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Livingston v. University of Kansas Hospital Authority

United States District Court, D. Kansas

June 14, 2019

ANNIE LUCILE LIVINGSTON, Plaintiff,
v.
UNIVERSITY OF KANSAS HOSPITAL AUTHORITY, Defendant.

          ORDER

          James P. O'Hara U.S. Magistrate Judge.

         This is an employment-discrimination case in which the pro se plaintiff, Annie Lucile Livingston, alleges the defendant, University of Kansas Hospital Authority, subjected her to unequal conditions of employment, and eventually terminated her employment, because of her race and religion. A number of discovery disputes have arisen between the parties. The undersigned U.S. Magistrate Judge, James P. O'Hara, conducted a status conference on May 22, 2019.[1] Although the undersigned expressed hope the parties could resolve their disputes based on the discussion and guidance provided at the conference, he permitted the parties to file motions to compel by May 31, 2019, on any matters that remained unresolved after the parties conferred further.[2] Defendant filed a motion to compel plaintiff to answer certain interrogatories and to supplement her responses to certain requests for production of documents (ECF No. 43). Plaintiff filed a motion to compel defendant to fully respond to her requests for production of documents (ECF No. 47). Defendant then filed a motion to strike plaintiff's motion to compel (ECF No. 49). For the reasons stated below, defendant's motion to compel is granted, plaintiff's motion to compel is denied, and defendant's motion to strike is denied as moot.

         I. Defendant's Motion to Compel Discovery (ECF No. 43)

         Defendant moves the court to compel plaintiff to supplement her answers to Interrogatory Nos. 1 and 4-7; to answer without objection Interrogatory Nos. 10-19; and to supplement her responses to Request for Production Nos. 1, 2-4, 6, 8-14, 17, 18, 20-27, 29-36, 39-58, 60-67, 68, 71, 73-77, 79-82, and 89-91. Plaintiff states in her response brief that she “does not resist” complying with the discovery requests.[3] Defendant's motion is granted.

         First, with respect to the document requests, plaintiff promises to “fully cooperate with the Defendant to produce all requested documents in the Plaintiff's possession.”[4]Plaintiff commits to “update her responses[, ] removing any ambiguity and identifying specific locations where the documents can be found.”[5] She further offers to add page dividers to her document production “in order to enable the Defendant to easily match documents with their correlating requests for production.”[6]

         Second, with respect to interrogatories, plaintiff promises “to provide complete and sufficient answers to [defendant's] interrogatories.”[7]

         The court finds these concessions satisfy the relief sought in defendant's motion to compel. By June 21, 2019, plaintiff must file a signed certification that she has (1) produced to defendant all requested documents in her possession, custody, or control, without objection and organized with page dividers that match documents with their correlating requests; (2) supplemented her responses to Request for Production Nos. 1, 6, 8-14, 17-18, 20-27, 29-36, 39-58, 60-67, 71, 73-77, 80-82, and 89-91 to state she has produced all responsive documents and is not aware of other responsive documents not produced; (3) supplemented her responses to Request for Production Nos. 15, 16, 19, 37, 48, 59, 65, 66, and 78 to state she has produced all responsive documents in her possession, custody, or control; and (4) fully answered Interrogatory Nos. 1, 4-7, and 10-19.

         II. Plaintiff's Motion to Compel Discovery (ECF No. 47) and Defendant's Motion to Strike (ECF No. 49)

         Plaintiff moves the court to compel defendant to produce documents responsive to her Request for Production of Documents Nos. 1, 3-23, 25-44, 46-71, 73-74, 76-80, 82, 85- 114, 116, 117, 119-152, 154-155, 157-161, 163-200, 202-204, 206-219, 221-246, and 248-250. Plaintiff's motion is denied on multiple grounds.

         First, plaintiff filed the motion without fully complying with the meet-and-confer requirements of Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2. Those rules require parties to confer in good faith, or show that reasonable efforts were made to confer, to obtain the discovery sought without court intervention. The undersigned's order following the May 22, 2019 status conference also required the parties to discuss this dispute prior to a motion being filed.[8] The record here reflects plaintiff informed defendant she would “send [her] list of properly requested documents that were missing from the documents you produced, ”[9] but then never sent the list or otherwise further conferred with defendant about the discovery she now moves to compel.[10]

         Second, plaintiff did not comply with D. Kan. Rule 37.1(a)'s requirement that motions to compel responses to requests for production of documents include a copy of the “portions of the . . . requests, or responses in dispute.” Although plaintiff did attach to her reply brief a copy of defendant's responses to her requests, the court generally does not consider arguments raised for the first time in reply briefs because the opposing party does not have the opportunity to respond.[11]

         Third, and most important, plaintiff's motion is so general and vague that there is no way for the court to determine whether she is entitled to any relief. Plaintiff has not identified why specific responses by defendant are purportedly deficient. Thus, the court has no basis on which to grant her relief.

         The motion only specifically describes two categories of documents (without identifying their corresponding document requests) that plaintiff seeks to compel: (1) her “official employment file, ” and (2) “all documents relating to any and all communication between Ms. Paula Gangel and Mr. James Dursk related to the Plaintiff between November 1, 2017 and January 31, 2018.”[12] With regard to plaintiff's employment file, defendant has explained that it does not have anything labeled an “official employment file, ” but that it did produce plaintiff's human resources file (containing plaintiff's application, onboarding paperwork, new hire paperwork, I-9 documents, disciplinary files, and promotion documents), the department file maintained by plaintiff's supervisor, and any medical file it maintained about plaintiff.[13] The court finds defendant satisfied its obligation to produce documents it reasonably interpreted the request as seeking. To the extent plaintiff was seeking other documents by the request, she should have followed through on her duty to meet and confer with defendant about the request.

         With regard to the communication between Gangel and Dursk, defendant has stated in its response that, although it stands on its objections, it agrees to supplement its document production with the requested correspondence.[14] Defendant ...


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