Moreno v. DHL Global Forwarding, No. 3:2009cv01489 - Document 68 (D.P.R. 2011)
Court Description: OPINION AND ORDER granting in part and denying in part re 22 First MOTION to Compel production of discovery filed by Catherine Moreno, AND 23 MOTION Submitting motion to compel w/ all exhibits motion to compel filed on 06/23/2010 mi ssing two exhibits re: 22 First MOTION to Compel production of discovery filed by Catherine Moreno MOTION Submitting motion to compel w/ all exhibits motion to compel filed on 06/23/2010 missing two exhibits re: 22 First MOTION to Compel production of discovery filed by Catherine Moreno filed by Catherine Moreno Signed by Chief Mag. Judge Justo Arenas on 1/14/2010.(nydi)
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Moreno v. DHL Global Forwarding 1 Doc. 68 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 CATHERINE MORENO RIVERA, 5 6 Plaintiff 7 v. 8 DHL GLOBAL FORWARDING, 9 CIVIL 09-1489 (FAB) (JA) Defendant 10 11 OPINION AND ORDER 12 13 14 This matter is before me on plaintiff Catherine Moreno Rivera’s motion to compel DHL Global Forwarding (“DHL”) to respond to interrogatories and request 15 16 for production of documents. (Docket No. 22.) Plaintiff alleges that DHL has 17 engaged in evasiveness in its response to document requests, and the 18 inappropriate use of the attorney-client privilege. 19 amended her motion on June 24, 2010. (Id. at 4.) (Docket No. 23.) The plaintiff In opposing the 20 21 motion, DHL alleges a different factual synopsis. According to the defendant, in 22 its response letter, it “expressly stated to plaintiff’s counsel that if they had any 23 questions about this matter,” plaintiff could contact the defendant. (Docket No. 24 27, at 2, ¶ 3.) The plaintiff allegedly chose not to do so. (Id.) Therefore, the 25 26 defendant moved to strike plaintiff’s motion on the basis of inadequate exhaustion 27 of extrajudicial remedies “before requesting the Court’s intervention pursuant to 28 Rule 37(a). . . . ” (Id. at 3, ¶ 7.) DHL subsequently filed a motion contesting each Dockets.Justia.com 1 CIVIL 09-1489 (FAB) (JA) 2 2 3 4 5 request individually on July 19, 2010. (Docket No. 28.) There, the defendant argues that plaintiff failed to satisfy her burden under Rule 26(b), requiring a 6 7 demonstration of the relevance of requested discovery. (Id. at 4.) For the 8 following reasons, the plaintiff’s motion is GRANTED in part and DENIED in part. 9 BACKGROUND 10 Plaintiff Catherine Moreno Rivera brings this action against her former 11 12 employer DHL Global Forwarding (“DHL”), alleging discriminatory retaliation for 13 testifying in a sexual harassment case in support of another DHL employee. 14 (Docket No. 7, at 1, ¶ 1.1.) The plaintiff also alleges that DHL subjected her to 15 a hostile work environment. (Id. at 3, ¶ 4.4.) Plaintiff seeks remedies under 16 Puerto Rico Law 80, the Americans with Disabilities Act and Title VII of the Civil 17 18 Rights Act of 1964. (Id. at 1-2.) DHL filed its answer on October 13, 2009. 19 (Docket No. 9.) DHL denies that it discriminated or retaliated against plaintiff. 20 (Id. at 6.) Conversely, DHL argues that the plaintiff’s termination resulted from 21 the defendant’s interest in conducting its business in an “orderly, efficient and 22 23 24 25 26 diligent manner.” (Id. at 6-7, ¶ 19.) The parties filed their “Joint Case Management Memorandum” on January 13, 2010. (Docket No. 17.) The plaintiff served her initial discovery requests on February 19, 2010. (Docket Nos. 22-1, 22-2.) DHL partially responded to these requests on May 10, 27 28 2010. (Docket Nos. 22-3, 22-4.) Specifically, the defendant refused to answer 1 CIVIL 09-1489 (FAB) (JA) 3 2 3 4 5 interrogatories 5, 6, 7, 9, 10 and 19; it also refused document productions 2, 4, 8, 9, 15, 16, 17, 19 and 20. (Docket No. 28.) Plaintiff addressed each of these 6 7 instances in a letter dated May 17, 2010. (Docket No. 22-5.) The defendant 8 responded by letter on May 26, 2010. (Docket No. 22-6.) Plaintiff filed the 9 present motion on June 23, 2010. (Docket No. 22.) 10 DISCUSSION 11 12 Pursuant to the Federal Rule of Civil Procedure 34(a)(1), “[a] party may 13 serve on any other party a request within the scope of Rule 26(b): (1) to produce 14 and permit the requesting party . . . to inspect [or] copy . . . any designated 15 documents ....” Fed. R. Civ. P. 34(a)(1)(A). “The party to whom the request is 16 directed must respond in writing within 30 days after being served. A shorter or 17 18 longer time may be stipulated to under Rule 29 or be ordered by the court.” Fed. 19 R. Civ. P. 34(b)(2)(A). Rule 37(a)(3)(B) allows “[a] party seeking discovery [to] 20 move for an order compelling . . . production . . . . This motion may be made if 21 ...; a party fails to respond to that inspection will be permitted . . . as requested 22 23 under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). 24 Under Local Rule 7(b), “[u]nless within fourteen (14) days after the service 25 of a motion the opposing party files a written objection to the motion, . . . the 26 opposing party shall be deemed to have waived their objection.” Local Rules of 27 28 the U.S. Dist. Court for the Dist. of P.R. Rule 7(b) (2009). 1 CIVIL 09-1489 (FAB) (JA) 4 2 3 4 5 Motion to Compel As stated, the plaintiff moves this court to compel responses to the 6 7 requested interrogatories and the request for production of documents. (Docket 8 No. 22.) DHL rejected these requests on a variety of grounds. Objections fall into 9 three categories, which I will discuss in turn: (1) “impermissibly overbroad,” 10 vague and/or irrelevant; (2) unrelated party; and (3) protected by attorney-client 11 12 privilege or work-product doctrine. (Docket No. 28, at 5-12.) Plaintiff does not 13 address these objections individually or substantively; rather, she cites the 14 discovery maxim that due deference should be given to a plaintiff’s discovery 15 requests. (Docket No. 22, at 10.) 16 Discovery Standard 17 18 “Parties may obtain discovery regarding any nonprivileged matter that is 19 relevant to any party’s claim or defense . . . . ” Fed. R. Civ. P. 26(b)(1). Prior to 20 the 2000 amendments to the Federal Rules, discovery was open to any subject 21 matter of the action. This evidences a desire to narrow the rules of discovery. 22 23 However, the 2000 amendments did add the following: “For good cause, the 24 court may order discovery of any matter relevant to the subject matter involved 25 in the action.” Fed. R. Civ. P. 26(b)(1). 26 Thus, the current discovery framework can be considered a two-step 27 28 system. Step one is attorney-managed discovery “relevant to any claim or 1 CIVIL 09-1489 (FAB) (JA) 5 2 3 4 5 defense of a party”; step two is a court-managed “discovery that can include information relevant to the subject matter of the action.” 8 The Late Charles Alan 6 7 Wright, et al., Federal Practice and Procedure § 2008 (3d ed.). Therefore, when 8 a party objects to discovery requests as being impermissibly overbroad, “the court 9 would become involved to determine whether the discovery is relevant to the 10 claims or defenses and, if not, whether good cause exists for authorizing it so long 11 12 13 as it is relevant to the subject matter of the action.” Fed. R. Civ. P. 26 advisory committee’s note (2000), subdivision (b)(1). 14 The party seeking production of documents containing confidential 15 information must make a showing that its “claim of need and relevance is not 16 frivolous.” In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 249 17 18 F.R.D. 8, 12 (D. Mass. 2008) (quoting Cusumano v. Microsoft Corp., 162 F.3d 19 708, 716 (1st Cir. 1998)). The party objecting to document production must then 20 demonstrate its basis for withholding the information. Id. Finally, “the Court 21 must balance ‘the movant’s need for the information on one pan of the scales and 22 23 . . . the objector’s interest in confidentiality and the potential injury to the free 24 flow of information that disclosure portends on the opposite pan.’” In re Bextra 25 & Celebrex Mktg. Sales Practices and Prod. Liab. Litig., 249 F.R.D. at 12 (quoting 26 Cusumano v. Microsoft Corp., 162 F.3d at 714 (citing Bruno & Stillman, Inc. v. 27 28 Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir. 1980)). “The good-cause 1 CIVIL 09-1489 (FAB) (JA) 6 2 3 4 5 standard warranting broader discovery is meant to be flexible.” Fed. R. Civ. P. 26 advisory committee’s note (2000), subdivision (b)(1). “[T]he actual scope of 6 7 8 9 10 discovery should be determined according to the reasonable needs of the action.” Id. “In employment discrimination cases, the discovery allowed is even more broad, ‘[b]ecause employers rarely leave a paper trial –or “smoking 11 12 gun”–attesting to a discriminatory intent, [therefore] disparate treatment plaintiffs 13 often must build their cases from pieces of circumstantial evidence.’” Vázquez- 14 Fernández v. Cambridge Coll., Inc., 269 F.R.D. 150, 155 (D.P.R. 2000) (quoting 15 Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990)); see also 8 The 16 Late Charles Alan Wright, et al., Federal Practice and Procedure § 2009.2 (3d ed). 17 18 Often, discovery issues in employment discrimination cases, such as the one 19 before me, focus on similar requests. “Similar discovery issues can arise with 20 regard to complaints brought by other employees or other complaints of 21 discrimination by this plaintiff, or prior discipline, termination, demotion, or 22 23 resignation of other employees. Discovery is frequently sought regarding similarly 24 situated employees.” 8 The Late Charles Alan Wright, et al., Federal Practice and 25 Procedure § 2009.2 (footnotes omitted). 26 Courts have generally found such requests valid, so long as the breadth and scope are reasonably related to the 27 28 party alleging discrimination. See, e.g., Chamberlain v. Farmington Sav. Bank, 1 CIVIL 09-1489 (FAB) (JA) 7 2 3 4 5 247 F.R.D. 288, 291 (D. Conn. 2007) (information about discipline, termination or resignation of other management level employees during the preceding five 6 7 years before plaintiff’s termination was discoverable); Mitchell v. Fishbein, 227 8 F.R.D. 239, 249 (S.D.N.Y. 2005) (although “evidence establishing a general 9 pattern of discriminatory treatment by an employer ‘will not be determinative of 10 the discrimination issue, it is nevertheless relevant and therefore discoverable’”); 11 12 Glenn v. Williams, 209 F.R.D. 279, 282 (D.D.C. 2002) (limiting discovery in Title 13 VII cases to employment units, departments, and section similarly situated to 14 plaintiff, and reducing requested production of ten years down to three years). 15 I now turn to the respective objections. 16 Defendant’s Objections to Plaintiff’s Interrogatories 17 18 “[W]hen an objection arises as to the relevance of discovery, ‘the court 19 [will] become involved to determine whether the discovery is relevant to the 20 claims or defenses and, if not, whether good cause exists for authorizing it, so 21 long as it is relevant to the subject matter of the action.’” Sánchez-Medina v. 22 23 Unicco Serv. Co., 265 F.R.D. 29, 37 (D.P.R.2010) (quoting In re Subpoena to 24 Witzel, 531 F.3d 113, 118 (1st Cir. 2008)). This court has explained the standard 25 for discovery requests of interrogatories and document production: 26 27 28 Under Rules 33 and 34, interrogatories and requests for production of documents are directed to the parties and must be answered by the parties to whom they are 1 CIVIL 09-1489 (FAB) (JA) 8 2 3 4 directed. Fed. R. Civ. P. 33(b)(1)(A) & Fed. R. Civ. P. 34(b)(2)(A). Rule 33(b) requires that each interrogatory must be answered, separately and fully, in writing under oath and “the person who makes the answer, must sign them and the attorney who objects must sign any objections.” Fed. R. Civ. P. 33(b)(3) and (5). Rule 34(b) requires the party to respond in writing and “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(A) and (B). 5 6 7 8 9 10 11 12 Vázquez-Fernández v. Cambridge Coll., Inc., 269 F.R.D. at 154. 13 Any objections made to interrogatories must be stated with specificity. Fed. 14 R. Civ. P. 33(b)(4). “The burden lies on the objecting party to show that an 15 interrogatory is improper.” 16 8B The Late Charles Alan Wright, et al., Federal Practice and Procedure § 2173 (3d ed). A party may not state bald and generic 17 18 reasons for its objections; specificity is required. See Schaap v. Executive Indus., 19 Inc., 130 F.R.D. 384, 386 (N.D. Ill. 1990) (party objecting to discovery request 20 is required to specifically detail the reasons why each interrogatory is irrelevant); 21 Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980) (defendant 22 23 24 cannot simply intone the familiar overly broad, burdensome, oppressive and irrelevant litany). 25 26 Interrogatories The defendants object to interrogatories 5, 6, 7, 9, 10 and 19. They read 27 28 as follows: 1 CIVIL 09-1489 (FAB) (JA) 9 2 3 4 Interrogatory No. 5: 5 Identify any and all persons employed by Defendant at its San Juan Station, during the period of 2003, to the present. 6 7 8 (Docket No. 22-1, at 5.) 9 Answer: 10 DHL objects to this Interrogatory inasmuch as the information sought is wholly irrelevant to the claims or defenses raised in the present complaint and is also impermissibly overbroad. 11 12 13 (Docket No. 22, at 2.) 14 15 Defendant’s Supplemental Response: Because the plaintiff presents allegations of disparate treatment and, allegedly, not disparate impact, the composition of DHL’s workforce is irrelevant. 16 17 18 (Docket No. 28, at 5.) 19 20 Interrogatory No. 6: For each employee identified in question five, please indicate the date of hire (and termination if no longer with the company) and if such employee had a complaint, grievance or claim against you. 21 22 23 24 (Docket No. 22-1, at 5.) 25 Answer: 26 27 28 DHL objects to this Interrogatory inasmuch as the information sought is wholly irrelevant to the claims or 1 CIVIL 09-1489 (FAB) (JA) 10 2 3 4 defenses raised in the present complaint and is also impermissibly overbroad. 5 6 (Docket No. 22, at 2.) 7 Defendant’s Supplemental Response: 8 Because the plaintiff presents allegations of disparate treatment and, allegedly, not disparate impact, the composition of DHL’s workforce is irrelevant. 9 10 11 (Docket No. 28, at 5.) 12 Interrogatory No. 7: 13 Identify any and all persons who at any time were supervised by Arquímides Torrado throughout his tenure with you. 14 15 16 (Docket No. 22-1, at 5.) 17 Answer: 18 19 20 21 DHL objects to this Interrogatory inasmuch as it is vague and impermissibly overbroad. (Docket No. 22, at 2.) Defendant’s Supplemental Response: 22 23 24 Because Torrado has been with DHL for well over ten years, the request is potentially unlimited in scope. (Docket No. 28, at 5-6.) 25 26 27 28 Interrogatory No. 9: Identify any and all persons (other than Plaintiff) who, from January 1, 2000, to the present, have filed lawsuits, 1 CIVIL 09-1489 (FAB) (JA) 11 2 3 4 complaints, administrative charges, or claims of sexual harassment, sex discrimination and/or retaliation against you. 5 6 7 8 (Docket No. 22-1, at 6.) Answer: 9 DHL objects to this Interrogatory inasmuch as the information sought is wholly irrelevant to the claims or defenses raised in the present complaint, vague, and impermissibly overbroad. 10 11 12 13 (Docket No. 22, at 3.) Defendant’s Supplemental Response: 14 Other employees who might have filed charges or complaints in the past, are completely irrelevant to plaintiff’s allegations of discrimination and retaliation in the instant case. 15 16 17 18 19 (Docket No. 28, at 6.) Interrogatory No. 10: 20 Identify any and all persons (other than Plaintiff) who, at any time, have filed lawsuits, complaints, administrative charges, or claims of sexual harassment, sex discrimination and/or retaliation against Torrado throughout his tenure with you. 21 22 23 24 (Docket No. 22-1, at 6.) 25 Answer: 26 27 28 DHL objects to this Interrogatory inasmuch as the information sought is wholly irrelevant to the claims or defenses raised in the present complaint, vague and impermissibly overbroad. (Docket No. 22, at 3.) 1 CIVIL 09-1489 (FAB) (JA) 12 2 3 4 Defendant’s Supplemental Response: 5 Other employees who might have filed charges or complaints in the past, are completely irrelevant to plaintiff’s allegations of discrimination and retaliation in the instant case. 6 7 8 (Docket No. 28, at 6.) 9 10 Interrogatory No. 19: Identify all new hires in your Puerto Rico offices, since 2007 through January 31, 2009, stating for each person indentified [sic] the following: 11 12 13 a. position title b. salary c. exempt/non-exempt d. major function 14 15 16 (Docket No. 22-1, at 7.) 17 18 19 20 21 Answer: DHL objects to this Interrogatory inasmuch as the information sought is wholly irrelevant to the claims or defenses raised in the present complaint. (Docket No. 22, at 3.) 22 23 24 25 26 27 28 Defendant’s Supplemental Response: Because the plaintiff’s duties were distributed amongst several employees, and not assumed by an individual employee, the information sought regarding new employees are also wholly irrelevant. (Docket No. 28, at 8.) 1 CIVIL 09-1489 (FAB) (JA) 13 2 3 4 5 As is evident, the defendant’s objections to the above interrogatories are vague and impermissibly overbroad. No specifics are given, nor are any valid 6 7 objections to the interrogatories proffered. Thus, the defendant fails his portion 8 of the burden-shifting formula. This does not automatically entitle plaintiff to his 9 answers, however. Any objections, even bald and generic ones like defendant 10 presented, still activate part one of the analysis, requiring some evidence that the 11 12 requests are not frivolous. I turn to each interrogatory in reverse order. 13 Interrogatory No. 19 14 Identify all new hires in your Puerto Rico offices, since 2007 through January 31, 2009, stating for each person indentified [sic] the following: 15 16 17 18 a. position title b. salary c. exempt/non-exempt d. major function 19 20 I find this request reasonable, both geographically and temporally. The 21 plaintiff has genuine need to determine whether any new hires were, in essence, 22 replacing her. The time-frame requested is also reasonable, as plaintiff’s alleged 23 problems began when she testified in another trial in or around March 2007. 24 Therefore, the plaintiff’s request to compel answer to interrogatory No. 19 is 25 26 27 28 GRANTED. 1 CIVIL 09-1489 (FAB) (JA) 14 2 3 4 5 6 7 8 Interrogatory No. 10 Identify any and all persons (other than Plaintiff) who, at any time, have filed lawsuits, complaints, administrative charges, or claims of sexual harassment, sex discrimination and/or retaliation against Torrado throughout his tenure with you. “In order to avoid overly broad and unduly burdensome requests, discovery 9 10 may be limited both geographically and temporally.” Aponte-Navedo v. Nalco 11 Chem. Co., 268 F.R.D. 31, 37 (D.P.R. 2010) (citing Briddell v. Saint Gobain 12 Abrasives Inc., 233 F.R.D. 57, 60 (D. Mass. 2005)). Plaintiff gives no reason that 13 it needs Torrado’s file from the entirety of his tenure with DHL. However, neither 14 15 party presents evidence of just how long the entirety of Torrado’s tenure is, and 16 so I must conclude that fifteen years, from January 1, 1995 onwards, to be 17 sufficiently broad to establish a pattern, should any exist, but sufficiently limited 18 to prevent undue burden on the defendant. Therefore, the plaintiff’s motion to 19 20 compel production of interrogatory No. 10 is GRANTED in part. 21 Interrogatory No. 9 22 24 Identify any and all persons (other than Plaintiff) who, from January 1, 2000, to the present, have filed lawsuits, complaints, administrative charges, or claims of sexual harassment, sex discrimination and/or retaliation against you. 25 Under the geographic/temporal test, discussed supra, I am reducing the 23 26 geography of interrogatory No. 9 to: “persons at the San Juan station, from 27 28 January 1, 2000 to the present.” Any broader range, and it would not only 1 CIVIL 09-1489 (FAB) (JA) 15 2 3 4 5 become unjustifiably burdensome on the defendant, but unhelpful in establishing any pattern that may exist in DHL’s San Juan station. Therefore, the plaintiff’s 6 7 motion to compel production of interrogatory No. 9 is GRANTED in part. 8 Interrogatory No. 7 9 Identify any and all persons who at any time were supervised by Arquímides Torrado throughout his tenure with you. 10 11 Based upon my previous discussion of an appropriate time-frame for 12 Torrado, I am similarly reducing the time-frame for interrogatory No. 7 to the last 13 fifteen years. Therefore, plaintiff’s motion to compel production of interrogatory 14 15 No. 7 is GRANTED in part. 16 Interrogatory No. 5 17 Identify any and all persons employed by Defendant at its San Juan Station, during the period of January 2003, to the present. 18 19 Interrogatory No. 6 20 For each employee identified in question five, please indicate the date of hire (and termination if no longer with the company) and if such employee had a complaint, grievance or claim against you. 21 22 23 As granted, the previous four motions render interrogatories Nos. 5 and 6 24 superfluous. 25 interrogatories Nos. 5 and 6 would be contained in interrogatories Nos. 7, 9, 10 26 All information that could be gathered from production of and 19. “[An] objection ... ‘may be sustained if the interrogatory objected to is 27 28 adequately covered by other interrogatories.’” Aponte-Navedo v. Nalco Chem. 1 CIVIL 09-1489 (FAB) (JA) 16 2 3 4 5 Co., 268 F.R.D. at 37 (quoting 8B The Late Charles Alan Wright, et al., Federal Practice and Procedure § 2174 (3d ed. 2002)). Because the plaintiff stands 6 7 nothing to lose in rejecting these interrogatories, and the defendant stands to gain 8 only a headache, the plaintiff’s requests for production of interrogatories Nos. 5 9 and 6 are DENIED. 10 Requests for Production of Documents 11 12 The plaintiff also requests document production from DHL. The defendant’s 13 objections fall under three categories, addressed in turn: (1) irrelevant and/or 14 vague; (2) non-parties to the case; and (3) attorney client/work product privilege. 15 Irrelevant, Vague and/or Impermissibly Vague 16 Document Request No. 2: 17 18 19 20 21 Any and all documents relating to or evidencing the dissemination or delivery of any of the policies identified in the foregoing request to Defendant’s employees, including plaintiff. (Docket No. 22-2, at 5.) Defendant’s Response: 22 23 24 DHL objects to this request inasmuch as it is vague and impermissibly overbroad. (Docket No. 22-3, at 2, Docket No. 22-4, at 2.) 25 26 27 28 A particularized showing is required to reflect that the information requested is in any way relevant. See Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. at 37 1 CIVIL 09-1489 (FAB) (JA) 17 2 3 4 5 (citing Whittingham v. Amherst Coll., 164 F.R.D. at 127-28). While at first blush this request seems exceedingly broad, this is because neither party educates the 6 7 court about document production request number one, to which the second refers. 8 Document production number one requests any DHL policies, manuals, or other 9 literature pertaining to employee discipline, sexual harassment, or internal 10 grievances. Viewed through this lens, plaintiff’s request becomes far more 11 12 reasonable. Therefore, the plaintiff’s motion to compel production of document 13 No. 2 is GRANTED. 14 Document Request No. 15: 15 16 17 18 Any and all documents that support, evidence, relate or otherwise pertain to any lawsuits, complaints, charges or claims of sexual harassment, sex discrimination and/or retaliation made against Defendant (other than those filed by Plaintiff) from January 1, 2000, to the present. 19 (Docket No. 22-2, at 9.) 20 Defendant’s Response: 21 22 23 24 25 26 DHL objects to this request inasmuch as it is vague, impermissibly overbroad and the information sought is wholly irrelevant to the claims or defenses raised in the present complaint. (Docket No. 22-3, at 3, Docket No. 22-4, at 2.) This request is relevant to the case at hand. The time frame is lengthy, but is reasonable considering the length of plaintiff’s employment at DHL. Therefore, 27 28 plaintiff’s motion to compel document No. 15 is GRANTED. 1 CIVIL 09-1489 (FAB) (JA) 18 2 3 4 5 6 7 Document Request No. 21: The job description for each and every position held by Plaintiff, since the date she was first hired until she was separated from employment. 8 (Docket No. 22-2, at 10.) 9 Defendant’s Response: 10 11 12 13 DHL objects to this request inasmuch as it is impermissibly overbroad and the information sought is wholly irrelevant to the claims or defenses raised in the present complaint. (Docket No. 22-3, at 4, Docket No. 22-4, at 3.) 14 This request is relevant in terms of being able to compare the plaintiff to 15 similarly situated personnel. Therefore, the plaintiff’s motion to compel production 16 of document No. 21 is GRANTED. 17 Non-Parties to the Lawsuit 18 19 The next “category” of defendant’s objections involve who it considers a 20 non-party to this law suit, plaintiff’s boss, Arquímedes Torrado, and thus within 21 the bounds of “confidential” information. 22 23 24 25 26 27 28 Document 8: The complete personnel file of Arquímides Torrado (“Torrado”), including but not limited to, any documents, records, memoranda, notes, or computer printouts which were part of Torrado’s personnel file at any time. (Docket No. 22-2, at 8.) 1 CIVIL 09-1489 (FAB) (JA) 19 2 3 4 5 6 7 8 Defendant’s Response: DHL objects to this request inasmuch as the information sought is wholly irrelevant to the claims or defenses raised in the present complaint and seeks the production of confidential information from persons who are not parties in the above-captioned case. (Docket No. 22-3, at 3, Docket No. 22-4, at 2.) 9 10 11 12 13 Document 9: Any and all documents not included in Torrado’s personnel file which support, evidence, relate or otherwise pertain to Torrado’s employment with Defendant, including, but not limited to, documents relating to or reflecting job performance, awards, or discipline of Torrado. 14 15 16 17 18 19 20 21 (Docket No. 22-2, at 8.) Defendant’s Response: DHL objects to this request inasmuch as the information sought is wholly irrelevant to the claims or defenses raised in the present complaint, is vague, impermissibly overbroad and seeks information protected from disclosure by the attorney-client privilege or the doctrine of attorney work-product. DHL further objects to this request inasmuch as it seeks the production of confidential information from persons who are not parties in the above-captioned case. 22 23 (Docket No. 22-4.) 24 “In an employment action, personnel files are discoverable when the 25 personnel file sought is that of an employee directly involved with the incident that 26 gave rise to the action.” Vazquez-Fernández v. Cambridge Coll., Inc., 269 F.R.D. 27 28 at 159 (citing Moss v. Blue Cross Blue Shield of Kan., Inc., 241 F.R.D. 683, 698 1 CIVIL 09-1489 (FAB) (JA) 20 2 3 4 5 (D. Kan. 2007)) (“[g]enerally an individual’s personnel file is relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and 6 7 therefore discoverable, if the individual is alleged to have engaged in the 8 retaliation or discrimination at issue or to have played an important role in the 9 decision or incident that gives rise to the law suit.”). It is beyond dispute that 10 Torrado played an important role in this case. As the plaintiff’s sole supervisor 11 12 during the duration of her ten-year career at DHL, and, from what the record 13 reflects, the person responsible for terminating her, Torrado is a crucial player in 14 this case. His personnel file, performance evaluations and instances of discipline 15 may be relevant in establishing a pattern of behavior. Torrado is relevant to this 16 case, as is his tenure at DHL. As such, his personnel file is relevant and must be 17 18 19 20 21 turned over. Attorney-Client Privilege and the Work-Product Doctrine Finally, the defendant objects to several document requests on the grounds that they are protected by either attorney-client privilege or the work-product 22 23 doctrine. DHL’s objections to document requests Nos. 4, 9, 16, 17, 19 and 20 24 contain the same boilerplate language: “[plaintiff] seeks information protected 25 from disclosure by the attorney-client privilege or the doctrine of attorney work- 26 27 28 product.” (Docket 22, at 5.) I address each defense in turn: 1 CIVIL 09-1489 (FAB) (JA) 21 2 3 4 5 Work-Product Doctrine “The attorney work-product privilege, first established in Hickman v. Taylor, 6 7 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), codified in Fed. R. Civ. P. R. 8 26(b)(3) for civil discovery, protects from disclosure materials prepared by 9 attorneys ‘in anticipation of litigation.’” Maine v. United States Dep’t of Interior, 10 298 F.3d 60, 66 (1st Cir. 2002); see Mullins v. Dep’t of Labor of P.R., 269 F.R.D. 11 12 172, 174 (D.P.R. 2010). Conceivable litigation is insufficient to invoke the work- 13 product defense; rather, “the literal language of [Rule 26(b)(3)] protects materials 14 prepared for any litigation or trial as long as they were prepared by or for a part 15 to the subsequent litigation.” United States v. Textron Inc. & Subsidiaries, 577 16 F.3d 21, 29 (1st Cir. 2009) (quoting Fed. Trade Comm’n v. Grolier Inc., 462 U.S. 17 18 19, 25 (1983)). Therefore, it is only work done in anticipation of, or in engaging 19 in trial that is protected. “Materials assembled in the ordinary course of business, 20 or pursuant to public requirements unrelated to litigation, or for nonlitigation 21 purposes are not under the qualified immunity provided by this subdivision.” 22 23 United States v. Textron Inc. & Subsidiaries, 577 F.3d at 30 (quoting Fed. R. Civ. 24 P. 26 advisory committee’s note (1970)). The defendant makes no showing, nor 25 proffers any evidence, that it created the requested documents in anticipation of 26 litigation. Absent some showing of proof, the defendant cannot avail itself of the 27 28 work-product doctrine. 1 CIVIL 09-1489 (FAB) (JA) 22 2 3 4 5 Attorney-Client Privilege In its “Motion in Compliance with Court Order and in Opposition to Motion 6 7 to Compel,” the defendant refers all its oppositions to requests Nos. 4, 9, 16 and 8 17 to one paragraph.1 9 counsel with the basis for asserting the [attorney-client] privilege, to wit, that ‘the 10 That cited paragraph reads: “[W]e provided plaintiff’s documents that are not discoverable are e-mails communications [sic] between 11 12 counsel for DHL and Drew Dippolito and/or Greg Jones, and/or Arquímedes 13 Torrado, and/or Paul Osburn regarding the re-classification of plaintiff’s status 14 from exempt to non-exempt.’” (Docket No. 28, at 13 (citing Docket No. 26, Ex. 15 6.)) DHL alleges that it “fully complied with its obligations to provide information 16 so as to establish the privilege. Therefore, the burden is on the plaintiff to 17 18 19 20 establish otherwise.” (Docket No. 28, at 13.) The First Circuit has listed the essential elements of a claim of attorney client privilege. They are: 21 (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communication relating to that purpose, (4)made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 22 23 24 25 26 27 28 1 See, for example, Docket No. 28, at page 10 (“With respect to the applicability of the attorney-client privilege, we respectfully refer this Honorable Court to the discussion under Requests 19 & 20 below.”). 1 CIVIL 09-1489 (FAB) (JA) 23 2 3 4 5 United States v. Bisanti, 414 F.3d 168, 171 (1st Cir. 2005) (quoting Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002)); see also United States v. 6 7 United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). 8 DHL’s assertion of attorney-client privilege does not clear the prima facie 9 hurdle that the First Circuit has set out. No evidence is provided of any protected 10 communications between the defendant and his counsel. Nor is any such 11 12 information requested. The plaintiff takes care not to request information that 13 would activate attorney-client privilege.2 The remaining requests under which the 14 attorney-client privilege alleged, requests Nos. 9, 16, 17, 19 and 20, request only 15 internal DHL documents. Privilege will be denied if the communications requests 16 were for any purpose other than rendering professional legal services. 8 The Late 17 18 Charles Alan Wright, et al., Federal Practice and Procedure § 2017 (3d ed). Nor 19 is DHL’s boilerplate assertion of attorney-client privilege sufficient to invoke 20 protection. 8 The Late Charles Alan Wright, et al., Federal Practice and Procedure 21 § 2016.1 (3d ed). Therefore, plaintiff’s motions to compel production of requests 22 23 4, 9, 16, 17, 19 and 20 are GRANTED. 24 25 26 27 28 2 See, for example, Docket No. 22, at 4 (“(j) documents relating to or evidencing discussions between the Defendant and any person other than the Defendant’s counsel; (k) Documents received from or sent to any person other than the Defendant’s counsel.”) (emphasis added). 1 CIVIL 09-1489 (FAB) (JA) 24 2 3 4 5 CONCLUSION For the above-stated reasons, the plaintiff’s motion to compel production of 6 7 documents Nos. 4, 9, 16, 17, 19 and 20 are GRANTED. The plaintiff’s motion to 8 compel completion of interrogatory No. 19 is GRANTED. The plaintiff’s motion to 9 compel completion of interrogatories Nos. 7, 9 and 10 are GRANTED in part. The 10 plaintiff’s motion to compel completion of interrogatories Nos. 5 and 6 are 11 12 DENIED. 13 SO ORDERED. 14 At San Juan, Puerto Rico, this 14th day of January, 2011. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge
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