Opinion
Case No. 2:01 CV 793 TC.
June 8, 2004
ORDER
This is a suit between a former employee and her employer alleging violations of the Family Medical Leave Act. The discovery cutoff had been set for June 1, 2004, but was recently vacated by stipulation because of discovery disputes. This order deals with those disputes.
Amended Complaint, docket no. 32, filed February 28, 2003.
Scheduling Order, docket no. 39, filed August 29, 2003.
Order, docket no. 59, dated April 30, 2004, granting stipulation (docket no. 55) to vacate discovery and dispositive motion deadlines.
Defendant filed a motion to compel Plaintiff to produce documents including tape recordings of certain conversations described in her initial disclosures, and various documents described in her responses to interrogatories and requests for production. Defendant also seeks to compel Plaintiff to provide medical releases so Defendant may obtain her medical records. Plaintiff responds that she should not have to provide copies of the audio tapes she has enhanced at her own expenditure of $2,600; that she "acknowledges America West's entitlement" to two of the documents requested and "will produce both," but claims attorney work product privilege as to the balance of the items; and that she requires a protective order be entered before supplying medical document releases.
Motion to Compel Production of Documents (Defendant's Motion to Compel), docket no. 53, filed April 7, 2004. See pages 2-3 of the Motion for a summary of these items in dispute.
Memorandum Opposing America West's Motion to Compel and Supporting Mrs. Knapp's Cross-Motion to Compel and Her Motion for a Protective Order (Plaintiff's Memorandum), docket no. 58, filed April 26, 2004, at 1-2.
Id. at 3.
Id. at 2-3.
Plaintiff moves for entry of a protective order as to the medical records and privileged documents, and moves to compel answers to discovery from Defendant. Defendant responds that the protective order issue was never brought up prior to the filing of Plaintiff's motion, and defends the sufficiency of its answers to discovery.
Motion for a Protective Order, docket no. 57, filed April 26, 2004.
Cross-Motion to Compel Responses to Requests for Admissions, Requests for Production of Documents and Interrogatories (Cross-Motion to Compel), docket no. 56, filed April 26, 2004.
Reply at 4. Defendant's Response to Plaintiff's Motion for Protective Order, docket no. 61, filed May 14, 2004 at 3.
Discussion and Disposition Defendant's Motion to Compel; Plaintiff's Motion for Protective Order
Defendant's motion to compel and Plaintiff's motion for protective order relate to audio tapes, miscellaneous documents and medical records, so these motions will be discussed together, as each category of materials is sequentially reviewed.
Audiotapes
There are two versions of the audiotapes — enhanced and unenhanced. It is fair to provide Defendant with the unenhanced tapes and portions of enhanced tapes that Plaintiff intends to use at trial without unjustly conferring the benefit of the expensive audio enhancements of the balance of the tapes. Defendant's motion to compel production of the unenhanced audio tapes is granted. Further, Plaintiff shall provide copies of all portions of the enhanced tapes which Plaintiff will use at trial. Plaintiff's failure to produce any enhanced audio segment will bar Plaintiff's use of that segment in her case in chief at trial.Plaintiff's motion for protective order is granted as to the enhanced versions of the audio tapes. Defendant may receive copies of all segments of the enhanced tapes not produced by Plaintiff by paying one-half the total $2,600.00 cost of the tape audio enhancement.
Production of Documents by Plaintiff
Defendant's motion for production of Plaintiff's personal logbook and personal calendar is granted, because she admits they should be produced. Plaintiff is ordered to provide a privilege log for all other documents as to which Plaintiff claims privilege, and a set of documents for in camera inspection. Plaintiff has not yet delivered a privilege log identifying documents withheld on the basis of privilege. The court's review does not disclose any privilege objection in Plaintiff's responses to discovery. Privilege appears to have been first claimed in a relatively late letter between counsel. The parties shall submit simultaneous memoranda of less than five pages on the issue of waiver of privilege protection by Plaintiff's failure to adequately make an objection on the basis of privilege and/or provide a privilege log.
Reply Supporting Motion to Compel Production of Documents (Reply), docket no. 60, filed May 10, 2004, at 1 and 4-6.
Mrs. Knapp's Response to America West's First Interrogatories and Mrs. Knapp's Response to America West's First Requests for Production, attached as Exhibits 19 and 20 to Defendant's Motion to Compel.
Letter, Robert S. Young to Stephanie M. Cesarano, February 26, 2004, attached as Exhibit 8 to Defendant's Motion to Compel.
Medical Records
The resolution of the dispute about Plaintiff's medical records could hardly be more obvious. Defendant's motion to compel production of medical records through delivery of medical releases is granted. Plaintiff's motion for protective order as to medical records is granted.
Protective Order
Until the parties stipulate to a different form of protective order, a party receiving medical records is ordered not to disseminate medical records materials received in this action. The party receiving such records shall hold such information in confidence, shall use the information only for purposes of this civil action and for no other action, and shall not use it for any business or other commercial purpose, and shall not disclose it to any person. At the conclusion of this action, including through all appeals, the party receiving such records shall destroy or return to the other party all medical records received and certify to the other party such destruction or return. Such return or destruction shall not relieve any person from any of the continuing obligation imposed upon by this order. If a party receiving such records is subpoenaed in another action or proceeding or served with a document or testimony demand or a court order, and such subpoena or demand or court order seeks information subject to this order, that party shall give prompt written notice to opposing counsel and allow opposing counsel an opportunity to oppose such subpoena or demand or court order prior to the deadline for complying with the subpoena or demand or court order. No compulsory disclosure to third parties of information subject to this order shall be deemed a waiver of any claim of confidentiality, except as expressly found by a court or judicial authority of competent jurisdiction. The court's jurisdiction to enforce this order will continue after the termination of this action.
Plaintiff's Motion to Compel
Plaintiff has moved to compel various items from Defendant. Each category of information will be discussed separately.
Cross Motion to Compel.
The court now has the benefit of well-developed arguments about the five documents regarding Plaintiff's Department of Labor complaint, claimed to be work-product privileged. Defendant shall submit these items to chambers, with an affidavit or declaration as to factual setting needed for evaluation of the documents. The affidavit shall be filed and served. After reviewing these documents, the court will decide whether they are privileged.
Plaintiff's Memorandum at 3. Defendant's Response to Plaintiff's Motion to Compel (Defendant's Response), docket no. 62, filed May 14, 2004, at 1-3. Reply Memorandum Supporting Mrs. Knapp's Cross-Motion to Compel and Her Motion for a Protective Order (Plaintiffs Reply), docket no. 64, filed May 28, 2004, at 1-6.
Defendant filed responses to Plaintiff's request for production that did not specify which documents produced related to which requests for production. Defendant points out that its supplemental responses to the request for production did state which Bates-numbered documents applied to which requests. Plaintiff has withdrawn this portion of her motion. [All this information was available to Plaintiff before her motion was filed.]
Attachment 3 to Plaintiff's Memorandum.
Attachments 1 and 2 to Defendant's Response.
Plaintiff's Reply at 6.
Plaintiff complains that Defendant did not verify answers to interrogatories which prevents her from knowing who answered or was the source of information as to each interrogatory. Plaintiff claims "she is entitled to know the names of America West employees most knowledgeable about certain topics. Rule 30(b)(6) allows her to designate those individuals as deponents." First of all, Plaintiff is correct that the answers to interrogatories should be signed under oath of the person making the answers on behalf of the corporate Defendant. Answers under oath shall be filed. However, Plaintiff is not entitled to know who answered or was the source of information as to each interrogatory, in the absence of an interrogatory to that effect. Finally, Plaintiff's reliance on Fed.R.Civ.P. 30(b)(6) fails. Plaintiff does not need to identify the names of persons most knowledgeable in order to take their depositions. When Plaintiff serves a notice of deposition under Rule 30(b)(6) "the organization . . . shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf." The answers, when verified, will be sufficient without naming the persons providing information.
Plaintiff's Memorandum at 8.
Id. at 9.
Plaintiff's Reply at 7.
The last portion of Plaintiff's motion to compel pertains to several specific interrogatories. Plaintiff's opening memorandum briefly touched on these interrogatories and hardly explained what Plaintiff wants. Defendant and Plaintiff fleshed out the dispute in the ensuing memoranda.
Plaintiff's Memorandum at 9-10.
Defendant's Response at 6-10. Plaintiff's Reply at 7-10.
No further answer will be compelled to Interrogatory No. 2 seeking information on all FMLA suits brought against Defendant. Defendant's answer, listing suits since 1996, to the extent of its records, is sufficient.
No further answer will be compelled to Interrogatory No. 3, where Plaintiff seeks names of employees who were denied FMLA leave. All other information regarding those instances, except for the names, has been provided. In view of the privacy expectations of those employees, it is not appropriate to order their names disclosed.
Defendant took a customary approach of releasing data without names, which has been called into question in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004). "Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy." Id. at 929. Plaintiff shall not disseminate these materials in violation of the protective order contained herein.
Plaintiff claims she to need information on all other FMLA applications submitted to Defendant because Defendant may attempt to avoid liquidated damages by showing its good faith in denying Plaintiff's request for leave. Plaintiff's brief arguments are not sufficient to justify the burden of producing this evidence.
Interrogatories 4, 5 and 6.
Plaintiff also seeks detailed information on each of her leave applications. On this dispute, the record demonstrates a lack of communication. Plaintiff's Memorandum did not state her concerns clearly, and while Defendant's answers may not have been sufficiently clear, the explanations provided in the Defendant's Response seem adequate.
Interrogatories 7 and 8.
Plaintiff retreats from her overbroad request for "each conversation, discussion, correspondence, between you and your pilot union in 1998, 1999, or 2000, wherein the subject(s) . . . included pilot overstaffing, on any aircraft. . . ." She now says she really wants to know if "America West had made inquiry of the pilot union regarding the possibility of voluntary leaves of absence due to pilot overstaffing in the same make and model aircraft she piloted. . . ." The refinement is too late. The interrogatory is overbroad.
Defendant's Response at 9.
Plaintiff's Reply at 9.
Defendant produced Plaintiff's flight records for 1997 through 2000 and will produce any prior records it can locate. Plaintiff agrees this is sufficient, but wants an order to that effect. No order is needed.
Defendant's Response at 10. But Defendant also implies it has yet to produce 1997 records. Id.
The parties conclude their dispute by arguing whether anyone in Defendant's organization knows about the medical condition of Plaintiff's son. Defendant treats the question as academic as if it asked who might possibly know of this rare disease: "In order to respond, America West would need to poll its 13,000 employees about their knowledge of Plaintiff's son's condition." Plaintiff clearly wants to know who, of the persons who dealt with Plaintiff's leave requests, best understood Plaintiff's son's medical condition. Defendant created this chasm of misunderstanding by an artificial interpretation of the interrogatory. Defendant is ordered to answer the interrogatory.
Defendant's Response at 10; Plaintiff's Reply at 10.
Defendant's Response at 10.
Defendant's response to the interrogatory violates Utah Standard of Professionalism and Civility No. 19:
In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information,
Professionalism
This last point illustrates the unfortunate departure of counsels' conduct from the standards of professionalism that facilitate the resolution of disputes, rather than their enlargement. Professional conduct resolves cases, brings satisfaction to lawyers and creates respect for the practice of law
The voluminous correspondence between counsel, attached as exhibits to these motions, demonstrates the lack of courtesy and cooperation between counsel. They each feel the need to make a record after every call, and they characterize motives. They write to create exhibits. "I was surprised by your contention . . . we had just spoken on the telephone prior to your letter. . . ." "Unless I hear otherwise from you, I will assume that this resolves your concerns. . . ." "This letter follows . . . our recent telephone conversation. . . . It also constitutes the statement showing reasonable effort to reach agreement . . ." "This letter follows my letter to you dated . . . and responds primarily to your letters dated . . . and . . . [and] may spill over and address some issues raised in the several items of correspondence you sent while I was out of town . . ." After so much record-making, a surreal fog sets in.
Exhibits 1-17 attached to Defendant's Motion to Compel.
Exhibit 12 attached to Defendant's Motion to Compel.
Exhibit 10 attached to Defendant's Motion to Compel.
Exhibit 14 attached to Defendant's Motion to Compel.
Exhibit 11 attached to Defendant's Motion to Compel.
Both side engage in posturing: "Please understand that we cannot agree to any Arizona lawyer taking or defending depositions in this case [in Phoenix] until . . . admitted pro hac vice . . ." "I have a pretty good idea how our federal magistrates . . . will deal with your rather apparent refusal . . ." Defendant's counsel states her intentions to take Plaintiff's deposition in Salt Lake City after Plaintiff's counsel requests the deposition be taken in Arizona where Defense counsel works and where most depositions will be taken.
Exhibit 16 attached to Defendant's Motion to Compel.
Exhibit 14 attached to Defendant's Motion to Compel.
Exhibits 9 and 11 attached to Defendant's Motion to Compel.
This antagonism spills over into the arguments that challenge the genuineness of the parties' disputes. Plaintiff states she has withheld medical records pending a protective order to ensure their confidentiality, but Defendant states the issue of a protective order was first raised in this briefing. Plaintiff claims attorney client privilege as to some documents but failed to provide a privilege log or raise the objection in original responses, and admits she only raised the claim "based upon our perception of [America West's] position on the 'work product prepared in anticipation of litigation'" privilege.
Exhibit 8 attached to Defendant's Motion to Compel.
These combative, technical and distracting tactics have enlarged the dispute and contribute nothing to the "just, speedy and inexpensive determination" of the action. Counsel are admonished to consider their strategies and attitudes and to approach their tasks in the spirit of the Utah Standards of Professionalism and Civility, as expressed in the Preamble:
A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling a duty to represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner. . . .
Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to delay and often to deny justice.
Lawyers should exhibit courtesy, candor and cooperation in dealing with the public and participating in the legal system.
Preamble to Utah Standards of Professionalism and Civility, http://www.utprofcomm.org/Public_Documents/Public_Documents/ scprof_final_report_barcopy.rtf.
ORDER
IT IS HEREBY ORDERED that Defendant's motion to compel is GRANTED in part as provided herein.IT IS FURTHER ORDERED that Plaintiff's motion for protective order is GRANTED in part as provided herein.
Motion for a Protective Order, docket no. 57, filed April 26, 2004.
IT IS FURTHER ORDERED that Plaintiff's Cross Motion to Compel is GRANTED in part as provided herein.
Docket no. 56, filed April 26, 2004.
IT IS FURTHER ORDERED that any action required under this order shall be completed on or before June 25, 2004.
IT IS FURTHER ORDERED that no expenses shall be awarded at this time, without prejudice to the court's consideration of the record on this motion in any future sanctions order.