Opinion
No. 2:01CV00474 S
January 14, 2003
MORRIS O. HAGGERTY, Assistant Attorney General, MARK L. SHURTLEFF, Utah Attorney General, Attorneys for Defendant, Salt Lake City, Utah.
ORDER RE PLAINTIFF'S MOTIONS TO COMPEL AND DEFENDANT'S MOTION FOR A PROTECTIVE ORDER
Having considered defendant's and plaintiffs Motions to Compel and defendant's Motion for a Protective Order and good cause appearing therefor,
IT IS HEREBY ORDERED:
1. Attorney of record for defendant is Moms O. Haggerty.
2. Plaintiff, proceeding pro se, is Dr. Wei-Kang Zhou.
3. The Court has received and considered various motions to compel discovery and for a protective order.
4. Defendant's motion to compel (Docket #33) is denied as moot, since plaintiff has provided the requested discovery.
5. Plaintiffs First Motion to Compel asks that defendant re-submit its answers to Plaintiffs First Set of Interrogatories. Plaintiff was dissatisfied with defendant's answers to Interrogatory Nos. 1, 5, 9, 10, 11, 12, 13, 14, and 15. This Motion to Compel is denied as to Interrogatory No. 1 to the extent it asks for all complaints made against the University on any ground. Complaints of gender discrimination, age discrimination, other types of discrimination and complaints made in other colleges in the University against supervisors other than plaintiffs have nothing to do with plaintiffs allegations and will not reasonably shed any light on plaintiffs claims of national origin discrimination in the Music Department in the College of Visual and Performing Arts. See Gheesling v. Chater 162 F.R.D. 649, 650, 651 (D.Kan. 1995); Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615 (S.D. Ind. 2002) (limiting discovery to charges of discrimination in plaintiffs department and only against plaintiffs supervisor). In addition, going back 10 years is too long. See Burks v. Oklahoma Pub. Co., 81 F.3d 975, 981 (10th Cir. 1996), cert. denied, 519 U.S. 931 (1996) (denying request for information for the last 10 years). Defendant need answer the interrogatory only as to information for the last five years for complaints and charges of national origin discrimination in the Music Department in the College of Visual and Performing Arts.
6. Plaintiffs Motion as to Interrogatory No. 5 is denied because it is similarly overly broad and unduly burdensome. The Interrogatory need only be answered as to the College of Visual and Performing Arts and its predecessor, the College of Arts and Letters for the past ten (10) years.
7. Plaintiffs Motion as to Interrogatory No. 9 is the subject of defendant's Motion for a Protective Order discussed below.
8. Plaintiffs Motion as to Interrogatory Nos. 10 and 12 is denied because they seek information that is not relevant to the litigation and not likely to lead to the discovery of admissible evidence. In these Interrogatories Plaintiff requests information about Search Committee members in 1997 when plaintiff was not selected for a position at Southern Utah University and 2001 when the University was searching for a replacement for plaintiff The searches and surrounding information in 1997 and 2001 are not relevant to this action where plaintiff challenges his termination in 2000. Plaintiff has not filed a charge of discrimination for the failure to hire him in 1997 and cannot now do so because it would be too late. See 42 U.S.C. § 2000e-5(e)(1) (a charge of discrimination must be filed within 300 days after the alleged unlawful employment practice occurred). Plaintiff has no claim that he was discriminated against in 2001 because the search for a faculty member was undertaken after the decision was made that he would be dismissed.
9. Plaintiffs Motion as to Interrogatory No. 11 is denied as moot since defendant has filed a supplemental answer.
10. Plaintiffs Motion as to Interrogatory Nos. 13 and 14 is denied because they seek information that is not relevant to the litigation and not likely to lead to the discovery of admissible evidence. In these Interrogatories plaintiff requests information about the person hired to replace him and representations about that person's credentials posted on the University's website. The University has never advanced as a defense that plaintiff was dismissed because it found someone better to take his position. The University's defense to plaintiffs charge of discrimination is that it had a legitimate, nondiscriminatory reason for not renewing his contract. Information about any new orchestra director hired after plaintiff was dismissed is not relevant because it will not shed any light on why plaintiff was let go. Also, how the new orchestra director is represented on the University website is not relevant because as part of its defense to plaintiffs charges, the University does not have to show that the replacement is better or more qualified than plaintiff. Plaintiff claims that another Chinese national was hired in his place to "cover-up" defendant's discrimination against him and that this makes the information his Interrogatory seeks relevant. This contention lacks merit. If defendant had a goal of discriminating against people of Chinese origin when it dismissed plaintiff, then this goal would not have been achieved by the subsequent hiring of another Chinese national. This argument does not make plaintiffs interrogatories relevant or likely to lead to the discovery of admissible evidence.
11. Plaintiffs Motion as to Interrogatory No. 15 is denied because defendant has stated that it has no further information and the Court cannot compel information that the defendant does not have.
12. Plaintiffs Second Motion to Compel asks that defendant again respond to Plaintiffs First Request for Production of Documents. Plaintiff was dissatisfied with defendant's responses to Request Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 9. This Motion to Compel is denied. The Motion is moot as to Request No. 1 since defendant agreed to provide the information.
13. Plaintiffs Motion as to Request Nos. 2 and 3 is denied because the relevance of the information requested is outweighed by the expense and burden to gather the information. Plaintiff requests all student evaluations for the last 10 years for the orchestra class and all student evaluations for all music classes for the last five years. Defendant denies that its decision to not renew plaintiffs contract was based on student evaluations. Gathering the requested documents is unduly expensive and burdensome in light of the irrelevance of the information, given the representation that the final decision to dismiss plaintiff was not based on student evaluations.
14. Plaintiffs Motion as to Request No. 4 is the subject of defendant's Motion for a Protective Order discussed below.
15. Plaintiffs Motion as to Request No. 5 is denied because plaintiff requests information about the persons he was hired over in the year 2000. This information is not relevant and not likely to lead to the discovery of admissible evidence because the identity of persons whom plaintiff was hired over has nothing to do with his later termination.
16. Plaintiffs Motion as to Request Nos. 6, 7 and 8 is denied because plaintiff requests documents related to the 1997 and 2001 faculty searches. Information about those searches is not relevant and is not likely to lead to the discovery of admissible evidence for the same reason that plaintiffs Interrogatories on the subject are not proper.
17. Plaintiffs Motion as to Request No. 9 is denied because defendant states it does not have the requested information. The Court cannot compel information that a party does not have.
18. Plaintiffs Third Motion to Compel asks the Court to require defendant to resubmit its answers to interrogatories and requests for production of documents. Plaintiffs Motion is premised on the theory that defendant's supplemental disclosure of notes of faculty members who evaluated plaintiff are "false documents." Plaintiff reaches the conclusion that the produced notes are "false" or forgeries, based on several grounds. Plaintiffs Third Motion to Compel is denied because defendant has stated, through its attorney pursuant to Fed.R.Civ.P. 11 and via a Declaration from Music Department Chair Bart Shanklin, that it has produced all of the documents requested and can find no others. The Court cannot compel a party to produce documents it does not have. Plaintiffs "proofs" that defendant has other documents or that defendant has produced "false" documents is factually disputed and is not a matter subject to resolution via a Motion to Compel.
19. In addition to moving to compel defendant to produce the "real" documents, plaintiff objects to defendant's production of a typed list of faculty overload teaching pay. Plaintiffs objection is not well taken because defendant provided exactly what plaintiff asked for. Plaintiffs Request for Production No. 10 asked defendant to:
Produce the names of faculty members who received teaching overload pays in the Southern Utah University music department in the past five (5) years, along with a list of the amount of the overload salaries received by each faculty member in each semester separately.
This is essentially an interrogatory, asking for specific information. Defendant answered by giving plaintiff a list containing the names of faculty members and the amount of their salaries. In his Motion to Compel, plaintiff attempts to interpret the request as asking for something it did not — copies of documents showing overload pay agreements. Plaintiff may submit a new document request asking for this information.
20. Defendant's Motion for a Protective Order is granted. Defendant requests a protective order which both protects the students at Southern Utah University from possible harassment and limits discovery to prevent undue burden on defendant. Plaintiffs Interrogatory No. 9 states in relevant part that
The music department chair, Bart Shanklin, stated in his memo dated October 4 200 (sic) that "starting early in the semester I became aware of concerns as well as complaints related to your orchestra rehearsals." . . . Explain in details of (sic) the concerns and complaints such as the contents of the concerns and complaints, who made the concerns and complaints, the names of the students or faculty members who made the concerns and complaints, and to whom were these concerns and complaints reported.
Defendant has moved for a protective order setting up a procedure for plaintiff to contact students who made complaints. In order to protect the students from possible harassment and to protect their privacy, this Court orders Plaintiff to contact these students only by mail, and to send copies of any correspondence to defense counsel. If Plaintiff desires to speak with these students, he must do so in a formal deposition, made on the record, and with advance notice given to defense counsel. This allows plaintiff to discover any information the students hold, while protecting them from any harassment. This Court is not accusing plaintiff of harassment or stating that he would inevitably harass the students. However, due to the fact that student complaints started the process whereby plaintiffs employment was not renewed, and strong feelings would therefor be a normal consequence, it is prudent to put in place measures to insure the orderly process of litigation.
21. In addition, defendant's Motion for a Protective Order is granted as to Plaintiffs Request for Production No. 4 which states:
Produce all tenure-track faculty members' annual reviews by the Southern Utah University music department in the past ten (10) years.
Discovery will be limited in the following manner: Plaintiff should go to SUU's campus and, with supervision, be allowed to examine the documents he has requested. If plaintiff locates documents he believes to be relevant to his claim, he can mark the documents for copying. This will likely reduce the number of documents that need to be produced. This also eliminates the burdensome aspect of SUU copying hundreds of files that are likely not relevant. If SUU has an objection to producing the documents plaintiff marks for copying, then SUU will have the burden to make specific objections to the Court with regard to each document and obtaining a ruling as to ultimate production. This procedure balances plaintiffs right to discovery against the other faculty members' rights to privacy and SUU's right not to be unduly burdened by plaintiffs discovery requests.