Opinion
Civil No. 05-72356.
February 21, 2006
OPINION AND ORDER
Plaintiff Michelle Horton sues her former employer for violation of 42 U.S.C. § 1983 (due process), wrongful discharge and breach of implied contract, and defamation. Plaintiff moves to compel discovery, and for the reasons that follow, Plaintiff's motion is GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND
In 1990, Plaintiff began employment as a deputy clerk with Defendant 48th District Court. (Compl. ¶ 8.) On or about December 10, 2004, Plaintiff says she was interrogated by Bloomfield Township detectives regarding alleged "criminal favors," alleged disclosure of court records regarding the arrest of the wife of Judge Marc Barron, and alleged improper use of the Court's information systems. (Compl. ¶ 12; Pl.'s Br. at 1.) Plaintiff was terminated on December 16, 2004, allegedly for violating the court's policy against personal use of the Court's information systems (the "SOS" and "Lien" systems). (Compl. ¶ 18.) Plaintiff maintains she has never used the information systems for personal use. (Compl. ¶ 19.) Plaintiff claims she was terminated without a hearing or an opportunity to respond, in violation of her due process rights. (Compl. ¶ 20.)
Plaintiff moves to compel discovery because she claims Defendants failed to respond to her first set of interrogatories, served October 19, 2005. (Pl.'s Mot. ¶ 2.) Plaintiff also states that Defendants' answers to her first request for production of documents were incomplete, evasive, and asserted improper objections. Id. at ¶ 4.
II. ANALYSIS
A. Legal Standard for the Scope of Discovery
The scope of discovery under the Federal Rule of Civil Procedure is traditionally quite broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery on any matter that is not privileged and is relevant to the claim or defense of any party. Fed.R.Civ.P. 26(b)(1). Relevant evidence is defined as evidence having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Even evidence that would not be admissible at trial is still discoverable "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The court may limit discovery if it determines that the request is "unreasonably cumulative . . . [or] obtainable from some other source that is more convenient, less burdensome, or less expensive . . . [or] the party seeking discovery has had ample opportunity by discovery in the action to obtain the information . . . [or] the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2)(i)-(iii).
B. Plaintiff's First Request for Production of Documents
Plaintiff contends that Defendants' objections to her first request for production of documents are improper; specifically, Defendants' objections to requests numbered 2, 3, 7, 8, and 9. (Pl.'s Br. at 2.)
1. Defendants' Objections to Requests Numbered 2 and 3
Plaintiff's requests numbered 2 and 3 ask for the following:
2. A copy of the investigative file(s) and any other documents relating to any potential wrongdoing by any person(s) at the 48th District Court within the past five (5) years for the event(s) defendants assert gave rise to plaintiff's suspension and termination.
3. Any documents reflecting any disciplinary action(s) taken by defendants against employees who are alleged to have engaged in activity similar to that for which plaintiff was suspended and terminated, including but not limited to action(s) taken against employees who allegedly violated defendants' "Personnel and Procedures Manual" and/or who allegedly misused the court's LEIN/SOS system for non-court use.
(Pl.'s Mot. at Ex. C.) Defendants object to these requests on the basis that the information sought is privileged by Michigan's Bullard-Plawecki Employee Right to Know Act, M.C.L. § 423.501, et seq. (the "Act"). The Act applies to public and private employers; it permits employees to review their own personnel records and prescribes the information that may be contained in those records. Id. Defendants do not cite a specific section of the Act in support of their objections. However, it seems their objections could be based on two sections that limit employer disclosure of certain information contained in a personnel file. M.C.L. § 423.506(1) provides that an employer shall not divulge "a disciplinary report, letter of reprimand, or other disciplinary action to a third party . . . without written notice [to the employee]. . . ." M.C.L. § 423.507 states that, before releasing a personnel record to a third party, the employer shall delete "disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old."
Defendants' argument is without merit; these sections of the Act do not create a privilege as to disciplinary reports, letters of reprimand, or other records of disciplinary action. No court in the Sixth Circuit, nor any Michigan state court, has found that such a privilege exists. First, both sections contain an exception for disclosure related to litigation. Neither section will apply if the disclosure "is ordered in a legal action or arbitration to a party in that legal action or arbitration." M.C.L. §§ 423.506(3)(b), 507. That exception applies to the case at hand where Plaintiff seeks disclosure as part of her discovery efforts. Second, neither provision creates an absolute bar to disclosure of the information. Section 506(1) only requires that notice be given to the employee before certain information is disclosed to a third party. Section 507 requires the employer to remove certain information before a personnel record is disclosed to a third party. Although these sections prescribe certain prerequisites to disclosure to a third party, neither section contemplates that disclosure cannot occur. Thus, Defendants have not shown that the Act creates a privilege with regard to the information sought by Plaintiff in requests numbered 2 and 3.
Having addressed the question of privilege, the question of relevance still remains. Plaintiff argues that the information she seeks is relevant to her claim of selective enforcement; specifically, that Defendants' policy regarding the use of the court's SOS and LEIN information systems was selectively enforced against her. (Pl.'s Br. at 2.) In order to prove selective enforcement, Plaintiff argues that she needs information about any comparable district court employees who may have engaged in the same conduct for which Plaintiff allegedly was terminated. Id. Plaintiff's requests numbered 2 and 3 are narrowly tailored to that end. Thus, I ORDER Defendants to respond to Plaintiff's requests numbered 2 and 3.
2. Defendants' Objections to Request #8
Plaintiff's request #8 asks for the following:
8. For the time period January 1, 2002 to the present, any and all memoranda distributed to court staff/personnel concerning any court employee's termination or separation from the court and stating the reasons for that employee's termination/separation.
(Pl.'s Mot. at Ex. C.) Defendants' objection based on privilege under the Bullard-Plawecki Act is without merit as previously discussed. However, Plaintiff's request is overbroad because it seeks information relating to employees terminated for any reason; it is not limited to employees terminated for conduct similar to Plaintiff's, which would be relevant to Plaintiff's selective enforcement claim. Plaintiff's motion is DENIED as to request #8; however, Plaintiff is permitted to submit a revised version of this request to Defendants.
3. Defendants' Objections to Request #9
Plaintiff's request #9 asks for "[t]he complete personnel file of Charo Mallone." (Pl.'s Mot. at Ex. C.) Defendants' objection based on privilege under the Bullard-Plawecki Act is without merit as previously discussed. Plaintiff's brief does not specify why this information is relevant. Plaintiff's motion is DENIED as to request #9.
4. Defendants' Objections to Request #7
Plaintiff's request #7 asks for a "[r]egister of Actions pertaining to Lori Barron, and any and all handwritten notations pertaining to such records." (Pl.'s Mot. at Ex. C.) Lori Barron, the wife of 48th District Court Judge Marc Barron, was arrested for driving under the influence during Judge Barron's election campaign. (Compl. ¶ 15; Pl.'s Br. at 2.) Her arrest record was entered at the 48th District Court, and stories appeared in local newspapers regarding the arrest. (Compl. ¶ 15.) Plaintiff claims she was questioned by Bloomfield Township detectives about whether she provided court records on Lori Barron's arrest to anyone (Plaintiff says she did not). (Compl. ¶ 16; Pl.'s Br. at 1-2.) Plaintiff says she was mistakenly accused of releasing these records, and this was the actual reason for her termination. (Pl.'s Br. at 2.) Defendants object based on privilege, claiming that this information is "protected by the [sic] variety of confidentiality statutes." (Pl.'s Mot. at Ex. C.) However, Defendants do not cite any such statutes, nor do they explain why this information is privileged.
Because Plaintiff's discovery request asks for "any and all handwritten notations pertaining to [the arrest records]," it seems she is looking for evidence that her employer believed she released those records. This evidence is relevant to Plaintiff's wrongful termination claim. In order to support this claim, Plaintiff needs discovery on her employer's motivation for terminating her employment. Plaintiff alleges that her employer was motivated by its belief that Plaintiff released the arrest records, and her discovery request asks for information in support of that argument. However, Plaintiff's discovery request is overbroad because it asks for " any and all handwritten notations pertaining to [the arrest records]" (emphasis added). It sweeps too broadly because it could reach information having nothing to do with Defendants' motivation for terminating Plaintiff's employment. For example, this request would reach the handwritten notes of a judge presiding over the Lori Barron case, which clearly would be outside the scope of discovery.
Plaintiff's motion is DENIED as to request #7; however, Plaintiff is permitted to submit a revised version of this request to Defendants.
C. Whether a Protective Order is Needed
Plaintiff's discovery requests raise privacy concerns because the information she seeks from employee personnel files might be personal or confidential. Defendants request a protective order, and Plaintiff's brief indicates she would be amenable to a protective order upon a showing of good cause. (Defs.' Resp. at 3; Pl.'s Mot. ¶ 7.) The Sixth Circuit has recognized a privacy interest in the personnel files of nonparties, which is commonly guarded through the entry of a protective order. Knoll v. ATT, 176 F.3d 359, 365 (6th Cir. 1999). I ORDER the parties to execute a protective order to prevent the improper use of this information outside of the context of this lawsuit.
III. CONCLUSION
I ORDER Defendants to respond to Plaintiff's first set of interrogatories, and to respond to Plaintiff's requests for production of documents numbered 2 and 3, within ten days of the entry date of this order. Plaintiff's motion is DENIED as to document requests numbered 7-9, although Plaintiff may submit revised versions of requests numbered 7 and 8 to Defendants within ten days of the entry date of this order. The parties are ORDERED to execute a protective order for the information Plaintiff seeks regarding employees at the 48th District Court within ten days of the entry date of this order. Plaintiff's request for attorney's fees and costs is DENIED.
The briefing schedule for Defendants' Motion for Summary Judgment has been stayed. The parties shall contact this Court to set a new briefing schedule once they have complied with the terms of this order.
IT IS SO ORDERED.