Opinion
Civil Action No. 03-CV-2909.
June 23, 2004
MEMORANDUM ORDER
Presently before the Court is Plaintiff's Motion to Compel and Strike Defendant's Supplemental Disclosures. (Doc. No. 33). For the following reasons, Plaintiff's Motion will be granted in part, and denied in part.
I. FACTS
Plaintiff, Jill Waters, is a fifty-nine year old, Caucasian female, who was employed by Defendant, Genesis Health Ventures's nursing facility, Crestview North, Inc. ("Crestview"), for ten years, until she was terminated on September 23, 2002. (Jt. Case Report at 2, 5.) During five of her ten years at Crestview, Plaintiff was employed as Director of Staff Development. In June 2002, Defendant hired Marvin Kirkland, a fifty-seven year old, African American male, as Director of Nursing. (First Am. Civil Act. Compl. at ¶ 13; Doc. No. 27.) Plaintiff's position came under Kirkland's supervision. The factors motivating Plaintiff's termination are in dispute. Defendant claims Plaintiff was dismissed for performance-related reasons. Plaintiff alleges her termination was due to Kirkland's discriminatory animus.
As originally filed, Plaintiff's Complaint alleged violations of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Pennsylvania Human Relations Act ("PHRA"). Plaintiff's original Complaint also alleged age discrimination under 42 U.S.C. § 1981a. This count was subsequently amended to allege discrimination based on disability, rather than age. (First Am. Civil Action Compl. at ¶¶ 42-45; Doc. No. 27.) Plaintiff also amended the Complaint to include a claim for race discrimination under § 1981. (Id. at ¶¶ 48-59.)
II. LEGAL STANDARD
"It is well-established that the scope and conduct of discovery are within the sound discretion of the trial court." Gaul v. Zep Mfg. Co., Civ.A. No. 03-2439, 2004 U.S. Dist. LEXIS 1990, at *2-3 (E.D. Pa. Feb. 5, 2004) (quoting Marroquin-Manriquez v. Immigration and Naturalization Serv., 699 F.2d 129, 134 (3d Cir. 1983)). Pursuant to Federal Rule of Civil Procedure 26(b)(1), a party may seek discovery of "any matter, not privileged, which is relevant to the subject matter in the pending action." FED. R. CIV. P. 26(b)(1). "The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."Id.
Rule 37 "authorizes a party who has received evasive or incomplete answers to discovery authorized by . . . Rule 26(a) to bring a motion to compel disclosure of the materials sought."Northern v. City of Phila., Civ.A. No. 98-6517, 2000 U.S. Dist. LEXIS 4278, at *3 (E.D. Pa. Apr. 4, 2000). Once a party opposes a discovery request, the party seeking the discovery must demonstrate the relevancy of the information sought. Id. at *5. "When this showing of relevancy is made, the burden then shifts back to the party opposing discovery to show why the discovery should not be permitted." Id. A party's statement "that the discovery sought is overly broad, burdensome, oppressive, vague or irrelevant is `not adequate to voice a successful objection.'"Id. (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)). Further, "[i]t is well recognized that the federal rules allow broad and liberal discovery," Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir. 1999), and relevancy is broadly construed, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) ("The court should and ordinarily does interpret `relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.").
III. DISCUSSION
A. Ellen Loughrey's Evaluations of Plaintiff
Following a dispute related to the quantity and content of Plaintiff's performance evaluations, Plaintiff requested all handwritten evaluations prepared by Ellen Loughrey. After a conference call with counsel, we directed the parties to depose Loughrey a second time, and based on the outcome of that deposition, determine whether it was necessary to pursue additional investigations and/or certifications related to the existence of the evaluations. Evidently, counsel have had difficulty scheduling the deposition. If the second deposition of Loughrey has not already been taken, counsel are directed to conduct the deposition within the next ten days. If counsel cannot agree upon a date, the Court will select the date and time.
B. Plaintiff's Fourth Request for Production of Documents
On or about February 16, 2004, Plaintiff made five requests for documents from Defendant. The requests related to Plaintiff's claim of racial discrimination. On March 18, 2004, Defendant objected to all five requests, primarily on the grounds that the requests were "overly broad and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence." (Def.'s Answers and Objections to Pl.'s Fourth Req. for Prod. of Docs. at 1.) On April 22, 2004, we entered an Order directing Defendant to provide Plaintiff with certain documents, clarifications, and/or certifications. (Doc. No. 31.) Plaintiff's present Motion claims, among other things, that Defendant failed to properly comply with our Order of April 22, 2004.
Specifically, Plaintiff had requested "applications of all applicants for employment for any position at Defendant's Crestview facility during the tenure of Marvin Kirkland and the preceding six (6) months." (Doc. No. 31.) We overruled Defendant's various objections and directed that Defendant provide Plaintiff with the applications, or certify that Defendant no longer possessed the applications. It appears that in lieu of the applications, Defendant provided Plaintiff with 933 redacted documents, completed by applicants, that do not indicate which of the eighteen Genesis facilities was involved, or which applicants were actually hired by Kirkland, as opposed to other managers. Defendant also provided Plaintiff with "one-page computerized summary of employees that Mr. Kirkland allegedly terminated," and a second "self-generated computerized document" that "purports to list all prospective applicants hired during Mr. Kirkland's tenure with their respective races and positions." (Mem. of Law in Support of Mot. to Compel and Strike Def.'s Supplemental Disclosures [hereinafter Pl.'s Mot. to Compel] at 10-11.) In a conference call with Chambers, held on June 9, 2004, Plaintiff's counsel stated that Plaintiff was not necessarily interested in all of the applications and personnel files. Plaintiff simply wants a certification that the two lists that Defendant did provide are accurate and complete. Accordingly, we direct Defendant to immediately provide an appropriate certification. If Defendant fails to do so, then Defendant shall provide Plaintiff with the relevant applications and personnel files.
These documents, entitled "Equal Employment Affirmative Action Applicant Data Record," provide applicant's sex, race, position applied for, and date of application. (Pl.'s Mot. to Compel and Strike Def.'s Supplemental Disclosures at Ex. A.)
In our Order of April 22, 2004, we also directed that Defendant provide Plaintiff with all "documents that in any way reference `the racial, ethnic or ancestral background of any and all employees that were terminated by Marvin Kirkland'" (Doc. No. 31.) In addition, in response to Plaintiff's request for all "documents that reference `the racial, ethnic, or ancestral background of all employees that work at . . . Crestview' and any documents that indicate the same for `all employees under the control of Marvin Kirkland,'" we directed Defendant to clarify whether this information existed in any form. (Doc. No. 31.) We further directed that if the "information does not exist in any form, Defendant should so state. If it does exist in an alternative format, Defendant should so state and we will determine whether or not it is discoverable." (Id.)
In response to the foregoing directives, Defendant provided Plaintiff with the 933 redacted documents, and the two computer-generated lists referenced herein above. (Pl.'s Mot. to Compel at 10-11.) In her instant Motion to Compel, Plaintiff contends that this information does not satisfy the Court's Order because "it is impossible for Plaintiff to verify if these employees were the only people hired during Mr. Kirkland's tenure, which employees Mr. Kirkland was responsible for hiring, and if this list was generated solely from staff at Defendant's Crestview facility." (Id. at 11.) Defendant now objects to releasing the additional data requested by Plaintiff, (specifically those documents that formed the basis for the summarized information Defendant did provide), "due to burden, expense and the confidentiality of the information contained on the forms." (Genesis Health Ventures, Inc.'s Resp. to Pl.'s Mot. to Compel and to Strike Disclosures [hereinafter Def.'s Resp. to Pl.'s Mot. to Compel] at 7.) Defendant may not unilaterally decide not to comply with this Court's Order by providing information in an alternative format. We very clearly directed Defendant to provide all documents that referenced "the racial, ethnic, or ancestral background of all employees that work at . . . Crestview," and all "documents that in any way reference `the racial, ethnic or ancestral background of any and all employees that were hired and terminated by Marvin Kirkland'" (Doc. No. 31.) Defendant shall make these documents available immediately.
In a June 9, 2004 telephone conference with Chambers, defense counsel indicated that Plaintiff's counsel had "an open invitation to review the personnel files of all individuals terminated by Kirkland" In light of these facts, we fail to understand Defendant's confidentiality objections.
C. Kirkland Resignation Letter
The dispute surrounding the existence of the Kirkland letter of resignation has been ongoing for the past several months. While it is unclear whether such a letter exists, Kirkland, at one point, testified that he recalls composing such a letter on a Crestview computer, signing it, and providing it to Carol McQuillan. On March 16, 2004, following a conference with counsel, we issued an Order stating: "Defendant shall within ten days provide Plaintiff with a copy of Marvin Kirkland's letter of resignation, or a certification that Defendants have no such letter in their possession." (Doc. No. 21.) Defendant subsequently responded to this request by providing a certification stating that McQuillan had not received the resignation letter. Plaintiff claims that this certification is inadequate. We agree. Again, in our Order of April 22, 2004, we directed Defendant "to provide Plaintiff with all documents related to Kirkland's departure. If no such documents exist, Defendant should so state." (Doc. No. 31.) It appears that Defendant has failed to fully do so. Accordingly, we will direct Defendant to conduct a thorough investigation and provide Plaintiff with a more complete certification within ten days of the date hereof.
D. Plaintiff's Sixth Document Request
On April 22, 2004, Plaintiff served Defendant with her Sixth Document Request. Defendant's Response indicates that its "formal response to the Sixth Document Request was tendered to Plaintiff on June 11, 2004." (Def.'s Resp. to Pl.'s Mot. to Compel at 10.) However, Plaintiff's Reply, (Doc. No. 43), contends that Defendant "has still not provided responsive documents to at least half of the Requests." (Pl.'s Reply to Def.'s Resp. to Pl.'s Mot. to Compel and Strike Def.'s Supplemental Disclosures at 2.) In its Sur Reply, Defendant contends that, despite informing that Court that it would provide Plaintiff with the personnel files of Susan Wagner and Cynthia Berke, and despite advising Plaintiff that the personnel files would be delayed because they had been misplaced, Defendant now states that Plaintiff is not entitled to the files because Plaintiff seeks only "damaging" information as to why Wagner and Berke were released from employment. (Def.'s Sur Reply at 4.) We direct Defendant to provide Plaintiff with copies of the Wagner and Berke personnel files prior to the Wagner and Berke depositions. We also direct Defendant to immediately respond to the remainder of Plaintiff's Sixth Document Request.
E. Plaintiff's Seventh Document Request and Second Request for Admissions
Plaintiff's Seventh Document Request and Second Request for Admissions were served upon Defendant on May 10, 2004. Defendant shall respond to these requests by their respective due dates.
F. Defendant's Twelve Supplemental Witnesses
Plaintiff's claims that on May 10, 2004 and May 20, 2004, Defendant supplemented its disclosures to include twelve new witnesses. Those witnesses are:
Paul McGuire Ellen Loughrey David Warren Heather Pedrick Gail Bourne Gary Bauer Patricia Heck Laura McGinty Trish Gill Nancy Grimes Gwen Egan Gwen Wilson
Plaintiff contends that these witnesses should be excluded because they were added in bad faith. We disagree. In determining whether to exercise its discretion to exclude evidence as a sanction, district courts in the Third Circuit apply the following factors:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; and (4) bad faith or willfulness in failing to comply with the district court's order.Bauder v. Philadelphia, Bethlehem New England R. Co., Civ.A. No. 96-7188, 1998 WL 633651, at *3 (E.D. Pa. August 28, 1998) (citing Meyers v. Pennyback Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir. 1977).
In applying the Pennyback factors, we note that seven of the twelve witnesses will not prejudice or surprise Plaintiff. Paul McGuire and Gary Bauer were identified in Plaintiff's initial disclosures. (Def.'s Resp. to Pl.'s Mot. to Compel at Ex. C.) On March 9, 2004, Defendant noticed the depositions of David Warren and Heather Pedrick for March 19, 2004. (Id. at Ex. D.) The deposition for Gwen Wilson was listed on the Second Supplemental Initial Disclosures of Plaintiff. (Id. at Ex. E.) As discussed herein above, Ellen Loughrey was already deposed once, and her second deposition was previously ordered by the Court. Accordingly, these witnesses were clearly known to Plaintiff, prior to the formal supplements on May 10, 2004, and May 20, 2004, and as discussed below, will not serve to prejudice or surprise Plaintiff.
As for the five remaining witnesses, we will permit Defendant to supplement its disclosures to include these potential witnesses. While Plaintiff is correct in her assertion that it is within this Court's discretion to determine the scope and conduct of discovery, we also emphasize that "the Third Circuit has noted that the exclusion of evidence is `an extreme sanction, not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence.'" Gallup, Inc. v. Kenexa Corp., Civ.A. No. 00-5523, 2003 U.S. Dist. 6606, * 4 (E.D. Pa. April 3, 2003) (quotingMeyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985)). We are not persuaded that Defendant's attempts to supplement that witness list demonstrate a "showing of willful deception or flagrant disregard."
On April 8, 2004, Plaintiff amended her Complaint to include a claim of race discrimination. According to Defendant, McGinty and Gill will address Plaintiff's allegations of race discrimination. (Def.'s Resp. to Pl.'s Mot. to Compel at 17.) In addition, Defendant contends that Grimes, who serves as Vice-president of Clinical Services for Defendant, "has been listed as a witness to meet the spurious allegations that Genesis has fabricated evidence." (Id. at 17.) Defendant also explains that Eagen, who is responsible for compiling human resources statistical data, will be essential in explaining much of the hiring data provided to Plaintiff during the discovery process. Finally, Defendant contends that Heck evaluated Plaintiff's "performance in 2001 and early 2002," prior to Kirkland's tenure as Director of Nursing. We note that Defendant had an opportunity, prior to the addition of race allegations and the recent discovery disputes, to supplement its disclosures with Heck's name. However, because Heck's role has been discussed in a number of depositions, and should come as no surprise to Plaintiff, we will not exclude her name from the witness list. In light of Defendant's description of how each additional witness will testify, we conclude that their testimony could promote a more complete adjudication of this lawsuit. Accordingly, we will deny Plaintiff's request to strike Defendant's supplemental disclosures.
Bourne will also provide information related to the race claim. According to Defendant, Bourne was also known to Plaintiff as Wilson's replacement as Staff Development Coordinator.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel and Strike Defendant's Supplemental Disclosures will be granted in part, and denied in part.
The discovery disputes in this case have been ongoing and have served to unnecessarily delay its ultimate disposition. Counsel are directed to cooperate with each other and to move this matter forward to trial on the schedule that has been set by the Court. Failure of counsel to comply with the requirements of this Order will result in the imposition of severe sanctions.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of June, 2004, upon consideration of Plaintiff's Motion to Compel and Strike Defendant's Supplemental Disclosures, and all papers filed in support thereof and opposition thereto, it is ORDERED that:
1. Ellen Loughrey's second deposition shall be conducted within ten (10) days of the date hereof.
2. Defendant shall immediately provide Plaintiff with an appropriate certification regarding the two generated lists discussed herein.
3. Within ten (10) days of the date hereof, Defendant shall conduct a thorough investigation related to Kirkland's alleged letter of resignation, and shall provide Plaintiff with a more complete certification.
4. Defendant shall provide Plaintiff with copies of the personnel files of Susan Wagner and Cynthia Berke, prior to their depositions.
5. Defendant shall immediately respond to Plaintiff's Sixth Document Request.
6. Defendant shall respond to Plaintiff's Seventh Document Request and Second Request for Admissions by their respective due dates.
7. Plaintiff's Motion to Strike Defendant's Supplemental Disclosures is DENIED.
IT IS SO ORDERED.