United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL
KENNETH G. GALE, U.S. MAGISTRATE JUDGE
present action, Plaintiff Pamela Hall alleges she was subject
to employment discrimination and retaliation in violation of
the Family Medical and Leave Act, the Americans with
Disabilities Act, and the Age Discrimination in Employment
Act. (Doc. 1.) Plaintiff contends she was forced to terminate
her employment, while Defendants Life Care Centers of America
(“Defendant LCCA” or “LCCA”) and
Michelle Yosick (“Defendant Yosick” or
“Yosick”) contend Plaintiff did so voluntarily.
before the Court is Plaintiff's Motion to Enforce
Discovery. (Doc. 58.) Having reviewed the submissions of the
parties, Plaintiff's motion is GRANTED in
part and DENIED in part as more
fully set forth below.
26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
such, the requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be
discoverable. Holick v. Burkhart, No.
16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11,
Plaintiff's First Document Requests.
Personnel Files (Requests for Production Nos. 2 and
No. 2 seeks “[p]ersonnel files . . . of any employee of
LCCA who gave any input . . . into, or participated in,
Plaintiff s termination, and/or the decision to terminate
and/or offering Plaintiff a severance agreement.” (Doc.
58-2, at 3.) Request No. 7 asks for personnel files of any of
Defendant LCCA's employees “who had supervisory
authority over Plaintiff at the time Plaintiff's
employment ended.” (Id., at 4.)
object that the requests are overly broad and unduly
burdensome because they are not “limited to the claims
and defenses in this action” (as to Request No. 2) and
not “specific as to what counts as ‘supervisory
authority'” (as to Request No. 7). (Id.,
at 3, 4.) Defendants continue that the requests are vague and
ambiguous because they do not “identify the file sought
with any specificity” (as to Request No. 2) and seek
irrelevant documents that are non-proportional to the needs
of the case (as to Request No. 7). (Id.) Finally,
Defendants argue that the requests seek “the
confidential personnel files of nonparties to this action who
have not consented to disclosure.” (Id.) That
stated, Defendants identify Michelle Yosick as
Plaintiff's supervisor and agrees to produce her
personnel file “other than her personal
court overrules the ambiguity objections.
Employers may maintain different documents in a
“personnel file, ” or may not maintain a
collection of documents that meet that definition at all.
Defendants, however, have agreed to produce Ms. Yosick's
“personnel file, ” so apparently Defendants
maintain such.The verbiage of these requests, at least in
this case, is not vague and ambiguous. Terms such as
“personnel file” are generally accepted in the
realm of employment law. As to Request No. 7, the term
“supervisory authority” is sufficiently
Court's analysis thus turns to whether the files at issue
are relevant and proportional to the case (appropriately
“limited to the claims and defenses in this
action”). Plaintiff is correct that courts in this
District generally hold that an individual's employment
records are relevant and discoverable “if the
individual (1) is alleged to have engaged in the retaliation
or discrimination at issue, (2) is alleged to have played an
important role in the decision or incident that gives rise to
the lawsuit, or (3) is a key witness to the events giving
rise to the lawsuit.” White v. Graceland Coll. Ctr.
For Prof'l Dev. & Lifelong Learning, Inc., 586
F.Supp.2d 1250, 1259 (D. Kan. 2008) (citations omitted).
states that the “decision makers as to Plaintiff's
termination” are Defendant Yosick, Defendant LCCA's
in-house counsel (who was involved in drafting a severance
and release agreement) and Division Vice President Eric
Doerhoff.” (Doc. 58, at 4.) Plaintiff also contends
that she is entitled to the personnel file of Human Resources
employee Jamie Corradini, who, according to Plaintiff,
“provided information to management about Plaintiff and
her medical leave and, according to defense counsel,
‘approved' Plaintiff's termination.
concur with the White v. Graceland holding.
(See Doc. 63, at 5.) Even so, they do not agree that
individuals besides Yosick meet the criteria outlined in
White. Defendants have thus produced only
Yosick's personnel file, “explain[ing] that Yosick,
with approval from her Division Manager and HR, met with
Plaintiff to discuss her resignation.” (Doc. 63, at 5.)
Defendants argue that Plaintiff's justification for
production of the personnel file of in-house counsel is
“insufficient.” (Doc. 63, at 5.) Defendants also
contend that “Doerhoff's role as Yosick's
supervisor who approved seeking Plaintiff's resignation
does not make his personnel file discoverable” and that
Corradini's personnel file is not “discoverable
merely because she provided Yosick information she received
from Plaintiff regarding Plaintiff not returning to
work.” (Id., at 6.)
defense counsel . . . specifically indicated that Jamie
Corridini [sic] and Eric Doerhoff ‘approved'
Plaintiff's termination. Moreover, it was Corridini [sic]
and Doerhoff (a day or two after learning Plaintiff was
requesting FMLA leave for a two week period) who consulted
with one another about Plaintiff's absence from work
(because of FMLA qualifying medical conditions, that both of
them knew about) constituting “job abandonment”.
Also, as indicated in [Defendant's document production],
Annette Sharp, Kelley Falcon, Theodore Lu, and
others were involved in the events surrounding
Plaintiff's termination, her FMLA, and the Separation
Agreement (in fact, Lu prepared it). All these people are
responsive to Plaintiff's RFP 2 and, consequently, their
unredacted personnel files should be produced.
(Doc. 72, at 11-12 (emphasis in original).)
Court finds that Plaintiff has sufficiently established that
Doerhoff and Corradini were either engaged in the
retaliation/discrimination, played an important role in the
decision, or are key witnesses to the events surrounding
Plaintiff's termination/severance. As such, their
personnel files are discoverable. Plaintiff has not
sufficiently established the involvement of “Annette
Sharp, Kelley Falcon, Theodore Lu, and others”
as key witnesses or decisionmakers, thus their personnel
files are not discoverable.
documents responsive to Requests Nos. 2 and 7, this Court has
routinely held that a document being
“confidential” does not equate to being
privileged or otherwise shielded from discovery.
It is well settled that confidentiality does not act as a bar
to discovery and is not grounds to withhold documents or
information from discovery. ‘A concern for protecting
confidentiality does not equate to privilege.' While a
confidentiality objection may be appropriate when a party
seeks a protective order limiting the parties' use or
disclosure of confidential information, it is generally not a
valid objection to withholding discovery altogether.
Point SARL v. Sprint Nextel Corp., No. 09-2269-CM-DJW,
2011 WL 4008009, at *1 (D. Kan. Sept. 9, 2011) (citations and
footnotes omitted); AKH v. Universal Underwriters Ins.
Co., No. 13-2003-JAR-KGG, 2017 WL 5465240, at *15 (D.
Kan. Nov. 14, 2017).
objections to Requests Nos. 2 and 7 are
overruled. The Court GRANTS
this portion of Plaintiff's Motion as to the personnel
files of Eric Doerhoff and Jaimie Corradini, in addition to
that Michelle Yosick, produced previously. Defendant is
instructed to provide a supplemental response, without
objection, to Plaintiff within thirty (30) days of
the date of this Order.
Electronic Devices and Documents (Requests Nos. 8, 28, 30,
31, 34, 35, 38, and 40).
requests seek documents and electronic communications under
specified search terms, time frames, devices, and document
custodians. (See Doc. 58-2, at 5, 12-15). For
instance, Request No. 8 seeks such documents from computers
or devices used for Defendant LCCA's business by Annette
Sharp, Jaimie Corradini, Michelle Yosick,
and/or any other employee of LCCA [but only employees who
gave input into (factual, legal, Human Resources, or
otherwise) and/or made decisions that: (i) Plaintiff s
employment should be terminated, (ii) that Plaintiff s job
performance was not meeting the expectations of either of the
Defendants, (iii) that Plaintiff should be offered a
severance agreement in return for her resignation, and/or
(iv) employees who were interviewed or questioned about facts
regarding items (i) through (iii)].
(Id., at 5.) The remaining requests in this section
seek more specific categories of documents that are, most
likely, subsumed in the documents responsive to Request No. 8
(e.g. documents discussing Plaintiff's
eligibility or request for leave (Nos. 30, 38), her medical
condition (No. 35), Plaintiff's desire to resign (No.
[a]fter conferring and agreeing to limit email searches to
specific email accounts (rather than the entire server), LCCA
moved forward with searches (presumably using Plaintiff's
search terms and date parameters) but without complete
agreement as to what custodian and devices would be searched.
Although Plaintiff has been told that LCCA's searches for
ESI located 20, 000 documents (which have been under review