Chavira v. Packers Sanitation Service, Inc., Ltd.

          MEMORANDUM & ORDER ON MOTION TO COMPEL AND MOTION FOR PROTECTIVE ORDER

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE.

         Now before the Court is Plaintiff's Motion to Compel (Doc. 42) and Defendant's Motion for Protective Order (Doc. 54). Having reviewed the submissions of the parties, Plaintiff's motion (Doc. 42) is GRANTED in part and DENIED in part and Defendant's motion (Doc. 54) is GRANTED in part and DENIED in part.

         FACTS

         Plaintiff, who is Hispanic and a U.S. citizen, is a former employee of Defendant Packers Sanitation Services, Inc. (“PSSI” or Defendant). Defendant provides sanitation services to other companies, including the National Beef Plant (“Plant”) in Liberal, Kansas. Plaintiff alleges gender and racial discrimination, harassment, and retaliation as well as common law retaliatory discharge and violations of state and federal wage laws.

         Plaintiff contends that during her employment with Defendant, she refused demands from her supervisor that she pay him for a more favorable position at the Plant. Plaintiff contends that as a result of her refusal, she was moved “to a more physically demanding position which resulted in her injuring her neck.” (Doc. 43, at 1-2.) She contends that she complained about this “extortion attempt, ” but while no action was taken against her supervisor, Plaintiff was “moved to a more physically demanding position . . . which exacerbated her work injury.” (Id., at 2.) Plaintiff also alleges that she suffered retaliation for rebuffing her supervisor's “indirect request for sexual favors.” (Id.) Defendant generally denies Plaintiff's allegations.

         Currently before the Court is Plaintiff's motion to compel regarding Defendant's responses to Plaintiff's Requests for Production Nos. 6, 16, 21, and 22. (Doc. 42.) Also pending is the motion for protective order (Doc. 54) filed by Defendant relating to Plaintiff's “Notice Duces Tecum to Take Deposition of Designated Agent of Defendant Packers Sanitation Services, Inc.” (Doc. 39), which identifies 26 categories of potential deposition testimony and corresponding documents to be produced.

         ANALYSIS

         I. Legal Standards.

         Fed.R.Civ.P. 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.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. “Federal Rule of Civil Procedure 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

         II. Plaintiff's Motion to Compel (Doc. 42).

         Plaintiff moves the Court for an order compelling Defendant to provide further responses to Requests for Production 6, 16, 21, and 22. (See generally Doc. 43.) The Court will address the document requests in turn.

         A. Requests Nos. 6 and 21.

         Request No. 6 seeks documents regarding “any complaint of any employee regarding supervisors and/or managers at the National Beef Plant in Liberal requesting money and/or sexual favors in exchange for better positions with the plant from January 1, 2013 to present.” (Doc. 43-1, at 5.) Defendant responded by objecting that the request is “overly broad, unduly burdensome, not reasonably limited in scope, ” and seeks documents that are privileged and/or irrelevant.^[1] (Id.) Defendant also complains that the request seeks information involving different decision makers, supervisors, and/or departments. (Id.)

         Request No. 21 asks for documents regarding “any charge, complaint, investigation or civil action alleging race and/or sex discrimination, harassment, and retaliation filed against you . . . in the past five (5) years by any prior or current employee, staff member, administrator, manager or supervisor who worked” at the Plant at issue. (Id., at 11.) In addition to incorporating its objections to Interrogatory No. 24, Defendant produces charges of discrimination filed by two employees, Elizabeth Valdovinos and Kathy Serrano. (Id.)

         Plaintiff states that Defendant refused to produce the documents responsive to Request No. 6 and, in response to Request No. 21, produced only two Charges of Discrimination, one of which was made by a former plaintiff in this case. (Doc. 43, at 4.) Plaintiff argues that

Defendant has failed and refused to produce their responses to agencies, investigation notes/documents or any other documents. . . . First, as information is that at least four women have complained about sexual harassment and other issues to management, it is impossible to believe that no documents, notes or investigation material were created. Likewise, the police were notified of the sexual harassment and/or extortion attempts and sent an officer to the facility to interview a supervisor. While the sexual harasser was allegedly terminated for a short period, he was rehired under a different name. . . . [Defendant] should not be allowed to hide the documents and information necessary to prosecute this case.

(Id.) Plaintiff also argues that the five-year temporal limitation she placed on her requests is reasonable.

         Defendant responds that it did respond to Request No. 6, identifying complaints of a “‘supervisor requesting money and/or sexual favors . . . in exchange for better positions'” and referring Plaintiff, by Bates number, to responsive documents produced. (Doc. 50, at 8.) As to Request No. 21, Defendant identified complaints of race and/or sex discrimination, harassment, and retaliation from January 1, 2016, at December 31, 2017, and provided responsive documents for that timeframe. (Id., at 8-9.) Defendant continues that “Plaintiff's contention that at least four women have complained about sexual harassment and other issues to management is again, unfounded. Plaintiff's assertion that the police sent an officer to the facility to interview a supervisor is equally without merit and not supported by the facts of this case.”^[2] (Id., at 9.) Defendant also argues that complaints from women regarding “other issues” unrelated to the claims at issue this case, was not requested by Plaintiff and is irrelevant regardless. (Id.)

         The Court overrules Defendant's objections to Requests Nos. 6 and 21. The Requests are not overly broad or unduly burdensome as written. The Requests seek information regarding other employee complaints of demands for money or sexual favors as well as complaints, investigations and civil actions related to race or sex discrimination, harassment or retaliation. This information is clearly relevant to Plaintiff's claims and proportional to the needs of the case.

         The Court also overrules Defendant's self-imposed two-year temporal limitation on Plaintiff's requests. The Court finds that Plaintiff's requests for this information over a five-year period to be reasonable. See e.g. Moss v. BCBS of Kansas, Inc., 241 F.R.D. 683, 692 (D. Kan. 2008). Plaintiff's motion is, therefore, GRANTED. Defendant is instructed to identify and provide the requested information for complaints of a “‘supervisor requesting money and/or sexual favors . . . in exchange for better positions'” as well as complaints of race and/or sex discrimination, harassment, and retaliation from January 1, 2013, to the present. The parties are advised that the Court will be setting a scheduling conference to discuss the deadline for production and other issues relating to this Order.

         B. Request No. 16.

         This request seeks “each personnel file, human resource file, or investigative file Defendant maintained on Mr. Esparza, Ms. Martinez, Mr. Ramirez, and/or Mr. Saenz. This request includes files regarding that were created or maintained on Mr. Esparza, Ms. Martinez, Mr. Ramirez, and/or Mr. Saenz by individual managers.” (Doc. 43-1, at 9.) Plaintiff has identified these individuals as “the people who supervised, harassed and retaliated against female employees at PSSI.” (Doc. 43, at 5.) Defendant objects that the request is “overly broad, unduly burdensome, violates privacy interests, ” and seeks irrelevant information. (Doc. 43-1, at 9.) Even so, Defendant “agrees to produce documents from Esparza, Martinez, Ramirez, and Saenz's personnel files that reflect disciplinary action taken against them for discriminatory, harassing, and retaliatory conduct [but] state[s] that no such documents exist.” (Id.)

         Plaintiff argues that Defendant's refusal “to produce anything other than what it deems to show disciplinary actions actually taken against these individuals for discrimination, harassment or retaliation” is improper. (Doc. 43, at 5.) Plaintiff argues that limiting the production in this manner would remove information as to “complaints where discipline ...