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United States District Court, E.D. Pennsylvania

April 22, 2004.


The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge


Presently before the Court are Plaintiff's Motion to Overrule Defendant's Objections to her Fourth Request for Production of Documents, (Doc. No. 22), and Plaintiff's Motion to Compel Attendance at Oral Deposition, (Doc. No. 24). For the following reasons, Plaintiff's Fourth Request for Production of Documents will be granted in part and denied in part, and Plaintiff's Motion to Compel will be granted.


  Plaintiff, Jill Waters, is a fifty-nine year old, Caucasian female, who was employed by Defendant, Genesis Health Ventures's nursing facility, Crestview North, Inc. ("Crestview"), for ten years, until she was terminated on September 23, 2002. (Jt. Case Report at 2, 5.) During five of her ten years at Crestview, Plaintiff was employed as Director of Staff Development. In June 2002, Defendant hired Marvin Kirkland, a fifty-seven year old, African American male, as Director of Nursing. (First Am. Civil Act. Compl. at ¶ 13; Doc. No. 27.) Plaintiff's position came under Kirkland's supervision. The factors motivating Plaintiffs termination are in dispute. Defendant claims Plaintiff was dismissed for performance related reasons, while Plaintiff alleges her termination was due to Kirkland's discriminatory animus.

  As originally filed, Plaintiff's Complaint alleged violations of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Pennsylvania Human Relations Act ("PHRA"). Plaintiff's original Complaint also alleged age discrimination under 42 U.S.C. § 1981a. This count was subsequently amended to allege discrimination based on disability, rather than age. (First Am. Civil Action Compl. at ¶¶ 42-45; Doc. No. 27.) Plaintiff's amendments also included the addition of a fifth count, for race discrimination under § 1981a. (Id. at ¶¶ 48-59.)


  "It is well-established that the scope and conduct of discovery are within the sound discretion of the trial court." Gaul v. Zep Mfg. Co., Civ.A. No. 03-2439, 2004 U.S. Dist. LEXIS 1990, at *2-3 (E.D. Pa. Feb. 5, 2004) (quoting Marroquin-Manriquez v. Immigration and Naturalization Serv., 699 F.2d 129, 134 (3d Cir. 1983)). Pursuant to Federal Rule of Civil Procedure 26(b)(1), a party may seek discovery of "any matter, not privileged, which is relevant to the subject matter in the pending action." FED. R. CIV. P. 26(b)(1). "The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Id.

  Rule 37 "authorizes a party who has received evasive or incomplete answers to discovery authorized by . . . Rule 26(a) to bring a motion to compel disclosure of the materials sought." Northern v. City of Phila., Civ.A. No. 98-6517, 2000 U.S. Dist. LEXIS 4278, at *3 (E.D. Pa. Apr. 4, 2000). Once a party opposes a discovery request, the party seeking the discovery must demonstrate the relevancy of the information sought. Id. at *5. "When this showing of relevancy is made, the burden then shifts back to the party opposing discovery to show why the discovery should not be permitted." Id. A party's statement "that the discovery sought is overly broad, burdensome, oppressive, vague or irrelevant is `not adequate to voice a successful objection.'" Id. (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)). Further, "[i]t is well recognized that the federal rules allow broad and liberal discovery", Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir. 1999), and relevancy is broadly construed, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) ("The court should and ordinarily does interpret `relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.").


  A. Production of Documents

  On or about February 16, 2004, Plaintiff made five requests for documents from Defendant.*fn1 The requests related to Plaintiff's claim of racial discrimination. On March 18, 2004, Defendant objected to all five requests, primarily on the grounds that the requests were "overly broad and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence." (Def.'s Answers and Objections to Pl's Fourth Req. for Prod. of Docs. at 1.)*fn2

 Document Request Numbers One and Four

  We note from the outset that Request Number One is duplicative of Request Number Four, in that they seek the same information. Request Number One seeks documents that in any way reference those employees whom "Kirkland hired and discharged during his tenure with Defendants." (Id.) In Document Request Number Four, Plaintiff seeks documents that in any way reference "the racial, ethnic or ancestral background of any and all employees that were hired and terminated by Marvin Kirkland." (Id. at 2.) However, Plaintiff also makes clear that she is not interested in the identity of those individuals. (Proposed Order attached to Pl's Mot. to Overrule Def.'s Objections to her Fourth Req. for Prod. of Docs. at unnumbered 2 ("Personal and identifying information such as employee names, addresses, and social security numbers may be redacted. . . .").) That being true, it is unclear how Requests One and Four differ, as they appear to be seeking the same information — the race and/or ethnicity of those employees whom Kirkland hired and terminated. Accordingly, we will dismiss Request Number One, and address Request Number Four.

  In Defendant's Memorandum in Opposition to the Document Requests, Defendant draws a distinction between Plaintiff and some of the other employees who have been hired and/or terminated by Kirkland. Defendant states: "[I]nformation concerning hiring of certified nurses aides and nurse assistants who had no certification . . . is immaterial and irrelevant to this matter" because Plaintiff was not in a comparable hiring category. We disagree. While it is undisputed 2that Plaintiff was in a hiring category apart from the Certified Nurse's Assistants ("CNAs"), a group for which there is statistical information available, this distinction does not foreclose the possibility that Plaintiffs use of the requested information could lead to admissible evidence as this case moves forward. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973) (stating that statistics as to employer's "employment policy and practice may be helpful" in establishing pretext).*fn3

  Defendant attempts to distinguish the instant case from McDonnell Douglas, and many of the other cases that Plaintiff uses to support her requests, by characterizing the instant lawsuit as a discriminatory termination case only. In doing so, Defendant emphasizes that the instant lawsuit alleges racial discrimination related to Plaintiff's termination, and as such, information related to Defendant's hiring practices are irrelevant. However, Plaintiffs Complaint also alleges claims related to Defendant's hiring practices. Specifically, Plaintiff claims that "Kirkland only hired African American employees" and that "Plaintiff and other Caucasian employees were pretextually terminated because Kirkland wanted to replace them with African American employees." (First Am. Civil Act. Compl. at ¶¶ 52, 58.) Plaintiff further alleges that "Defendant acknowledged, supported, and consented to Kirkland's disparate racial treatment and racial hiring preferences of employees and prospective employees." (Id. at ¶ 57.) Accordingly, we cannot agree that Plaintiff's request for documents is overly broad because it includes a request for hiring data.

  As to Defendant's claim that Plaintiff's request is unduly burdensome, Plaintiff claims, and Defendant does not disagree, that Defendant's counsel stated that "she had a list of CNAs Mr. Kirkland had hired and their races (most of [Kirkland's] hires were reportedly CNAs) and agreed to show it to Plaintiff's counsel but refused to allow Plaintiff's counsel to copy it." Based on this claim, it would seem that the request would not be burdensome at all, as Defendant has already compiled the information as to the CNAs.

 Document Request Number Two

  Document Request Number Two seeks documents that reference "the racial, ethnic, or ancestral background of all employees that work at . . . Crestview" and any documents that indicate the same for "all employees under the control of Marvin Kirkland." (Def.'s Answer and Objections to Pl.'s Fourth Req. for Prod, of Docs, at 1.) In response to this request, Defendant states that it "has already provided Plaintiff with its [Equal Employment Opportunity Commission] EEOC records that show the racial composition of its workforce." (Def. Genesis Health Ventures, Inc.'s Opp'n to Pl's Mot. to Overrule Def.'s Objections to her Fourth Req. for Prod. of Docs, at 4 (emphasis added).) Defendant further explains that it does not maintain records that would provide a breakdown of this information for Crestview, apart from its other facilities. Defendant represents the same is true for those employees who are specifically under Kirkland's control. (Mem. of Law in Supp. of Def, Genesis Health Ventures, Inc.'s Opp'n to Pl.'s Mot. to Overrule Def.'s Objections to her Fourth Req. for Prod. of Docs. at 8 ("Genesis does not keep statistical evidence of the racial composition or background of all employees at Crestview and all employees under the control of Marvin Kirkland in the ordinary course of business." (emphasis in original)).) In support of its claim, Defendant cites Ingram v. Ponder, Civ.A. No. 97-8060, 1999 U.S. Dist. LEXIS 1725, at *8-9 (E.D. Pa. Feb. 19, 1999). The district court in Ingram stated that "[a] defendant in a civil action cannot be compelled to create, upon the request of the plaintiff, documentary evidence which is not already in existence in some form." Id. at *9. However in Ingram, the defendant did not possess "lists of the names and addresses of employees discharged for job abandonment or poor performance," which was precisely what the Ingram plaintiff was seeking. Id. at *8. In the instant case, it is unclear from Defendant's statements whether it is alleging that, at this time, there is no previously compiled list that would specifically provide the information Plaintiff seeks, or whether this information simply does not exist in any form. If the information exists in an alternative format, Defendant could be required to make it available to Plaintiff. At this point, we will require that Defendant clarify its statement. If this information does not exist in any form, Defendant should so state. If it does exist in an alternative format, Defendant should so state and we will determine whether or not it is discoverable.

 Document Request Number 3

  Defendant responds to Document Request Number Three by stating that Kirkland resigned from his position at Crestview and was "neither terminated nor discharged." (Def.'s Answers and Objections to Pl's Fourth Req. for Prod. of Docs. at 2.) As a result, Defendant represents that "Answering Defendant has no documents responsive to this request." (Id.) As the facts surrounding Kirkland's departure from Crestview are in dispute, we will direct Defendant to provide Plaintiff with all documents related to Kirkland's departure. If no such documents exist, Defendant should so state.

 Document Request Number Five

  Request Number Five seeks "applications of all applicants for employment for any position at Defendant's Crestview facility during the tenure of Marvin Kirkland and the preceding six (6) months." (Def.'s Answers and Objections to Pl's Fourth Req. for Prod. of Docs. at 2.) In responding to this request, Defendant again states that the requested documents are irrelevant because Plaintiff's lawsuit is a discriminatory termination case, not a discriminatory hiring case, and therefore the majority of applicants are not similarly situated to Plaintiff's hiring pool. As discussed above, because Plaintiff's Complaint alleges an overall system of discriminatory hiring and terminating, we conclude that the request could reasonably lead to the discovery of admissible evidence.

  Defendant also states that "the vast majority of the applicants currently on file constituted people seeking employment in the position of . . . [CNA] or Aide-Non Certified Nurse." (Def.'s Answers and Objections to Pl's Fourth Req. for Prod, of Docs, at 3.) As to the applications of non-CNAs, who would be in Plaintiffs hiring pool, Defendant states that "after reasonable investigation, records regarding applicants for more highly skilled nurse opening[s] (LPNs, RNs and RN Nurse Supervisors) are no longer retained at Crestview Center." It is unclear from this statement whether Defendant might have this information at one of its other facilities. To the extent that Defendant no longer possesses these records, or other documents that might reveal the same information, at Crestview or elsewhere, Defendant should so state. If, on the other hand, Defendant's statement is intended to distinguish between documents held at Crestview and those documents held at Defendant's other facilities, we conclude that such a distinction is irrelevant, and we will direct Defendant to provide Plaintiff with the requested documents.*fn4

  B. Attendance at Oral Deposition

  On March 9, 2004, Plaintiff's counsel served Defendant's counsel with a Notice of Oral Deposition, scheduling the deposition of Scott Burk, Regional Human Resource Manager for Defendant. Defendant has objected to this request on a number of grounds. For the following reasons, we will permit Plaintiff to proceed with the Burk deposition.

  Count Five of Plaintiff's Complaint alleges that Defendant, acting through Kirkland, its Director of Nursing, engaged in a system of racially discriminatory hiring and terminating of employees. Plaintiff, a Caucasian woman, claims that Kirkland, an African American man, refused to hire Caucasian applicants, and that Kirkland terminated Plaintiff because she is Caucasian. (First Am. Civil Action Compl. at ¶¶ 49-59.) In support of its allegation that Plaintiff was harmed by this system of discriminatory hiring and firing, Plaintiff submits the affidavit of Robert Creely.*fn5 Creely, a Caucasian male, had previously worked for Defendant and subsequently left this employment. Sometime thereafter, Creely reapplied for a position with Defendant and was allegedly told, by Kirkland, that he had been placed on a "do not hire" list. Plaintiff further alleges that after eight months of investigating this claim, Burk contacted Creely and informed him that Creely was not on such a list and that he was free to apply for employment at any of Defendant's facilities. (Creely Aff.; Doc. No. 26, Ex. C.)

  Defendant objects to Plaintiff's request to depose Burk on several grounds. "First and foremost, Defendant objects to the deposition of Scott Burk in this proceeding because Mr. Burk had no involvement with Plaintiff's termination and therefore has no relevant information to provide." (Def.'s Mem. of Law in Supp. of Its Opp'n to Pl's Mot. to Compel Scott Burk's Attendance at Oral Dep. [hereinafter Def.'s Mem. in Opp'n] at 1.) Defendant further states that Plaintiff's claim that Defendant "maintained a `data base' of names of employees who were not subject to hire, has no bearing on the decision to discharge this Plaintiff for employment deficiencies." (Id. at 2.) Even assuming that Defendant is correct in its assertion that Burk was not involved in Defendant's decision to terminate Plaintiff's employment, we cannot agree that Burk's deposition will not lead to admissible evidence. This is particularly true because Plaintiff's Complaint alleges a system of discriminatory practices, and is not limited to Plaintiff's termination. In light of Burk's position as Regional Human Resource Manager, and in light of the federal rules' goal of permitting liberal discovery, we cannot, at this stage in the litigation, conclude that Burk's deposition would be irrelevant.

  Defendant also claims that the Burk deposition would violate Rule 26 because the parties in Creely's lawsuit, Creely v. Genesis Health Ventures, Inc.,*fn6 have not yet made their initial disclosures, as required by Rule 26(a).*fn7 Defendant further states that, pursuant to Rule 26(d), "`a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).'" (Def.'s Mem. in Opp'n at 2 (quoting Fed.R.Civ.P. 26(d)).) However in the instant case, Plaintiff has requested the Burk deposition to support this Plaintiff's allegations, not those of Creely in his separate matter. While the cases are admittedly closely related, Defendant cites no authority, and we are aware of none, that would direct this Court to prohibit a relevant deposition in one case, simply because it might lead to admissible evidence in a separate lawsuit.

  Defendant's final objection is that "Burk has suffered from significant illness since early January, 2004", which has prevented Burk from returning to work. (Def.'s Mem. in Opp'n at 2.) While the Court is not insensitive to Burk's situation, based on this limited information, we cannot prevent Plaintiff from moving forward with the deposition. Moreover, during the March 15, 2004, status conference, Defendant's counsel raised the same concerns and the Court instructed counsel that in responding to Plaintiff's Motion to Compel the deposition, Defendant's counsel should provide medical documentation as to why the deposition should not take place. Defendant's counsel has failed to do so. Accordingly, we will grant Plaintiff's Motion to Compel Attendance.


  For the foregoing reasons, Plaintiff's Motion to Overrule Defendant's Objections to her Fourth Request for Production of Documents will be granted in part and denied in part, and Plaintiff's Motion to Compel Attendance at Oral Deposition will be granted.

  An appropriate Order follows.


  AND NOW, this 22nd day of April, 2004, upon consideration of Plaintiff's Motion to Overrule Defendant's Objections to her Fourth Request for Production of Documents, (Doc. No. 22), and Plaintiff's Motion to Compel Attendance at Oral Deposition, (Doc. No. 24), and all papers filed in support thereof and opposition thereto, it is ORDERED that:

1. Plaintiff's Motion to Overrule Defendant's Objections to her Fourth Request for Production of Documents, (Doc. No. 22), is GRANTED in part and DENIED in part; and
2. Plaintiff's Motion to Compel Attendance at Oral Deposition, (Doc. No. 24), is GRANTED.

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