Opinion
Civil No. 99-1421 (JRT/FLN), Civil No. 99-1422 (JRT/FLN), Civil No. 99-1736 (JRT/FLN)
December 9, 2003
Theresa A. Freeman and Fred L. Neff, NEFF LAW FIRM, Bloomington, MN, for plaintiffs
Aaron J. Schindel and Lloyd B. Chinn, PROSKAUER ROSE LLP, New York, New York, and Thomas C. Kayser and Charles O. Lentz, ROBINS KAPLAN MILLER CIRESI, Minneapolis, MN, for defendant
ORDER AFFIRMING THE SEPTEMBER 22, 2003 ORDER OF MAGISTRATE JUDGE
The Court addresses yet another discovery dispute in this employment discrimination lawsuit. Plaintiffs have sued defendant Prudential Insurance Company of America ("Prudential") alleging a variety of employment discrimination claims. United States Magistrate Judge Franklin L. Noel issued a lengthy Order dated September 22, 2003, portions of which plaintiff now appeals. The Court has reviewed the Magistrate Judge's Order, the parties' submissions, and the transcript of the hearing before the Magistrate Judge. The Court concludes that the Order was not clearly erroneous or contrary to law. Therefore, for the reasons discussed below, the Court denies plaintiffs' appeal and affirms the Order.
BACKGROUND
The Magistrate Judge dealt with a myriad of motions in the September 22, 2003 Order. Plaintiffs raise numerous claims of error, touching on each aspect of the Magistrate Judge's Order. The Court begins by describing the relevant portions of the Magistrate Judge's Order.
The Magistrate Judge first addressed defendant's request for fees and costs for the re-deposition of plaintiffs Cardenas and Muldoon. The Magistrate Judge determined that the fees requested by defendant were excessive, and reduced the award accordingly. Second, the Magistrate Judge granted in part defendant's motion for protective orders, and ordered that certain personnel files necessitated "attorney's eyes only" status. The Magistrate Judge also determined that defendant had not waived the attorney-client or work-product privilege, and noted that he would review the documents at issue in camera and rule on each claim of privilege on a document-by-document basis. In connection with this portion of defendant's motion, the Magistrate Judge issued a new Confidentiality Order.
Third, the Magistrate Judge addressed plaintiffs' motions to compel production, their motion for an order finding defendant in contempt, and their request for fees and costs. The motion was denied to the extent it sought unredacted personnel files and was denied insofar as it opposed the issuance of the new confidentiality order. The motion sought the production of documents withheld as privileged, and the Magistrate Judge again noted that those documents would be inspected in camera and ruled on individually. Plaintiffs' motion also sought documents regarding other lawsuits, administrative charges and/or informal complaints regarding similar employment complaints. In regard to this request, defendant had already produced a chart listing the complaints. The Magistrate Judge ordered defendant to update the information disclosed on the chart, and clarified that defendant need only include complaints initiated after 1997. The Magistrate Judge also noted that the parties would meet and discuss the chart, and determine which complaints, if any, would likely lead to admissible evidence. Defendant was ordered to then make available to the plaintiff those files and records pertaining to the complaints that the parties deemed were likely to lead to admissible evidence. The files were ordered to be made available at the place the files are located.
The motion also sought production of specific documents. First, plaintiff Struzyk sought production of additional 32604 and 22009 documents to the present. The motion was denied as to this specific request, because the Magistrate Judge determined that plaintiff did not timely request supplementation of those documents, but had requested such documents only through 2001. The motion was also denied insofar as plaintiff Struzyk sought production of documents pursuant to the Magistrate Judge's September 11, 2002 Order because in the September 11, 2002 Order the Magistrate Judge determined the requested documents were privileged. Finally, the motion was denied to the extent that it sought production of the 1999 Settlement Agreement, as that document had already been produced.
ANALYSIS
I. Standard of Review"The standard of review applicable to an appeal of a magistrate judge's order on a nondispositive issue is extremely deferential." Reko v. Creative Promotions, Inc., 70 F. Supp.2d 1005, 1007 (D. Minn. 1999). This Court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). The Court has reviewed the parties' submissions and the files, records, and proceedings, with respect to the Magistrate Judge's Order. Based on this review, the Court finds nothing in the record that suggests the Order is clearly erroneous or contrary to law.
II. Plaintiffs First Claim of Error
Plaintiff first argues that it was clearly erroneous for the Magistrate Judge to fail to order defendant to produce everything covered in this Court's Orders of January 29, 2003 and May 16, 2003. Plaintiff also argues that it was clearly error to allow defendant to produce files at the place where they are located, instead of ordering those files produced in Minnesota. In addition, plaintiff complains that there is no time limit within which defendant must produce certain documents.
The Court does not read the Magistrate Judge's September 22, 2003 Order as modifying this Court's Order of January 29, 2003, therefore plaintiffs' appeal fails on that rationale. Plaintiff also complains that defendant should have to produce the files in Minnesota, because that is where the plaintiffs were harmed. However, it was not erroneous or contrary to law to order that the materials be produced at place where the files are located. The parties are free to negotiate a more efficient inspection procedure. For example, if the files are relatively small, the parties are free to agree to photocopy them and provide the copies to plaintiffs' counsel in Minnesota (subject to the constraints imposed by the confidentiality order). The Court also notes that the Order contemplates the parties will meet and identify what complaints, if any, are likely to lead to the discovery of admissible evidence. The parties will have a better idea of the burden of inspecting the files after this meet and confer process. Similarly, it was not clearly erroneous or contrary to law to not set a date certain for completion of the ordered production. It is within the Magistrate Judge's discretion to set the schedule for discovery. If defendant fails to produce this evidence in a reasonable time, the Court is certain that plaintiffs will bring it to the attention of the Magistrate Judge.
III. Plaintiffs' Second Claim of Error
Plaintiffs next claim that the Magistrate Judge erred by not ordering defendant to comply with previous discovery orders. Defendant has submitted declarations indicating that defendant has produced all relevant documents in its possession. Where defendant has no responsive documents, it has so indicated to plaintiffs. The Court previously addressed some of the documents that plaintiff claims have not been produced. Specifically, in the Court's Order of May 16, 2003, the Court determined that 32604 and 22008 reports had been produced to the extent they exist. In addition, some of the documents are protected by the Magistrate Judge's Order of September 11, 2002; and other documents have been produced to plaintiffs at least twice. To the extent that plaintiffs claim a particular document has not been produced, plaintiffs need to more clearly identify the disputed document, and indicate why that document is not in one of the above discussed groupings.
IV. Plaintiffs' Third Claim of Error
Plaintiffs argue that it was clearly erroneous for the Magistrate Judge not to award sanctions against Prudential for its alleged spoliation of evidence. Plaintiffs appear to allege that defendant has destroyed evidence including alleged pornographic movies, pictures, and computer games. However, there is no evidence before the Court, just as there was no evidence before the Magistrate Judge, that such evidence existed. Nonetheless, defendant has a continuing obligation to produce documents or things that the Court ordered produced by its January 29, 2003 Order, should any such documents or things be found. Nothing in the Magistrate Judge's Order modifies, or purports to modify the January 29, 2003 Order. In addition, nothing in the Magistrate Judge's Order in any way condones spoliation of evidence. The Court should not need to remind the parties that neither this Court, nor the Magistrate Judge, will tolerate spoliation of evidence, but neither will it tolerate spurious accusations against members of this Court, or repeated demands for documents, made for the purpose of harassment.
V. Plaintiffs' Fourth Claim of Error
Plaintiff next suggests that it was error to refuse to award Rule 37 sanctions against defendant for failure to comply with this Court's January 29, 2003 Order. Plaintiffs suggest that defendant had no authority to redact portions of some otherwise discoverable documents. Defendant redacted information that defendant claims is subject to protection by the attorney-client privilege or the work product privilege. The Court notes that defendant created a "privilege log" which the Magistrate Judge has reviewed and has issued a separate order dated October 31, 2003 indicating which documents are privileged. The Magistrate Judge's determination that defendant had not waived the privilege was not clearly erroneous or contrary to law. Although defendant's primary initial objection to producing those documents was relevancy, defendant properly preserved the privilege objection by producing the privilege log and by producing the challenged portions of each document for an in camera inspection.
Federal Rule of Civil Procedure 37 addresses the failure to make disclosure or cooperate in discovery and empowers courts to impose sanctions for such discovery violations.
VI. Plaintiffs' Fifth Claim of Error
Plaintiffs appeal the portion of the September 22 Order granting a new confidentiality order. Plaintiffs suggest the confidentiality order is not necessary, grants more confidentiality than defendant requested, is excessively burdensome to plaintiff, and gives defendant an unfair and one-sided advantage.
The confidentiality portion of the order is not clearly erroneous or contrary to law. This Court's Order of January 29, 2003 upheld the Magistrate Judge's determination that certain personnel files must be produced. The Court also noted, however, that "[d]iscovery of the files clearly implicates privacy concerns, but the Court concludes that such concerns can be addressed through a protective order agreed to by the parties and imposed by the Magistrate Judge." See Memorandum Opinion and Order on Appeal of Magistrate Judge's Order Dated September 19, 2001 at 4-5. It is clear from defendant's argument before the Magistrate Judge, as well as the Magistrate Judge's Order, that the more stringent level of protection contemplated in the Confidentiality Agreement was sought only for the portions of personnel files containing sensitive information for certain high-level officials in the legal and human resources department. This more stringent level of protection applies only to such information. Defendant notes that it does not seek this higher level of protection for any additional documents. Should defendant desire to expand the higher level of confidentiality, it will be required to petition the Court for additional relief. However, the Confidentiality Agreement is not clearly erroneous or contrary to law, and plaintiffs' appeal on that basis is denied.
VII. Plaintiffs' Sixth Claim of Error
Finally, plaintiffs claim that it was clearly error to award fees and costs to defendant. The Magistrate Judge awarded such fees and costs pursuant to this Court's determination, in a previous Order, that "the Court believes plaintiffs should bear reasonable costs and attorney's fees connected with the continued deposition of Cardenas and Muldoon." See Order Affirming Magistrate Judge's Order Dated January 24, 2001 at 6. This Court, therefore, has already determined that defendant is entitled to the disputed fees. The Magistrate Judge was left with determining whether the amount of fees requested by defendant were "reasonable." After extensive briefing and lengthy argument, the Magistrate Judge found that the requested fees were excessive and reduced them accordingly.
Plaintiffs argue that the Magistrate Judge clearly erred by failing to take into account their individual financial situations before determining whether to award any fees. In support of this argument, plaintiffs cite cases in which courts note that fee awards to prevailing defendants in civil rights cases should take into consideration the financial situation of the plaintiffs, and courts should be careful to not impose awards of fees and costs that "would . . . defeat the overarching remedial purposes of Title VII by discouraging all but the airtight cases." Arnold v. Burger King Corp., 719 F.2d 63, 68 (4th Cir. 1983). See also Charves v. Western Union Telegraph Co., 711 F.2d 462, 464-65 (1st Cir. 1983) (affirming award of $25,000 to prevailing defendant where plaintiffs lawsuit was frivolous, unreasonable and without foundation, and noting that the award would not "completely ruin complainant from financial standpoint"); Durrent v. Jenkins Brickyard, 678 F.2d 911, 917 (11th Cir. 1982) (holding that a district court awarding attorney's fees to a prevailing Title VII defendant should consider, as a limiting factor, the plaintiffs financial resources, but "[a]t the same time" holding "that in no case may the district court refuse altogether to award attorney's fees to a prevailing Title VII defendant because of the plaintiffs financial condition. A fee must be assessed which will serve the deterrent purpose of the statute, and no fee will provide no deterrence.").
Plaintiffs' reliance is misplaced. Plaintiffs are responsible for the fees and costs not because they are the losing party in this litigation, but because their misconduct necessitated the re-opening of their depositions. The Court made this rationale clear in its previous Order. See Order Affirming Magistrate Judge's order Dated January 24, 2001 at 6 (citing Lugtig v. Thomas, 89 F.R.D. 639, 642 (D. Ill. 1981); Colin v. Thompson, 16 F.R.D. 194, 195 (W.D. Mo. 1954); United States v. Piqua Eng'g, 152 F.R.D. 565, 567 (S.D. Ohio 1993)). Therefore it was not error for the Magistrate Judge to fail to take into account the plaintiffs' financial situation before determining the amount of the award.
The Court next turns to plaintiffs' contention that the awarded fees and costs were excessive. The Court agrees with the Magistrate Judge's determination regarding a reasonable amount of the time spent on the matter (one and one-half hours for preparation, and five hours per deposition). The Court also finds that the hourly rate awarded was not clearly erroneous or contrary to law. Although the Court notes that $300 per hour is on the high end of a reasonable fee for preparing for and taking a deposition, plaintiffs have not established that it is either clearly erroneous or contrary to law. Lastly, the Court agrees with the Magistrate Judge's determination of hourly rates for court reporters and per page transcription costs.
The costs for Mr. Cardenas were $1,460 and for Ms. Muldoon were $1,023.
The Court notes that the behavior of counsel in this case is worsening. Plaintiffs' comments concerning the Magistrate Judge are uncalled for and will not be tolerated by this Court. The Court suggests that counsel on both sides start cooperating and start trying to resolve together the many discovery disputes that are currently being brought to the Court. These cases are among the older cases on the Court's docket and the Court expects that the parties will cooperate in working toward an early resolution of the disputes. The Court further notes that it will not hesitate to sanction counsel if uncivil behavior continues.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that the Magistrate Judge's Order of September 22, 2003 [Civil Case No. 99-1421, Docket No. 243; Civil Case No. 99-1422, Docket No. 216; Civil Case No. 99-1736, Docket No. 160] is AFFIRMED.