Opinion
CIV. NO. 99-560 LH/DJS
February 4, 2000
ORDER
THIS MATTER comes before the Court upon Plaintiffs Motion to Compel and for Sanctions Against Defendant Marvin Martinez filed January 26, 2000 (Docket No. 83).
Plaintiff seeks to compel Defendant Martinez to answer various interrogatories and respond to certain requests for production. Defendant objected to providing the information requested on the grounds of relevance, burdensomeness, and the work-product doctrine.
This action is a suit pursuant to 42 U.S.C. § 1983 wherein Plaintiff claims that she was subjected to sexual harassment and intimidation by her supervisors while employed by the New Mexico Department of Corrections Probation and Parole Division.
Plaintiff further asserts that she was subjected to retaliation once she reported the sexual discrimination which she suffered. Defendant Martinez was the regional supervisor for the division of New Mexico Probation Department at the time Plaintiff alleges she was harassed. Plaintiff contends that Defendant Martinez retaliated against her and led others to retaliate against her by singling her out for discipline because she rejected him at a social event which occurred some time prior to the time he became her supervisor. Plaintiff further contends that Defendant Martinez sexually harassed her.
Defendants deny that Plaintiff was harassed or retaliated against and contend that they had legitimate, non-discriminatory reasons for their actions regarding Plaintiffs employment.
REQUEST FOR PRODUCTION NO. 1
Plaintiff seeks to compel further responses to this request for production, which seeks a copy of any notes or minutes from any meeting or conversation which Defendant had regarding or with her.
Defendant objected that the request is vague and confusing, but responded that no minutes regarding Plaintiff have been found. The response that no material responsive to the request has been located is adequate.
REQUEST FOR PRODUCTION NO. 2
Plaintiffs Request for Production No. 2 seeks the personnel files from the Dept. of Corrections of each of the individual defendants and each person identified in the Defendants Rule 26 disclosures or in the Initial Pre-Trial Report as having information or materials regarding this matter. Defendant Martinez has agreed to produce portions of his personnel file and provided a Vaughn Index describing the documents in the file.
"Vaughn Index" is a term derived from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. den. 415 U.S. 977 (1974). The index usually consists of a detailed affidavit designed to permit the court system to effectively and efficiently evaluate the factual nature of disputed information. Vaughn, 484 F.2d at 826. (Cited in John Doe Agency v. John Doe Corporation, 493 U.S. 146, 149, n. 2 (1989).
A constitutional right to privacy protects an individuals interest in preventing disclosure by the government of personal matters. Worden v. Provo City, 806 F. Supp. 1512, 1514 (D. Ut. 1992) (citing Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989)).
Disclosure of personal information which is in the possession of the state and in which the individual has a legitimate expectation of privacy must advance a compelling state interest and be accomplished in the least intrusive manner. Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986).
However, an individual may not have a legitimate expectation of privacy regarding reprimands for misconduct. See Mangels, 789 F.2d at 840; Flanagan, 890 F.2d at 1570-71; and Worden, 806 F. Supp. at 1515.
The discussions contained in these cases are based upon situations where the government released information regarding employees who then brought actions alleging violations of their right to privacy, rather than discovery disputes such as this one.
Plaintiff has provided the Court with no basis for discovery of the personnel files of any and all persons with knowledge of the facts of the case named by Defendants. Those persons legitimate expectation of privacy in their personnel files outweighs Plaintiffs interest in fishing through those materials in hope of finding fodder for impeachment.
The Court will likewise decline to compel further material from Defendant Martinez personnel file. Review of the Vaughn Index reveals that the material contained therein are not reasonably calculated to lead to the discovery of admissible evidence.
REQUEST FOR PRODUCTION NO. 3
In this request for production, Plaintiff seeks any documents related to disciplinary action taken against the individual defendants or any of the individuals identified by the Defendants in their Rule 26 disclosures or in the Initial Pre-trial Report.
Defendant objected that the request is overbroad and irrelevant. He further stated that there are no disciplinary actions in his file having to do with sexual harassment or sexual improprieties. Defendants response is adequate for largely the same reasons discussed with respect to Plaintiffs Request for Production No. 2.
REQUEST FOR PRODUCTION NO. 5
Plaintiffs Request for Production No. 5 seeks copies on any evaluations created to evaluate Defendants work performance. Defendant objected that the request is irrelevant. Plaintiff contends that, pursuant to Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118 (1999), evidence regarding evaluations and reprimands of Defendant might be relevant to her claim for punitive damages.
Plaintiff characterize Kolstad as holding that a principal can be liable for punitive damages because of an agents acts where:
1) the principal authorized the doing and the manner of the act;
2) the agent was unfit and the principal was reckless in employing him;
3) the agent was employed in a managerial capacity and was acting in the scope of employment; or
4) the principal or a managerial agent of the principal ratified or approved of the act.
Plaintiff asserts that evaluations and reprimands of Defendant Martinez could show that the Department of Corrections was reckless in employing him and that he was unfit. Plaintiff mischaracterizes the holding of Kolstad.
The Supreme Court recited standards from the Restatement of Agency, but declined to adopt them due to their tension with the goals of Title VII. Kolstad, 527 U.S. at ___, 119 S.Ct. at 2128-29.
Rather, in Kolstad, the Supreme Court determined that, to demonstrate entitlement to punitive damages a plaintiff must show that:
(1) the employer acted with malice or reckless indifference, a state of mind which can be shown with evidence that the employer discriminated against the employee with the knowledge that it might be violating federal law;
(2) an employee serving in a managerial capacity committed the wrong;
(3) the managerial agent was acting in the scope of employment; and
(4) the agent's action was not contrary to the employer's good-faith efforts to comply with Title VII.
EEOC v. Wal-Mart Stores, Inc., 198 F.3d 257, 1999 WL 1032963 (10th Cir. Nov. 15, 1999) (unpublished disposition).
Plaintiffs motion to compel is not well taken with regard to Defendants employment evaluations and will be denied because it is not reasonably calculated to lead to the discovery of admissible evidence.
REQUEST FOR PRODUCTION NO. 6
This request seeks copies of the criminal records or any criminal complaints filed against the individual defendants or any of the individuals identified by the Defendants in their Rule 26 disclosures or in the Initial Pre-trial Report. Defendant objected that the request is overbroad and irrelevant. The Court finds that the request is not reasonably calculated to lead to the discovery of admissible information and denies Plaintiffs motion with regard to this request for substantially the same reasons as those articulated in the Courts Order of February 1, 2000 (Docket No. 90).
REQUEST FOR PRODUCTION NO. 8
Plaintiff seeks copies of the recorded statements taken by Defendants investigator of each of the witnesses that investigator has interviewed. Defendant objected on the grounds of relevance as well as the attorney-client and work-product privileges.
Plaintiff argues that witnesses have a right to their own statements prior to testifying. However, Plaintiff is not able to assert non-parties rights on their behalf. Further, the material sought is clearly work product. While written statements prepared or adopted by witnesses do not fall within the work-product doctrine, Scourtes v. Fred W. Albrecht Grocery Co., 15 F. R. D. 55 (N.D. Oh. 1953), investigators notes do. Fed.R.Civ.P. 26(b)(3).
Review of Defendants Vaughn Index shows that the interviews were taken after this litigation commenced. Further, Plaintiff has made no showing to overcome the privilege. Consequently, her motion to compel will be denied.
REQUEST FOR SANCTIONS
Plaintiffs request for sanctions is not well taken. She has not prevailed on her motion.
Further, her practice of serving a motion to compel with discovery requests, subject to further refinement once she ascertains what, if any, objections will be made to the request, is unnecessarily litigious.
IT IS THEREFORE ORDERED that Plaintiffs Motion to Compel and for Sanctions Against Defendant Marvin Martinez is denied.