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Benney v. Midwest Health, Inc.

United States District Court, D. Kansas

November 19, 2018

HEATHER BENNEY, Plaintiff,
v.
MIDWEST HEALTH, INC., et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

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

         Now before the Court is Plaintiff's Motion to Compel Discovery. (Doc. 37.) Having reviewed the submissions of the parties, Plaintiff's motion is GRANTED in part and DENIED in part as more fully set forth below.

         FACTUAL BACKGROUND

         In the present action, Plaintiff contends she was formerly employed as Director of Nursing at the Lexington Park facility from December 2012 through September 2015. She alleges she injured her arm, shoulder, and back while assisting a resident of the facility at work in April 2015. This resulting in the filing of a worker's compensation claim. She contends that the terms and conditions of her employment worsened as a result, ultimately leading to the termination of her employment.

         In her federal court Complaint, Plaintiff generally alleges she was subject to disparate treatment, hostile work environment, denial of a reasonable accommodation for her disability, and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. (See Doc. 1.) She also alleges workers' compensation retaliatory discharge. (Id.) Plaintiff contends that each of the Defendants[1] was her employer and that all engaged in the unlawful discrimination and retaliation. Defendants generally deny Plaintiff's allegations.

         Plaintiff files the present motion requesting the Court enter an Order compelling Defendants to provide supplemental responses to certain of Plaintiff's discovery requests. (Doc. 37.) The parties conferred regarding the disputed discovery but were unable to resolve their disagreements.

         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. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

         II. Disputed Discovery Requests.

         A. Interrogatory No. 4 to Defendants Lexington, Midwest, and Management.

         This Interrogatory asks Defendants to identify and provide information regarding employees who have brought claims or complaints of disability discrimination and/or retaliation, and/or workers compensation retaliation against them. (Doc. 37-2, at 8-9; Doc. 37-3, at 7-8; Doc. 37- 4, at 8-9.) Defendants object that the Interrogatory is “compound in nature and thus requiring two entirely different inquiries in the same interrogatory.” (Id.) The Court does not agree with Defendant. The Interrogatory does not consist of “two entirely different inquiries in the same interrogatory” - the inquiry is about claims or complaints of discrimination and/or retaliation. Although the inquiry encompasses both the ADA and worker's compensation law, the Court finds that the concepts of discrimination and retaliation provide a “common theme” for the inquiry. Defendant's objection is overruled.

         Plaintiff complaints that Defendants have improperly “answered the Interrogatory by providing an objection and then stating an answer.” (Doc. 37, at 6.) Plaintiff is correct that “[a]nswering discovery requests ‘subject to' objections is ‘manifestly confusing (at best) and misleading (at worse), and has no basis at all it he Federal Rules of Civil Procedure.'” Great Plains Ventures, Inc. v. Liberty Mut. Fire Ins. Co., No. 14-1136-JAR, 2015 WL 4044977, at *2 (D. Kan., Jan. 29, 2015) (citing Sprint v. Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, No. 11-2684, 2014 WL 545544 at *2 (D. Kan. Feb. 11, 2014)).

         In this instance, though, the Court finds Defendants' response to be valid. Defendants object that the “question is without any applicable time period to be applied to the inquiry and thus becomes vague, ambiguous, and not calculated to lead to the discovery of admissible information.” (Doc. 32-2, at 8-9; Doc. 32-3, at 8; Doc. 32-4, at 8-9.) As an initial matter, the Court notes that the “not reasonably calculated” standard is no longer the standard for discovery in federal courts. Rather, the standard was revised to the proportionality standard almost three years ago pursuant to the December 1, 2015, amendments to Fed.R.Civ.P. 26.

         That stated, the Court finds a temporal restriction to Interrogatory No. 4 to be appropriate. The Interrogatory as worded, with no temporal limitation, would encompass any such claims or complaints that have ever been filed against Defendants. At some point, the information becomes so temporally remote as to become irrelevant and not proportional to the needs of the case. The Court thus limits the inquiry to January 1, 2013, to the present as suggested by Defendants. See e.g., Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 212-23 (D. Kan. May 30, 2002) (holding that limiting the temporal scope of discovery requests to a period of five years - three years prior to, and two years after, the discriminatory conduct - to be reasonable).

         Defendants Lexington and Midwest indicate that they have had no such claims within the last five years. (Docs. 37-2, at 8, 37-3, at 8.) Defendant Management states that it “has not had any employees or operated as a business in the last five years and thus no claims pertaining to the same.” (Doc. 37-4, at 9.) As such, Defendants' responses to Interrogatory No. 4 are sufficient.

         B. Interrogatory No. 10 to Defendants Lexington and Midwest.

         As a point of factual refence for this Interrogatory, Plaintiff states that

[i]n August and September 2015, certain documentation had not been completed in one form or another for the nursing facility at which Plaintiff worked as the Director of Nursing. Thus, Plaintiff was assigned to work in the basement of the corporate office to complete the documentation. Defendant ultimately alleges that Plaintiff was terminated for not completing this documentation.

(Doc. 37, at 7.) Interrogatory No. 10 asks Defendants to list the “specific documentation” for “each occurrence” that Plaintiff did not complete “which caused her to be required to work in the basement conference room.” (Doc. 37-2, at 15; Doc. 37-3, at 14.)

         Plaintiff argues that Defendants have not provided responsive answers to the Interrogatory. (Doc. 37, at 8.) The Court agrees. Defendants' responses speak more to general failures by Plaintiff rather than providing specific documentation for each occurrence of a failure. For instance, Defendant Lexington states that “significant issues with documentation” were noted, “problems with reporting and completing the documentation continued to emerge from July through the end of [Plaintiff's] employment, ” and that Plaintiff “would work what seemed to be full days but did not get reports completed . . . .” (Doc. 37-2, at 15-16.) The response of Defendant Midwest mirrors that of Defendant Lexington. (Doc. 37-3, at 15-16.)

         In response to Plaintiff's motion, Defendants contend that, in their response to Plaintiff's “golden rule” letter, they explained to Plaintiff that they were “‘attempting to find out whether exact records indicating what remained incomplete can be retracted from the system and is unaware of a specific list at this time.'” (Doc. 42, at 5.) Defendants continue that

[t]his arises from the fact that the defendant keeps few paper records and most of the documents at issue fitting within their Quality Assurance program ‘Riskwatch' - a program sold to the Responding Party by an outside vendor to meet its Centers for Medicare & Medicaid Services QAPI (Quality Assurance and Performance Improvement) mandate. As such, once plaintiff completed her handwritten portion of the documents, they were converted to an electronic format and the paper versions thereof destroyed. Thus the only documentation we are aware of would be the electronic files. Plaintiff raised the issue of restorative reports generated on paper, however this is not accurate and this is also an electronic file.

(Id.) Although Defendants have contacted their Riskwatch vendor “to determine what, if anything, can be produced to show the records plaintiff wants, ” Defendants “simply [do] not have the records to produce or to list out.” (Id., at 6.) Defendants are instructed to provide a supplemental response to Plaintiff's Interrogatory No. 10 explaining this situation and their efforts to contact and work with Riskwatch to respond to this discovery request. Such a supplemental response shall be served within thirty (30) days of the date of this Order.

         C. Interrogatories 11 & 12 to Defendants Lexington and Midwest.

         Interrogatory No. 11 asks for

the specific procedures Plaintiff was to follow in completing the documentation which Defendant alleges led to her termination. Specifically, list and explain the nature of the documentation to be completed, the policies and procedures which were to be followed by Plaintiff in completing the documentation in the first place, the reason(s) for the completion of the documentation, and the procedures instituted in assisting Plaintiff in completing the documentation.

(Doc. 37-2, at 17; Doc. 37-3, at 16.) Defendants respond that

Plaintiff was expected to complete the documentation which is required by the employer and the auditors in order to document situations that occur at the nursing home facilities. In addition plaintiff was specifically advised that she had to complete the reporting on Lexington Park for the period wherein she was the DON as that was deficient and lacking which would lead to a finding of substantially out of compliance for the facility.

(Doc. 37-2, at 17 and Doc. 37-3, at 17 (Bates page citations provided by Defendants omitted).)

         Plaintiff complains that the response does not provide the requested information. “Instead of listing the procedures, nature of documentation, and reasons for the completion of the documentation, Defendants essentially restate the question and provides no substantive answer.” (Doc. 37, at 9.) Defendants indicate that in their response to Plaintiff's “golden rule” letter, they informed opposing counsel that “‘to the extent that you are also seeking policies, manuals and training, please see also bates No. DEF 000039-000136, DEF 000744-0001054, DEF 001160-DEF 001238, DEF 001280-DEF 001347.'” (Doc. 42, at 7.) Defendant continues that “[a]s to plaintiff's example of a policy that specifies an exact time to complete an exact report, responding [party] does not have such a policy.” (Id.) Defendants are instructed to provide a supplemental response to Plaintiff's Interrogatory No. 11 that includes this clarification and explanation. Such a supplemental response shall be served within thirty (30) days of the date of this Order.

         Interrogatory No. 12 relates to Interrogatories 10 and 11, seeking a list of every “piece of documentation Plaintiff completed and each piece of documentation Plaintiff did not complete in August/September 2015, which she was required to complete during the time period she was required to only work on completing documentation.” (Doc. 37-2, at 17; Doc. 37-3, at 17.) Plaintiff notes that Defendants “provided essentially the same answer as they provided to Interrogatory No. 11.” (Doc. 37, at 11.) In response to Plaintiff's “golden rule” letter, Defendants stated that they were

attempting to find out whether exact records indicating what remained incomplete can be retracted from the system and is unaware of a specific list at this time. The responding party does not typically keep paper records once the same are electronic and did not keep the recordings of plaintiff once transcribed. As such, it is attempting to determine another means by which it can go through and locate such records.

(Doc. 37-8, at 2, 4). Plaintiff is also concerned that no transcriptions have been produced, that certain paper documentation may have been required to be maintained per state regulation, and this raises spoliation issues. (Doc. 37, at 12.)

         Defendant responds that most of the documents at issue “fall within the Quality Assurance program ‘Riskwatch', ” which was sold to Defendants by an outside vendor to meet Medicare and Medicaid quality assurance mandates. (Doc. 42, at 8.) Defendants indicate they have “contacted the vendor of Riskwatch to determine what, if anything, can be produced to show the records plaintiff wants, but as of the present date, Responding Party simply does not have the records to produce or to list out.” (Id., at 9.) Defendants therefore indicate that they are “looking to see what can be determined, ” but this is currently “unknown.” (Id., at 9-10.) Defendants are instructed to provide a supplemental response to Plaintiff's Interrogatory No. 12 that includes this clarification and explanation as well as detailing their efforts to communicate and work with Riskwatch to respond ...


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