Opinion
No. 00-2523-JWL.
January 4, 2002
MEMORANDUM AND ORDER
The Court recently granted Plaintiffs' request to serve additional written discovery after the close of discovery for those proposed requests attached to Plaintiffs' Motion that derive from compelled discovery responses made by Defendant on November 9, 2001. To that end, and pursuant to discussion at a telephone hearing held on the subject, the Court found Proposed Requests 1, 2, 4 and 5 to have derived from the Defendant's November 9, 2001 compelled responses and ordered the parties to confer in good faith regarding the source from which the remaining requests derived, as well as the merit of objections to such requests if applicable. If the parties were unable to resolve disputes regarding these issues, the Court's Order permitted the parties to brief the specific issues still in dispute. Based on the briefs ultimately submitted, the parties now present the following disputes for resolution by the Court:
• Whether Proposed Requests 3 and 5 — 40 derive from Defendant's compelled discovery responses;
• The relevant temporal scope of Proposed Requests 2 — 4 and 6 — 14;
• The relevancy of Proposed Requests 13, 14 and 15 — 40; and
• Confidentiality concerns with respect to Proposed Requests 5 and 15 — 40.
Given the parties inability to resolve almost all of the issues about which they were to confer in good faith, the Court now will address each of the identified disputes in turn.
Discussion
• Whether Proposed Requests 3 and 5 — 40 Derive from Compelled Discovery Responses
• Proposed Request 3
Proposed Request 3 seeks documents regarding investigations and operating monitoring program studies performed at the Dillard's Oak Park Mall stores and relating to treatment of minority shoppers and employees of Dillard's. In support of their position that this request derives from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer the Court to a document entitled "Dillard's Fact Sheet" and a letter from Dillard's corporate offices, both of which were produced on November 9, 2001 by Defendant and both of which contain references to Dillard's "operations monitoring program." Reported within both documents as a $500,000.00 annual investment by Dillard's, the program is described as one "using professionals posing as shoppers who are representative of Dillard's diverse customer base" in order to identify for top management "those areas where minority shoppers may feel unwelcome."
In response to Plaintiffs' position, Defendant argues Plaintiffs' request for investigations regarding racial sensitivity issues is "basic to [Plaintiffs'] allegations of racial discrimination" and "could have been asserted, through due diligence, long before the discovery deadline." Notably, Defendant's argument fails to address the issue currently before the Court: the source of Plaintiffs' proposed discovery request. Based on the facts presented, the Court finds Request 3 derives from documents provided within Defendant's compelled discovery responses on November 9, 2001.
• Proposed Request 5
Proposed Request 5 seeks documents from the 1997 investigation of Dillard's employee Misty RaShun Ewing for suspected theft by Dillard's security, including but not limited to documents within Ms. Ewing's personnel file regarding this incident. Although Defendant did not challenge in the December 12, 2001 telephone hearing Plaintiffs' assertion that Request 5 derives from documents gleaned through compelled discovery responses, Defendant notes in its current pleading that it recently discovered Plaintiffs inquired into Ms. Ewing's claims of discrimination during the July 12, 2001 deposition of Jack Rodgers. Defendant asserts this fact demonstrates Plaintiffs had the requisite knowledge on July 12, 2001 to seek further discovery on this issue. Notwithstanding Defendant's assertion, it states in its objections that "all files of the security stop and investigation of Ms. Ewing in 1997 have been produced." Defendant's Objections at p. 2 (Doc. 80). Because the documents produced satisfy Plaintiffs' Proposed Request 5 in its entirety, the Court finds the controversy with regard to this request is moot. • Proposed Requests 6 and 7 Proposed Requests 6 and 7 seek video and audio recordings shown or played for Dillard's employees on issues of Dillard's security practices, customer sensitivity and diversity training from January 1, 1996 through present. In support of their position that the requests derive from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer the Court to a document entitled "Dillard's Fact Sheet" produced on November 9, 2001 by Defendant and containing references to development "for all store employees (full time, part time, management, security and contract) of an expanded customer service diversity training program" which includes "a new racial sensitivity video" to be released and become mandatory viewing for all present and future store employees, an additional mandatory training video regarding shoplifter racial profiling and employee viewing of the "20/20" documentary program highlighting a previous case against Dillard's. In response to Plaintiffs' position, Defendant argues Plaintiffs' Proposed Requests 6 and 7 are duplicative of requests served by Plaintiffs in August 2001 but not answered by Defendant because they were deemed by the Court to be untimely served. In addition, Defendant again makes the argument that these requests are "basic to the issues in [Plaintiffs'] lawsuit" for racial discrimination and that Plaintiffs "should have, through due diligence, asserted this request early in the litigation process." As a preliminary matter, the Court notes Plaintiffs' Proposed Requests 6 and 7 are not duplicative of earlier requests in that the earlier requests sought video and audio recordings shown or played for Dillard's security personnel , as opposed to all employees, on issues of security practices and customer sensitivity (the earlier requests did not include diversity training) from January 1, 1996 through present. Moreover, the Court is not persuaded by Defendant's argument that, just because Plaintiffs made certain requests in earlier propounded discovery that are similar to the proposed requests at issue, Plaintiffs should be denied the right to follow up on Defendant's compelled discovery responses with requests for information that derive from such compelled responses.
In making this argument, Defendant appears to concede that the information derives from the compelled responses. Instead, Defendant argues Plaintiffs should be prohibited from propounding their proposed requests because the requested documents were previously sought by Plaintiffs. The Court recently granted Plaintiffs' request to serve additional written discovery after the close of discovery for those proposed requests attached to Plaintiffs' Motion that derive from the information and documents provided by Defendant on November 9, 2001 (emphasis added). The Court's Order does not require that the proposed requests substantially differ from prior requests that were never answered.
The Court finds Requests 6 and 7 derive from documents provided within Defendant's compelled discovery responses on November 9, 2001.
• Proposed Requests 8 and 9
Proposed Requests 8 and 9 seek documents regarding customer and employee complaints for racial discrimination in security practices and for unwarranted stops, detentions, investigations, malicious prosecution and false imprisonment from January 1, 1996 through present. In support of their position that the requests derive from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer the Court to a letter dated October 3, 2000 from Dillard's Vice-President and General Counsel Paul Schroeder, as well as the 585 separate incident files regarding stop, detention, arrest and/or prosecution of customers and employees — all of which were produced in Defendant's compelled responses. Plaintiffs argue that the Schroeder letter states Dillard's receives an average of 150 informal complaints of unwarranted stop/bag searches per year and that several of the 585 incident files contain documentation indicating the subject customer or employee filed a complaint based on race, false arrest or malicious prosecution against Defendant. In response to Plaintiffs' position, Defendant argues Plaintiffs' Proposed Requests 8 and 9 are duplicative of requests served by Plaintiffs in August 2001 but not answered by Defendant because they were deemed by the Court to be untimely served. In addition, Defendant again makes the argument that these requests are basic to the issues in Plaintiffs' lawsuit and that Plaintiffs should have, through due diligence, asserted these requests early in the litigation process. For the reasons stated in the previous subsection, the Court is not persuaded by Defendant's argument that, because Plaintiffs made certain requests in earlier propounded discovery that are similar to the proposed requests at issue, Plaintiffs should be denied the right to follow up on Defendant's compelled discovery responses with requests for information that derive from such compelled responses. The Court finds Requests 8 and 9 derive from documents provided within Defendant's compelled discovery responses on November 9, 2001. • Proposed Requests 11 and 12 Proposed Requests 11 and 12 seek hard and electronic copies of documents between Defendant's corporate offices and store locations regarding Defendant's procedures, practices and policies for completing store incident logs/records, store daily security incident logs/records, new "Dillard's Security Reports" and customer or employee complaint records from January 1, 1996 through present. In support of their position that these requests derive from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer to the Dillard's Fact Sheet, which states that "a revised security log system was initiated" in 1998 and Defendant continuously monitors policies and procedures, as well as the 585 incident files, which allegedly reflect a modification to the form "store incident report" sometime in 1996 or 1997. Plaintiffs maintain that, upon review of these recently produced materials, they want to discover what written instructions Defendant's corporate office gave to its stores regarding completion of the revised store incident logs. In response to Plaintiffs' position, Defendant argues Plaintiffs' Proposed Requests 11 and 12 are duplicative of requests served by Plaintiffs in August 2001 but not answered by Defendant because they were deemed by the Court to be untimely served. In addition, Defendant again makes the argument that the requests are basic to the issues in Plaintiffs' lawsuit and should have been made earlier. For the reasons stated in subsection 4, supra, the Court is not persuaded by Defendant's argument that, because Plaintiffs made certain requests in earlier propounded discovery that are similar to the proposed requests at issue, Plaintiffs should be denied the right to follow up on Defendant's compelled discovery responses with requests for information that derive from such compelled responses. Thus, the Court finds that, except for the portion of Request 11 that refers to customer or employee complaint records, such requests derive from documents provided within Defendant's compelled discovery responses on November 9, 2001.
• Proposed Request 13
Proposed Request 13 seeks documents regarding lawsuits against Defendant from January 1, 1996 to present based on claims of race discrimination, false imprisonment and/or malicious prosecution. In support of their position that the request derives from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer the Court to the Dillard's Fact Sheet and Mr. Schroeder's October 3, 2000 letter, both of which state that "29 shopper lawsuits alleging discriminatory false arrest" were filed in the last five years. In response to Plaintiffs' argument, Defendant states that Plaintiffs have known about at least one prior discriminatory false arrest lawsuit against Defendant at least since July 12, 2001, the date Plaintiffs deposed Oak Park store manager Jack Rodgers. Defendant asserts this fact demonstrates Plaintiffs had the requisite knowledge on July 12, 2001 to seek further discovery on this issue. For the reasons stated in subsection 4, supra, the Court is not persuaded by Defendant's argument that because Plaintiffs may have had prior knowledge of facts relating to a certain request, they should be denied the right to follow up on Defendant's compelled discovery responses. Accordingly, the Court finds Request 13 derives from documents provided within Defendant's compelled discovery responses on November 9, 2001.
• Proposed Requests 10 and 14
Proposed Requests 10 and 14 seeks documents reflecting corrective and disciplinary actions taken by Defendant against employees who have, or may have, engaged in discriminatory conduct based on race. In support their position that the request derives from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer the Court to the Dillard's Fact Sheet, which refers to a new "operations monitoring program" that "is specifically designed to enable top management to identify areas where minority shopper may feel unwelcome so that corrective action can promptly be taken" as well as "a revised security log system" initiated in 1998 to "assist in identifying associates who need additional training in customer relations."
In response to Plaintiffs' argument, Defendant states that Plaintiffs have known since July 12, 2001 that Defendant has a procedure to discipline employees for discriminatory treatment of minorities since, the date Plaintiffs deposed Oak Park store manager Jack Rodgers. Defendant asserts this fact demonstrates Plaintiffs had the requisite knowledge on July 12, 2001 to seek further discovery on this issue.
For the reasons stated in subsection 4, supra, the Court is not persuaded by Defendant's argument that because Plaintiffs may have had prior knowledge of facts relating to a certain request, they should be denied the right to follow up on Defendant's compelled discovery responses. Accordingly, the Court finds Requests 10 and 14 derive from documents provided within Defendant's compelled discovery responses on November 9, 2001.
• Proposed Requests 15 — 40
Proposed Requests 15 — 40 seek the personnel files for 26 different security officers employed by Defendant. In support of their position that the requests derive from compelled documents produced by Defendant on November 9, 2001, Plaintiffs refer the Court to a Master Dillard's Security Report for the Dillard's Oak Park Mall stores as well as the 585 separate incident files — all produced in Defendant's compelled discovery responses on November 9, 2001. Plaintiffs argue the incident files and master report identify certain security officer who were involved in security incidents from October 2, 1996 through October 2, 1999 and that many of the incident files "indicate or imply that the suspect made a complaint in reference to the incident." Although Defendant again responds to Plaintiffs' argument by asserting Plaintiffs' had prior knowledge of this information and should have propounded a timely discovery request earlier, Defendant additionally asserts that it "can find no implication from the documents produced on November 9, 2001 that the officers identified in Plaintiffs' Request for Production were singled out for customer complaints." Unfortunately, the Court is unable to resolve this factual dispute because the documentation allegedly identifying the referenced security officers was not produced to the Court. Notably, the Court imposed the burden upon Plaintiffs to establish that their proposed discovery requests derived from the compelled responses produced by Defendant on November 9, 2001. The Court hereby determines Plaintiffs have failed to meet their burden and thus finds Requests 15 — 40 do not derive from documents provided within Defendant's compelled discovery responses on November 9, 2001. • Temporal Scope of Proposed Requests 2 — 4 and 6 — 14 Defendant argues Proposed Requests 2 — 4 and 6 — 14 are overly broad in time because they seek information and/or documents for a period of approximately three years prior to the alleged shoplifting incident and two years after the alleged shoplifting incident. While the Court has been unable to locate case law addressing temporal scope in the context of discriminatory treatment of customers, the law on this issue in the context of an employment discrimination cause of action would appear to be applicable. Employment discrimination cases have held that discovery of information both before and after the liability period may be relevant and/or reasonably calculated to lead to the discovery of admissible evidence and courts commonly extend the scope of discovery to a reasonable number of years both prior to and following such period. See, e.g., James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979) (four years prior to liability period reasonable); Raddatz v. Standard Register Co., 177 F.R.D. 446, 448 (D.Minn. 1997) (allowing discovery into the period two years after termination); Lyoch v. Anheuser-Busch Co., 164 F.R.D. 62, 67 (E.D.Mo. 1995) (four years prior to liability period reasonable); Hicks v. Arthur, 159 F.R.D. 468, 471 (E.D.Pa. 1995) (allowing discovery to extend to the period two years after the tenure of the plaintiffs); Robbins v. Camden City Board of Educ., 105 F.R.D. 49, 62-63 (D.N.J. 1985) (allowing discovery for a period of two years after employment terminated); McClain v. Mack Trucks, Inc., 85 F.R.D. 53 62 (E.D. Pa. 1979) (five years prior to liability period reasonable); Cormier v. PPG Indus., 452 F. Supp. 594 (W.D.La. 1978) (five years prior to liability period reasonable).
Keeping in mind that the scope, including the temporal scope, of discovery through interrogatories and requests for production of documents is particularly broad in discrimination cases, the Court is convinced that limiting the scope of Requests 2, 3 and 4 to a period of three years prior to the time the discriminatory conduct was alleged to have occurred and two years after the discriminatory conduct was alleged to have occurred is reasonable and not overly broad. Thus, Defendant shall produce the documents requested for the requests referenced in this section for the time period from October 2, 1996 to October 2, 2001.
• Relevancy Concerns regarding Proposed Requests 13 and 14
Defendant also appears to assert that producing the requested documents for a six-year period of time imposes an undue burden. As the party resisting discovery, Defendant has the burden to show facts justifying its objections by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome. See Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D.Kan. 1991). This imposes an obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure required to produce the requested documents.
Defendant has submitted no explanation, let alone an affidavit or other proof, demonstrating that responding to these Requests would impose an undue burden. The Court will not speculate that the requested discovery causes undue burden; therefore, Defendant's objection with regard to undue burden — to the extent it was lodge — also will be overruled.
The objections to Requests 15 — 40 based on relevancy are moot given the Court's finding, supra, that such requests did not derive from Defendant's compelled responses.
• Proposed Request 13
As noted above, Proposed Request 13 seeks documents regarding lawsuits against Defendant from January 1, 1996 to present based on claims of race discrimination, false imprisonment and/or malicious prosecution and Proposed Request 14 seeks documents reflecting disciplinary actions taken by Defendant against employees who have, or may have, engaged in discriminatory conduct based on race. Defendant objects to both of these requests on grounds that they are not reasonably calculated to lead to the discovery of admissible evidence. In support of its objections, Defendant states the documents requested are not relevant to the present lawsuit as they involve different individuals and different factual and geographic settings. Prior to December 1, 2000, a request for discovery would be considered relevant if there was "any possibility" that the information sought may be relevant to the subject matter to the action. Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D.583, 585 (D.Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999). Thus, a request for discovery would be allowed "unless it [was] clear that the information sought [could] have no possible bearing on the subject matter of the action." Scott, 190 F.R.D. at 585 (quoting Snowden v. Connaught Lab. , Inc., 137 F.R.D. 336, 341 (D.Kan. 1991)) (emphasis added by Scott).
The post-December, 2000 version of Rule 26 governs this dispute, as the Scheduling Order in this case was issued after December 1, 2000. The conclusions reached by the Court here, however, would be the same regardless of whether the Court utilized the "old version" of Rule 26(b)(1), which defined the scope of discovery broadly to include any matter, not privileged, that was relevant to the "subject matter" of the litigation, or the "new version" of Rule 26(b)(1), which defines the scope more narrowly as unprivileged facts relevant to the claims and defenses raised in the litigation.
Given the scope of relevancy has been narrowed from "subject matter of the action" to "claim or defense of any party" by the recent amendments to Rule 26, and based on the relevant case law in this jurisdiction regarding relevancy, supra, it appears logical to conclude that a request for discovery will be considered relevant under the amended rule if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. See Scott, 190 F.R.D. at 585; Etienne, 185 F.R.D. at 656. Thus, under the amended rule, a request for discovery should be allowed unless it is clear that the information sought can have no possible bearing on the claim or defense of any party. See id.
When the discovery sought appears relevant as defined by the amended rule, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under amended Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott, 190 F.R.D. at 585 (citations omitted). Similarly, a party resisting discovery on the grounds that a request is overly broad has the burden to support its objection, unless the request is overly broad on its face. Etienne v. Wolverine Tube, Inc., 185 F.R.D. at 656; Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan. 1997). When the relevancy of propounded discovery is not apparent, however, its proponent has the burden to show the discovery relevant. Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 309 (D.Kan. 1996).
The Tenth Circuit indicates discovery in discrimination cases should not be narrowly circumscribed. Rich v. Martin Marietta Corp., 522 F.2d 333, 343-44 (10th Cir. 1975). An entity's "general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment." Gomez v. Martin Marietta Corp., 50 F.3d at 1520 (citing Scales v. J.C. Bradford Co., 925 F.2d 901, 906 (6th Cir. 1991)). "As a general rule, the testimony of other [individuals] about their treatment by the defendant is relevant to the issue of the [entity's] discriminatory intent." Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). A plaintiff may be allowed "extensive" discovery in order to prove his or her case. Rich v. Martin Marietta Corp., 522 F.2d at 343. "In determining the geographic scope of discovery for non-class action complaints, the `most natural focus is upon the source of the complained discrimination — the employing unit or work unit.'" Mackey v. IBP, Inc., 167 F.R.D. 186, 195 (D.Kan. 1996) (quoting Heward v. Western Elec. Co., No. 83-2293, 1984 WL 15666, at *6 (10th Cir. July 3, 1984) (citations omitted)).
Upon review of the facts, the Court is persuaded the documents sought in Requests 13 and 14 are relevant for the Oak Park Dillard's stores. Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990) ("When a motive or intent of a defendant employer is at issue, information concerning its conduct towards employees other than the plaintiff is relevant."). Thus, Defendant's objections to Request 13 and 14 based on relevancy are overruled.
• Confidentiality Concerns
The objections to Requests 5 and 15 — 40 based on confidentiality concerns are moot given Defendant's representation in conjunction with Proposed Request 5 that "all files of the security stop and investigation of Ms. Ewing in 1997 have been produced" and the Court's finding, supra, that Proposed Requests 15 — 40 did not derive from Defendant's compelled responses.
Conclusion
Based on the discussion above, the Court hereby enters the following Order:
• Proposed Requests 3, 5, 6 — 14 derive from Defendant's compelled discovery responses produced on November 9, 2001 and thus Defendant shall respond to them to the extent ordered herein;
• Proposed Requests 15 — 40 do not derive from Defendant's compelled discovery responses produced on November 9, 2001 and Defendant shall not be required to respond to them;
• Limiting the scope of Requests 2 — 4, 6 — 14 to a period of three years prior to the time the discriminatory conduct was alleged to have occurred and two years after the discriminatory conduct was alleged to have occurred is reasonable and not overly broad and thus Defendant shall produce the documents requested for the time period from October 2, 1996 to October 2, 2001;
• The documents sought in Requests 13 and 14 are relevant as they are applied to the Oak Park Dillard's stores and thus Defendant shall respond accordingly;
• Defendant's objections based on confidentiality concerns are moot;
• Production and/or inspection of documents as ordered herein shall be accomplished by January 7, 2002.
IT IS SO ORDERED.