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Mann v. XPO Logistics Freight, Inc.

United States District Court, D. Kansas

July 19, 2017




         Plaintiffs are truck drivers who bring this employment-discrimination suit against their former employer, defendant XPO Logistics Freight, Inc., alleging they were subject to discrimination, harassment, and retaliation because of their race, age, and/or sex. A number of discovery disputes have arisen between the parties, some of which are now before the court. Defendant has filed a motion to compel plaintiffs Anthony Mann and Dana Moye to fully respond to defendant's second request for production of documents (ECF No. 98). Plaintiffs have filed a motion to compel defendant to fully respond to each plaintiff's opening interrogatories and first requests for production of documents (ECF No. 107). For the reasons discussed below, each motion is granted in part and denied in part.

         I. Factual Background

         Mann, Moye, and the third plaintiff, Katina McGee, were each employed at defendant's Kansas City, Kansas facility as a “driver sales representative” (“DSR”). Mann, an African-American male, was terminated in June 2015, after about six years of employment. He alleges that during his time at XPO, Caucasian employees were given preferential treatment and assignments, and opportunities to advance that were not given minority DSRs. He further alleges DSR supervisors called minority DSRs derogatory names. Mann states the supervisors engaged in a pattern and practice of racial discrimination, and that defendant fostered a hostile work environment. Mann asserts he was terminated for making numerous internal complaints about XPO's racial discrimination and unfair employment practices.

         Moye is an African-American male, over the age of fifty, who was employed by defendant for nearly nineteen years until he was terminated in April 2016. Moye alleges he was subjected to years of racial harassment by other DSRs and that defendant took no action when he complained. Like Mann, Moye alleges Caucasian DSR's were given preferential treatment, assignments, and opportunities to advance, and that defendant's representatives engaged in a pattern and practice of intentional racial discrimination and harassment. Moye also alleges he was harassed and not given job opportunities because of his age. Moye contends defendant terminated him in retaliation for his complaints of racial and age-based discrimination and harassment.

         McGee is an African-American female who worked for defendant for two-and-a-half years until she was terminated in April 2016. She alleges racial discrimination, harassment, and retaliation, as well as a pattern and practice of such, by defendant, all along the same lines as alleged by Mann and Moye. In addition, she alleges she was harassed and treated unfairly because of her sex. McGee asserts defendant fostered a hostile and abusive work environment. McGee contends defendant terminated her in retaliation for her complaints of racial and sexual discrimination and harassment.

         II. Legal Standards

         Fed. R. Civ. P. 26(b)(1) allows parties to “obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”[1] Relevance, at the discovery stage, is broadly construed.[2] “[A]ny matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case” will be deemed relevant.[3] Proportionality is to be determined by considering, to the extent applicable, the following six factors: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to relevant information, (4) the parties' resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.[4]

         Fed. R. Civ. P. 37(a) permits parties to “move for an order compelling disclosure or discovery.” The burden is generally placed on the party resisting discovery to demonstrate that the discovery should not be had.[5] “If the motion is granted-or if the disclosure or requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees, ” unless the court finds the opposing party's nondisclosure, response, or objection was “substantially justified” or that “other circumstances make an award of expenses unjust.”[6]“A nondisclosure, response, or objection is ‘substantially justified' if it is ‘justified to a degree that could satisfy a reasonable person' or where ‘reasonable people could differ as to the appropriateness' of the nondisclosure, response, or objection.”[7]

         III. Defendant's Motion to Compel (ECF No. 98)

         Defendant's motion to compel asks the court to mandate plaintiffs' responses to three document requests.

         Requests Directed to Moye.

         Two of the requests were directed to Moye: Request No. 19 sought documents related to Moye's income subsequent to his employment with defendant, and Request No. 22 sought Moye's medical records evidencing the physical, mental, or emotional harm he allegedly suffered as a result of defendant's actions. The motion noted that, as late as April 14, 2017, Moye had promised to produce the responsive documents as soon as he received them from his accountant and medical providers, respectively. Nevertheless, defendant included Request Nos. 19 and 22 in its motion filed on May 8, 2017. On May 18, 2017, Moye produced his responsive financial and medical records. Defendant's reply brief states defendant “accepts” that Moye has now fully responded to Request Nos. 19 and 22.[8] The motion to compel therefore is denied as moot with regard to these two requests.

         Request Directed to Mann.

         The third document request discussed in the motion remains at issue. Request No. 18 was directed to Mann and sought his e-mails, text messages, and phone-usage records for May 17, 2015, through June 17, 2015 (i.e., the month preceding his termination). One of the reasons given by defendant for terminating Mann was Mann's use of his cellphone during work hours. Mann's response to Request No. 18 asserted objections, but then stated, “These documents were already produced on December 10, 2016.”[9] It is undisputed Mann produced four pages of e-mails from the time frames June 1-4, 2015, and June 16-17, 2015.

         In an April 3, 2017 meet-and-confer discussion, Mann agreed to produce additional documents. On April 21, 2017, defendant provided Mann a log of the time he was clocked-in during the one-month period, and asked Mann to produce the additional responsive documents by April 28, 2017. Mann did not produce additional responsive documents before defendant filed its motion on May 8, 2017. During a telephone conference between counsel on May 19, 2017, plaintiffs' counsel informed defense counsel that Mann's cellphone account is controlled by Mann's estranged wife, and that Mann had tried to retrieve the requested documents from her but was unsuccessful. The parties agreed defendant would issue a subpoena to Mann's wife to obtain the records.

         In defendant's June 5, 2017 reply brief, defendant recognizes the issuance of the subpoena, but asserts Mann has not addressed his “lack of production regarding the documents sought in Request No. 18 that are in his own possession, such as emails, text messages, and phone call logs which are retrievable from the phone itself.”[10] Accordingly, to the extent it is within Mann's control to retrieve responsive documents via the cellphone in his possession, the motion to compel is granted.[11]

         Fees and Costs.

         Defendant seeks its fees and costs incurred in bringing the motion to compel under Fed.R.Civ.P. 37(a)(5)(A). The court is satisfied, however, that plaintiffs' delayed production of documents was substantially justified given the circumstances discussed above.[12] Although, of course, there are times when it becomes necessary for a party to move to compel production when an opposing party continuously delays producing discovery it has promised to provide, the situation here was different. Here, plaintiffs were actively attempting to obtain responsive documents and the parties' were openly and regularly communicating about plaintiffs' outstanding discovery.[13] Defendant's request for fees and costs therefore is denied.

         IV. Plaintiffs' Motion to Compel (ECF No. 107)

         Plaintiffs' motion to compel is a bit hard to follow, as it first lists numerous individual interrogatories and requests for production of documents at issue, and then separately puts forth plaintiffs' legal arguments, but does not indicate which legal arguments correspond to which specified requests/interrogatories, or whether those legal arguments apply beyond or in addition to the specified requests/interrogatories. Defendant's response is of little more help, as it does not include a single citation to legal authority. Moreover, though defendant made certain objections in its responses to plaintiffs' discovery requests, some of which likely would have been upheld, they are deemed abandoned where defendant did not reassert them in response to the motion to compel.[14]

         Signature of Person Answering Interrogatories.

         Plaintiffs' object that defendant's interrogatory responses are not “signed under oath by the person(s) making the answers as required by [Fed. R. Civ. P.] 33.”[15] The Tenth Circuit has held that when an answering party is a corporation, it is “entirely acceptable” for the party's attorney to swear to the accuracy of the interrogatory answers.[16] Here, defendant's attorney signed each set of answers, but his signatures were not accompanied by his verification or affidavit attesting to the accuracy of the answers. Defendant is therefore ordered to provide an affidavit, by its attorney or other authorized representative, signed under oath and attesting to the accuracy of the answers.[17]

         Contention Interrogatories.

         A number of plaintiffs' interrogatories ask defendant to identify the facts, documents, and witnesses that support its asserted defenses.[18] Such so-called “contention interrogatories” are permitted by Fed.R.Civ.P. 33(a)(2).[19] Defendant answered these interrogatories, in large part, by referring plaintiffs to specific bates-stamped documents.[20] Plaintiffs' motion objects to this practice, arguing,

[T]he defendant failed and still refuses to identify any principal or material facts, witnesses, or documentation for its defenses. The documentation that defendant produced also are not, “in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.” Rule 33(d).[21]

         Defendant's response to the motion did not address this argument or otherwise offer support for its responses to the contention interrogatories.[22]

         Rule 33 gives parties responding to interrogatories the option, in some circumstances, of producing business records as a method of answering an interrogatory. Specifically, “[i]f the answer to an interrogatory may be determined by” reviewing business records, “and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by specifying the records that must be reviewed.”[23] This court has recognized, however, that “the option to produce business records would rarely constitute an appropriate response for contention interrogatories because contention interrogatories, by their very nature, seek information regarding a party's opinion or contention. It is difficult to see how business records would provide this information.”[24]Defendant does not address this caselaw. Accordingly, and in the absence of any explanation from defendant as to how the documents cited in each response to a contention interrogatory fully answer that interrogatory, the motion is granted in this regard and defendant is ordered to supplement its responses to contention interrogatories with written responses.

         Identity of Person “Assisting” Defendant in Answering Interrogatories.

         Mann's Interrogatory No. 2, Moye's Interrogatory No. 1, and McGee's Interrogatory No. 1 asked defendant to “[i]dentify each person who assisted you in answering these interrogatories.”[25]Defendant identified its counsel in response to each. Plaintiffs argue this “response is evasive, as it does not identify each person who provided information in answering the interrogatories.”[26] The court rejects this argument. Defendant answered the question asked. The identical interrogatories did not ask for the information plaintiffs apparently now seek, i.e., the identity of each officer or agent of the corporation who answered on defendant's behalf. This portion of plaintiffs' motion is denied.

         Persons from Whom Statements or Factual Memoranda Were Obtained.

         Mann's Interrogatory No. 9 asked defendant for the “names, addresses, and telephone numbers of all persons from whom anyone . . . has obtained statements or factual memoranda . . . pertaining to the facts related in any way” to the claims in this case, and for each, “furnish a brief description of the statements or memoranda sufficient to identify it.”[27] Defendant answered by referring Mann to 259 bates-stamped pages of documents “from which the Answer to this Interrogatory, to the extent known by Defendant, can be ascertained.”[28] Defendant also supplemented its answer with a list of hundreds of employees and past management personnel no longer employed by defendant, as well as their addresses and telephone numbers.

         Plaintiffs argue “[p]roviding a list of hundreds of names and documents does not provide a sufficient response to Interrogatory No. 9, nor does it satisfy rule 33.”[29] As noted above, Rule 33(d) permits a responding party to produce business records in response to an interrogatory “[i]f the answer to an interrogatory may be determined by” reviewing the business records, “and if the burden of deriving or ascertaining the answer will be substantially the same for either party.”[30] “To comply with Rule 33(d)'s option to produce business records, the responding party must not only specifically designate which records answer the interrogatory, but the records specified must actually contain the information sought by the interrogatory. In other words, a party does not comply with this provision by generally identifying large categories of documents . . . .”[31]

         Under these standards, the court is inclined to agree with plaintiffs that defendant's designation of 259 pages of documents did not satisfy Rule 33(d). But plaintiffs have provided the court no argument or evidence from which the court can definitively make such a holding. For example, plaintiffs do not state whether Rule 33(d) was not met because certain documents specified do not contain information sought by Interrogatory No. 9, or whether the rule was not satisfied because the burden of ascertaining the answer to the interrogatory from the documents would fall more heavily on plaintiffs, or for both of these reasons, or for a reason entirely different. Nor have plaintiffs included in the record any of the documents defendant identified. Thus, for example, the court cannot say whether all of the documents identified meet the requirement that they contain information sought by the interrogatory. The court cannot grant plaintiffs relief based on their conclusory allegation alone, so the court denies the motion as to Mann's Interrogatory No. 9.

         Defendant's Financial Information/Tax Returns.

         Mann's Interrogatory Nos. 11-13 sought information about defendant's gross income for the past five years, current net worth, and “recent” financial statements.[32] Mann's First Request For Production of Documents (“Request”) Nos. 11-12 sought copies of defendant's tax returns and financial statements for the years 2012-2016. Plaintiffs state such financial information is relevant to their claims for punitive damages. In responding to the motion to compel, defendant's only argument is that “Plaintiffs have provided no explanation for why” defendant's financial statements available on defendant's public website are “insufficient.”[33]

         Defendant has not challenged (at least not in response to the motion to compel) the relevance of its financial information, and the court agrees with plaintiffs that the information is relevant to the issue of punitive damages. Thus, the burden falls on defendant “to show that other sources exist from which the information is readily obtainable.”[34] Although it may be the case that the information on defendant's website would provide the information sought in each of the three interrogatories and two requests, defendant has presented the court no argument or evidence in an attempt to make this showing. Because defendant has failed to meet its burden, plaintiffs' motion to compel as to these interrogatories and requests is granted.

         Persons Responsible for Developing Defendant's Non-Discrimination Procedures and Policies.

         Plaintiffs ask the court to compel defendant to respond to Mann's Interrogatory No. 16, which sought the name, address, and telephone number of each person responsible for developing each of defendant's procedures and policies about avoiding racial discrimination in the workplace. Defendant responds that the responsible persons are management personnel that are either currently employed at XPO such that plaintiffs' counsel may not contact them directly, or are former employees whose contact information was produced in response to a separate interrogatory. This response is evasive. It does not answer the question asked in Interrogatory No. 16. And if it is an objection to providing the information requested by Interrogatory No. 16, it is rejected because it was never raised in defendant's response to the interrogatory.[35] Plaintiffs' motion to compel as to this interrogatory is granted.

         Defendant's Provision of Mental Health Services in the Workplace.

         Mann's Interrogatory No. 17 sought information about defendant's “procedures and programs . . . for providing mental health services for your employees in your workplace.”[36] Mann's Request No. 10 sought copies of such procedures and programs. In response to the motion to compel, defendant asserts that such mental health information is not relevant to Mann's claims. As the court noted above, relevance is broadly construed at the discovery stage.[37] “[A]ny matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case” will be deemed relevant.[38] The court finds information about defendant's provision of mental-health services (if any) relevant to Mann's claim for emotional distress. Plaintiffs' motion to compel is granted in this regard.

         Surveillance Equipment.

         Moye's Interrogatory No. 5 sought a description of “all cameras, listening devices and other surveillance equipment installed at every XPO Logistics terminal since January 1, 2010, ” as well as the location and custodian of any resulting recordings. Plaintiffs later limited this interrogatory to defendant's Kansas City terminal.[39]Defendant argues the information sought is not relevant because such devices “have nothing whatsoever to do with Plaintiff Moye's employment or the reasons for his termination.”[40]Defendant further argues, “[t]he burden of compiling the information requested in this Interrogatory would clearly and substantially exceed any possible evidentiary value to be gained from such information.”[41]

         Under the liberal relevance standards set forth above, the court finds that a description of the surveillance equipment operating in defendant's Kansas City terminal from 2010 until the date on which Moye was terminated in 2016[42] could lead to information that could bear on an issue in the case. For example, Moye has alleged he was subjected to years of racial harassment by other DSRs and that defendant took no action when he complained. He further alleged XPO managers called him derogatory, age-based terms, such as “old fart” and “old guy.” Information defendant provides about the surveillance equipment and its recordings ...

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