is a chemical company based in Germany. The parties agree that, in 2001, Fluke was one of Cognis's three vice-presidents for its North American operations. In that year, an agreement was reached to sell Cognis to new investors, and the company underwent a restructuring. To assist in that restructuring, Cognis retained HS.
Fluke was interviewed by HS. The report HS prepared on Fluke contained such negative observations as:
His ability to learn is likely inhibited by his somewhat underdeveloped listening skills. He will work a problem long and may have a tendency to overwork it, trading analysis for action. His vision is average and medium termed. He does not display a long term, creative vision of his own. His ability to create buy-in therefore could be somewhat limited as well. He maybe will not be able to contribute too much with his own ideas and concepts to develop the company further.
Complaint at ¶¶ 26-27.
Fluke maintains that, before HS was retained, he was a strong candidate for the position of president, since he was the only American vice-president and the new investors intended to hire an American president. He argues that, after Cognis received HS's report, he was told that he would not become president, and that he would lose the leadership of one division for which he had previously been responsible.
HS, however, maintains that the evidence shows Cognis had decided to place an outsider in the position of North American president before HS was retained, and that Fluke's interview was not conducted as part of HS's executive search for a president, but rather in a separate strategic leadership review.
At some point, Fluke served upon HC interrogatories and requests for production of documents. HC responded on January 9, 2004, asserting objections in some cases. HC also filed amended objections and responses on January 20, 2004. Fluke filed this motion to compel on March 23, 2004.
III. Legal Standards
The Federal Rules of Civil Procedure are liberal with respect to discovery, permitting the requesting party to obtain even inadmissible material, so long as it is relevant to the claim or defense of any party, unprivileged, and "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1); Hickman v. Taylor, 329 U.S. 495 (1947).
The onus is on the party objecting to discovery to state the grounds for the objection with specificity. Fed.R.Civ.P. 33(b)(4); Momah v. Albert Einstein Medical Center, 164 F.R.D. 412, 417 (E.D. Pa. 1996): "Mere recitation of the familiar litany that an interrogatory or a document production request is `overly broad, burdensome, oppressive and irrelevant' will not suffice."Momah, id., citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982). However, once the objection has been properly articulated, it rests with the party seeking discovery to show that a discovery request lies within the bounds of Rule 26.Momah, id. Then, the party opposing discovery must convince the court why discovery should not be had. Id.
IV. Discussion
A. Plaintiff's Interrogatory No. 12: Identify by name and address each person recommended by you to your client to fill the president's position, including both Cognis employees and persons identified through the outside search.
Defendant's Response: HS objects to this Interrogatory on the grounds that it is overly broad, vexations, burdensome, and not reasonably calculated to lead to the discovery of admissible evidence relevant and material to the claims or defenses of any party to this action. HS also objects to this Interrogatory on the grounds that it would require the disclosure of private and confidential information consisting of the names of other individuals whom it recommended to fill the position of North American president and CEO. In particular, various individuals spoke with HS on the understanding that their names and identifying information would be kept in confidence. Notwithstanding and without waiver of the foregoing objections, HS presented nine individuals to Cognis for its consideration; in addition, HS reviewed the resumes of three other outside candidates that were supplied by Cognis.
Since, according to HS, only nine individuals are involved, the interrogatory is obviously not overly broad, vexatious or burdensome. As to relevance, Fluke argues: "Plaintiff intends to show that all nine of the candidates were American, consistent with his position that the investors wanted an American in that spot." Fluke has also offered to abide by any court-imposed limitation on the dissemination of the names and addresses of these individuals.
However, there is merit to HS's position that it would be harmful both to the candidates and to HS to reveal their names and addresses. HS would be impaired in its ability to perform executive searches if candidates whom it recruited could not be sure of their privacy. HS points out that it could accommodate Fluke's stated need for the information by simply providing him with a list of the applicants' nationalities. This is a reasonable approach, and I will direct HS to provide Fluke with such a list.
B. Plaintiff's Interrogatory No. 20: Identify any lawsuit brought within the past five years in which you have been accused of negligence or any of the other causes of action in Plaintiff's complaint that were not dismissed by the Court.
Defendant's Response: HS objects to this interrogatory on the grounds that it is overly broad, vexatious, and burdensome, and not reasonably calculated to lead to the discovery of admissible evidence relevant and material to the claims or defenses of any party to this action.
HS argues that its other litigation is irrelevant because Fluke's claims pertain only to his own interactions with HS. Nevertheless, it is fairly obvious that the requested material could lead to the discovery of admissible evidence, particularly with respect to Cognis's knowledge and/or possible level of culpability.
Because the scope of the request is limited to five years, the interrogatory is not overly broad, vexatious or burdensome. I would only add, with respect to negligence litigation, that HS must disclose only the existence of cases which charge it with negligence in the performance of its duties; personal injury actions or the like need not be disclosed.
C. Plaintiff's Interrogatory No. 23: State whether you have ever performed an outside search and inside assessments for a client simultaneously, and if not, why not, including whether it would constitute a conflict of interest to do so.
Defendant's Response: HS objects to this interrogatory on the grounds that it is not reasonably calculated to lead to the discovery of admissible evidence relevant to the claims or defenses of any party to this action. The SLR [strategic leadership review] that is the subject of this litigation and the search for the North American president and CEO were separate assignments conducted at different times and for different purposes. HS also objects to the term "ethical" as ambiguous, confusing, and imprecise. HS also objects to this Interrogatory on the grounds that it assumes that ethical issues would be implicated if HS performed both SLR's and searches for its clients. Finally, HS objects to this Interrogatory as overly burdensome and vexatious. In order to ascertain whether it ever conducted an outside search and an SLR simultaneously, HS would have to review all of its client records from its inception to the present, a process that would be excessively expensive and onerous for HS to undertake, as its database does not permit a general search of this nature. Finally, HS also objects to this Interrogatory on the grounds that it would require the disclosure of proprietary and confidential information that is not relevant to this matter regarding its clients and the purposes for which it was hired.
Whether HS's strategic leadership review for Cognis was entirely separate from its search for a North American president is a disputed issue of fact. Fluke has suggested that HS torpedoed his chance for selection as president so that it could proceed to conduct an outside search for which it would receive a higher commission than if it had identified an inside candidate. Viewed in the light of these allegations, it is clear that Fluke's interrogatory is designed to elicit information which could lead to the discovery of admissible evidence.
Moreover, although a response to this interrogatory will involve a certain amount of data review, I am not convinced that the burden and expense involved would outweigh the relevance of the information obtained.
The privacy of the companies involved, as well as HS's legitimate interest in providing confidentiality to its clients, will be resolved by my direction to HS that it may refer to any company involved by the city in which it is located and the year in which HS performed services for it. For instance, it may describe the services it performed for "a company in San Francisco, in 1993", and not provide any more identifying information.
Further, Fluke is correct in pointing out that perceived ambiguities do not justify HS in refusing to answer the portion of this interrogatory which asks for a narrative response. As Fluke says, "Defendant is free to include in its answer its own definition of `conflict of interest'."
D. Plaintiff's Request For Production No. 7 seeks the production of: The written assessments of each Cognis employee who was assessed by you at approximately the same time as Plaintiff, in connection with the sale of the company.
Defendant's Response: HS objects to this request on the grounds that it is overly broad, vexatious, burdensome, and not reasonably calculated to lead to the discovery of admissible evidence relevant and material to the claims or defenses of any party in this action. As the search for the North American president and CEO was a separate project from the SLR, the reviews of other employees of Cognis are not relevant to this cause of action. HS also objects to this request on the ground that it seeks confidential and/or otherwise private information concerning private persons.
In his motion to compel, Fluke argues that his theories underlying this case require that his assessment be seen in the context of the other assessments prepared by HS. He also states that he does not believe he needs the names of the individuals, or reports for any individuals not assessed in North America.
HS argues: "If Plaintiff's theory of this case is correct — i.e. that HS deliberately gave the only qualified internal candidate a negative review so as to seek an outside candidate — the assessments of other "unqualified" "internal" candidates have no bearing on any issues here. . . . This Court did not permit plaintiff to succeed on a theory that HS was generally incompetent or careless in its approach. . . ."
I am persuaded that Fluke's approach is the correct one. Fluke is entitled to test his theory that he was the only qualified internal candidate, and, as he argues, he is entitled to explore HS's testing methodologies in general, and as compared to those it used with him. Although Fluke has not set forth a theory that HS was "generally incompetent or careless", he has been permitted to proceed on his claim of negligence with respect to his own assessment.
HS has specified that the matter at issue comprises approximately seventy assessments. This is before Fluke limited his request to North American assessments. It is clear, therefore, that compliance with this request would not be overly burdensome to HS. I will direct HS to provide the requested assessments, redacted to remove the candidates' names, and with the understanding that the material is to be used solely in connection with this litigation.
E. Plaintiff's Request for Production No. 8 seeks the production of: The resume of Mike Miller [the individual chosen as North American president for Cognis] and any other document forming the basis for you contacting him for the North American president's position.
According to Fluke, HS's response was inadequate because it provided only a redacted version of its contact sheet for Mr. Miller, eliminating any contacts between him and HS which took place before he was first contacted about the Cognis position.
Fluke explains: "Plaintiff has alleged in his complaint a pre-existing business relationship between Defendant and Mr. Miller. Quite simply, an un-redacted contact sheet allows Plaintiff to prove the assertion in his complaint, and cannot be said to be damaging or harmful to anyone, given that Mr. Miller in fact left his previous employment to take the Cognis North American presidency."
HS claims to be "perplexed" by this request. It claims to have already provided several references to pre-Cognis contacts with Mr. Miller. I will direct HS to either (a) provide all other documents evidencing pre-Cognis contacts with Mr. Miller, or (b) certify in a sworn discovery response that no such material exists.
V. Conclusion
For the reasons discussed above, I enter the following:
ORDER
AND NOW, this day of April, 2004, upon consideration of Plaintiff's Motion to Compel Discovery, docketed in this case as Document No. 14, and Defendant's response thereto, it is hereby ORDERED that Plaintiff's Motion to Compel Discovery is GRANTED IN PART and DENIED IN PART, as follows:
1. Plaintiff's Interrogatory No. 12: Within 14 days of the date of this Order, HS shall provide Plaintiff with a list of the nationalities of each person recommended by HS to fill the president's position at issue in this case;
2. Plaintiff's Interrogatory No. 20: Within 14 days of the date of the date of this Order, HS shall forward to Plaintiff the requested information, except that negligence cases involving personal injury or the like need not be disclosed;
3. Plaintiff's Interrogatory No. 23: Within 14 days of the date of this Order, HS shall forward to Plaintiff the requested information, except that the material may exclude the names of individuals and businesses involved, and work performed by businesses may instead be identified by the city where the business is located, and the year the work was performed;
4. Plaintiff's Request For Production No. 7: Within 14 days of the date of this Order, HS shall produce the material requested, limited to North American candidates, and with all candidates' names redacted. This material is to be used only for purposes in connection with this litigation.
5. Plaintiff's Request For Production No. 8: Within 14 days of the date of this Order, HS shall either (a) provide the requested material; or (b) certify in a sworn discovery response that no such material exists.