Opinion
Civil Action No. 99-2831, SECTION "L" (2).
August 14, 2000.
ORDER AND REASONS
Defendant, Shell Chemical Company ("Shell"), provided plaintiff, Rodrigo M. Solorzano, with supplemental responses to plaintiff's document requests, as previously ordered by the Court. Record Doc. No. 31. However, Shell filed a Motion for Protective Order in connection with three of plaintiff's document requests and provided the Court with some documents for review in camera. Record Doc. No. 37. Solorzano filed a timely Memorandum in Opposition to Shell's Motion for Protective Order. Record Doc. No. 39. He also filed a Reply to Defendant's Supplemental Responses of July 20, 2000, in which he objects to Shell's response to one of his document requests. Record Doc. No. 36. The Court construes this pleading as a motion to compel a more complete response.
Having considered the complaint, the record, the written submissions of the parties and the applicable law, IT IS ORDERED that Shell's motion is GRANTED IN PART AND DENIED IN PART, as follows. IT IS FURTHER ORDERED that plaintiff's motion to compel a more complete response to Request No. 15.23 is DENIED.
I. SHELL'S MOTION FOR PROTECTIVE ORDER
A. Request No. 15.32
Shell's motion is GRANTED as to Request No. 15.32. The drug testing records of another employee are extremely sensitive and confidential, and need be produced only if relevant in subject and time frame to the subject matter of plaintiff's action. In the employment discrimination context, such documents are relevant only if the other employee was "similarly situated" to Solorzano and the alleged discrimination against plaintiff occurred in "nearly identical" circumstances to the favorable treatment afforded to the other employee. Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000); Krystek v. University of Miss., 164 F.3d 251, 257 (5th Cir. 1999); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995);Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). "Anecdotes about other employees cannot establish that discrimination was a company's standard operating procedure unless those employees are similarly situated to the plaintiff."Wyvill, 212 F.3d at 302.
Solorzano states that the other employee whose records he seeks was similarly situated because he was an hourly employee of the same "rank" as plaintiff and was subject to the same company policies. However, Shell represents in its memorandum that the other employee was disciplined six years before plaintiff. According to Shell, the other employee tested positive for drugs, was given an opportunity to undergo rehabilitation pursuant to Shell's written substance abuse policy and then was terminated in June 1992 after he tested positive for drugs a second time. By contrast, Solorzano's employment was terminated six years later after Shell determined that he had failed to cooperate with the substance abuse policy by failing to provide an unadulterated urine specimen and had falsified his consent form to the drug test by attesting that the specimen was unadulterated. Unlike the other employee, plaintiff never tested positive for drugs. These employees were not similarly situated in terms of the circumstances under which they were disciplined.
Moreover, "relevancy . . . necessarily diminishes as the time between the Plaintiff's discipline, and that imposed upon a co-employee, increases." Onwuka v. Federal Express Corp., 178 F.R.D. 508, 517 (D.Minn. 1997). Discovery requests as to historic company records must be tailored to encompass a "reasonable time period" both before and after the discriminatory event being alleged. Id. at 516-17. Discovery limited to two years preceding an employee's termination was found to be reasonable in cases cited by the Onwuka court. See id. at 517. In the instant case, five years between disciplinary incidents is not a relevant time period. Because the other employee was not disciplined or terminated in circumstances similar to plaintiff's or in a relevant time period, evidence concerning the other employee's discipline or termination is irrelevant. Id. at 302-03.
B. Request No. 16
Shell' s motion is also GRANTED as to Request No. 16. Solorzano seeks the personnel records of another employee who was disciplined by being given a one-day "Decision Making Leave" pursuant to Shell's "Positive Discipline Policy" for falsification of records in connection with performance of his job. The Court has conducted an in camera review of the employee's personnel file. Specifically, the employee was charged with falsifying an entry in a log by stating that he had changed the "screen packs" in some equipment when he had not actually done so. According to Shell's memorandum, this employee worked in a different department from Solorzano and had a different supervisor. The Decision Making Leave was given to the other employee more than five years before Solorzano was terminated. Again, under the authorities cited above, this employee was neither similarly situated to plaintiff nor disciplined in nearly identical circumstances in a relevant time period.
C. Request No. 15.8
In Request No. 15.8, plaintiff requested any files maintained on him regarding his claims under Shell's RESOLVE Program, which is an ombudsman program. Shell objects that this information is confidential and protected by an ombudsman's privilege. For the following reasons, Shell's motion is DENIED as to this document request, except that the documents must be produced subject to the protective order below.
In support of its objection to Request No. 15.8, Shell provided to plaintiff and the Court various explanatory materials about the RESOLVE Program, including the 1985 Ombudsman Association Code of Ethics and the 1995 Ombudsman Association Standards of Practice. These materials are replete with references to the neutral, third-party status of the ombudsman and the promised confidentiality of the RESOLVE Program. The materials declare that the ombudsman is not an agent of Shell and that Shell management has no access to any RESOLVE files. Under the Ombudsman Association Code and Standards of Practice, the ombudsman claims a privilege, which cannot be waived by any participant in the dispute resolution process. Independent legal counsel for the RESOLVE Program has written to the Court, advising that the Program asserts its privilege, and has requested time to brief the issues on behalf of the Program, if necessary. Record Doc. No. 38.
Solorzano asserts first that no ombudsman privilege exists under federal common law. Second, if such a privilege exists, he argues that it has been waived because Shell disclosed information from the Program to the Equal Employment Opportunity Commission ("EEOC") in connection with plaintiff's complaint before the EEOC.
Plaintiff's second argument is unavailing. It is clear from the written materials he provided to the Court that both he and Shell management representatives attended the meeting on November 25, 1997, facilitated by the ombudsman. Plaintiff's Appendix B. Because both he and Shell were present at the meeting, no confidentiality was breached when Shell reported the existence and the general tenor of the meetings to the EEOC. No substantive communications were revealed. Id.
On the other hand, plaintiffs first argument has merit. Under Fed.R.Evid. 501, privilege questions are generally governed by common law unless otherwise required by federal law. Thus, privilege questions are governed by the federal courts' interpretation of federal common law except when state law supplies the rule of decision, in which case state law on privilege governs. Fed.R.Evid. 501; Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992); Robertson v. Neuromed. Ctr., 169 F.R.D. 80, 81-82 (M.D. La. 1996); Soriano v. Treasure Chest Casino. Inc., No. 95-3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996).
In the instant case, Solorzano has clearly stated claims arising out of federal antidiscrimination laws. Amended Complaint, Record Doc. No. 2. He may also have stated a defamation claim under Louisiana law. Id. ¶¶ VI(9), IX(2). Federal law provides the rule of decision on plaintiff's federal claims, while state law provides the rule of decision on his state law claim, if he has one. "Rule 501 makes it clear that state privilege law will apply in diversity cases, and that federal privilege law will apply in federal question cases. However, in federal question cases where pendent state law claims have been asserted, the rule is equivocal." In re Combustion, Inc., 161 F.R.D. 51, 53 (W.D. La. 1995), aff'd, 161 F.R.D. 54 (W.D. La. 1995) (citing Hancock, 967 F.2d at 466; Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992); American Civil Liberties Union of Miss., Inc. v. Finch, 638 F.2d 1336, 1343 (5th Cir. Unit A March 1981)).
"[T]he weight of authority among courts that have confronted this issue in the context of discovery is that the federal law of privilege governs even where the evidence sought might be relevant to pendent state law claims." Robertson, 169 F.R.D. at 82-83 (citing Hancock, 967 F.2d at 466; von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982);Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061 n. 3 (7th Cir. 1981); In re Combustion. Inc., 161 F.R.D. at 54; Pagano v. Oroville Hosp., 145 F.R.D. 683, 687 (E.D. Cal. 1993), overruled in part on other grounds by Jaffee v. Redmond, 518 U.S. 1, 8 (1996), as stated in Folb v. Motion Picture Indus. Pension Health Plans, 16 F. Supp.2d 1164, 1170 (C.D. Calif. 1998),aff'd, 216 F.3d 1082, 2000 WL 420636 (9th Cir. Apr. 18, 2000));accord Folb, 16 F. Supp.2d at 1169; Smith v. Smith, 154 F.R.D. 661, 671 (N.D. Tex. 1994).
If state law governs privilege questions in the instant case, Louisiana has an alternative dispute resolution statute known as the Louisiana Mediation Act (the "Act") whose confidentiality terms could conceivably apply to ombudsmen. The Act defines "mediation" as "a procedure in which a mediator facilitates communication between the parties concerning the matters in dispute and explores possible solutions to promote reconciliation, understanding, and settlement." La. Rev. Stat. § 9:4101(C)(5). Although the Act is designed to apply to civil cases filed in state court after January 1, 1998, its confidentiality provision applies to "all oral and written communications and records made during mediation, whether or not conducted under this Chapter and whether before or after the institution of formal judicial proceedings." Id. § 4112(A) (emphasis added). Such communications and records "are not subject to disclosure, and may not be used as evidence in any judicial or administrative proceeding." Id. Further, the "parties, counsel and other participants therein . . . are not subject to process or subpoena, issued in any judicial or administrative procedure, which requires the disclosure of any communications or records of the mediation," id. § 4112(B)(1), and the "mediator is not subject to subpoena and cannot be required to make disclosure through discovery or testimony." Id. § 4112(B)(2).
For the reasons stated by the cases cited above, I agree "that the federal law of privilege provides the rule of decision with respect to privilege issues affecting the discovery of evidence in this federal question case involving pendent state law claims." In re Combustion. Inc., 161 F.R.D. at 53. Accordingly, I find that the Louisiana Mediation Act, assuming it creates a privilege for ombudsmen, does not apply in this action.See Syposs v. United States, 179 F.R.D. 406, 409 (W.D.N.Y. 1998) (state's medical peer review privilege does not apply in action under Federal Tort Claims Act); Robertson, 169 F.R.D. at 82 (state's hospital peer review records privilege does not apply in case brought under Americans with Disabilities Act with pendent state law claims); King v. Conde, 121 F.R.D. 180, 187 (E.D.N Y 1988) (state law protecting personnel records of police officers from disclosure not applicable in federal civil rights action).
If plaintiff has not actually stated a state law defamation claim, then the federal common law of privilege clearly applies.
The Court must next consider whether any federal privilege, either statutory or common law, applies to the records that Shell seeks to protect. Shell has not pointed out the existence of any such legal privilege, beyond the assertion of it in the Resolve Program documents, and the Court's own research has located none.See Miller v. Regents of the Univ. of Colo., 188 F.3d 518, 1999 WL 506520, at *15 (10th Cir. July 19, 1999) (federal law does not recognize ombudsman's privilege) (unpubl. opin. avail, on Westlaw); Carmann v. McDonnell Douglas Corp., 114 F.3d 790, 795 (8th Cir. 1997) (same).
In the absence of federal law on the subject, the Court may consider whether the policy of the Louisiana Mediation Act is sufficiently compelling, in light of reason and experience, to be applied as a matter of federal common law. Jaffee v. Redmond, 518 U.S. 1, 8 (1996); Robertson, 169 F.R.D. at 84. The Supreme Court recently reaffirmed that
privileges are strongly disfavored in federal practice, and any privilege must be strictly construed since "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that `the public . . . has a right to every man's evidence.'" Though Rule 501 authorizes recognition of new privileges, the courts are not inclined to exercise this authority expansivelyId. at 82 (quoting University of Pa. v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 189 (1990); citing American Civil Liberties Union, 638 F.2d at 1344).
In deciding whether to recognize a new federal privilege, the Court should
balance "the public's need for the full development of relevant facts in federal litigation against the countervailing demand for confidentiality in order to achieve the objectives underlying the privilege in issue." The balance does not often favor recognition of a new privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence."Syposs v. United States, 179 F.R.D. 406, 409 (W.D.N.Y. 1998) (quoting 2 J. Weinstein, M. Burger J. McLaughlin, Weinstein's Evidence ¶ 501[03], at 39-41; University of Pa., 493 U.S. at 189), adhered to on reconsideration, 63 F. Supp.2d 301, 302 (W.D.N.Y. 1999).
Certainly the Louisiana Mediation Act addresses issues in the relations between mediators and their clients and in the confidentiality of their communications and records that the Louisiana legislature has deemed worthy of protection. However, Title VII and the Age Discrimination in Employment Act, under which Solorzano brings his federal claims, are broadly remedial statutes, which set forth an integrated, multi-step enforcement procedure designed to be initiated by laymen. University of Pa., 493 U.S. at 190; E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107, 123-24 (1988); Williams v. CIGNA Fin. Advisors Inc., 197 F.3d 752, 761 (5th Cir. 1999). The Supreme Court, in declining to create a privilege for educational peer review materials in Title VII cases, found it significant that Congress "[did] not carve out any special privilege [in Title VII] relating to peer review materials." University of Pa., 493 U.S. at 191. By the same token, Title VII and the Age Discrimination in Employment Act contain no privilege for ombudsmen's records. "Whether the public interest would be served by [an ombudsman's] privilege in federal cases requires a weighing of interests more appropriate for the Congress than the courts." Syposs, 179 F.R.D. at 409.
This Court, like many others, is reluctant to find a new privilege that may undermine the federal interests at stake in plaintiff's claims brought under federal law. See University of Pa., 493 U.S. at 189 (declining to create privilege against disclosure of peer review materials in Title VII case); United States v. One Parcel of Prop., 930 F.2d 139, 141 (2d Cir. 1991) (state law protecting disclosure of erased arrest records not recognized as federal privilege); Pickett v. Woodland Heights Gen'l Hosp., No. 9:96-175 (TH), 1997 WL 394822, at *2 (E.D. Tex. June 18, 1997) (peer review privilege inapplicable in antitrust case); Robertson, 169 F.R.D. at 83 (when Congress recognized substantial costs of disability discrimination and made its elimination a matter of substantial governmental interest through the Americans with Disabilities Act, court would not create peer review privilege); Smith, 154 F.R.D. at 675 (declining to recognize federal mediator's privilege in RICO, securities fraud and common law fraud case despite existence of such privilege under Texas law); Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 830 F. Supp. 80, 81 (D.P.R. 1993) (refusing to apply state law accountant-client privilege); Pagano, 145 F.R.D. at 689-90, 695 (declining to recognize state law physician-patient and medical peer review privileges); Swarthmore Radiation Oncology, Inc. v. Lapes, No. 92-3055, 1993 WL 517722, at *3 (E.D. Pa. Dec. 1, 1993) (policies reflected in state peer review statute incompatible with federal interest in fair competition embodied in antitrust laws).
The Eighth Circuit in Carmann appears to be the only appellate court to have considered whether to create a federal ombudsman's privilege. The Court's reasons for rejecting the proposed privilege are persuasive.
. . . . We agree that fair and efficient alternative dispute resolution techniques benefit society and are worthy of encouragement. To the extent that corporate ombudsmen successfully resolve disputes in a fair and efficient manner, they are a welcome and helpful addition to a society that is weary of lawsuits.
Nonetheless, far more is required to justify the creation of a new evidentiary privilege. First, [defendant] has failed to present any evidence, and indeed has not even argued, that the ombudsman method is more successful at resolving workplace disputes than other forms of alternative dispute resolution, nor has it even pointed to any evidence establishing that its own ombudsman is especially successful at resolving workplace disputes prior to the commencement of litigation.
Second, [defendant] has failed to make a compelling argument that most of the advantages afforded by the ombudsman method would be lost without the privilege. Even without a privilege, corporate ombudsmen still have much to offer employees in the way of confidentiality, for they are still able to promise to keep employee communications confidential from management. . . . The denial of an ombudsman privilege will not affect the ombudsman's ability to convince an employee that the ombudsman is neutral, and creation of an ombudsman privilege will not help alleviate the fear that she is not. . .
. . . . To justify the creation of a privilege, [defendant] must first establish that society benefits in some significant way from the particular brand of confidentiality that the privilege affords. Only then can a court decide whether the advantages of the proposed privilege overcome the strong presumption in favor of disclosure of all relevant information.Id. at 793-94. The Eighth Circuit found that the "strong presumption" had not been overcome in that case brought under the Age Discrimination in Employment Act, the Employee Retirement Income Security Act and state antidiscrimination law.
In Carmann, as in the instant case,
the term "ombudsman" refers to an employee outside of the corporate chain of command whose job is to investigate and mediate workplace disputes. The corporate ombudsman is paid by the corporation and lacks the structural independence that characterizes government ombudsmen in some countries and states, where the office of ombudsman is a separate branch of government that handles disputes between citizens and government agencies. Nonetheless, the corporate ombudsman purports to be an independent and neutral party who promises strict confidentiality to all employees and is bound by the Code of Ethics of the Corporate Ombudsman Association, which requires the ombudsman to keep communications confidential.Id. at 792-93.
I am particularly reluctant to recognize such a privilege as a matter of federal common law when a narrowly drawn protective order of the type included later herein, short of recognition of a broad-ranging privilege, will suffice to accommodate any need for confidentiality of the records that might be responsive to plaintiff's discovery request.
Accordingly, IT IS ORDERED that Shell must produce documents responsive to Request No. 15.8 within ten days of entry of this order, subject to the following protective order. All files maintained on Solorzano regarding his claims under Shell's RESOLVE Program 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 parties to this litigation, the parties' counsel and experts retained in connection with this litigation. 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.
II. PLAINTIFF'S MOTION TO COMPEL A MORE COMPLETE RESPONSE TO REOUEST NO. 15.23
In its supplemental response to plaintiff's Request No. 15.23, requesting minutes of meetings of the Shell Taft Plant Redesign Implementation Team, Shell states that it has previously produced some documents and that an additional search revealed no other documents. Solorzano states that he "has a problem with this answer" because "he finds it unusual that a key Taft team left no documentation," and he asks that he be permitted to conduct his own search. Record Doc. No. 36, ¶ 7. The Court construes this as a motion to compel a more complete response.
Plaintiff's motion to compel is DENIED. Shell cannot produce what it does not have. Its response is sufficient.