Opinion
CIVIL ACTION NO. 02-7175.
May 6, 2003.
ORDER AND OPINION
In this case, plaintiff Michele Saltern alleges that she was the subject of discrimination and retaliation, and ultimately terminated from her employment, because she suffered from Chron's disease, in violation of the Americans With Disabilities Act ("ADA"). She now moves to compel Defendants to provide responses to a number of interrogatories and requests for production of documents. For the reasons set forth below, her motion will be granted in part and denied in part.
I. Legal Principles
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 unprivileged, and "relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1); Hickman v. Taylor, 329 U.S. 495 (1947).
If the party served fails to respond adequately to either an interrogatory or document request, the serving party may file a motion to compel under Rule 37(a). Fed.R.Civ.P. 33(b)(5), 34(b), 37(a)(1)(B); Rade v. Transition Software Corp., supra. Rule 37(d) provides that the failure to serve proper discovery responses may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c).
II. The Discovery Requests At Issue
A. Document Request No. 17 The entire contents of the personnel and/or employment record and/or files of all customer service representatives of Defendant from 1999 to the present date.
Defendants argue that these files are irrelevant because Saltern has not asserted a claim for disparate treatment, but only for failure to accommodate her disability. However, Saltern argues convincingly that Defendants' treatment of other individuals with the same job she held, with respect to leave they may have taken, or accommodations they may have received, is relevant to how practicable it would have been for Defendants to have accommodated her.
Therefore, Saltern's motion will be granted to the extent that the request covers such information. Material in the file not relevant to leave or accommodations need not be turned over. Moreover, the records produced should be redacted to delete the name and other identifying information for each person whose records are disclosed. As an extra protection for the privacy of those people, counsel in this matter should execute a joint confidentiality agreement before the files are produced.
B. Document Request Nos. 18, 20, and 21
18. The entire contents of the personnel and/or employment record and/or file of Cynthia Molnar.
20. The entire contents of the personnel and/or employment record and/or file of Cathy Sargent.
21. The entire contents of the personnel and/or employment record and/or file of Cynthia Sterling a/k/a Lucinda Sterling.
Both parties identified this group of requests as dealing with personnel files for Saltern's supervisors, and as including Request Nos. 18, 20, 21, 22, 24, 27 and 28. This appears to be an error, however, since Requests 24, 27 and 28 do not concern personnel files. Nos. 27 and 28 are the subject of a separate objection, discussed below. Number 22 requests the file of Michael J. Symons, Nor-Car's president, which has already been disclosed, according to Defendants.
Defendants object to these Requests on the basis that Molnar, Sargent and Sterling were not decision-makers with regard to Saltern's termination, and that their personnel files are therefore irrelevant. Citing Kanaji v. Philadelphia Child Guidance Center of Children's Hospital, Civ. A. No. 00-937, 2001 WL 708898 (E.D. Pa. Jun. 20, 2001), a Title VII case, they also argue that, in any event, Saltern would be entitled only to those portions of the files which contain information concerning the decision to terminate her.
Again, Saltern's motion will be granted regarding Requests 18, 20 and 21, only in that Defendants should produce any material contained in those files which mention Saltern. I do not agree that this information would be irrelevant simply because Molnar, Sargent and Sterling were not the ultimate decisionmakers. It is entirely possible that Michael Symons, president of Nor-Car, and the purported decisionmaker, acted with input from Saltern's supervisors.
C. Document Request No. 63 Any and all documents, communications, reports and/or memoranda relating to any consultation with or advice from your Solicitor regarding Plaintiff's entitlement, or non-entitlement, to accommodation under the ADA and/or her ADA rights or status.
Communications between Defendants and their in-house counsel for the purpose of obtaining legal advice about Saltern are clearly protected by the attorney-client privilege. Tucker v. Fischbein, 237 F.3d 275, 288 (3d. Cir. 2001), citing, Upjohn Co. v. United States, 449 U.S. 383 (1981). They need not be produced.
D. Interrogatory No. 13 Identify in specific detail the Defendant, Nor Car Federal Credit Union's organizational and supervisory structure including in specific detail all shareholders; officers; directors and supervisors or management level employees, for all time periods from January, 2000 to the present date; and further identify all employees of Defendant from January, 2000 to the present date including, without limitation, their job titles and job descriptions.
Defendants have refused to identify Nor-Car's directors on the ground that they had "no role and no knowledge" regarding Saltern's hiring or firing. In her motion, however, Saltern claims that Exhibit C to her motion, a memorandum from Symons to the "Personnel Committee", proves that Symons presented the issue of her termination to the Board of Directors. She also argues, more generally, that "the organizational and decision making structure of an employer is crucial, as well as its decision making process and a complete investigation of what actually happened up and down the chain of command is required."
I will direct Defendants to answer this interrogatory by providing information as to the directors' role in Nor-Car's organizational structure, particularly focusing on any role they may have in the hiring and firing of employees. This may well require an explanation of the nature and function of the Personnel Committee. I will also direct them to provide the names of all directors on the Personnel Committee. At this point, there is no need for disclosure of the names of any other directors.
Apparently, Defendants have also refused to provide the names of Nor-Car's shareholders. Saltern has not objected to this, and the names need not be disclosed.
E. Document Requests 25 and 26
25. All tax returns together with all accompanying schedules for the corporate Defendant from 1998 to the present day.
26. All financial statements for the corporate Defendant from 1998 to the present day.
Saltern claims that this information is relevant on the issue of punitive damages, and possibly to an analysis of what constitutes "undue hardship" in accommodating an individual falling under the ADA.
In their response, Defendants represent that (a) they have already provided end-of-year financial statements and that (b) as a non-profit credit union, they do not file tax returns, and therefore cannot produce them. Having no reason to doubt Defendants' representations, I will deny Saltern's motion with respect to these requests, except that I will ask Defendants to put this information in a formal response, if they have not already done so.
F. Document Request Nos. 27 and 28
27. All minutes of all meetings of the Officers, Board of Directors, Shareholders and/or Members of Defendant Nor Car Federal Credit Union between 1998 to the present date.
28. All resolutions adopted by the members, shareholders, officers and/or directors up Nor Car Federal Credit Union from 1998 to the present date.
Defendants have produced the Board minutes relating to Saltern's termination, as well as Nor-Car's handbook. They claim that any further information is irrelevant, and makes this case more complicated than it is.
However, Saltern argues: "How the Board established and maintained and reviewed procedures relevant to discrimination in general; what was important in terms of job duties, performance, by way of policy, etc. . . . all can potentially lead to relevant evidence on the issues of steps taken to ensure ADA compliance; what constitutes `undue hardship' and what job functions or duties are essential or critical."
I believe there is some merit in Saltern's position and will order Defendants to produce any Board minutes or resolutions which (a) mention Saltern; (b) mention the ADA or (c) mention the duties of a customer service representative.
G. Document Request 83 Any and all documents referring or reflecting your denial of sick time and/or medical leave to any employee during their 90 day probationary period.
Defendants have refused to provide this information, arguing that it would be relevant only to a "disparate treatment" ADA claim, and not a claim for "failure to accommodate," such as Saltern's. They also object that Saltern was not terminated during her probationary period or denied any time off for sickness during her probationary period.
In a supplementary footnote, Defendants write:
Subject to and without waiving the objections made by defendants, defendants note that Nor-Car has not denied time off for sickness or medical leave to Customer Service Representatives during their probationary period. Although probationary employees are not entitled to paid sick days, Nor-Car grants time off for illness or medical reasons without pay during the probationary period when necessary.
Memorandum in Support of Defendants' Response at page 9, n. 1.
I believe this material to be properly discoverable. Much of Saltern's absence took place during her probationary period, which makes this information relevant to her claims. I will direct Defendants to respond. As with Request No. 17, the material produced may be redacted to remove identifying information, and may be produced only after the mutual execution of a confidentiality agreement. If, as they suggest in their footnote, Defendants have no responsive material, they should so state in a formal discovery response.
H. Document Requests 41 and 43
Document Request 41 Any and all documents reflecting, referring or relating to sick leave, or medical leave taken by any employee of Defendant from 1995 to the present date.
Document Request 43 Any and all documents reflecting, referring or relating to any employee of Defendant terminated for absenteeism or absences from 1995 to the present date.
Defendants state that they have produced documents responsive to Request No. 41, and that they informed Saltern that no other employee had been terminated for excessive absenteeism or leave since 1995. I would direct Defendants only to put this information in a formal response to Saltern's requests, identifying the documents they have already provided, if they have not already done so.
I. Request No. 86 Any and all notes, documents, correspondence, notations, letters, e-mails or other communications of any type or nature by, from or to: Molnar; Sterling; Sargent and/or Symons, referring or relating to Plaintiff.
Here again, Defendants state that they have already produced all documents responsive to Saltern's request. Again, I direct them only to put this information in a formal discovery response, if they have not already done so, identifying the responsive documents which have been produced.
J. Document Requests 84, 85 and 93
Request No. 84 Any and all documents referring, reflecting or relating to the number or quantity of customer or member transactions received, serviced, handled or processed by each Customer Service Representative on a daily, weekly, monthly or other basis used for the recording, tracking or computation of same.
Request No. 85 Any and all documents referring, reflecting or relating to the number of customers or members serviced by Customer Service Representatives of Defendant from 1998 to the present date on a daily, weekly, monthly or other basis for the recording, tracking or completion of same.
Request No. 93 Any and all documents which identify each facility that you operate or own; and all employees working at each such facility from January 1, 1998 to the present date.
Saltern asserts that Defendants intentionally provided only unintelligible Teller Service Forms in response to these requests, without including the other documents necessary to make the forms intelligible, adding: "Now they say they will produce it but they probably will wait so that Plaintiff does not have it in adequate time for its depositions."
Defendants claim that they provided the additional documents requested on April 14, 2003. However, Saltern's motion was filed on April 16, 2003. The status of Defendants' response to these requests is, therefore, unclear. Therefore, I will direct Defendants to provide the clarifying information, and, if they have already done so, to make a representation to that effect in a formal response to Saltern's requests, identifying the responsive documents produced.
K. Saltern's Other Objections
Saltern has made three arguments which pertain to Defendants' General Objections. She asks first that Defendants provide a privilege log or schedule. I will grant Saltern's motion in this regard, since she asks for no more than what is required by the Federal Rule of Civil Procedure 26(b)(5). Defendants have, in fact, agreed in their response to produce a log.
Second, Saltern asks that all Defendants' objections based on "conclusion of law" be stricken. Federal Rule of Civil Procedure 33(c) provides:
Any interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.
Saltern has not pointed to any specific discovery request for which she alleges this objection was improperly asserted. This being the case, I will not strike Defendants' general objection.
Third, Saltern asks that Defendants' general objection as to "burdensomeness" be stricken. Defendants point out that they have not made any specific objections, or declined to respond to any requests on the grounds that to do so would be burdensome. This renders their general objection meaningless, and I will order it stricken.
L. Saltern's Request for a Conference
Saltern asks for a conference at which to discuss the discovery still outstanding in this case. Based on the contents of her motion, however, I have not found that a conference is necessary. If, after receiving this Order and Opinion, any party still wishes to request a conference, that party may forward to Chambers a letter, copied to opposing counsel, in which it is clearly explained why a conference would be useful.
An appropriate Order follows:
ORDER
AND NOW, this day of May, 2003, upon consideration of Plaintiff s Motion to Compel Defendants to Provide Full and Complete Answers to Interrogatories and Requests for Production of Documents, docketed in this case as Document No. 22, and Defendants' response thereto, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows:
1. Document Request Nos. 17, 18, 20, 21, 27, 28, 83, 84, 85 and 93, and Interrogatory No. 13 are GRANTED IN PART as specified in the attached Opinion, and are otherwise DENIED.
2. Document Request No. 63 is DENIED in whole;
3. Document Request Nos. 25, 26, 41, 43, and 86 are DENIED IN PART as specified in the attached Opinion but are GRANTED IN PART in that Defendants should put the relevant information into formal discovery responses, as explained in this Opinion;
4. Saltern's argument regarding Defendants' failure to produce a privilege log is GRANTED in whole;
5. Saltern's argument as to Defendants' General Objection regarding "conclusion of law" is DENIED in whole;
6. Saltern's argument regarding Defendants' General Objection as to buredensomeness is GRANTED in whole, and the objection is deemed stricken.
Material herein ruled discoverable should be produced within one week of the date of the parties' receipt of this Order. Material requiring the entry of a stipulated confidentiality agreement should be produced within five days of the execution of such an agreement.