Opinion
No. 06CV0001 MCA/WDS.
November 15, 2006
ORDER SUSTAINING PLAINTIFF'S OBJECTIONS
THIS MATTER comes before the Court on Plaintiff's Rule 72(a) Objections to Magistrate's Discovery Order and Request for Review by Article III Judge [Doc. 81], filed October 12, 2006. Having reviewed the record and the applicable law, and being fully advised in the premises, the Court finds that Plaintiff's objections are well-taken and will be sustained.
I. BACKGROUND
The following factual allegations are taken from Plaintiff Rhonda Lovato's Complaint for Retaliation and Discrimination in Violation of Federal and State Civil Rights Statutes and Violations of New Mexico Common Law. [See generally Doc. 1]. Ms. Lovato is a former employee of Defendant Presbyterian Healthcare Services ("PHS"). From September 8, 2003 until her termination on November 4, 2004, Ms. Lovato worked as the director of inpatient and day surgery services for one of Defendant's facilities, and as the director of day surgery services for another. Ms. Lovato was supervised by Defendant Jason Fahrlander. In or about August 2004, Ms. Lovato, having become aware of what she believed to be Mr. Fahrlander's disparate, discriminatory, and retaliatory treatment toward her, complained to PHS's legal department. Because Mr. Fahrlander's behavior continued, Ms. Lovato made a complaint of retaliation to PHS's human resources department. Mr. Fahrlander subsequently terminated Ms. Lovato's employment. At the time of her termination, Ms. Lovato was 44 years old. On January 3, 2006, Ms. Lovato filed her Complaint, alleging age and gender discrimination and retaliation, and asserting various state-law claims.
As part of her discovery requests, Ms. Lovato sought complete copies of the personnel files of PHS employees April Verhoog, Karen Yost, Evelyn Higgins, Eileen Henry, Carolyn Jones, and Bill Monthan, all of whom, like Ms. Lovato, reported either directly or indirectly to Jason Fahrlander. Ms. Lovato contends that Ms. Verhoog, an under-40 co-worker who replaced Ms. Lovato, and Mr. Monthan, a male co-worker, were treated favorably by Mr. Fahrlander, while Ms. Yost, Ms. Higgins, Ms. Henry, and Ms. Jones, all women over the age of 40, were treated poorly and/or without respect by Mr. Fahrlander. PHS objected to Ms. Lovato's requests on grounds that they (1) sought documents that were not relevant or reasonably calculated to lead to the discovery of admissible information; (2) sought documents or materials protected by the work product or attorney-client privilege; and (3) were overbroad. [See Doc. 81; Exh. B].
Ms. Lovato then filed Plaintiff's Motion to Compel More Complete Responses to Written Discovery. [Doc. 20]. The magistrate judge granted the motion in part and denied it in part. As is relevant here, the magistrate judge ordered PHS to produce for his in camera review the following:
(1) April Verhoog's performance evaluation(s) for the time period September 8, 2003 to November 4, 2004, and any documents in her file that are laudatory or critical of her performance;
(2) Records showing April Verhoog's leave or payroll for the time period September 8, 2003 to November 4, 2004;
(3) Karen Yost's performance evaluation(s) and any documents in her file that are laudatory or critical of her performance for the time period September 2001 to November 4, 2004;
(4) Evelyn Higgins's performance evaluation(s) and any documents in her file that are laudatory or critical of her performance for the time period September 2001 to November 4, 2004;
(5) Eileen Henry's performance evaluation(s) and any documents in her file that are laudatory or critical of her performance for the time period September 2001 to November 4, 2004;
(6) Carolyn Jones's performance evaluation(s) and any documents in her file that are laudatory or critical of her performance for the time period September 2001 to November 4, 2004; and
(7) Bill Monthan's performance evaluation(s) and any documents in his file that are laudatory or critical of his performance for the time period September 2001 to November 4, 2004.
[Doc. 77 at 4-5]. Ms. Lovato now objects to the magistrate judge's decision to conduct an in camera review of the above listed documents, rather than order PHS to produce to her the complete personnel files of her co-workers. [Doc. 81 at 1-3].
On October 25, 2006, the magistrate judge, having conducted his in camera review of the documents, ordered PHS to produce those documents to Ms. Lovato, subject to certain protective measures. [See Doc. 85].
II. ANALYSIS
Pursuant to 28 U.S.C. § 636(b), magistrate judges may hear and determine pretrial, nondispositive matters pending before the Court. Magistrates may issue orders as to such matters, and district courts review the resulting orders under a "clearly erroneous or contrary to law" standard of review. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988);see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Review of an appeal from — or objections to — a magistrate judge's order on a nondispositive issue is extremely deferential. Thus, "[t]he clearly erroneous standard . . . requires that the reviewing court affirm unless it `on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"Ocelot, 847 F.2d at 1464 ( quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
"[T]he scope of discovery under the federal rules is broad and . . . `discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues.'" Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) ( quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Moreover, the Tenth Circuit has "pointed out that discovery in discrimination cases should not be narrowly circumscribed." Gomez, 50 F.3d at 1520 ( citing Rich v. Martin Marietta Corp., 522 F.2d 333, 343-44 (10th Cir. 1975)). While "[i]t is well settled that in a Title VII suit, an employer's general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment . . . this desire to allow broad discovery is not without limits and . . . wide discretion [exists to] balanc[e] the needs and rights of both plaintiff and defendant." Gomez, 50 F.3d at 1520.
The scope of discovery is limited only by relevance and burdensomeness. Rich, 522 F.2d at 343; see also Fed.R.Civ.P. 26(b)(1) ("Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . .). Indeed,
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 either does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1) or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.Moore v. Chertoff, 2006 WL 1442447 at *2 (D.D.C. 2006) (discovery of medical records).
In Weahkee v. Norton, the Tenth Circuit held that the trial court erroneously denied the plaintiff's request for personnel files of co-workers he claimed were hired or promoted in discriminatory preference over him, explaining that the qualifications and job performance of these co-workers in comparison to the plaintiff's qualifications and performance was "at the heart of the controversy." Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980); see also EEOC v. Univ. of New Mexico, 504 F.2d 1296 (10th Cir. 1974) (in case alleging discriminatory failure to promote, allowing discovery of all personnel files of all faculty members employed by university's college of engineering at time of plaintiff's discharge). Importantly, because the erroneous denial of discovery is ordinarily prejudicial in the absence of circumstances showing it is harmless, where it is not possible to determine from the record whether the requested documents might affect the result of the litigation, it cannot be said that any error is harmless. See Weahkee, 621 F.2d at 1083.
In this case, Ms. Lovato seeks the production of the complete personnel files of Ms. Verhoog, Ms. Yost, Ms. Higgins, Ms. Henry, Ms. Jones, and Mr. Monthan, co-workers who, like Ms. Lovato, reported to Mr. Fahrlander and who she contends were treated either similarly to her because they were older and female, or preferentially because they were male or younger. Specifically, Ms. Lovato seeks the production of all salary information; performance-related documentation, such as evaluations, disciplinary write-ups, records of disciplinary action, evidence of promotions or change in job status, and bonus criteria; and documents relating to authorized or unauthorized leave. [Doc. 81 at 3]. Some of the requested documentation is sure to be included in performance evaluations and documents "laudatory or critical" of the performance of Ms. Lovato's co-workers, the production of which has been ordered by the magistrate judge. Other information, however, such as whether Ms. Lovato was judged differently from her co-workers with respect to receiving bonuses and leave, may not be apparent or even ascertainable from the documents the magistrate judge has ordered be produced. Yet such information is relevant to proving Ms. Lovato's claim that Mr. Fahrlander treated her differently from her co-workers in the terms and conditions of her employment, as well as showing evidence of PHS's general practices. See Gomez, 50 F.3d at 1520. Because it cannot be said that the information requested by Ms. Lovato would not affect the outcome of this litigation, the denial of its production cannot be said to be harmless error. See Weahkee, 621 F.2d at 1083.
Ms. Lovato has excluded from her request information concerning medical matters, sick leave requests, and healthcare and other benefits-related documents and states her intention to comply with the terms of the Stipulation and Protective Order Relating to the Disclosure of Private, Confidential or Proprietary Information [Doc. 40] entered July 10, 2006.
III. CONCLUSION
For the foregoing reasons, the magistrate's order of October 2, 2006 will be set aside to the extent that it limits production of requested personnel files to performance evaluations and documents laudatory or critical of PHS employees April Verhoog, Karen Yost, Evelyn Higgins, Eileen Henry, Carolyn Jones, and Bill Monthan. See Fed.R.Civ.P. 72(a).
IT IS, THEREFORE, ORDERED that the magistrate judge's October 2, 2006 Order [Doc. 77] is AFFIRMED IN PART and SET ASIDE IN PART;
IT IS FURTHER ORDERED that Defendant Presbyterian Healthcare Services shall produce to Plaintiff Rhonda Lovato the complete personnel files of April Verhoog, Karen Yost, Evelyn Higgins, Eileen Henry, Carolyn Jones, and Bill Monthan, excluding information concerning medical matters, sick leave requests, and healthcare and other benefits-related documents.
SO ORDERED in Albuquerque, New Mexico.