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DeWitt v. Southwestern Bell Telephone Co.

United States District Court, District of Kansas

February 24, 2014

JANA DeWITT, Plaintiff,


K. Gary Sebelius U.S. Magistrate Judge

This matter comes before the court upon Plaintiff’s Motion to Compel and for Leave to Re-Open Discovery and Take Additional Depositions at Defendant’s Expense (ECF No. 57). For the reasons explained below, plaintiff’s motion is granted in part and denied in part.

I. Background

Plaintiff Jana DeWitt alleges her former employer, Defendant Southwestern Bell Telephone Company, unlawfully discriminated against her in violation of the Americans with Disabilities Act 42 U.S.C. § 12111, et seq. and the Kansas Act Against Discrimination, K.S.A. 44-1001, et seq. She also asserts a claim for retaliation under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. Southwestern Bell asserts it terminated Ms. DeWitt for cause. It alleges Ms. DeWitt violated company policy by adding services to a customer account without the customer’s consent. Southwestern Bell also alleges Ms. DeWitt intentionally disconnected multiple customer calls. Ms. DeWitt suffers from diabetes. She contends that at the time of the disconnected calls, she was experiencing episodes of low blood sugar and had become confused.

This discovery dispute involves various issues, some of which the parties resolved while they were briefing this motion. Ms. DeWitt still seeks an order compelling a response to a document production request. Because discovery is now closed, Ms. DeWitt also seeks leave of the court to re-depose certain Southwestern Bell employees and to depose additional employees, including in-house counsel. She also seeks an order compelling Southwestern Bell to produce a deposition transcript of Henry Rivera, Ms. DeWitt’s former supervisor, for a deposition taken in a case brought by Mr. Rivera against Southwestern Bell. She seeks leave of the court to serve a request for production of certain documents that reflect correspondence with in-house counsel. The court addresses each of these topics below.

II. Discussion

A. The 30(b)(6) Deposition

Ms. DeWitt’s Fed.R.Civ.P. 30(b)(6) deposition notice contained seven discrete topics. The first five topics are directed at the role Southwestern Bell’s human resources personnel played in events leading up to Ms. DeWitt’s termination. Topics 6 and 7 cover information about Ms. DeWitt’s compensation package and potential future earnings. According to Southwestern Bell, the parties agreed in advance of the deposition that the information sought in Topics 6 and 7 would be provided in a manner less burdensome than through a deposition. In her reply brief, Ms. DeWitt states that Southwestern Bell has provided the information requested in Topic 7, and she believes the parties will be able to agree to stipulations regarding both Topic 6 and 7.[1] For these reasons, it appears this issue is now moot.

B. Southwestern Bell’s Objections to the Second Requests for Production

Ms. DeWitt originally moved to compel responses to all nine of the requests contained in her Second Request for Production. Since that time, Southwestern Bell has supplemented its production and withdrawn certain objections. In her reply brief, Ms. DeWitt now states she withdraws the motion as it pertains to Requests Nos. 1-8.[2] That leaves only Request No. 9 at issue. Southwestern Bell argues that the court should deny Ms. DeWitt’s motion as it pertains to the Second Requests for Production because Ms. DeWitt’s counsel did not adequately confer with opposing counsel about the requests for production before filing this motion. According to Southwestern Bell, it believed that the parties had resolved issues pertaining to Ms. DeWitt’s Second Requests for Production.

Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2 require a moving party, in good faith, to confer with opposing counsel before filing a motion to resolve any discovery disputes. The duty to confer generally requires counsel to “converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.”[3] “The cooperation process should involve information sharing and dialogue in an attempt to resolve discovery disputes without the necessity of the Court ruling on each issue in dispute.”[4]

The correspondence attached to the parties’ briefs does not make clear that Ms. DeWitt continued to assert that Southwestern Bell’s responses and amended responses were deficient. Ms. DeWitt’s reply brief notes that respective counsel for the parties also communicated by phone, but her statements in that regard are unspecific-stating that the parties discussed “numerous issues” regarding Southwestern Bell’s responses and that defense counsel explained “various things that he was attempting to find and/or clarify regarding Plaintiff’s requested documents.”[5] While the court does not know what was said between counsel during phone calls, the written correspondence does not reflect any ongoing, meaningful attempt to resolve the disputes regarding Southwestern Bell’s responses and amended responses to the discovery requests. However, in an effort not to delay this case any further, the court will rule on Ms. DeWitt’s request that the court compel as it relates to Request No. 9.

Request No. 9 seeks, “All documents evidencing any attempt made by Defendant to preserve screen shots of Plaintiff’s customer calls.”[6] Because Southwestern Bell contends it terminated Ms. DeWitt’s employment for events that occurred during customer calls, this request seeks information that appears facially relevant. Southwestern Bell originally objected to the request for “all” documents, arguing that the term was overbroad and unduly burdensome because it is impossible to represent that every bit of information falling within a particular description has been included.[7] In response to the motion to compel, however, Southwestern Bell states that it withdraws objections to the use of the term “all.”[8] Southwestern Bell also initially objected to the term “screen shots, ” arguing that the term was not reasonably particular.[9] The court construes this as a vagueness objection. Again, in response to the motion to compel, Southwestern Bell states that it withdraws its objections pertaining to Request No. 9 (among other requests) based on the ground that documents were not described with sufficient particularity.[10]

It appears issues regarding production of documents in response to Request No. 9 should be moot, as Southwestern Bell appears to have withdrawn all of its objections. Nevertheless, Ms. DeWitt’s reply brief states that she still seeks an order compelling a response to this request because Southwestern Bell’s most recent amended response “has not changed.”[11] To the extent Southwestern Bell continues to object to Request No. 9, those objections are overruled.[12] To the extent any responsive documents exist, Southwestern Bell shall produce them within fourteen (14) days from the date of this order.

C. Additional Depositions

The court previously ordered that all discovery was to have been served or commenced in time to be completed by October 4, 2013.[13] The court subsequently extended the discovery period to October 25, 2013, for the limited purposes of taking the deposition of Henry Rivera, taking the Rule 30(b)(6) deposition of Southwestern Bell, and for Southwestern Bell to serve responses to Ms. DeWitt’s second set of requests for production.[14] On October 21, 2013, one day prior to the Rule 30(b)(6) deposition, Southwestern Bell produced “case notes” that identified additional individuals involved in the decision to issue a Last Chance Agreement to Ms. DeWitt in January 2010 and to terminate Ms. DeWitt’s employment in March 2012. Those individuals include human resources employees: Diane Bottalla, Char Spring, and Karen Stevenson. The case notes also identify Chris Bourgeacq, in-house counsel for AT&T Services, Inc., of which Southwestern Bell is a subsidiary. According to Ms. DeWitt, Southwestern Bell had not previously identified these individuals in its Rule 26(a)(1) initial disclosures. Ms. DeWitt also states that at various depositions, ...

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