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requiring production of documents relied upon for preparing answers to interrogatories and denials of requests for admissions
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Civil Action No. 03-3082, Section "K" (2).
October 12, 2004
ORDER AND REASONS
This order addresses two related motions: (1) Plaintiffs' Motion to Compel Discovery, Record Doc. No. 24, and (2) Defendant's Motion for Protective Order, Record Doc. No. 29. Defendant's motion for protective order incorporates his opposition to plaintiffs' motion to compel. Plaintiffs filed both an opposition to defendant's motion for protective order and a reply memorandum in support of their own motion.
(A). Plaintiffs' Motion to Compel Discovery, Record Doc. No. 24
Plaintiffs' motion fails to state which of defendant's discovery responses are deficient and why, which significantly impedes the court's ability to understand what plaintiffs seek and to grant any relief. However, the last sentence of plaintiffs' memorandum asks the court to compel more responsive answers to any of their first set of interrogatories, requests for production of documents and requests for admissions served on June 14, 2004 (Plaintiff's Exh. 1), which seek information relating to the decisions of Chris Oynes, director of the Gulf of Mexico OCS Region of the Minerals Management Service, concerning promotions and pay grades. Accordingly, the court addresses plaintiffs' motion to compel primarily in that context.
IT IS ORDERED that plaintiffs' motion is GRANTED IN PART AND DENIED IN PART, as follows.
Information concerning Oynes's involvement in the specific employment decisions regarding these two plaintiffs, which are at issue in this lawsuit, is "relevant to the claims or defenses of the parties" and is therefore within the scope of discovery without any further showing. Fed.R.Civ.P. 26(b)(1). To the extent that plaintiffs seek information about Oynes's involvement in similar decisions regarding employees other than plaintiffs, that information may be "relevant to the subject matter involved in the action" and plaintiffs must show good cause to discover it. Id.
Plaintiffs argue that statistical evidence concerning "defendant's labor force and those who receive promotions and favorable treatment" is relevant in disparate treatment and disparate impact cases. However, based on plaintiffs' complaint, as amended, this is solely a disparate treatment case. Although "[s]tatistical evidence can be utilized by an individual disparate treatment plaintiff to help rebut the employer's non-discriminatory explanation . . ., more than statistics are usually necessary to rebut an employer's strong showing of a legitimate, non-discriminatory reason for discharging a particular employee."Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999). There are many other evidentiary means available to plaintiffs in the instant case, besides statistical evidence, to prove that they were treated differently. Generally speaking, plaintiffs have failed to show good cause for the extremely broad scope of information they seek from which to create statistical evidence or for other purposes.
Moreover, the majority of the cases cited by plaintiffs at pp. 10-11 of their memorandum do not support their argument for broad discovery of statistical evidence. Either the cases pre-date the burden-shifting framework applicable to plaintiffs' allegations of gender and age discrimination and retaliation, Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (clarifying burden of proof originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973)), they do not address the use of statistical evidence at all, they apply to class actions or they have been reversed.
Nonetheless, "[w]hen a plaintiff must prove intentional discrimination, a district court can abuse its discretion by limiting a plaintiff's ability to show the atmosphere in which the plaintiff operated." Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 358 (5th Cir. 1995) (quotations omitted). Evidence of other wrongs or acts may be admissible to prove, for example, defendant's motive, intent, plan, knowledge or absence of mistake in an employment discrimination case. Fed.R.Evid. 404(b); Burks v. Oklahoma Pub. Co., 81 F.3d 975, 981 (10th Cir. 1996); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990) (and cases cited therein); Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983); Harpring v. Continental Oil Co., 628 F.2d 406, 409 (5th Cir. 1980); Koppman v. South Cent. Bell Tel. Co., No. 90-4503, 1992 WL 280793, at *7-8 (E.D. La. July 12, 1992) (Clement, J.).
On the other hand, this is a relatively simple case of allegations of discriminatory failure to promote, retaliation and Equal Pay Act violations. Courts have recognized that Title VII plaintiffs do not have an unlimited ability to delve into their employers' policy and personnel records, even when they have alleged a pattern of discrimination. "[The court's] discretion to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant." Scales v. J.C. Bradford Co., 925 F.2d 901, 906 (6th Cir. 1991) (citing Trevino, 701 F.2d at 405); see also Childers v. Slater, No. 97-853RMU/JMF, 1998 WL 429849, at *4-5 (D.D.C. May 15, 1998) (plaintiff's request for information about all discrimination actions filed against entire government agency "sweeps too broadly;" "courts must set reasonable boundaries on the type of discovery permissible in Title VII actions;" discovery limited to relevant time period, particular type of discrimination alleged in complaint and divisions where plaintiff and her supervisors worked) (citing Trevino, 701 F.2d at 405, and cases that imposed similar limitations).
Finally, it is well established that other claims of discrimination against a defendant are discoverable if limited to the (a) same form of discrimination, (b) the same department or agency where plaintiff worked, and (c) a reasonable time before and after the discrimination complained of. Mitchell v. National R.R. Passenger Corp., 208 F.R.D. 455, 460 (D.D.C. 2002). "Although acts occurring before the relevant statute of limitations period may still be admissible to prove a plaintiff's timely claim, the request must be reasonably limited. . . . Ten years is an inordinate length of time to support plaintiffs' pattern of discrimination theory. . . . Thus, in order to establish a pattern of discrimination, three years is a reasonable time in which to allow discovery." Glenn v. Williams, 209 F.R.D. 279, 282 (D.D.C. 2002) (citing cases).
"[N]ot only must there be a `temporal limitation,' but also a `geographic limitation' on the documents requested. Necessarily, the geographic limitation is the `employing unit.' . . . [D]iscovery in Title VII actions may appropriately be limited to employment units, departments, and sections in which there are employees who are similarly situated to the plaintiff." Id. at 281 (citing cases).
With these principles in mind, IT IS ORDERED as follows with respect to plaintiffs' first set of discovery requests (Plaintiff's Exh. 1) and defendant's responses (Plaintiff's Exh. 2).
Defendant's objections to plaintiffs' Interrogatory Nos. 1 and 4, as they relate to Oynes, are overruled. However, this has no effect on defendant's answers, which state that Oynes had no involvement in these actions.
Defendant's objection to plaintiffs' Interrogatory No. 3, as it relates to Oynes, is overruled. Defendant must respond. If there were no such "occasions or contacts" with either plaintiff, defendant should so state.
Defendant's objection to plaintiffs' Interrogatory No. 5, as it relates to Oynes, is overruled. Defendant's objection to plaintiffs' Interrogatory No. 5, as it relates to the time period and the grade levels requested by the interrogatory, is sustained. These are unlimited and therefore excessively broad. Accordingly, defendant must respond only for the time period January 1, 2001 to the present and only for persons at grade levels GS-9 through GS-11, which are the grade levels from and to which plaintiffs claim they should have been upgraded. IT IS FURTHER ORDERED that the same time period and grade level limitations shall apply to all of plaintiffs' discovery requests.
IT IS FURTHER ORDERED that defendant must provide plaintiffs with a verification of their original Answers to Interrogatories and must verify their supplemental Answers to Interrogatories as required by Fed.R.Civ.P. 33(b)(2).
Defendant's response to plaintiffs' Request for Production No. 1 is insufficient. It is not a valid response to state that some documents are already in plaintiffs' possession. Defendant must provide a supplemental response that identifies all which documents are responsive to this request and states that such documents have been or will be made available to plaintiffs for inspection and copying, or states that no responsive documents are in the possession, custody or control of defendant.
Defendant must also provide a supplemental response to plaintiffs' Request for Production No. 1 as necessary to comply with the request in light of any of the overruled objections and court orders to supplement his Answers to Interrogatories discussed above.
Defendant's objections to plaintiffs' Request for Production Nos. 2 and 3, as they relate to Oynes, are overruled. However, the time period and the grade levels requested are excessively broad and are limited as previously stated above. Furthermore, defendant is not required to create any documents in response to any request for production of documents. If no responsive documents exist within his possession, custody or control, defendant should simply say so.
(B). Defendant's Motion for Protective Order, Record Doc. No. 29
Defendant's motion for protective order is GRANTED IN PART AND DENIED IN PART, as follows.
First, defendant's motion is granted as to plaintiffs' requests for admissions, which are grossly excessive and repetitive. IT IS ORDERED that plaintiffs are limited to propounding 25 requests for admissions. Their first set of 15 numbered requests for admissions, including subparts, attached to their motion as Plaintiff's Exh. 1, actually contained 24 requests. Thus, plaintiffs may choose one more request for admissions from the nearly 200 requests that they propounded and ask defendant to admit or deny that one.
Second, defendant's objection to creating any documents in response to requests for production of documents is sustained. Rule 34 does not require a party responding to discovery tocreate responsive materials, only to produce those in its possession, custody or control.
Third, defendant's objection to producing information concerning Oynes's involvement in the employment decisions regarding plaintiffs that are at issue in this lawsuit, or Oynes's involvement in comparable complaints of age or gender discrimination or retaliation within the relevant time period and employing unit, is overruled. If no such information exists, defendant should say so. Otherwise, if Oynes had any personal involvement in those decisions or actions, responsive information concerning his involvement must be produced.
Defendant's objection that Request for Production Nos. 3, 8, 14, 20 and 24 of plaintiffs' second set of discovery requests are overly broad is sustained. All of plaintiffs' discovery requests are limited to personnel within the section supervised by Alex Alvarado and to grievances or complaints based on age or gender discrimination or retaliation only.
Furthermore, Request for Production No. 1 is too broad when it states "in any [way] related to your Answers to Interrogatories or denials of Requests for Admissions." However, defendant must respond by identifying and providing for inspection any documents upon which it relied in preparing its Answers to Interrogatories and denials of Requests for Admissions.
Defendant's motion is granted as to plaintiffs' Request for Production Nos. 13, 16, 17, 18 and 26 of plaintiffs' second set of discovery requests. These requests are overly broad in scope and seek information that is not reasonably calculated to lead to the discovery of admissible evidence.
Defendant's motion is denied in part as to plaintiffs' Request for Production No. 21. Defendant must respond insofar as such documents exist related to age or gender diversity within the Gulf of Mexico Region.
Defendant's motion is denied in part as to plaintiffs' Request for Production No. 25. Pay rates for GS-12 and GS-13 levels are relevant to plaintiffs' proof of lost future pay opportunities. However, the request is both overly broad and vague in part. Defendant need not produce personnel records nor any "documentation that would be used to calculate future loss of pay," but must produce documents that establish such pay rates during the relevant time period.
As to Request for Production Nos. 27 and 28, defendant asserts that vacancy announcement S-99-46 relates to the "anecdotal case of Claudia Rogers" and is irrelevant to plaintiffs' case. The court has no knowledge of who Claudia Rogers is or the circumstances of her "anecdotal case." Request for Production No. 29 asks for all advertised vacancy announcements. Request for Production No. 31 concerns cancelled vacancy announcements. Plaintiffs' complaint, as amended, does not allege any discrimination or retaliation against them in connection with any vacancy announcements. Accordingly, these requests appear on the current record to seek irrelevant information. Defendant's motion is granted as to these requests.
Defendant's motion is denied as to his objection that personnel records are protected by the Privacy Act, 5 U.S.C. § 552a(b). Despite defendant's argument that plaintiffs should be held to a heightened standard of relevance to overcome this statute, it is well established that the Privacy Act
does not create a qualified discovery privilege as that concept is generally understood, and we find no basis in the statute or its legislative history for inferring one. Nor does the Act create any other kind of privilege or bar that requires a party to show actual need as a prerequisite to invoking discovery. Rather, the plain language of the statute permits disclosure "pursuant to the order of a court of competent jurisdiction." Neither the statute nor anything in its legislative history specifies the standards for issuance of such a court order. We therefore find no basis for inferring that the statute replaces the usual discovery standards of the FRCP — in particular, Rules 26 and 45(b) — with a different and higher standard.Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987) (quoting 5 U.S.C. § 552a(b)(11)); accord Bustillo v. Hawk, No. 97-WM-445, 1998 WL 299980, at *5 (D. Colo. May 28, 1998);Huang v. Dalton, No. 93-3143, 1994 WL 325944, at *1 (E.D. Pa. June 30, 1994).
However, discovery of the personnel files of non-party individual employees presents special concerns about the privacy rights of the individuals involved. Balancing the interests of the parties in obtaining relevant discovery against the privacy interests of individual non-parties can best be accomplished by in camera review of the requested files. Atkinson v. Denton Publishing Co., 84 F.3d 144, 148 (5th Cir. 1996). By reviewing these records in camera I can also make an informed ruling as to their relevance. Accordingly, IT IS ORDERED that, if defendant has any responsive personnel files, they must be produced to me no later than October 22, 2004 for in camera review along with a brief memorandum stating to which request for production the documents are responsive. Thereafter, this part of the motion will be decided on the record without oral argument.
Defendant's motion is denied as to plaintiffs' requests for information regarding settlements of gender and age-related discrimination complaints. Settlement agreements, although inadmissible in evidence for some purposes, are both discoverable and admissible for other purposes. Fed.R.Evid. 408; 23 C.A. Wright K.W. Graham, Federal Practice and Procedure § 5308 at 237-38 (1980); Griffin v. Mashariki, No. 96 CIV 6400, 1997 WL 756914, at *2 (S.D.N.Y. Dec. 8, 1997); Glaze v. G B Marine, Inc., No. 95-1845, 1997 WL 20738, at *1 (E.D. La. Jan. 16, 1997) (Fallon, J.); Collinsv. Coastline Constr., Inc., No. 92-16, 1992 WL 125328, at *3 (E.D. La. May 25, 1992) (Schwartz, J.); Koch Indus., Inc. v. Columbia Gas Transmission Corp., No. 89-2156, 1990 WL 72789, at *2 (E.D. La. May 29, 1990) (Sear, J.).
"Although litigants cannot shield a settlement agreement from discovery merely because it contains a confidentiality provision, or was filed under seal, discovery of such an agreement is only appropriate if it [is relevant as defined by Fed.R.Civ.P. 26(b)]." ABF Capital Mgmt. v. Askin Capital, No. 96 Civ. 2978(RWS), 2000 WL 191698, at *2 (S.D.N.Y. Feb. 10, 2000) (Sweet, J.).
The information sought is reasonably calculated to lead to the discovery of admissible evidence. Although the settlement negotiations and agreements, if any, may be inadmissible to prove liability, factual information underlying other claims may be relevant and admissible in the instant action on issues such as whether defendant had the intent to discriminate based on race or gender and whether defendant's antidiscrimination policies were adequate. Fed.R.Evid. 404(b); Butta-Brinkman v. FCA Int'l, Ltd., 164 F.R.D. 475, 476 (N.D.Ill. 1995).
But see Lesal Interiors, Inc. v. Resolution Trust Corp., 153 F.R.D. 552, 561 (D.N.J. 1994) (suggesting that Rule 408 only applies to exclude settlements of the claims at issue in the instant litigation) (citing Bank of Am. Nat'l Trust v. Rittenhouse, 800 F.2d 339 (3d Cir. 1986)).
Further, I agree with the reasoning of the courts in Wendt v. Walden Univ., Inc., No. CIV. 4-95-467, 1996 WL 84668 (D. Minn. 1996), and Kalinauskas v. Wong, 151 F.R.D. 363 (D. Nev. 1993), that the public interest is better served by permitting discovery of facts about similar claims against a party in a discrimination suit despite the private agreements of litigants not to disclose such information. "While parties have the freedom to contract, courts must carefully police the circumstances under which legitimate areas of public concern are concealed. Defendants should not be able to buy the silence of witnesses with a settlement agreement when the facts of one controversy are relevant to another." Wendt, 1996 WL 84668 at *2 (citingKalinauskas, 151 F.R.D. at 365-66); accord Channelmark Corp. v. Destination Prods. Int'l, Inc., No. 99 C 214, 2000 WL 968818, at *5 (N.D. Ill. July 7, 2000). The interests of defendant and the other complainants (if any) in preserving the confidentiality of their interactions can be served by an appropriate protective order in this litigation.
IT IS FURTHER ORDERED that any settlement agreements or personnel records produced by defendant to plaintiffs shall be subject to the following protective order. All information produced in accordance with this order must be marked and kept confidential and used only for purposes of this litigation and must not be disclosed to any one except(a) one individual non-lawyer representative of each party to this litigation, (b) the parties' counsel of record in this action, and (c) experts retained in connection with this litigation whose testimony may be presented at trial. All persons to whom such information is disclosed must sign an affidavit that must be filed into the record, agreeing to the terms of the protective order and submitting to the jurisdiction of this court for enforcement of those terms. If any party seeks to add other terms to this protective order, counsel must confer immediately and submit by motion any proposed protective order.
IT IS FURTHER ORDERED that defendant must provide plaintiffs with his verification of his original Answers to Interrogatories, his supplemental responses to plaintiffs' first set of discovery requests and his responses to plaintiffs' second set of discovery requests, in conformance with the rulings herein, within ten days of entry of this order.