Summary
denying motion to compel supplemental response to subpoena duces tecum where party did not have control of documents and thus could not be compelled to produce same
Summary of this case from Carr v. IF&P Holding Co.Opinion
CIVIL ACTION NO: 00-2623, SECTION: "A" (1)
November 5, 2002
MINUTE ENTRY
HEARING ON MOTION
APPEARANCES: Submitted on briefs
MOTION: PLAINTIFF'S MOTION TO COMPEL (Rec. doc. 177)
GRANTED IN PART, DENIED IN PART AND DENIED IN PART WITHOUT PREJUDICE
On October 17, 2002, there was a status conference before the District Court. An order was issued that included the requirement that all motions to compel be filed by October 23, 2002 and any oppositions be filed by October 25, 2002. The order included a provision that privileged documents were to be reviewed in camera by the undersigned on or before October 23, 2002. Rec. doc. 169. The plaintiff, Debra Rhyce ("Rhyce") filed a motion to compel discovery from the non-party witnesses, Diana Aucoin ("Aucoin"), and Charles Abney ("Abney"), and the defendants, including the St. Tammany Fire Protection District No. 1 (the "Fire District"). Rec. doc. 177. The defendants filed an opposition and Rhyce filed a reply. Rec. docs. 179 and 184. The defendants also produced a privilege log and documents for in camera review, but Rhyce did not submit a memorandum referencing the privilege log.
DIANA AUCOIN
With respect to Aucoin, Rhyce seeks an order for: (1) the defendants to produce all documents supplied by the defendants to the EEOC concerning Aucoin's claim; (2) the defendants to produce all documents supplied by the defendants to the EEOC concerning any gender discrimination claims; (3) the defendants to produce Aucoin for her deposition within ten days; (4) Aucoin to produce all documents she supplied to the EEOC; and (5) Aucoin to testify at her deposition concerning her claims of discrimination and any of the Fire District's acts of discrimination against other persons. Rhyce also seeks sanctions.
Aucoin is an employee of the Fire District who was hired in 1989 as secretary/bookkeeper. Exhibit A ("Aucoin Dep.") to Rec. doc. 177 at pp. 5 and 9. Aucoin was made an administrative assistant to the Fire Chief in June, 2000. Id. at p. 10.
Aucoin filed a discrimination complaint with the EEOC, but at her deposition she declined to testify concerning it. Id. at pp. 56-57. On September 19, 2002, Aucoin and the Fire District signed a confidentiality agreement associated with the efforts of Aucoin, the Fire District and the respondent, Chief Milton Kennedy ("Chief Kennedy"), to resolve the charge of discrimination through mediation. Exhibit C to Rec. doc. 177. Aucoin testified in her deposition that the mediation had not been concluded. Aucoin dep. at p. 101. Since Aucoin's deposition the mediation agreement has been produced, so the failure to produce it is moot.
The plaintiffs acknowledge that they have submitted discovery requests seeking all documents supplied by the defendants to the EEOC concerning any gender discrimination claims, including Aucoin's claim, and the defendants respond that all such documents have been produced. Rhyce contends that the transcript of Aucoin's deposition at pages 101-08 shows that the defendants and Fire District submitted documents to the EEOC that were not produced to her. The undersigned has carefully reviewed the referenced pages of Aucoin's deposition and finds that they do not support this conclusion. Aucoin's testimony shows that she submitted documents to the EEOC, including documents relating to gender discrimination claims by other persons. Aucoin Dep. at 101. Her testimony indicates that she did not submit to the EEOC any documents pertaining to Rhyce's claim. at 108. Finally, she was not sure whether the Fire District had copies of all the documents that she did submit to the EEOC. Id. at 108-09. Aucoin's deposition testimony does not provide a basis for Rhyce's motion to compel the Fire District to produce additional documents.
Rhyce and the Fire District agree that Aucoin should answer questions concerning the facts supporting her claim of discrimination and the facts supporting other claims of gender discrimination. They further agree that she should not answer questions concerning the EEOC mediation process and any settlement discussions with the EEOC or the Fire District in that process. The undersigned concurs that this establishes the proper bounds for Aucoin's testimony.
Aucoin is not a defendant. She is not represented in the EEOC mediation and she has no attorney in this proceeding. The Fire District states that it cannot instruct Aucoin on how to proceed because of a conflict of interest. Rec. doc. 179 at p. 17. The Fire District reported the existence of this conflict at Aucoin's deposition. Aucoin Dep. at 104-05. Aucoin was not served with the motion to compel. Because of the conflict between Aucoin and the Fire District, the undersigned is unable to order the Fire District to require that Aucoin answer Rhyce's questions to require her to testify, or to produce her own documents. Because Rhyce's motion to compel was not served on Aucoin and she is not before the court, the undersigned cannot order her to answer Rhyce's questions or produce documents. Rhyce's motion to compel with respect to Aucoin's testimony and documents is denied without prejudice. Rhyce's request for sanctions with respect to Aucoin's testimony is denied.
Although Rhyce's motion to compel with respect to Aucoin is denied without prejudice, the undersigned's orders are subject to the scheduling order of the District Court and that order set October 23, 2002 as the deadline for any motion to compel. Rec. doc. 169.
CHARLES ABNEY
Charles Abney is the chief administrative officer of the Fire District and is responsible for its financial accounting and budgeting. Abney Dep. at p. 52. He attends most of the meetings of the board of the Fire District when it is in executive session. Id. at p. 22. He began his employment with the Fire District in June, 1990. Aucoin Dep. at p. 7. In response to the subpoena duces tecum served on him, Abney failed to produce any documents. He testified that he had no personal documents responsive to the subpoena. Deposition of Charles Abney at p. 7 attached as Exhibit A to Rec. doc. 184 ("Abney Dep."). The only documents responsive to the subpoena were in the files of the Fire District and it objected to producing any documents at Abney's deposition. The Fire District and Abney are correct. He does not have control of documents that are Fire Department documents. Abney cannot be compelled to produce these documents.
FIRE DEPARTMENT DOCUMENTS
The next issue is whether the Fire Department properly objected to the subpoena. On October 2, 2002, Rhyce filed a notice for the deposition of Abney and others. Rec. doc. 149. Rhyce contends that appended to the notice was a subpoena for the production of sixteen categories of documents. Exhibit F to Rec. doc. 177. The Fire District presented a fax transmittal receipt of the notice that did not include the subpoena. Exhibit F to Rec. doc. 179. On Saturday, October 12, 2002, Abney was personally served with the subpoena requiring his appearance with the documents on Wednesday, October 16, 2002. Exhibit G to Rec. doc. 177. On Tuesday, October 15, 2002, the Fire District filed objections to the subpoena duces. Inasmuch as it is not clear that a copy of the actual subpoena duces tecum was served on the Fire District at the time it received the notice for Abney's deposition, the undersigned will treat the subpoena as a request for production of documents and consider the objections of the Fire District.
Subpoena item no. 1.
Personal or professional diary, journal, notes, books, handwritten or computer generated log of events kept by you in relation to employment practices, meetings, executives sessions, discrimination, sexual harassment, activities, conduct of any person, employee entity or Fire District No. 1.
The Fire District objects that it is over broad and unduly burdensome. The Fire District acknowledges the relevance of discovery for 1999 and 2000 for information relating to employment practices, discrimination and sexual harassment. It reports that all such information has been produced. Rhyce responds that the scope of the subpoena item is reasonable and she requires the documents to show a pattern and practice of discrimination. Rhyce contends that the documents are relevant to: (1) the action taken by the Fire District's board where Rhyce contends the board voted to reinstate her; (2) a February 24, 2000 letter that was allegedly prepared for a commissioner s signature where it was admitted that Rhyce was a victim of discrimination; (3) the hiring practices of the Fire District; (4) the retention of Chief Ed Poppler on the Fire District's health insurance after his retirement; and (5) the activities of the internal affairs department of the Fire District.
In Wyvill v. United Companies Life Insurance, 212 F.3d 296 (5th Cir. 2000), the Fifth Circuit was confronted with an appeal from a jury verdict, where two former employees of the defendant were awarded substantial damages on the their Age Discrimination Employment Act ("ADEA"), 29 U.S.C. § 621, claims. The plaintiffs sought to satisfy their burden of showing that the employer's explanation for their discharge was merely a pretext for age discrimination by contending that the defendant had a pattern and practice of discriminating against older workers. The plaintiffs' evidence consisted of anecdotal accounts of age discrimination by other employees who were not similarly situated to the plaintiffs. The Fifth Circuit excluded the evidence, vacated the district court's judgment, and remanded for entry of judgment in favor of the defendant. The Fifth Circuit said:
The same burden shifting framework is followed in a claim based upon sex discrimination. Rohde v. K.O. Steel Castings. Inc., 649 F.2d 317, 321 (5th Cir. 1981).
A pattern or practice of discrimination does not consist of isolated or sporadic discriminatory acts by the employer. Rather, as the Supreme Court has explained, it must be established by a preponderance of the evidence that the impermissible discrimination was the company's standard operating procedure — the regular rather than the unusual practice. Often, an illegal pattern and practice is revealed with statistical proof.
Anecdotes about other employees cannot establish that discrimination was a company's standard operating procedure unless those employees are similarly situated to the plaintiff. This court and others have held that testimony from former employees who had different supervisors than the plaintiff, who worked in different parts of the employer's company, or whose terminations were removed in time from the plaintiffs termination cannot be probative of whether age was a determinative factor in the plaintiffs discharge.Id. at 302.
Rhyce acknowledges that the Fire District's contention that it has produced all documents relating to gender discrimination claims against it. Rhyce does not show that any of the persons making such claims were similarly situated to her, although she may be able to do so at trial. Rhyce's discovery must be confined to: (1) her claim of sex discrimination and her claims related to the failed negotiations for her reinstatement, (2) gender discrimination claims by present or former female employees; and (3) statistical information from which Rhyce may be able to show a pattern or practice of discrimination. Rhyce's inquiry into the medical insurance for Chief Poppler is not related to gender discrimination.
In response to subpoena item no. 1 the Fire District shall produce all documents pertaining to: (1) any consideration of Rhyce at the meeting of the board that she contends resulted in a vote to reinstate her; (2) an alleged February 24, 2000 letter concerning Rhyce's allegations that she was a victim of discrimination; and (3) any investigation by the internal affairs department of any person that made a gender discrimination claim, and any documents showing the identity of the person(s) authorizing such investigation. If these documents have previously been produced or do not exist, the Fire District shall so certify.
Subpoena item no. 2.
Copies of any and all interview sheets or forms, applications, resumes, background checks for any and all persons who applied from the year 1997 until present. This should include civil service test scores of each applicant.
The Fire District is not required to respond to this item.
Subpoena item no. 3.
Copies and results of any and all audits of St. Tammany Fire District 1 including personnel performed by any state or governmental agency since 1980. This should include any audits and results of said audits performed or monitored by Mr. Keith Rivero.
Rhyce shows that these documents may contain statistical information from which Rhyce may be able to establish a pattern or practice of discrimination. The Fire District shall produce documents relative to personnel audits only (i.e. not financial audits) subject to the protective order entered in this case.
Subpoena item no. 4.
Copies of any and all documents pertaining to any persons that obtained health insurance whether or not through COBRA, after ending service with St. Tammany Fire District 1 from January 1, 1997 to date.
The Fire District is not required to respond to this item.
Subpoena item no. 5.
Please produce a copy of any and all documents pertaining to any persons who received health insurance benefits from or through St. Tammany Fire District 1 after expiration of COBRA.
The Fire District is not required to respond to this item.
Subpoena item no. 6.
Please produce the personnel files, including documents establishing credentials and training of those employees that served in the capacity of Internal Investigator, and the Civil Service class plan for the position of Internal Affairs Investigator.
The Fire District is not required to respond to this item.
Subpoena item no. 7.
Please produce a copy of the resolution of the Board of Commissioners authorizing Patrick Berrigan as legal counsel for St. Tammany Fire District 1. The Fire District is not required to respond to this item.Subpoena item no. 8.
Please produce a copy of the resolution by the Attorney General Office authorizing Patrick Berrigan as legal council for St. Tammany Fire District 1.
The Fire District is not required to respond to this item.
Subpoena item no. 9.
Please produce any receipts and reports of any funds paid to any person authorized to perform any type of investigation against Debra Rhyce, including the reports and findings of the private investigator.
The Fire District reports that no such investigation was conducted. No further response is required.Subpoena item no. 10.
Please produce any documents evidencing the documents destroyed or discarded at Headquarters, 554 Old Spanish Trail, Slidell, La and dates documents were destroyed or discarded and summary of documents that were destroyed or discarded, including but not limited to documents evidencing the applications which were shredded.
The Fire District shall produce any log or other documents that shows what Fire District records were destroyed and when since January 1, 1995.Subpoena item no. 11.
Please produce any documents pertaining to health insurance of Fire District No. 1 personnel that were signed or approved by Milton Kennedy, Fire Chief.
The Fire District is not required to respond to this item.
Subpoena item no. 12.
Please produce all Fire District No. 1 health, dental and life insurance applications, rosters and contracts from 1998-2002.
The Fire District is not required to respond to this item.
Subpoena item no. 13.
Please produce any and all notes, tapes, or other documents referring or pertaining in any way to the 2/15/00 Board Meeting, the 2/24/00 letter of Farris, and/or the hiring of applicants.
The Fire District is not required to respond to this item. To the extent the item seeks discoverable information, it is duplicated by item no. 1 as limited above.Subpoena item no. 14.
Please produce any documents obtained from the EEOC from 1989 to date.
To the extent not previously produced, the Fire District shall produce any documents received from the EEOC from 1989 to date that relate to gender discrimination claims.
Subpoena item no. 15.
Please produce the check made payable to Debra Rhyce as a result of the 2/15/00 Board meeting for "back pay."
The Fire District states that there is no such check, so no further response is required.
Subpoena item no. 16.
Please produce documents on any criminal investigation and/or Metropolitan Crime Commission investigation of any employee or Commissioner of the Fire District and any correspondence related thereto from 1/1/99 to date.
Rhyce's request for documents pertaining to any criminal investigation of any employee or Commissioner of the Fire District and any correspondence related thereto from January 1, 1999 is denied. Rhyce has not shown that such an investigation is relevant to the claims or defenses in her action. The Fire District shows that it has produced all documents it has that pertain to any Metropolitan Crime Commission investigation. No further response is required.
Within seven (7) working days of the entry of this order, the Fire District shall produce all documents as provided in this minute entry. Within ten (10) working days of the entry of this order, Mr. Abney will submit to his deposition. Rhyce's request for sanctions with respect to the subpoena duces tecum served on Abney is denied.
PRIVILEGE LOG ISSUES
The privilege log submitted by the Fire District lists nineteen documents that the Fire District contends are protected from disclosure by the attorney-client privilege or the work product doctrine. After reviewing the documents the undersigned finds that document nos. 3, 12 and 18 are not protected from disclosure and must be produced in their entirety. The remaining documents or such portions of them as were identified by the Fire District are protected from disclosure. Those documents that are not protected from disclosure shall be produced within ten (10) working days of the entry of this order unless the Fire District files an objection to this ruling with the district court.
IT IS ORDERED that Rhyce's motion to compel (Rec. doc. 177) is GRANTED in PART and DENIED in PART and DENIED in PART WITHOUT PREJUDICE in accord with the terms of this order.
IT IS FURTHER ORDERED that the Fire District shall produce the documents or portions thereof that are not protected from disclosure in accord with this order.