United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL
KENNETH G. GALE U.S. MAGISTRATE JUDGE
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.
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.
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 was her employer and that all engaged in
the unlawful discrimination and retaliation. Defendants
generally deny Plaintiff's allegations.
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.
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,
Disputed Discovery Requests.
Interrogatory No. 4 to Defendants Lexington, Midwest, and
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
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)).
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.
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).
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.
Interrogatory No. 10 to Defendants Lexington and
point of factual refence for this Interrogatory, Plaintiff
[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.)
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
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
(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.
Interrogatories 11 & 12 to Defendants Lexington and
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
(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).)
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
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.)
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 ...