EEOC v. New Breed Logistics
EEOC v. New Breed Logistics
2011 WL 13098611 (W.D. Tenn. 2011)
November 15, 2011
Pham, Tu M., United States Magistrate Judge
Summary
The court granted New Breed's Motion to Compel Discovery Responses, ordering the EEOC to produce any profiles, postings, messages, or other communications by claimants Capricious Pearson and Jacqueline Hines from January 1, 2008 to the present in either hard copy or electronic form. The court also granted the EEOC's Motion for an Order to Compel Disclosures and Responses to its Requests for Production of Documents, ordering New Breed to produce its insurance agreement(s) and financial records and tax returns for the years 2010 and 2011. The court thus required the EEOC to produce ESI in the form of profiles, postings, messages, and other communications.
Additional Decisions
Equal Employment Opportunity Commission, Plaintiff,
v.
New Breed Logistics, Defendant
v.
New Breed Logistics, Defendant
No. 10-2696-A/P
Signed November 15, 2011
Counsel
Anica C. Jones, Equal Employment Opportunity Commission, Nashville, TN, Faye A. Williams, Kelley R. Thomas, Matthew H. McCoy, Equal Employment Opportunity Commission, Memphis, TN, for Plaintiff.Delaine R. Smith, Jameson Dylan King, Louis P. Britt, III, Ford & Harrison LLP, Memphis, TN, Jason Keith Priebe, Ada W. Dolph, Christopher J. DeGroff, Gerald L. Pauling, Rebecca Sharon Bromet, Seyfarth Shaw, LLP, Chicago, IL, for Defendant.
Pham, Tu M., United States Magistrate Judge
ORDER ON DISCOVERY-RELATED MOTIONS
*1 Before the court by order of reference are several discovery-related motions filed by plaintiff Equal Employment Opportunity Commission (“EEOC”) and defendant New Breed Logistics (“New Breed”). On November 15, 2011, the court held a hearing on the motions. Counsel for all parties were present and heard. At the hearing, the court ruled on the motions as follows:
1. New Breed's Motion to Compel Discovery Responses (ECF No. 33)
In its motion to compel, New Breed seeks production of information responsive to its Request for Production Numbers 35 and 36, which relates to claimants Capricious Pearson's and Jacqueline Hines's social networking accounts (defined as their Facebook, Twitter, MySpace, and LinkedIn accounts). The court, relying on EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010) and Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371, at *2 (M.D. Pa. June 22, 2011), found that the discovery requests, as currently drafted, are overly broad and seek production of irrelevant information. The court also rejected the EEOC's argument that the discoverable information should be limited to only communications that directly reference the matters alleged in the complaint. The court GRANTED IN PART the motion and ordered the EEOC to produce any profiles, postings, messages, or other communications by Pearson and Hines from January 1, 2008 to the present that relate or refer to (1) New Breed, their employment at or termination from New Breed, New Breed's current or former employees, or any allegations in this lawsuit; (2) any emotion, feeling, or mental state; and (3) any significant or traumatic events that could reasonably be expected to produce a significant emotion, feeling, or mental state (which would include, for example, job loss, death in the family, divorce, etc.). The EEOC shall produce these documents either in hard copy or electronic form by December 15, 2011. This production does not require production of any communications initiated by third parties, or any photographs or videos on the claimants' social networking accounts. In addition, the court denied New Breed's request to order production of communications that contained sexually suggestive terms, unless the communications are responsive to any of the three categories of communications described above.
2. New Breed's Motion to Compel the Continuation of Claimant Tiffany Pete's Deposition and Supplemental Response to Interrogatory No. 16 (ECF No. 55) and EEOC's Motion to Strike Defendant's Motion to Compel (ECF No. 61).
The court denied New Breed's Motion to Compel because the motion was untimely. The court had previously granted New Breed's request to extend the deadline to file its motion to compel to September 16, 2011, yet the motion was not filed until November 1, 2011. The court finds that no special circumstances justify excusing New Breed's untimely motion, as the motion was filed after the discovery deadline and after the extension granted by the court. See FedEx Corp. v. United States, No. 08-2423, 2011 WL 2023297, at *4 (W.D. Tenn. Mar. 28, 2011). On that basis alone, the court DENIED the motion.
*2 Moreover, the discovery sought by New Breed relating to certain entries in claimant Tiffany Pete's personal calendar is irrelevant to any claims or defenses in this case. Pete used her calendar to document her sexual relationships and menstrual cycle. These entries have absolutely no relevance to this lawsuit, and any deposition questions related to these entries would only serve to harass and embarrass Pete. With regard to Pete's two references to a sexual term in December 2008 (Bates No. EEOC000672), Pete's use of that term in her personal diary is likewise irrelevant to the claims or defenses in this case. Finally, because the EEOC has stated that the claimants are only seeking “garden variety” emotional distress claims and will not present any medical proof or other evidence of treatment relating to emotional distress, New Breed does not need to obtain any discovery relating to the claimants' medical records.
As for the EEOC's Motion to Strike, the motion is DENIED as moot.
3. EEOC's Motion for an Order to Compel Disclosures and Responses to its Requests for Production of Documents (ECF No. 25)
Regarding the EEOC's request to have New Breed produce its insurance agreement(s), the court GRANTED the motion and ordered New Breed to either (1) enter a written stipulation that the policy identified in the declaration pages produced during discovery covers the claims in this lawsuit, or (2) produce the entire insurance agreement, by no later than November 25, 2011.
Regarding the EEOC's request for financial records and tax returns for New Breed, the court GRANTED the motion, ruling that evidence of New Breed's current net worth and financial condition is relevant to the EEOC's claim for punitive damages and that the majority of courts have held that a plaintiff seeking punitive damages is entitled to discover such information in advance of trial and without making a prima facie showing that he is entitled to recover such damages. Westbrook v. Charlie Sciara & Son Produce Co., Inc., No. 07-2657, 2008 WL 839745, at *2 (W.D. Tenn. Mar. 27, 2008) (citing cases). The court ordered New Breed to produce, by no later than December 15, 2011, its balance sheets, profit and loss statements, income statements, and federal tax returns for the years 2010 and 2011. This financial information shall be governed by the protective order previously entered in this case.
Regarding discovery of all of New Breed's employees at its Avaya Facility during the period of April and May 2008, the court DENIED the motion. New Breed has already produced relevant employee information for all permanent employees who worked in the Receiving Department during the time period that the alleged harasser, James Calhoun, was a supervisor in that department and Select Staffing has already produced employee information for the temporary employees who were assigned to New Breed during the relevant time period (in response to the EEOC's subpoena). The court finds that this discovery should provide the EEOC with more than sufficient information to locate additional potential victims and witnesses.
Regarding discovery of New Breed's emails, the court ordered the parties to meet and confer on these issues by no later than December 15, 2011, and to file a joint status report with the court by no later than December 31, 2011. New Breed shall have a representative present to address the EEOC's questions relating to New Breed's email systems and email search efforts. If necessary, the court will conduct a further hearing after receiving the parties' joint report.
4. EEOC's Motion for Spoliation Sanctions (ECF No. 27)
The court heard argument and took under advisement the spoliation allegations contained in sections B (two videos) and C (new hire and/or first day letters for Pete and Pearson). Regarding New Breed's alleged failure to maintain documents reflecting employee errors and/or mistakes by Pete and Pearson, the court ordered New Breed to file a supplemental declaration to support New Breed's counsel's statements made at the hearing, by no later than December 10, 2011. The court ordered the parties to discuss these issues as part of their meet and confer obligations and to address the status of this dispute in the parties' joint status report. Likewise, the court ordered the parties to discuss the issues surrounding the alleged email written by Calhoun and sent to Carissa Woods, and to address the status of this dispute in the joint report. If necessary, the court will conduct a further hearing after receiving the parties' joint report.
*3 IT IS SO ORDERED.