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Equal Employment Opportunity Commission v. BNSF Railway Co.

United States District Court, D. Kansas

June 10, 2014

BNSF RAILWAY COMPANY, Defendant. KENT DUTY, Plaintiff-Intervenor,


KENNETH G. GALE, Magistrate Judge.

Now before the Court is Defendant's "Motion to Compel Responses to Defendant's First Interrogatories and First Requests for Production of Documents from Plaintiff-Intervenor" Kent Duty (Doc. 124). For the reasons set forth below, the Court GRANTS in part and DENIES in part this motion.


This is an employment discrimination case brought under the Americans with Disabilities Act. Plaintiff-Intervenor Kent Duty ("Mr. Duty") applied for a position with Defendant railroad as a locomotive electrician. Mr. Duty was hired subject to a medical examination. He was then denied the position after a medical examination by Defendant opined that he is unable to perform essential functions of the job because of a physical impairment in one of his hands.


Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.[1]

"Discovery relevance is minimal relevance, ' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence." Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). "Relevance is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action." Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way, "discovery should ordinarily be allowed unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Snowden By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991), appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).

The scope of discovery is broad, but not unlimited. If the proponent has failed to specify how the information is relevant, the Court will not require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D. Kan. 1995). Within this context, the Court will address the various discovery requests at issue.

A. Interrogatories at Issue.

1. Nos. 1 and 2.

These two interrogatories seek a list of "every action" by Defendant that Plaintiff contends constituted disability discrimination (No. 1) and retaliation (No. 2). (Doc. 125-2, at 2-6.) Plaintiff objects that both interrogatories call for a narrative response.

As an initial matter, Courts in this District have looked with disfavor at "blockbuster" narrative interrogatories, which "require the responding party to provide the equivalent of a narrative of its entire case together with identification of virtually all supporting evidence for each and every fact." High Point SARL v. Sprint Nextel Corp., No. 09-2269-CM-DJW, 2011 WL 4036424, at *19 (D. Kan. Sept. 12, 2011) (citation omitted). "Indiscriminate use of blockbuster interrogatories, such as these, do not comport with the just, speedy, and inexpensive determination of the action." Id., (quoting Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan.1997)). Simply because a discovery request uses the "each and every" language does not make it objectionable per se. Id.

The Court finds that Interrogatories Nos. 1 and 2 ask about specific aspects of Plaintiff's claims and, thus, are "sufficiently narrow so as to not be unduly burdensome or overly broad on [their] face." Id. Further, it is imperative for Defendant to be aware of all factual bases for Plaintiff's claims for discrimination and retaliation. As such, the "each and every" language is appropriate and justified in this instance.

In response to Plaintiff's objections, Defendant argues that it has not requested a narrative, but rather has requested a "list" of discriminatory or retaliatory actions. Defendant argues that Plaintiff has provided a narrative response, however, which Defendant contends is improper. Defendant argues it "needs to know what specific adverse actions are at issue to move for summary judgment." (Doc. 125, at 3.) Defendant also argues that Plaintiff's narrative response makes "unclear" as to whether he "is actually seeking relief for every alleged BNSF action he mentions or simply providing a narrative of the facts surrounding his claims." ( Id., at 3-4.)

The Court finds that Plaintiff's response contains an abundance of factual information. The fact that Plaintiff did not enumerate these facts in bullet points (or whatever type or format of "list" Defendant would prefer) is irrelevant. The Court reminds Plaintiff, however, that he is bound - and limited - by the sworn discovery responses to these interrogatories. The interrogatories request information on "every" discriminatory or retaliatory action by Defendant. Plaintiff will not be allowed to subsequently ambush Defendant with additional examples of discrimination or retaliation in response to dispositive motions and/or at trial.[2] That stated, Defendant's motion is DENIED in regard to Interrogatories Nos. 1 and 2.

2. Interrogatory No. 5.

This interrogatory seeks identification of the sections of the Americans with Disabilities Act ("ADA") and/or other regulations Plaintiff contends Defendant violated and "facts that you believe support your contentions." (Doc. 125-2, at 7.) Plaintiff argues that this is improper because it asks him, as a non-lawyer, "to perform Defendant's research of the law and/or to obtain this research from his attorneys, seeking to disclose attorney client communications and the mental impressions and legal conclusions protected as opinion work product." (Doc. 134, at 5.)

Plaintiff has chosen to sue Defendant for violations of the ADA. In order to do so, Plaintiff and/or his counsel are required to know the legal basis for their lawsuit - and they have a duty to inform Defendant of said basis. Further, it is improper to object that an interrogatory requests a legal conclusion. Plaintiff's ...

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