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Meyer v. DG Retail LLC

United States District Court, Tenth Circuit

October 21, 2013

TABBITHA MEYER, Plaintiff,
v.
DG RETAIL LLC, Defendant.

ORDER

JAMES P. O’HARA, U.S. MAGISTRATE JUDGE

The plaintiff, Tabbitha Meyer, a retail sales associate formerly employed by the defendant, DG Retail LLC, brings this action alleging she was subjected to unlawful discrimination in violation of 42 U.S.C. § 2000e et seq. Specifically, plaintiff alleges she was discriminated against because of her pregnancy. Currently before the undersigned U.S. Magistrate Judge, James P. O’Hara, is a motion to compel plaintiff to provide complete answers to defendant’s first set of interrogatories and requests for production (doc. 39). For the reasons discussed below, defendant’s motion is granted in part and denied in part.

Defendant challenges the adequacy of plaintiff’s responses to Interrogatories Nos. 4, 6, 7, 17, and 19, and Requests for Production Nos. 3-6, 10, 11, 17, 20, 24, and 25. Defendant served these written discovery requests on June 13, 2013. Plaintiff served her objections and responses on July 16, 2013. On July 30, 2013, defendant sent plaintiff a “golden rule letter, ” outlining the deficiencies in plaintiff’s responses to its discovery requests. The parties conferred via telephone and e-mail but were unable to resolve the dispute.

I. Governing Legal Standards.

When a party files a motion to compel and asks the court to overrule objections, the objecting party must specifically show in its response to the motion how each discovery request is objectionable.[1] Objections initially raised but not supported in response to the motion to compel are deemed abandoned.[2] However, if the discovery requests appear facially objectionable in that they are overly broad or seek information that does not appear relevant, the burden is on the movant to demonstrate how the requests are not objectionable.[3] The decision to grant a motion to compel is a matter of discretion for the court.[4]

II. Interrogatories.

A. Interrogatory No. 4.

Interrogatory No. 4 asks plaintiff to identify any employee she contends was in a comparable or similar situation to her, but whom she believes was treated in a more favorable manner than she was treated during her employment with defendant due to her gender or pregnancy, including but not limited to the “non-pregnant workers with other medical conditions.” Plaintiff objected because the request “calls for a legal conclusion from a witness, ” and because it seeks information “which is not relevant to Ms. Meyer’s prima facie case of discrimination in this Circuit.” However, plaintiff asserted, “Without waiver, Ms. Meyer has served discovery requests on Defendant – who is in possession of documents showing its treatment of nonpregnant employees who were similarly situated in their ability to work.”

Defendant seeks to compel plaintiff to disclose any person that she believes to have received more favorable treatment than her, or to indicate that she is unaware of any such persons. Defendant asserts plaintiff’s counsel has already agreed to supplement this interrogatory answer but to date has not done so. Plaintiff confirms that she agreed to supplement her response, but states she has been unable to do so because the depositions of key witnesses in this case have not been transcribed yet. Plaintiff does not support any of her initial objections in her response; instead, she supplements her answer to Interrogatory No. 4 and asks the court to overrule defendant’s request as to this response as moot. Because plaintiff does not support her objections to this request, as earlier indicated, the objections may be deemed abandoned. In the interest of justice, however, the court will briefly address plaintiff’s objections.

Plaintiff first objects to Interrogatory No. 4 because it “calls for a legal conclusion from a lay witness.” Generally, a request seeking material facts a party contends supports its case would be considered a contention interrogatory.[5] Fed.R.Civ.P. 33(c) expressly recognizes and permits the use of contention interrogatories.[6] It provides that “an interrogatory otherwise proper is not necessarily objectionable because an answer to the interrogatory involves an opinion or contention that related to fact or the application of law to fact, …”[7] In light of the foregoing, the court finds that this is not a proper objection. Therefore, the court overrules plaintiff’s objection to Interrogatory No. 4 on this first basis.

Plaintiff also objects to this request because “it seeks information which is not relevant to Ms. Meyer’s prima facie case of discrimination in this Circuit.” This is a frivolous objection. Under Fed.R.Civ.P. 26(b)(1), discovery may be obtained “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Relevancy is broadly construed for pretrial discovery purposes. “A party does not have to prove a prima facie case to justify a request which appears reasonably calculated to lead to the discovery of admissible evidence.”[8] At least as a general proposition then, “[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 that party.”[9]

When the discovery sought appears relevant, the party resisting discovery has the burden to establish lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under 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.[10]

Plaintiff expressly injected this issue into the case. In paragraph 22 of the complaint, plaintiff alleges that defendant treated her “differently than non-pregnant workers with other medical conditions.”[11] It is therefore not surprising that defendant now seeks to compel plaintiff to disclose any person she believes to have received more favorable treatment, or to indicate that she is unaware of any such persons. Whether or not this information is necessary to establish a prima facie case, it appears to be relevant to the defense of plaintiff’s allegations in her complaint.

Because the discovery sought appears relevant on its face, it is plaintiff’s burden to establish lack of relevance. Plaintiff fails to meet her burden. Plaintiff argues the information requested is not relevant because the Tenth Circuit has held “comparison evidence” is not necessary to establish a prima facie case of discrimination; rather, a plaintiff only must show her position remained open and was filled by a non-pregnant employee.[12] However, discovery should be allowed unless “it is clear that the information sought can have no possible bearing on the claim or defense of that party.” As established above, defendant has shown that the requested discovery is relevant on its face. Plaintiff did not meet her burden to show that the requested discovery is irrelevant or is of such marginal relevance that the potential harm outweighs the ordinary presumption in favor of broad disclosure. Accordingly, plaintiff’s relevancy objection is overruled.

Plaintiff objects to this request but provides an answer subject to her objections.[13]Plaintiff also directs defendant to documents in defendant’s possession. Plaintiff’s response is unclear and confusing. This is precisely the reason why objecting and providing an answer subject to the objection is frowned upon by the courts. Plaintiff failed to meet her burden to show her objections applied to this request. Plaintiff’s attempt to supplement her answer to this request in her response to defendant’s motion is insufficient. Therefore, plaintiff is ordered to supplement her answer in writing ...


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