Opinion
94 Civ. 6109 (JFK)
11-14-1995
Richard ALDEN, Plaintiff, v. TIME WARNER, INC., Defendant.
Ronald P. Mysliwiec, Frankel & Abrams, New York City, for plaintiff. Kenneth A. Margolis, Kauff, McClain & McGuire, New York City, for defendant.
1995 WL 679238 Only the Westlaw citation is currently available. Nov. 14, 1995.
Attorneys and Law Firms
Ronald P. Mysliwiec, Frankel & Abrams, New York City, for plaintiff.
Kenneth A. Margolis, Kauff, McClain & McGuire, New York City, for defendant.
MEMORANDUM AND ORDER
FRANCIS, UNITED STATES MAGISTRATE JUDGE
This is an employment discrimination case in which the plaintiff, Richard Alden, alleges that defendant Time Warner, Inc. (“Time Warner”) terminated him on the basis of age in violation of both the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and state law. The parties have presented several discovery disputes, each of which will be addressed in turn.
Personnel Files
First, the plaintiff has requested complete personnel files for all persons hired, promoted, or terminated from the record promotion department of Elektra Entertainment (“Elektra”), the subsidiary of Time Warner for which he worked. He also seeks similar information for employees of another subsidiary, Warner Elektra Atlantic Corporation (“WEA”). Time Warner objects on the ground that the requested information is irrelevant and that its disclosure would impinge on the privacy rights of other employees. The defendant further contends that Elektra does not possess the WEA documents, that such documents would not be relevant, and that they would be burdensome to produce.
Even in an individual disparate treatment case, comparative evidence is relevant to show a defendant's discriminatory intent and to demonstrate that a defendant's proffered basis for its action is pretextural. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973); Ottaviani v. State University of New York at New Paltz, 875 F.2d 365, 370-71 (2d Cir. 1989), cert. denied, 493 U.S. 1021 (1990). At the same time, such a case should not evolve into a series of minitrials to determine whether individual employees other than the plaintiff were in fact discriminated against.
Here, with respect to Elektra's record promotion department employees, Time Warner has produced personnel information sheets containing each worker's name, address, telephone number, date of birth, position, salary, and changes in job status including any promotion or termination. This type of information satisfies the plaintiff's legitimate discovery needs. See Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994), cert. denied, --- U.S. __, 115 S.Ct. 2612 (1995) (discovery of personnel files denied in ADEA case due in part to privacy concerns); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir. 1990), cert. denied, 502 U.S. 957 (1991) (discovery of personnel files denied where statistical information available from other sources).
It is not clear, however, whether Time Warner has produced this information for all relevant employees. The defendant represented that it had produced “copies of documents contained in defendant's personnel files relating to Elektra employees whose employment was terminated during the period January 1, 1992 to date ....” But for the purposes of developing useful statistics, the plaintiff also needs information with respect to all persons employed during that period, since those terminated must be compared to those retained and hired. Therefore, Time Warner shall produce the same documents for these employees as well.
Time Warner also argues that the WEA documents need not be produced because they are in the custody and control of WEA, not Elektra, the entity for which Mr. Alden worked. Time Warner acknowledges that it is “the ultimate parent entity with respect to both Elektra and WEA,” but is contends that it was improperly named as defendant and therefore should not be required to produce the documents of a subsidiary that is not a party to the litigation.
This argument fails. Until Time Warner is dismissed as a defendant, it must respond to appropriate discovery demands. The plaintiff has proffered evidence that persons who may have technically been on the WEA payroll in fact worked at Elektra and performed the same functions he did. Time Warner has not suggested that it does not have access as a matter of course to WEA's documents. These documents are relevant, and the defendant has not made a specific showing that production would be burdensome. Therefore, Time Warner shall produce the same personnel documents for WEA as it is obligated to produce for its other subsidiary, Elektra. See Gerling International Insurance Co. v. C.I.R., 839 F.2d 131, 140 (3d Cir. 1988) (discussing obligation of corporate parent to produce subsidiary's documents); Hubbard v. Rubbermaid, Inc., 78 F.R.D. 631, 637 (D. Md. 1978) (litigating parent required to produce documents of wholly-owned subsidiary).
Sales Information
Time Warner initially objected to production of certain sales information requested by the plaintiff. Counsel have advised me that this issue has been resolved and that the information will be provided subject to a confidentiality order.
Health and Counseling Records
Time Warner has requested production of the records of health care providers and counselors who have treated Mr. Alden. Mr. Alden provided authorizations for the defendant to obtain records from six mental health care providers, but he has objected to providing releases for Dr. John Fillips, his family doctor; Frances Fanning, a marriage counselor; and the Livingrin Institute, a drug rehabilitation facility.
Time Warner argues that the plaintiff has waived any objections because he failed to raise them in a timely manner. While the plaintiff was indeed dilatory, the defendant also failed to press its claim for this discovery for several months. In these circumstances, I will not rely on a waiver argument but will reach the merits.
By seeking $2 million in damages for emotional distress allegedly caused by the defendant, Mr. Alden has clearly placed his emotional health at issue in this case. See Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298 (E.D. Pa. 1983). The more difficult question is whether the specific records sought would provide any information relevant to that issue.
Mr. Alden testified that he went to Dr. Fillips for routine physical examinations. The plaintiff has not alleged that any emotional trauma he suffered caused physical injury for which he sought treatment.
Nor has Time Warner identified any serious physical malady that might have been an independent cause of Mr. Alden's emotional distress. Since Time Warner's request for Dr. Fillips' records is based on nothing but speculation about their relevance, they need not be produced.
The same cannot be said of the records of Ms. Fanning, the marriage counselor. Marital difficulties significant enough to prompt counseling are likely to have been an independent cause of emotional distress. Moreover, if any counseling sessions postdated Mr. Alden's termination from his job, it is probable that he discussed this source of stress with the counselor. I am mindful that Mrs. Alden's privacy interests are also implicated, but these can be protected with a proper confidentiality order. Mr. Alden shall therefore execute an authorization for release of Ms. Fanning's records. Similarly, drug and alcohol abuse surely contribute to emotional distress. Indeed, Judge Keenan previously permitted questioning of Mr. Alden on these issues during his deposition. Accordingly, the plaintiff shall also authorize release of records from the Livingrin Institute.
The Second Circuit recognizes a psychotherapist-patient privilege, In re Doe, 964 F.2d 1325, 1828-29 (2d Cir. 1992), and marriage counseling records arguably fall within the privilege. See Ziemann v. Burlington County Bridge Comm'n, 155 F.R.D. 497, 504-06 (D. N.J. 1994). Nevertheless, as with the records of his mental health case providers, Mr. Alden has waived any privilege by placing his emotional health at issue.
Mr. Alden has suggested that if substance abuse is relevant, he should be entitled to discovery of such activities by other Elektra employees. There is no basis for requiring such disclosure. Evidence of the plaintiff's substance abuse is relevant only because it relates to his claim of emotional distress; there is no argument that it was a basis for his termination. Therefore, drug or alcohol use by other Elektra employees is not pertinent.
Mrs. Alden's Deposition
Finally, the plaintiff has requested a protective order barring the deposition of his wife, Susan Alden. It is rare that a court will preclude a deposition. See Investment Properties, Ltd. v. IOS, Ltd., 459 F.2d 705, 708 (2d Cir. 1972). “Generally, one is required to show both that there is a likelihood of harassment and that the information sought is fully irrelevant before a party is altogether denied the right to take an individual's deposition.” United States v. Miracle Recreation Equipment Co., 118 F.R.D. 100, 104 (S.D. Iowa 1987); see also Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301, 302 (S.D. Fla. 1990). No such showing has been made here. Mrs. Alden is likely a witness to manifestations of her husband's emotional distress, and she may therefore be deposed.
Conclusion
Time Warner shall produce the additional personnel information identified above by December 15, 1995. Mr. Alden shall provide authorizations for the release of the records of Frances Fanning and the Livingrin Institute by November 30, 1995, and shall provide addresses for each health care provider for whom an authorization has been submitted. Finally, the application for a protective order barring the deposition of Susan Alden is denied.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 679238