Korbel v. Extendicare Health Servs., Inc.
Korbel v. Extendicare Health Servs., Inc.
2015 WL 13651194 (D. Minn. 2015)
January 22, 2015
Rau, Steven E., United States Magistrate Judge
Summary
The court considered ESI, such as cell phone records and deposition testimony, in determining whether the plaintiff's evidence and argument reasonably allowed a conclusion that clear and convincing evidence would establish that the defendants deliberately disregarded the plaintiff's rights. The court also considered the plaintiff's motion for sanctions, which sought attorney fees and costs associated with the bringing of her motion to compel, but declined to impose sanctions. Finally, the court granted in part and denied in part the plaintiff's motion to compel discovery of documents and ESI related to her claims.
Kathleen Korbel, Plaintiff,
v.
Extendicare Health Services, Inc., and Extendicare Homes, Inc., both d/b/a Texas Terrace Care Center, Defendants
v.
Extendicare Health Services, Inc., and Extendicare Homes, Inc., both d/b/a Texas Terrace Care Center, Defendants
Civil No. 13-cv-2640 (SRN/SER)
United States District Court, D. Minnesota
Filed January 22, 2015
Counsel
Daniel E. Warner, Esq., Warner Law Office, 5774 Blackshire Path, Inver Grove Heights, Minnesota 55076, for Plaintiff.Paul D. Weiner, Esq., Littler Mendelson, PC, Three Parkway, 1601 Cherry Street, Suite 1400, Philadelphia, Pennsylvania 19102, for Defendants.
Sarah J. Gorajski, Esq., Littler Mendelson, PC, 80 South 8th Street, Suite 1300, Minneapolis, Minnesota 55402, for Defendants.
Rau, Steven E., United States Magistrate Judge
ORDER
The above-captioned case comes before the undersigned on Defendants Extendicare Health Services, Inc. and Extendicare Homes, Inc.'s (collectively “Defendants”) Motion for Protective Order [Doc. No. 24], and Plaintiff Kathleen Korbel's (“Korbel”) Motion to Compel Discovery, Motion for Sanctions, and Motion to Amend Complaint to State a Claim for Punitive Damages (referred to separately herein as “Motion to Compel,” “Motion for Sanctions,” and “Motion to Amend”) [Doc. No. 30]. This matter was referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A)and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court grants in part and denies in part Defendants' Motion for Protective Order, grants in part and denies in part Korbel's Motion to Compel, grants in part and denies in part Korbel's Motion for Sanctions, and denies Korbel's Motion to Amend.
I. BACKGROUND
A. Factual Background
On May 28, 2013, Korbel began her employment as a Certified Nursing Assistant (“CNA”) at Texas Terrace Care Center (“Texas Terrace”), a nursing home located in St. Louis Park, Minnesota. (Am. Compl., Ex. B., Attached to Notice of Removal) [Doc. No. 1-1 ¶ 1, 3,]. Korbel alleges that Defendant Extendicare Homes, Inc., is operated by and is a wholly owned subsidiary of Defendant Extendicare Health Services, Inc., and that as a result, the Defendants were Korbel's joint employer. (Id. ¶ 2).
Korbel began her first day of “on the floor” training on June 1, 2013. (Id. ¶ 3). Korbel was assigned to work from 2:30 p.m. to 10:30 p.m. (Id.). At around 4:00 p.m. on June 1, 2013, Korbel witnessed another CNA, Tara, become frustrated with a resident with dementia.[1] (Id. ¶ 4). The resident was wheelchair-bound and Tara had placed a “lap buddy” on the resident's lap “to help keep the resident in the chair.”[2] (Id.) When the resident continued to remove the lap buddy and throw it on the floor, Tara became upset and “tied the resident up with thick ... knitting yarn.” (Id.). The registered nurse (“RN”) on duty at the time “observed the resident tied up with yarn, but did nothing about it.” (Id. ¶ 5). Korbel alleges that she did not report the incident because the RN to whom she would report had observed the resident. (Id.). Later, the resident freed herself from the yarn, only to be tied up by Tara again. (Id. ¶ 6). Tara then took the resident to the resident's room, preventing the resident from eating dinner in the common dining room. (Id.).
Tara's actions “deeply disturbed” Korbel, and the following day, June 2, 2013, she called Angela Borjon (“Borjon”). See (id. ¶ 7). Korbel reached Borjon's voicemail, but did not leave a message. (Id.). Instead, Korbel called “administration” to see if there was someone at Texas Terrace to whom she could report Tara's actions. (Id.). Korbel was informed that “nobody [was there] on the weekend.” (Id.). Korbel called again and “left a detailed voicemail” for Borjon. (Id.). Korbel called the following day, June 3, 2013, and “left a similar message.”[3] (Id.). That same day, Korbel began a shift at Texas Terrace at 2:30 p.m., and shortly after beginning her shift, Korbel was suspended. (Id. ¶ 8). Korbel's employment was terminated on June 4, 2013. (Id. ¶ 9).
B. Procedural History
*2 Korbel sued Defendants in Hennepin County District Court, alleging violations of Minnesota's Vulnerable Adult Act, Minn. Stat. § 626.557, and Minnesota's whistleblower law, Minn. Stat. § 181.932 (the “Whistleblower Statute”). (Am. Compl. ¶ 10–19). Defendants removed the matter to federal court and answered the Amended Complaint. (Notice of Removal) [Doc. No. 1]; (Answer and Affirmative and Additional Defenses to Pl.'s Am. Compl.) [Doc. No. 5].
On August 13, 2014, Defendants filed their Motion for Protective Order. Two days later, on August 15, 2014, Korbel filed her Motion to Compel, Motion for Sanctions, and Motion to Amend her Amended Complaint to state a claim for punitive damages. On August 29, 2014, the Court held a hearing on the motions. (Minute Entry Dated Aug. 29, 2014) [Doc. No. 46]. The Court took Korbel's Motion for Sanctions and Motion to Amend under advisement. (Order Dated Aug. 29, 2014) [Doc. No. 47 at 1]. Based on the discussion of the parties and the Court at the hearing, the Court instructed the parties to meet and confer regarding certain discovery disputes raised in the Motion to Compel and Motion for Protective Order. (Id. at 1–2). The Court further instructed that, following their efforts to meet and confer, the parties were to submit a Joint Status Report detailing the status of any unresolved discovery disputes. (Id. at 2).
The parties submitted their Joint Status Report on September 3, 2014, informing the Court of unresolved discovery disputes. (Joint Status Report on Mot. for Protective Order and Mot. to Compel Written Disc. and Inspection and Photography of Premises, “Joint Status Report”) [Doc. No. 48]. Because the parties were unable to resolve all of their discovery disputes through their additional efforts to negotiate, the Court took the Motion to Compel and Motion for Protective Order under advisement. See(Order Dated Aug. 29, 2014 at 2).
II. DISCUSSION
A. Korbel's Motion to Amend
1. Legal Standard
Because under Minnesota law a claim for punitive damages may not be included in an initial civil complaint, Korbel moves to amend her Amended Complaint to add a claim for punitive damages arising out of her claim for wrongful termination in violation of the Whistleblower Statute.[4] See (Mem. in Supp. of Mot. to Compel Disc., Mot. for Sanctions and Mot. to Am. Compl. to Add a Claim for Punitive Damages, “Korbel's Mem. in Supp.”) [Doc. No. 32 at 1, 43]; see also Minn. Stat. §§ 549.191, 549.20. Minnesota law governs the issue of punitive damages, which may be awarded in cases alleging violation of the Whistleblower Statute. See Morrow v. Air Methods, Inc., 884 F. Supp. 1353, 1357 (D. Minn. 1995) (DSD).
*3 The Court serves as a gatekeeper to prevent frivolous punitive damages claims. Romano v. ReliaStar Life Ins. Co., Civ. No. 12-137 (SRN/JJK), 2012 WL 5907397, at *4 (D. Minn. Nov. 26, 2012). “Punitive damages are intended to punish a [party], or to make an example of [that party's] wrongdoing ....” Ulrich v. City of Crosby, 848 F. Supp. 861, 867 (D. Minn. 1994) (RLE); see also Longbehn v. Schoenrock, 727 N.W.2d 153, 161 (Minn. Ct. App. 2007).
A motion for punitive damages “must be accompanied by one or more affidavits showing the factual basis for the claim.” Minn. Stat. § 549.191. “[C]haracterizations of the evidence and conclusory statements” are not evidence and “add nothing to the prima facie showing” required for amendment. Stepnes v. Ritschel, Civ. No. 08-5296 (ADM/JJK), 2010 WL 7093560, at *6 n.3 (D. Minn. Apr. 13, 2010), order aff'd by 2010 WL 7093559 (June 16, 2010). Prima facie evidence is evidence that would support a judgment in Korbel's favor if unrebutted. Healey v. I-Flow, LLC, 853 F. Supp. 2d 868, 873 (D. Minn. 2012) (JRT/JJK). In making its determination,
the Court makes no credibility rulings, and does not consider any challenge, by cross-examination or otherwise, to the [movant's] proof, but the Court must carefully scrutinize the evidence presented by the moving party to make sure that it amounts to a prima facie showing that the substantive requirements for punitive damages have been met.
Id. Korbel is required only to demonstrate an entitlement to allege punitive damages; she is not required to demonstrate an entitlement to punitive damages per se. Ulrich, 848 F. Supp. at 867. If this Court finds prima facie evidence, Korbel will be allowed to amend her complaint to include a claim for punitive damages. Minn. Stat. § 549.191.
To successfully make a punitive damages claim under Minnesota law, Defendants must present clear and convincing evidence that Defendants “show[ed] deliberate disregard for the rights or safety of [Korbel].” Minn. Stat. § 549.20, subdiv. 1(a). Defendants acted with deliberate disregard if they
ha[d] knowledge of facts or intentionally disregard[ed] facts that create[d] a high probability of injury to the rights or safety of [Korbel] and:
(1) deliberately proceed[ed] to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of [Korbel]; or
(2) deliberately proceed[ed] to act with indifference to the high probability of injury to the rights or safety of [Korbel].
Id. subdiv. 1(b). In other words, if Defendants acted with intent or indifference to threaten Korbel's rights, they operated with deliberate disregard. Berczyk v. Emerson Tool Co., 291 F. Supp. 2d 1004, 1008 (D. Minn. 2003) (RHK/RLE) (quoting Gamma-10 Plastics, Inc. v. Am. President Lines, Ltd., 32 F.3d 1244, 1255 (8th Cir. 1994)); see also Longbehn, 727 N.W.2d at 161. “A mere showing of negligence is not sufficient to sustain a claim for punitive damages.” Healey, 853 F. Supp. 2d at 875 (internal quotation marks omitted).
Here, then, the Court will consider whether a jury reviewing Korbel's unrebutted evidence reasonably could conclude that there is clear and convincing evidence that Defendants knew of facts or intentionally disregarded facts that created a high probability that Korbel's right to be free from retaliatory employment consequences under the Whistleblower Statute would be injured, and deliberately proceeded to act in conscious or intentional disregard or with indifference to the high probably of such injury. See Hern v. Bankers Life Cas. Co., 133 F. Supp. 2d 1130, 1135–36 (D. Minn. 2001) (JMR/RLE). The determination is discretionary, but if the motion and affidavits “ ‘do not reasonably allow a conclusion that clear and convincing evidence will establish that [Defendants]’ ” deliberately disregarded Korbel's rights, the Court will not allow the amendment. Gamma-10 Plastics, Inc., 32 F.3d at 1255 (quoting Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn. Ct. App. 1990)) (citing Utecht v. Shopko Dep't Store, 324 N.W.2d 652, 654 (Minn. 1982)).[5]
2. Analysis
a. Korbel's Evidence and the Parties' Arguments
*4 Korbel relies on the following evidence and argument in support of her Motion to Amend. First, Korbel states that it is “undisputed” that she “made a report of suspected abuse” and that the abuse was in violation of state law and professionally recognized national standards. (Korbel's Mem. in Supp. at 43). Korbel also argues that her “report was made in good faith” and that she lost her job “as the direct result of her report.” (Id.). Second, Korbel contends that the alleged untimeliness of any report is “disputed and irrelevant” for several reasons. (Id.). Specifically, Korbel contends that she timely reported the suspected abuse, and that her testimony and cell phone records demonstrate that she reported the abuse within twenty-four hours, consistent with Defendants' policies. (Id. at 44). Korbel also asserts that while Korbel was instructed to make a report of suspected abuse “immediately,” Defendants have given “contrary definitions” of the meaning of “immediately.” (Id. at 43–44). In addition, Korbel contends that “even if the report came within 48 hours, it is no less a protected report” because “[t]here are no time limits stated in the whistleblower law for when a report of a suspected violation of law becomes unprotected because of timing.” (Id. at 44).
Korbel also argues that deliberate disregard for her rights is “evidenced by the fact that” Diane Stieg (“Stieg”), Director of Nursing at Texas Terrace and the individual who decided to terminate Korbel, “knew that the law prohibited firing an employee for reporting suspected abuse.” (Id. at 46) (citing (30(b)(6) Dep. of Diane Stieg, Ex. B, Attached to Aff. of Daniel Warner, “Warner Aff.”, “Stieg 30(b)(6) Dep.”) [Doc. No. 33-1 at 35] ).[6]Korbel further contends she should be permitted to amend her complaint to add a claim for punitive damages because several additional facts demonstrate Defendants' deliberate disregard. (Id. at 47). These facts are: 1) Defendants did not take steps to determine if Korbel had called Texas Terrace within twenty-four hours to make a report before firing Korbel; 2) Defendants did not follow their own investigation policies when investigating Korbel's conduct; 3) Stieg fired Korbel without the benefit of a written report; 4) human resources was not consulted about Korbel's termination; 5) Texas Terrace did not “staff people to take complaints on Sunday”; and 6) “[n]o instructions are left at the nurses' station” regarding how to handle a phone call from someone calling to report suspected abuse. (Id. at 47–49); (Pl.'s Reply Mem. in Supp. of Mot. to Amend, “Reply”) [Doc. No. 45 at 2].[7]
*5 In support of her arguments, Korbel relies on her own deposition testimony, her cell phone records, and the deposition testimony of Stieg and Borjon. Korbel also relies on the deposition testimony of other Texas Terrace employees Jennifer Kuhn (“Kuhn”) and Tara Touray (“Touray”), Defendants' written policies regarding reporting of suspected neglect and abuse of residents, Defendants' training materials regarding the Elder Justice Act (“EJA”), and Defendants' written investigation protocols. (Id. at 43–50).
In response to Korbel's Motion to Amend, Defendants contend that Korbel failed to meet her burden to show by clear and convincing evidence a deliberate disregard for Korbel's rights or safety. (Defs.' Resp. Mem. in Opp'n to Pl.'s Mot. to Compel Disc., Mot. for Sanctions, and Mot. to Amend Compl. to Add a Claim for Punitive Damages, “Defs.' Resp. Mem. in Opp'n”) [Doc. No. 44 at 37–44].[8]
b. Clear and Convincing Evidence
Korbel's initial contentions that she is entitled to allege a claim for punitive damages because it is “undisputed” that she made a “report” of suspected abuse in violation of state law and professionally recognized national standards, that her report was made in good faith, and that she lost her job as a direct result of her report are of no assistance to the Court in determining whether a jury reasonably could conclude that there is clear and convincing evidence that Defendants acted with deliberate disregard for Korbel's rights. See (Korbel's Mem. in Supp. at 43). These assertions, unsupported by any citation to Korbel's evidence, are merely characterizations of the evidence in a manner that supports Korbel's theory of liability under the Whistleblower Statute. See Minn. Stat. § 181.932, subdiv. 1(1), (4). Such “characterizations of the evidence and conclusory statements” are not evidence and “add nothing” to a prima facie showing. Stepnes, 2010 WL 7093560, at *6 n.3.[9]
Korbel's contentions regarding the timeliness of her report are also unpersuasive. First, Korbel appears to contend that Defendants' deliberate disregard is demonstrated by inconsistent definitions of the term “immediately” in Defendants' written policies and in Borjon's depostition testimony. (Korbel's Mem. in Supp. at 44). Specifically, Korbel contends that in training materials regarding the EJA and in Defendants' Clinical Administrative Manual, “immediately” is defined as “within 24 hours” of the incident where no serious bodily injury is involved, but that Borjon testified that “immediately” means “within two minutes of observation.” (Id.); see also(Dep. of Angela Borjon, Ex. D., Attached to Warner Aff. “Borjon Dep.”) [Doc. No. 33-2 at 16]; (Clinical Administrative Manual, Ex. M., Attached to Warner Aff., “Manual”) [Doc. No. 33-3 at 68]; (Notice of Covered Individual Reporting Obligations Under the Elder Justice Act, Ex. N, Attached to Warner Aff., “EJA Notice”) [Doc. No. 33-3 at 72]; (Team Member Center General Orientation, Ex. O, Attached to Warner Aff., “Orientation Powerpoint”) [Doc. No. 33-4 at 8].
*6 While Borjon's deposition testimony indicating a two minute reporting timeline is arguably inconsistent with the EJA Notice and Orientation Powerpoint, which discusses reporting under the EJA, her testimony is arguably consistent with the Manual, which states that “immediately” means “as soon as possible, but not to exceed 24 hours after discovery of [the] incident.” (Manual at 68) (emphasis added). Moreover, even if the definitions in the relevant written materials are inconsistent with Borjon's testimony, the Court is not persuaded that such inconsistencies are probative of any knowledge or intentional disregard of facts by Defendants that created a high probability that Korbel's rights would be injured, or any deliberate conduct with intentional disregard or indifference to the high probability of such injury. The inconsistencies may just as easily be attributable to a lack of clarity and specificity in the training materials, rather than Defendants' attempt to justify Korbel's termination and mask unlawful conduct. “The high standard of ‘clear and convincing’ evidence makes the existence of other innocent explanations of the evidence relevant,” and a plaintiff “cannot meet the clear and convincing standard if equally viable explanations” for the defendants' conduct exist. Romano v. ING ReliaStar Life Ins., No. 12-CV-137 (SRN/JJK), 2013 WL 3448079, at *18 (D. Minn. July 9, 2013).
Korbel also contends that her phone records, showing June 2, 2013 phone calls to Texas Terrace, and her deposition testimony, in which she asserts that she left a voicemail for Borjon on June 2, 2013, demonstrate that she “followed the [Defendants'] policy ... and reported within 24 hours.” (Korbel's Mem. in Supp. at 44). Once again, however, Korbel characterizes, rather than describes, the evidence. That is, the evidence that Korbel has offered and that is entitled to belief is that she called Texas Terrace twice on June 2, 2013, and that in one of those calls, she left a voicemail for Borjon describing the suspected abuse. Whether this voicemail constituted a “report” and whether the voicemail was timely under Defendants' policies involve interpretations of evidence that are fundamental to the merits of Korbel's underlying claim.[10] The evidence itself—which remains unrebutted for the purpose of the Court's analysis—is that Korbel called Texas Terrace twice on June 2, 2013, and left a voicemail for Borjon. This evidence does not convincingly indicate that Defendants knew of facts or intentionally disregarded facts that created a high probability that Korbel's rights under the Whistleblower Statute would be injured, or that Defendants deliberately proceeded to act in conscious or intentional disregard or with indifference to the high probability of such injury. Indeed, while Borjon testified that she knew Korbel stated that she had left Borjon a voicemail, Borjon also testified that she checked her voicemail and “did not receive a voicemail” from Korbel. (Borjon Dep. at 12, 17) (emphasis added).[11]
*7 Korbel next contends that Stieg's knowledge that the law prohibits firing an employee for reporting suspected abuse demonstrates Defendants' deliberate disregard for her rights. Korbel is correct that Stieg, who was the decision-maker involved in Korbel's termination, testified that she was aware that the law “prohibited terminating an employee for reporting suspected abuse or neglect.” (Stieg 30(b)(6) Dep. at 35). In order to conduct “a fair appraisal of [Korbel's] prima facie case,” however, the Court must consider “portions of [Stieg's] deposition that place her testimony in context.” Stepnes, 2010 WL 7093560, at *7 n.4. After doing so, the Court does not find that this evidence supports Korbel's argument that Defendants acted with deliberate disregard for her rights under the Whistleblower Statute. While Stieg did testify that she was aware that it is unlawful to terminate an employee because of a report of suspected abuse, Stieg also testified that she “did not terminate [Korbel] for making a report. [She] terminated [Korbel] for not meeting company policy by filing a report late.” (Stieg 30(b)(6) Dep. at 35). Thus, Stieg's testimony, when in context, fails to show that the Defendants both “knew it was unlawful to retaliate against [Korbel] for reporting [suspected abuse], and in the face of that knowledge, decided to fire her anyway because she reported the [suspected abuse].”[12] Romano v. ReliaStar Life Ins. Co., Civ. No. 12-137 (SRN/JJK), 2012 WL 5907397, at *5 (D. Minn. Nov. 26, 2012) (emphasis added), order aff'd by 2013 WL 3448079 (July 9, 2013).[13]
Finally, Korbel points to other circumstances, all of which relate to the adequacy of Defendants' investigation of the suspected abuse and Korbel's conduct and the adequacy of Defendants' system for handling reports. (Korbel's Mem. in Supp. at 47–49) (Reply at 2). As noted, the circumstances identified by Korbel are: 1) Defendants did not take steps to determine if Korbel had called Texas Terrace within twenty-four hours to make a report before firing Korbel; 2) Defendants did not follow their own investigation policies when investigating Korbel's conduct; 3) Stieg fired Korbel without the benefit of a written report; 4) human resources was not consulted about Korbel's termination, despite this being the normal practice; 5) Texas Terrace did not “staff people to take complaints on Sunday”; and 6) “[n]o instructions are left at the nurses' station” regarding how to handle a phone call from someone calling to report suspected abuse. (Korbel's Mem. in Supp. at 47–49); (Reply at 2).
Reviewing this evidence, the Court finds that, while perhaps Korbel has alleged facts suggesting that Defendants' system for handling reports is less than perfect and that the investigation may have departed in some respects from written protocols, the system is not so inadequate and the investigation was not so cursory as to indicate deliberate disregard on the part of Defendants. For example, Korbel cites to the deposition of Touray as evidence that “Stieg ... terminated Korbel before she even received Touray's written report.” (Korbel's Mem. in Supp. at 49). Again, however, Korbel's contention takes the testimony out of context. Touray's testimony is that Stieg made the decision to terminate Korbel without a written report, but Touray's testimony also demonstrates that Touray “related the results of [her] investigation” to Stieg before Stieg made the decision to terminate Korbel. See (Dep. of Tara Touray, Ex. I, Attached to Warner Aff.) [Doc. No. 33-3 at 51]. The Court cannot conclude that making the decision to terminate an employee based on a verbal report as opposed to a written report demonstrates deliberate disregard. At the most, the shortfalls Korbel complains of reflect negligence, but “[a] mere showing of negligence is not sufficient to sustain a claim for punitive damages.” Healey, 853 F. Supp. 2d at 875 (internal quotation marks omitted).
*8 Considering all of Korbel's evidence, no reasonable jury would conclude that there is clear and convincing evidence that Defendants knew of facts or intentionally disregarded facts that created a high probability that Korbel's rights under the Whistleblower Statute would be injured, and deliberately proceeded to act in conscious or intentional disregard or with indifference to the high probability of such injury by suspending Korbel and terminating her employment. Accordingly, Korbel's Motion to Amend is denied.
B. Motion for Sanctions
Korbel filed a Motion for Sanctions, seeking sanctions and attorney fees and costs on a number of grounds. See (Korbel's Mem. in Supp. at 28–41). Specifically, Korbel seeks attorney fees and costs associated with the bringing of her Motion to Compel based on Defendants' use of “boilerplate objections throughout written discovery” pursuant to Federal Rule of Civil Procedure Rule 37. (Id. at 33–34). In addition, based on Defendants' instruction to a witness not to answer during a deposition and “baseless objections” during depositions, Korbel seeks attorney fees associated with the cost of bringing her Motion to Compel, costs incurred in the various depositions, and an order prohibiting baseless objections in any future depositions pursuant to Federal Rule 30(d)(2). (Id. at 33–41). Korbel also seeks the imposition of an adverse inference instruction and attorney fees and costs as sanctions for alleged spoliation of voicemails, emails, or call logs. (Id. at 28–33). Also addressed in Korbel's Motion for Sanctions, and related to Korbel's request for spoliation sanctions, is Korbel's allegation that Defendants produced an unprepared designee in response to Korbel's Rule 30(b)(6) deposition notice. (Id. at 30–31).[14] Although they did not separately file a motion for sanctions, Defendants seek attorney fees and costs associated with their Motion for Protective Order. (Mot. for Protective Order at 1–2). The Court discusses each of these requests in turn.
1. Objections to Written Discovery
a. Legal Standard
Korbel asks the Court to impose attorney fees and costs associated with her Motion to Compel under Federal Rule of Civil Procedure Rule 37(a)(5)(A) based on Defendants' objections during written discovery, which Korbel characterizes as baseless. (Korbel's Mem. in Supp. at 34). Rule 37(a)(5)(A)provides that if a motion to compel is granted, or “if the disclosure or requested discovery is provided after the motion was filed” the court must require “the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” A court, however, must not order such payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A). If a motion to compel is granted in part and denied in part, a court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).
*9 Similarly, Defendants seek attorney fees and cost associated with their Motion for Protective Order pursuant to Rule 26(c)(3), which permits an award of expenses associated with a motion for protective order in a manner consistent with Rule 37(a)(5). See Fed. R. Civ. P. 26(c)(3) (“Rule 37(a)(5) applies to the award of expenses.”); (Defs.' Mem. of Law in Supp. of Defs.' Mot. for Protective Order, “Defs.' Mem. in Supp.”) [Doc. No. 26 at 38].[15]
b. Analysis
The Court declines to award costs and fees under Rule 37 to either party for the expenses incurred in bringing and/or defending the Motion to Compel and Motion for Protective Order.
Korbel seeks attorney fees and costs associated with her Motion to Compel. But Korbel brought her Motion to Compel after Defendants filed their Motion for Protective Order, and, as conceded by Korbel, the Motion to Compel and Motion for Protective Order address the same categories of disputed discovery. (Pl.'s Mem. in Opp'n to Defs.' Mot. for Protective Order) [Doc. No. 38 at 1] (noting that the Motion for Protective Order is “essentially the counterpart” to the Motion to Compel). Thus, rather than defending her discovery requests and asking the Court to compel discovery in responding to the Motion for Protective Order, Korbel filed a separate motion, resulting in voluminous briefing that was largely duplicative of the briefing on the Motion for Protective Order. See Fed. R. Civ. P. 26(c)(2) (noting that “[i]f a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party ... provide or permit discovery”). The Court is not inclined to impose on the opposing party fees and costs associated with motion practice that resulted in redundancies for both the parties and the Court.
*10 Also, after the Court instructed the parties to continue their efforts to meet and confer, Korbel narrowed some aspects of her discovery requests and Defendants agreed to produce additional materials, undermining, to some extent, both parties' positions that they are entitled to fees and costs under Rule 37. See generally (Joint Status Report); Rule 37(a)(5). And, as outlined below, the Court grants in part and denies in part both the Motion to Compel and the Motion for Protective Order. Where, as here, the parties have vigorously debated the merits of the disputed discovery requests in a competing motion to compel and motion for protective order and the Court both compels and limits discovery, the Court concludes that the only fair outcome is that the parties bear their own fees and costs.[16]
2. Instruction Not to Answer and Objections During Depositions
a. Legal Standard
Under Rule 30(d)(2), a “court may impose an appropriate sanction—including reasonable expenses and attorney's fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” Courts have broad discretion in imposing and fashioning sanctions under Rule 30(d)(2). See Craig v. St. Anthony's Medical Center, 384 F. App'x 531, 533 (8th Cir. 2010) (reviewing imposition of sanctions under Rule 30(d)(2) for an abuse of discretion); Glick v. Malloy, No. CV 11-168-M-DWM-JCL, 2013 WL 140100, at *2 (D. Mont. 2013) (“The full scope of sanctions available under Rule 30(d)(2) is not expressly described in the text of the rule.”).
b. Analysis
As noted, Korbel contends that she is entitled to sanctions under Rule 30(d)(2) for defense counsel's instruction to a witness not to answer during a deposition and for “baseless objections” during depositions. (Korbel's Mem. in Supp. at 34–41). Korbel seeks attorney fees associated with the cost of bringing her Motion to Compel, costs incurred in the various depositions, and an order prohibiting baseless objections in any future depositions. (Id.at 40–41).
With regard to defense counsel's instruction of a witness not to answer, Korbel specifically contends that defense counsel improperly instructed Stieg not to answer a questions during Stieg's personal capacity deposition, which followed Stieg's Rule 30(b)(6) deposition. (Id. at 34–36). During the deposition, Korbel's counsel asked Stieg: “Did you personally make any effort to find out whether Miss Borjon's caller ID was ever checked ... to determine if a call was made from Kathleen Korbel?” (Korbel's Mem. in Supp. at 34) (quoting Stieg 30(b)(6) Dep. at 51). Defense counsel objected, stating that Korbel's counsel had “already asked her about the investigation that she did with respect to Kathleen Korbel. This is an area you've already questioned [Stieg] about.” (Id.). After an exchange between counsel about whether this particular question and/or questions regarding the investigation of Korbel had in fact been asked of Stieg or whether the questioning was based on new information, defense counsel instructed Stieg not to answer on the ground that Stieg had “already answered questions with respect to the investigation” of Korbel. (Id. at 34–35).
Defense counsel's instruction to Stieg not to answer was in violation of Rule 30(c)(2). Rule 30(c)(2) provides that a “person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3),” in which a party may move the court for a protective order limiting or terminating a deposition on the grounds that the deposition is “being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(c)(2)(emphasis added); Fed. R. Civ. P. 30(d)(3).
*11 Defense counsel did not rely on any of the reasons articulated in Rule 30(c)(2) when instructing Stieg not to answer during the deposition and does not now contend that the instruction not to answer was based on any such reason. See (Defs.' Resp. Mem. in Opp'n at 28–29). Instead, defense counsel asserts that the instruction not to answer was appropriate because “Korbel's counsel's line of questioning ... was improper and unreasonably cumulative” in light of prior questioning of Stieg during her Rule 30(b)(6)deposition and contends that the questioning at issue was akin to the re-opening of a deposition. Id.
To the extent defense counsel contends that the questioning was analogous to the re-opening of Stieg's 30(b)(6) deposition, defense counsel ignores the distinction between a Rule 30(b)(6) deposition, which is a deposition of a corporate entity through its designated representative, and the deposition of an individual employee. See Bertrang v. Wisconsin Cent. Ltd., 301 F.R.D. 364, 368 (D. Minn. 2014) (SRN/JJG) (rejecting defendant's argument that information requested in 30(b)(6) deposition was “duplicative because other witnesses ha[d] testified” on the topic because Rule 30(b)(6) witnesses bind the corporation while fact witnesses do not).
Moreover, even if defense counsel's analogy was persuasive, the remedy would not be to instruct Stieg not to answer, unless defense counsel sought to obtain a protective order under Rule 30(d)(3). And while defense counsel's protestations that the questioning was “improper and unreasonably cumulative” reflect issues that are arguably similar to issues that may be the basis for a motion for a protective order under Rule 30(d)(3), defense counsel has never contended that her instruction to Stieg not to answer was made in order to present a Rule 30(d)(3) motion to the Court, nor does the record reflect that such a motion was ever made. See McDonough v. Keniston, 188 F.R.D. 22, 24 (D.N.H. 1998) (“The remedy for oppressive, annoying and improper deposition questioning is not to simply instruct the deponent not to answer, but rather, it also requires suspending the deposition and filing a motion under Rule 30(d)(3).”). As result, defense counsel's instruction to Stieg not to answer was improper.
The Court concludes that the instruction not to answer was improper but declines to impose the monetary sanctions sought by Korbel. Rather, the Court concludes that the appropriate sanction is that Korbel be permitted to re-open Stieg's deposition for the limited purpose of pursuing the line of questioning that was improperly cut off—that is, questioning regarding whether Stieg personally took steps to determine if Borjon's caller ID was examined to determine if Borjon received a call from Korbel. This limited additional deposition shall be conducted at Defendants' expense.
With regard to the frequent use of “baseless” objections, Korbel contends that such objections were made in an effort to coach witnesses and resulted in the obstruction of her efforts to obtain information during the depositions. (Korbel's Mem. in Supp. at 36–41). The Court has reviewed the transcripts of the depositions in which the complained-of behavior occurred. While the Court finds counsel's conduct in defending the depositions less than ideal and finds some of counsel's objections unwarranted and perhaps improper, the Court declines to impose sanctions in this instance for several reasons.
Although Korbel contends that witnesses “appeared to take their cue” from defense counsel's objections and “repeated words to the effect ‘yeah I'd have to speculate’ or some such variation on counsel's objection,” (Korbel's Mem. in Supp. at 40), the Court's review of the relevant transcripts reveals that, more commonly, witnesses ultimately answered the question posed by Korbel's counsel without regard to defense counsel's objections. See, e.g., (Dep. of Diane Stieg, Ex. C, Attached to Warner Aff., “Stieg Dep. II”) [Doc. No. 33-1 at 49–55]. In addition, witnesses typically answered Korbel's counsel's questions without prolonged discussion or disagreement between counsel. See, e.g., (id.). On these grounds, many of the cases cited by Korbel in support of her request for sanctions for deposition-related misconduct are distinguishable. McDonough, 188 F.R.D. at 24 (involving plaintiff's counsel's explicit statements of answers to deposition questions, which were then repeated by the witness and which ultimately led defense counsel to suspend the deposition); see also Mezu v. Morgan State Univ., 269 F.R.D. 565, 584, 586 (D. Md. 2010) (concluding that counsel's objections, combined with the “length of ensuing discussions” between counsel impeded and frustrated deposition, but declining to impose sanctions because both parties and counsel were at fault).
*12 In addition, Korbel has cited no case in which the court imposed as a sanction attorney fees and costs incurred in the depositions, as requested by Korbel. Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 609–10 (N.D. Iowa 2014) (imposing non-monetary sanction of producing and distributing deposition training video); McDonough, 188 F.R.D. at 25–26 (ordering continued deposition with possibility of sanctions of costs and fees following continued deposition). Indeed, Korbel's requests for only monetary sanctions, rather than a re-opening of any deposition, undermines her assertion that defense counsel's objections truly and meaningfully frustrated the fair examination of the deponents and obstructed her ability to obtain evidence.
3. Rule 30(b)(6) Deponent and Spoliation
Korbel also seeks sanctions for spoliation of evidence for the alleged destruction of “call logs, voicemails[,] or emails,” which Korbel contends were destroyed despite the fact that she provided Defendants with a preservation notice before the initiation of this lawsuit. (Korbel's Mem. in Supp. at 28–33). Korbel's motion for spoliation sanctions appears to have been motivated by the deposition testimony of Peter Foster (“Foster”), who testified as a Rule 30(b)(6) witness regarding Defendants' voicemail system. (Dep. of Peter Foster, Ex. E, Attached to Warner Aff., “Foster Dep.”) [Doc. No. 33-2]. Issues related to Foster's deposition testimony are intertwined with Korbel's arguments in support of her Motion to Compel, in which she seeks an order compelling an additional Rule 30(b)(6) deposition, as well as her arguments in support of sanctions for spoliation. (Korbel's Mem. in Supp. at 7–14, 30). The Court therefore addresses all of these issues together and begins with a discussion of the particular factual and procedural background related to these aspects of Korbel's Motion to Compel and Motion for Sanctions.
a. Background
On January 2, 2014, Korbel served Defendants with her first requests for production of documents, in which she sought “all voicemails and telephone messages left by [Korbel] at any time during her employment with” Defendants. (Defs' Mem. in Supp. at 14) (internal quotation marks omitted). Defendants responded that they “did not possess any documents responsive to” the request. (Id.).
On June 26, 2014, Korbel took Foster's Rule 30(b)(6) deposition. (Foster Dep. at 32). Foster is the administrator of the voicemail system at Texas Terrace. (Id. at 35). Defendants designated Foster as a Rule 30(b)(6)representative to testify regarding “the voicemail system in place at the Texas Terrace facility at issue in this case as of June of 2013, and all efforts to recover voicemails off of this system in response to [Korbel's] discovery request, including date and time, methodology of every search and results obtained.” (Foster Dep. at 32).
Foster testified regarding the functioning of the voicemail system and the process through which an employee at Texas Terrace receives a voicemail. (Id. at 35–37). Specifically, Foster testified that if an individual called Texas Terrace, was transferred to an employee's extension, and the employee did not answer the call, the system would “connect the audio stream bridge” to provide the caller with a voicemail greeting. (Id. at 36–37). The caller would thereafter have the option to “leave a message after the tone and then to press pound for more options.” (Id. at 37). In the event the caller leaves a voicemail, the voicemail system is “directly tied with the email ... system, and it will open an email and stream the audio directly to the email, so the voice message is then stored in the email system. The voicemail system itself does not store any voice messages.” (Id. at 37). According to Foster, the voicemail system “keeps a log every time a voice message is sent to the email system,” but the voicemail system “does not store any voice messages.” (Id. at 39, 40). Foster did not know whether the email system keeps a log of the emails that have been sent to Texas Terrace employees or a log of whether such emails have been read or remain unread. (Id. at 40).
*13 Foster further testified about the storage of voicemails as part of the email system, but was unable to answer several questions. Foster testified that the email system would be stored on a hard drive from which voicemail audio files could be deleted, but did not know if deletion of such a file from the hard drive meant that the space occupied by the voicemail data was merely “referenced differently” or if it meant that it was “literally overwritten by new data.” (Id. at 40–41); see also (id. at 41) (“I do not know the retention policies of our email system.”).
Foster also testified regarding preservation and search efforts in this case. First, Foster testified that a field engineer named Thomas Dobbs (“Dobbs”), who had access to the email system, performed a search on June 12, 2014, to determine if an email containing a voicemail from Korbel was sent to Borjon on June 2, 2013. (Id. at 38). Foster did not ask Dobbs if he had performed any other searches prior to that time, but Dobbs told Foster that it was first search he had performed. (Id.). Foster testified that Dobbs “found no voice messages in ... Borjon's mailbox on June 2, 2013.” (Id.). Foster did not know if anyone had searched Defendants' backup system to locate call logs or to determine if Korbel left a voicemail for Borjon. (Id. at 41, 42). Foster stated that he is “not in charge of the backup system,” that he did not know if the backup system could contain a voicemail audio file, and that he did not investigate the possibility that voicemails are stored on the backup system in preparation for his deposition. (Id. at 41). Finally, Foster testified that he had not seen a spoliation notice sent by Korbel to Defendants on August 5, 2013. (Id. at 41–42).
Following Foster's deposition, Korbel served document requests seeking a broad range of documentation regarding calls that were received, answered, or sent to voicemail at Texas Terrace on June 2, 2013, between the hours of 11:00 a.m. and 1:00 pm. (Defs.' Mem. in Supp. at 16). Korbel also served an amended Rule 30(b)(6) deposition notice, seeking testimony regarding:
The email and computer systems in place at the Texas Terrace Facility at issue in this case on June 2, 2013, including those managed by Virtual Care Provider, Inc. on behalf of Texas Terrace, all efforts to search these systems for electronically stored information in response to Plaintiff's Interrogatories and Requests for Production of Documents, all efforts to search for and locate any voicemail left for Angela Borjon on June 2, 2013, all efforts to search for and locate any WAV files containing voicemails left for Angela Borjon on June 2, 2013, and all logs or other records of email and WAV files sent to Angela Borjon on June 2, 2013. This deposition notice includes testimony concerning the date and time of all searches conducted to respond to Plaintiff's discovery, the date and time that any litigation hold was placed upon the destruction of emails and WAV files concerning the subject matter of this litigation, the methodology of each search, the computers searched, the search terms utilized, and results obtained.
(Id. at 17) (quotation marks omitted). In response to Korbel's document requests, Defendants explained that they had “pulled, restored and reviewed a backup tape for the period of time in question that contains a copy of all Borjon's emails.” (Id. at 17–18) (footnote omitted). Defendants explained the extent of their search, including the search of deleted and recoverable items in Borjon's email and stated that there is no voicemail from Korbel in Borjon's email. (Id. at 18–19). Defendants, therefore, asked Korbel to withdraw her amended Rule 30(b)(6) deposition notice because the information in response to her document requests “fully addressed all concerns Korbel's counsel raised regarding the alleged voicemail.” (Id. at 19). Korbel has not withdrawn the notice and, through her Motion to Compel and Motion for Sanctions, seeks the additional Rule 30(b)(6) deposition and sanctions for spoliation of evidence. See (id. at 19); (Korbel's Mem. in Supp. at 7–14, 28–32).
*14 Korbel contends that Foster was unprepared and that as result she is entitled to an additional Rule 30(b)(6) deposition regarding Defendants' email system and unspecified sanctions. (Korbel's Mem. in Supp. at 11–14, 30–31). Korbel also contends that because Defendants have had to “search[ ] a backup file,” Foster “was not asked to preserve evidence,” and no search for voicemails was conducted until June of 2014, she has demonstrated that Defendants “failed to issue a litigation hold and preserve evidence.” (Id. at 30). Korbel argues that she is therefore entitled to a finding of spoliation and an adverse inference instruction. (Id. at 30–32).
In response, Defendants contend that Foster was properly prepared to answer questions within the topics identified in the Rule 30(b)(6) notice regarding the voicemail system. (Defs.' Resp. Mem. in Opp'n at 25–26). Defendants also contend that they have demonstrated that they did not spoliate evidence. (Id.). Specifically, Defendants argue that the “back-up copy of Borjon's email account represents a contemporaneous copy of Borjon's email data as it existed on June 8, 2013, two months before Korbel served her preservation of evidence letter on August 5, 2013.” (Id. at 25). Therefore, Defendants contend that there “was no relevant voicemail message to preserve in response to Korbel's preservation demand dated August 5, 2013, or otherwise, and any claim of ‘spoliation’ is baseless.” (Id.). Defendants also contend that to the extent Korbel seeks a call log from the voicemail system, that call log “only showed the date, time, and caller identification (if available) of a phone call” and that this log “was automatically overwritten every 60 days in the normal course of business.” (Id. at 14). As a result, Defendants contend, when Korbel sent her spoliation notice on August 5, 2013, the log data for June 2, 2013, no longer existed. (Id.).
b. Legal Standard
Under Federal Rule of Civil Procedure 30(b)(6), a party may, in its notice of deposition, “name as the deponent a public or private corporation ... or other entity and must describe with reasonable particularity the matters for examination.” The named entity must then designate individuals “who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Id. “The persons designated must testify about information known or reasonably available to the organization.” Id. A requesting party must specify “the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000) (JRM/RLE). “Correlatively, the responding party must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the interrogator] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed by [the interrogator] as to the relevant subject matters.” Id. (alteration in original) (internal quotation marks omitted). A responding party must produce the number of persons that will satisfy the request and must “prepare them so that they may give complete, knowledgeable, and binding answers.” Id.(internal quotation marks omitted); see also United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) (“If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.”).
c. Analysis
*15 The Court first addresses whether Foster was unprepared to testify as a Rule 30(b)(6) deponent. “Since the Defendants have not asserted that [Korbel] did not reasonably particularize the subjects about which [she] wished to inquire, the Defendants were obligated to produce, in good faith, a knowledgeable deponent who was competently prepared to fully and responsibly address the questions posed by [Korbel].” Dwelly v. Yamaha Motor Corp., 214 F.R.D. 537, 540 (D. Minn. 2003) (DWF/RLE).
The Court concludes that Foster was not competently prepared to fully and responsibly answer the questions posed by Korbel. As outlined above, Foster had very limited knowledge of the searches performed regarding the alleged voicemail and was unable to provide substantive answers to several of Korbel's questions, including questions regarding the existence of logs that might document emails containing voicemails that have been sent to Texas Terrace employees and whether a search of backup tapes had been conducted in order to locate the alleged voicemail left by Korbel.[17] It is clear that Defendants attempted resolve the uncertainties Foster's deposition raised through subsequent searches as outlined in their responses to requests for production of documents and in their briefing to the Court, but the Court finds that these efforts are an inadequate substitute for a fully prepared Rule 30(b)(6) deponent.
The Court, however, declines to consider whether the additional deposition is warranted as a sanction for Defendants' failure to provide a fully prepared deponent. Instead, the Court concludes that in seeking the additional Rule 30(b)(6) deposition, Korbel seeks discoverable information and that the deposition is warranted based on Korbel's arguments related to her Motion to Compel. See (Korbel's Mem. in Supp. at 7–14).
Defendants' primary objection to the additional Rule 30(b)(6) deposition in support of their Motion for Protective Order is their contention that the deposition seeks inappropriate “discovery about discovery.” (Defs.' Mem. in Supp. at 21–25). The Court finds this argument unpersuasive.[18]Defendants cite several cases in which discovery regarding previous discovery and preservation efforts have been denied as irrelevant, but these cases do not stand for the proposition that this type of discovery is never permissible. See (Defs.' Mem. in Supp. at 21–25). Instead, these cases indicate that discovery regarding such topics is warranted only when there is some “colorable factual basis” for such discovery. Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S, 2011 WL 1549450, at *6 (W.D.N.Y. Apr. 21, 2011); see also Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) (“Instead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed.”); In re Honeywell Int'l, Inc. Sec. Litig., 230 F.R.D. 293, 302 (S.D.N.Y. 2003) (denying motion to compel production of documents related to document retention policies and preservation and collection efforts where plaintiffs lacked “a concrete basis for th[e] request”); Orillaneda v. French Culinary Inst., No. 07 Civ. 3206, 2011 WL 4375365, at *7 (S.D.N.Y. Sept. 19, 2011) (“[A] plaintiff is not entitled to conduct discovery that is solely relevant to the sufficiency of the adversary's document production without first identifying facts suggesting that the production is deficient.”).
*16 Here, given Korbel's phone records showing calls to Texas Terrace on June 2, 2013, the uncertainties raised by Foster's deposition, and the fact that it appears that no search of Borjon's email was conducted until June of 2014 despite discovery requests propounded by Korbel that would seem to require such a search, the Court concludes that the additional Rule 30(b)(6)deposition, as limited by the Court below, is appropriate in this case.
The Court therefore concludes that Korbel is entitled to a Rule 30(b)(6)deposition addressing the following: The email and computer systems in place at Texas Terrace on June 2, 2013, including those managed by other entities on behalf of Texas Terrace, all efforts to search for and locate any voicemail left for Borjon on June 2, 2013, all efforts to search for and locate any WAV files containing voicemails left for Borjon on June 2, 2013, and all efforts to search for logs or other records of email and WAV files sent to Borjon on June 2, 2013. Korbel may inquire about the date and time of all relevant searches, the date and time that any litigation hold was placed upon the destruction of emails and WAV files concerning any voicemail received by Borjon on June 2, 2013, the methodology of the relevant searches, the computers searched, the search terms utilized, and results obtained. However, because the existence of, preservation of, and searches for the voicemail Korbel alleges she left for Borjon on June 2, 2013, and related logs and records are the matters that are in dispute and that Foster could not fully address, the Court declines to permit an inquiry into allefforts to search Texas Terrace's email and computer systems for electronically stored information in response to all of Korbel's interrogatories and requests for production, as sought by Korbel. See (Pl.'s Second Am. Notice of Taking Dep. Pursuant to Rule 30(b)(6), Ex. O, Attached to Aff. of Sarah Goraksji) [Doc. No. 27-1 at 98].
Finally, although the Court concludes that Foster's testimony raises issues warranting additional discovery, in light of Foster's inability to answer certain questions Korbel raised and the developments since Foster's deposition, the Court cannot determine whether spoliation occurred. A court may order sanctions for spoliation “when a party (1) destroys (2) discoverable material (3) which the party knew or should have known (4) was relevant to pending, imminent, or reasonably foreseeable litigation.” Lexis–Nexis v. Beer, 41 F. Supp. 2d 950, 954 (D. Minn. 1999) (DSD/JMM) (citation omitted). Nevertheless, the Court has an incomplete picture of Defendants' efforts to search and preserve evidence and is without any deposition testimony that supports Defendants assertions in their briefing and discovery responses about the completeness of their backup tapes and the import of their search of such tapes, all of which bear on the question of spoliation.
In this case, without the testimony of a Rule 30(b)(6) deponent that is fully prepared to answer questions regarding Defendants' email system and related preservations efforts and searches, the Court cannot engage in an informed spoliation analysis. Given the potential significance, for both parties, of a finding of spoliation, the Court declines to speculate regarding these issues when it is clear that the deposition of a qualified witness would considerably inform the Court's analysis. Korbel seems to acknowledge as much, noting that “[a] deposition of [Defendants'] email system witness will, among other things, get to the bottom of whether an immediate litigation hold would have preserved call log data, emails and .wav files on the hard drive from being overwritten” and that such a deposition “will clear up many unanswered questions concerning the loss of the voicemail and call log, the completeness of content of the backup tape for the date in question, the search conducted on the mainframe and the backup tape, and the search, if any, for emails responsive to [Korbel's] requests for emails.” (Korbel's Mem. in Supp. at 16); (Korbel's Mem. in Opp'n at 10). The Court, therefore, denies without prejudice Korbel's Motion for Sanctions to the extent she seeks spoliation sanctions.
*17 Before moving on from the parties' various requests for sanctions and attorney fees and costs, the Court finds it necessary to make several observations. In this Order, the court addresses four separate motions, within which at least six separate requests for sanctions or for fees and costs have been made. With the exception of the instruction not to answer in a deposition, and this Court's determination that the deposition will be resumed at the infringing party's cost, no sanctions or fees have been awarded.
The numerous requests for sanctions, fees, and costs reflect the fact that this case has become dishearteningly acrimonious—and the Court will note—started out at the initial pretrial scheduling conference in that way. Since the beginning of this case, the parties' filings have become increasingly accusatory and counsel for both parties appear to have resorted to assuming bad faith on the part of opposing counsel, rather than approaching the other with the professionalism required to effectively litigate this matter. Counsel serve as zealous advocates, but within certain well-defined guidelines. The Court encourages counsel for both parties to be mindful of these guidelines as this litigation proceeds.
C. Defendants' Motion for Protective Order and Korbel's Motion to Compel
1. Legal Standard
The Federal Rules of Civil Procedure permit “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things.” Fed. R. Civ. P. 26(b)(1). Parties may request that they be allowed entry onto “designated land or other property possessed or controlled by the responding party” in order to inspect and photograph the designated land or property. Fed. R. Civ. P. 34(a)(2). Courts have broad discretion to decide discovery motions. Pavlik v. Cargill, Inc., 9 F.3d 710, 714 (8th Cir. 1993). If the discovery sought would unduly burden the responding party, a court must limit the extent of discovery. See Fed. R. Civ. P. 26(b)(2)(C).
2. Analysis
In her Motion to Compel, Korbel seeks discovery from Defendants in a number of forms and on a number of issues. See generally (Korbel's Mem. in Supp. at 6–28). As noted previously, Korbel's Motion to Compel is, in essence, a response to Defendants' Motion for Protective Order in that Korbel seeks to compel the discovery from which Defendants seek protection. See generally (id.); (Mot. for Protective Order). Considering the standards governing discovery set out in Rule 26, the Court will address each of the discovery requests at issue in the Motion to Compel and Motion for Protective Order.
a. Korbel's Request for Production Set 1, Number 17 and Request for Production Set 5, Number 1
In Korbel's Request for Production Set 1, Number 17, Korbel seeks production of “all voicemails and telephone messages left by [Korbel] at any time during her employment” with Defendants. (Joint Status Report at 1). In her Request for Production Set 5, Number 1, Korbel seeks:
Concerning the date June 2, 2013, ... all documents (including documents routed to Virtual Care Provider, Inc.) that show incoming calls to Texas Terrace Care Center that were received, answered or that were sent to voicemail between the hours of 11:00 a.m. and 1:00 p.m. CST, including all call logs showing any manner of caller identification for each call, the identification of the caller, the time of the call, the extension each call was transferred to, a list showing to whom each extension for whom calls were received belonged, documentation of whether a wave [sic] file was created for voicemail from the call, documentation showing whether an email was sent to the person for whom the voicemail was intended, whether that email contained a wave [sic] file for the voicemail, a copy of each email sent concerning the call with a copy of the wave [sic] file itself containing the voicemail, documentation of whether and when the email with the wave [sic] file was opened, and documentation of when the voicemail itself was opened.
To the extent Korbel seeks, in either request, production of voicemails, telephone messages, emails, call logs, documents regarding voicemails, telephone messages, emails, call logs, and other voicemail or email documentation that relate to or reflect phone calls or voicemails from Korbel and that were directed to Borjon on June 2, 2013, between 11:40 a.m. and 12:10 p.m., Korbel's Motion to Compel is granted and Defendants Motion for Protective Order is denied. This information is relevant to Korbel's contention that she timely reported the suspected abuse by leaving a voicemail for Borjon. See Fed. R. Civ. P. 26(b)(1).
To the extent Korbel, seeks, in either request, voicemails, telephone messages, emails, call logs, documents regarding voicemails, telephone messages, emails, call logs, or other voicemail or email documentation that is neither related to nor reflective of phone calls or voicemails from Korbel and that were directed to Borjon on June 2, 2013, between 11:40 a.m. and 12:10 p.m., Korbel's Motion to Compel is denied and Defendants Motion for Protective Order is granted. At the hearing on the parties' motions, Korbel contended that information beyond calls directed to Borjon is relevant on the theory that if no voicemail from Korbel was ever contained in Borjon's email, the voicemail may have inadvertently been left for another individual at Texas Terrace. But Korbel's own deposition testimony belies this assertion, as Korbel testified that the voicemail message she heard on June 2, 2013, said “Hi. This is Angie,” or “[s]omething of that nature,” so Korbel “knew it was the proper place to leave the message.” (Dep. of Kathleen Korbel, Ex. A, Attached to Warner Aff.) [Doc. No 33-1 at 12]. Korbel is therefore not entitled to discovery of all voicemails, emails, and related documentation sent or created during the relevant time period.
The Court notes that Defendants continue to assert that they have provided Korbel all documents responsive to these requests and that Korbel continues to challenge this assertion, due in large part to the questions raised by Foster's deposition testimony. See supra; see also (Joint Status Report at 1, 14). The Court anticipates that disagreement on these issues will be resolved by the testimony of the Rule 30(b)(6) deponent designated to testify regarding Defendants' email and computer systems.
b. Korbel's Request for Production Set 2, Number 2
In Korbel's Request for Production Set 2, Number 2, Korbel seeks “the complete personnel files” of Samantha Hill, Stieg, Tara Watson, Darla Taufig, Josephine Twaha, and Borjon. (Joint Status Report at 3). After negotiations regarding this request, Korbel indicates that the only items still at issue related to this request are performance evaluations, which she seeks in order to determine whether employees have been “placed under pressure to avoid abuse or neglect allegations.” (Id.). Defendants contend that they have already provided all relevant information and represent that there “is no information in the personnel file[s] relating to disciplinary notices, performance evaluations relating to the reporting of abuse and neglect allegations, or other information indicating any ‘pressure to avoid abuse or neglect allegations.’ ” (Id.); see also (Defs.' Mem. in Supp. at 25–28). Defendants also contend that Korbel has not made “any compelling showing that additional personnel records are relevant to Korbel's termination or claims to justify intruding upon ... non-parties' privacy interests.” (Defs.' Mem. in Supp. at 28).
*19 “[T]he proper balance, between the privacy interests of non-party third persons, and the discovery interests of a party litigant, is to assure that only those portions of the pertinent personnel files, which are clearly relevant to the parties' claims, are open to disclosure and, then, subject to an appropriate Confidentiality Order as the circumstances require.” Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997) (JRT/RLE). The Court concludes that performance evaluations or disciplinary documentation related in any way to abuse and neglect allegations and within the personnel files of the designated individuals is clearly relevant to Korbel's claims and that such information, disclosed in a manner consistent with the protective order in this case, is the proper subject of discovery. See (Order Dated Jan. 22, 2014, “Protective Order”) [Doc. No. 10]. To the extent Defendants have withheld performance evaluations or disciplinary documentation related to abuse and neglect allegations and within the personnel files of the designated individuals on confidentiality grounds, their Motion for Protective Order is denied and Korbel's Motion to Compel is granted. To the extent Defendants have already provided all of the relevant documentation, Korbel's Motion to Compel is denied as moot.
c. Korbel's Request for Production Set 2, Number 4
In Korbel's Request for Production Set 2, Number 4, Korbel seeks production of “the time records for June 2, 2013, for all persons whose job entailed in whole or in part answering the telephone” line at Texas Terrace that Korbel called on “June 2, 2013, at any time between the hours of 11:00 a.m. and 12:00 p.m.” (Joint Status Report at 6). Korbel contends that this information is discoverable because the time records will “substantiate” the fact that an individual worked on the day Korbel called Texas Terrace and during the relevant time period. (Id.). This information, Korbel contends, will show when employees took breaks and will help her “track down” who answered her calls to Texas Terrace on June 2, 2013. (Id.); (Korbel's Mem. in Supp. at 18).
Defendants contend that they have already identified the twenty-two individuals working at Texas Terrace during the relevant time period and that employee time records will not yield any additional relevant information. (Joint Status Report at 6). Specifically, Defendants contend that the time records will not make Korbel's “allegations regarding a voicemail more or less likely to be true because as of June 2 and 3, 2013, ... Borjon's email account did not contain any voicemail from” Korbel. (Id.).
As discussed above at length, despite Defendants' searches that have failed to reveal any voicemail from Korbel, Korbel still contends that she left a voicemail for Borjon on June 2, 2013, and has cell phone records that support her contention. See supra. While Defendants assert that the factual question of whether Korbel left a voicemail for Borjon has been resolved “conclusively” in their favor and have relied on this view to avoid discovery on relevancy grounds, their position ignores the factual disputes related to preservation and collection efforts discussed above. See (Defs.' Mem. in Supp. at 30); (Joint Status Report at 6). Moreover, that the time records for employees who may have answered Korbel's call do not prove, by themselves, that Korbel left a voicemail for Borjon regarding the suspected abuse on June 2, 2013, does not mean that the time records are irrelevant to Korbel's claims. In light of Korbel's contentions, the time records of Texas Terrace employees working on June 2, 2013, and whose job duties included answering the Texas Terrace telephone line called by Korbel, will assist Korbel in determining which employee may have taken her calls on June 2, 2013, and identifying the individual that took her call will allow Korbel to support her contention that she timely reported the suspected abuse by leaving a voicemail for Borjon on that day. Indeed, Defendants have articulated the relevancy of this information, noting that “[t]he person who allegedly answered the phone may have knowledge regarding whether that person attempted to transfer Korbel to Borjon's voicemail.” (Defs.' Mem. in Supp. at 30 n.16). Therefore, with regard to Korbel's Request for Production Set 2, Number 4, Korbel's Motion to Compel is granted and Defendants' Motion for Protective Order is denied.
d. Korbel's Interrogatories Set 2, Numbers 1–2
*20 In Interrogatory Set 2, Number 1, Korbel seeks the names, positions, dates of employment, last known home addresses, and last known home and cell phone numbers of any person “who received a call or calls from [Korbel] on June 2, 2013, at approximately 11:49 a.m. and 11:53 a.m.” (Joint Status Report at 4). Similarly, in Interrogatory Set 2, Number 2, Korbel seeks the “name(s), position, dates of employment, last known home address, and last known home and cell phone ... numbers of the person or persons who had any responsibility for receiving phone calls” at Texas Terrace on June 2, 2013. (Id. at 5). Korbel has agreed to limit the scope of this request to apply only to the time frame of June 2, 2013, from 11:20 a.m. and 12:10 p.m. (Id.).
Defendants object to these requests on the grounds that they are overbroad, seek confidential information regarding third parties, and seek irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. (Id. at 4–5). Defendants contend in part that the information is not relevant because Korbel claims that the only person for whom she left a voicemail on June 2, 2013, was Borjon and because Korbel testified in her deposition that she did not describe the suspected abuse to the individual that answered her calls to Texas Terrace on June 2, 2013. See (id. at 4). Therefore, according to Defendants, none of the individuals for whom the requested information is sought “have personal knowledge regarding whether [Korbel] reported mistreatment of a resident.” (Id.).
Defendants' arguments with regard to Interrogatories Set 2, Numbers 1–2 are fundamentally the same as those raised by Defendants regarding Korbel's Request for Production Set 2, Number 4, and, for the reasons explained above, are without merit. To the extent Defendants object on the grounds that these requests require the disclosure of confidential employee information, the Defendants' concerns are addressed by the Protective Order that is already in place and that was agreed to by the parties. See(Protective Order). Therefore, with regard to Korbel's Interrogatories Set 2, Numbers 1–2, Korbel's Motion to Compel is granted and Defendants' Motion for Protective Order is denied.
e. Korbel's Request for Production Set 3, Numbers 1–6
In Request for Production Set 3, Numbers 1–6, Korbel seeks financial information related to, and admittedly contingent upon, the outcome of her Motion to Amend in which Korbel seeks to add a claim for punitive damages. (Joint Status Report at 6–8); see also (Korbel's Mem. in Supp. at 27) (stating that Request for Production, Set 3, Numbers 1–6 are to be answered “only ... if the Court allowed an amendment to allege punitive damages”). Because the Court denies Korbel's Motion to Amend, Korbel's Motion to Compel and Defendants' Motion for Protective Order, as they relate to Request for Production, Set 3, Numbers 1–6 are denied as moot.
f. Korbel's Request for Production Set 4, Number 1
In Request for Production Set 4, Number 1, Korbel seeks “documents received or obtained from any federal or state agency ... for the period of January 1, 2010 to the present which state the Nursing Home Compare Ratings for Texas Terrace.” (Joint Status Report at 9). After engaging in continued negotiations, the parties have resolved their disputes related to this request. (Id.). Korbel's Motion to Compel and Defendants' Motion for Protective Order are therefore denied as moot as they relate to Request for Production Set 4, Number 1.
g. Korbel's Request for Production Set 4, Number 2
In Request for Production Set 4, Number 2, Korbel seeks the production of “all documents received from any federal or state agency ... for the period January 1, 2010, to the present date, which state a finding of immediate jeopardy for Texas Terrace ... or Richfield Care Center.” (Joint Status Report at 9). Korbel's request for information related to Richfield Care Center is based on the fact that Stieg previously worked as Director of Nursing at Richfield Care Center, during which time Richfield Care Center “was subject to a finding of immediate jeopardy.” (Korbel's Mem. in Supp. at 21) (citing Stieg Dep. II at 49–50). Korbel has agreed to limit her request to documents regarding Richfield Care Center to “matters involving ... Stieg.” (Joint Status Report at 9). Korbel contends that the information in Request for Production Set 4, Number 2 is relevant to her claims because she seeks to discover any financial incentives that may motivate Defendants to fire individuals who report abuse or neglect. (Korbel's Mem. in Supp. at 21). That is, Korbel seeks information related to findings of immediate jeopardy to show that Stieg, the decision-maker in this case, has previously had reason to squelch reports of abuse and neglect. See (id.) Korbel seeks to use this evidence to demonstrate that Stieg's firing of Korbel was similarly motivated by Stieg's desire to squelch reports in order to avoid negative findings for her place of employment that may ultimately impact Stieg's own compensation or employment. See (id. at 21–22). Under this theory, Korbel contends that findings of immediate jeopardy at both Texas Terrace and Richfield Care Center are relevant to Korbel's claims. See (id.).
*21 Defendants have agreed to produce documents that identify findings of immediate jeopardy for Texas Terrace from January 1, 2010, through the date of Korbel's termination. (Joint Status Report at 9). To the extent Korbel seeks the production of these documents and to the extent Defendants seek a protective order preventing the disclosure of such documents, the Motion to Compel and Motion for Protective Order are denied as moot. Defendants continue to object to this request for production to the extent Korbel seeks findings of immediate jeopardy related at Richfield Care Center. See (id.).
While the Court questions whether Korbel's “squelching” theory will ultimately be persuasive at trial, particularly as it relates to Stieg's conduct at Richfield Care Center, the Court finds that documents identifying findings of immediate jeopardy at Richfield Care Center during Stieg's term of employment as Director of Nursing are relevant for the purposes of discovery. See Doverspike v. Chang O'Hara's Bistro, Inc., Civil Nos. 03–5601 ADM/AJB, 03–6549 RHK/AJB, 2004 WL 5852443, at *2 (D. Minn. July 13, 2004) (noting that discovery is “broad and the parties should be armed with as much relevant information as is reasonably possible to properly assess the merits of the case”) (internal quotation marks omitted). Therefore, to the extent Korbel seeks documents from federal or state agencies identifying findings of immediate jeopardy at Richfield Care Center related to matters involving Stieg, Korbel's Motion to Compel is granted and Defendants' Motion for Protective Order is denied. As to Korbel's Request for Production Set 4, Number 2, Korbel's Motion to Compel is denied in all other respects and Defendants' Motion for Protective Order is granted in all other respects.
h. Korbel's Request for Production Set 4, Numbers 3–4
In Request for Production Set 4, Number 3, Korbel seeks production of “all documents received from any federal or state agency ... for the period of January 1, 2010, to the present date, which proposed or threatened the termination of the Medicare or Medicaid provider agreement or Medicare or Medicaid payments for Texas Terrace ... or Richfield Care Center.” (Joint Status Report at 10). As with Korbel's Request for Production Set 4, Number 2, Korbel contends that the information sought in this request is relevant to her “squelching” theory—that is, Korbel believes the information is “discoverable as evidence of [Defendants'] financial motivation to terminate reporters of abuse and neglect.” (Id.). With regard to documents from Richfield Care Center, Korbel again agrees to limit the documents to “matters involving ... Stieg.” (Id.). In Request for Production Set 4, Number 4, Korbel seeks the production of “all correspondence, including but not limited to all letters, notes, memoranda and emails, email strings, replies, forwards, attachments, copies or blind copies between ... Kuhn [and] ... Stieg or ... Kuhn or . . Stieg and any management staff of [Defendants] from January 1, 2011, to the present, which discusses the Nursing Home Compare Rating(s) for Texas Terrace.” (Id. at 10–11). Korbel has agreed to limit the time frame for this request to January 1, 2012, to the present. (Id.).
Defendants have agreed to produce documents that “identify Compare Ratings and finding(s) of immediate jeopardy for Texas Terrace from January 1, 2010 [,] through [Korbel's] termination date.” (Id. at 10). To the extent Korbel seeks the production of these documents and to the extent Defendants seek a protective order preventing the disclosure of such documents, the Motion to Compel and Motion for Protective Order are denied as moot.
*22 Beyond their agreement to produce Compare Ratings and findings of immediate jeopardy as set forth above, Defendants object to Korbel's requests on the grounds that they are overbroad, unduly burdensome, and seek irrelevant information. (Id. 10–11). Specifically, Defendants contend that much of the information Korbel seeks is publicly available, that any information related to Richfield Care Center is irrelevant because Korbel did not work there, and that, to the extent Korbel seeks all documents and all correspondence regarding Texas Terrace's Compare Ratings, the request “could encompass” documents protected by the attorney-client privilege and the work-product doctrine and “would ... require Defendants to incur significant cost to conduct additional searches of all emails and other electronically stored information sent to and from ... Kuhn and ... Stieg.” (Joint Status Report at 10–11); (Defs.' Mem. in Supp. at 32–34); (Defs.' Resp. Mem. in Opp'n at 18–20).
For the reasons stated above with regard to Request for Production Set 4, Number 2, Korbel's request for documents threatening or proposing the termination of Medicare or Medicaid provider agreements or payments for Texas Terrace and Richfield Care Center is relevant to Korbel's “squelching” theory. The time periods covered by the request however, should be limited, with regard to Texas Terrace, to January 1, 2010, through Korbel's termination date, and with regard to Richfield Care Center, to the term of Stieg's employment. Korbel's request for production of correspondence between Kuhn and Stieg or Kuhn, Stieg and/or any management staff regarding Texas Terrace's Compare Ratings, is also relevant to her squelching theory and is, therefore discoverable. The Court, however, believes that the time period covered by this request should be limited to January 1, 2012, through Korbel's termination date.
To the extent Defendants object to these requests on the ground that the information could be covered by the attorney-client privilege and the work-product doctrine, such protections must be invoked in accordance with Federal Rule of Civil Procedure 26(b)(5), which requires a party withholding information that is otherwise discoverable on a claim of privilege or work-product protection to “expressly make the claim” of protection and “describe the nature of the documents, communications” or other items not disclosed in a manner that “enable[s] other parties to assess the claim.”
Defendants also object on the ground that Korbel's request is unduly burdensome because it would require Defendants to incur significant cost to conduct additional searches for electronically stored information. (Joint Status Report at 11). But Defendants make only conclusory assertions regarding the “significant cost” they would incur in order to comply with these requests and elsewhere in their briefing state that restoration of backup tapes to search for emails “is not a simple process” and that backup tapes are “often identified as a source of data” that is not reasonably accessible under Rule 26(b)(2)(B). (Defs.' Mem. in Supp. at 17 n.10, 33–34). Defendants' conclusory allegations are insufficient to carry their burden of establishing that “the information is not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B) (placing burden on motion for protective order or motion to compel on “the party from whom discovery is sought”); Escamilla v. SMS Holdings Corp., Civil No. 09-2120 ADM/JSM, 2011 WL 5025254, at *9 (D. Minn. Oct. 21, 2011) (concluding that defendant failed to meet its burden under Rule 26(b)(2)(B) when defendant relied on speculative cost estimate from only one vendor and noting that “[m]ere conclusory estimates of the cost to obtain information from electronic archives are not sufficient to prove that the information is inaccessible”).
Therefore, with regard to Requests for Production Set 4, Number 3–4, Korbel's Motion to Compel and Defendants' Motion for Protective order are granted in part and denied in part consistent with the above discussion.
i. Plaintiff's Request for Production Set 4, Number 5
*23 In Request for Production Set 4, Number 5, Korbel seeks production of “all documents which set the criteria for the payment of bonuses for 2012 and 2013 for [Kuhn, Stieg, Borjon, and Touray] at Texas Terrace.” (Joint Status Report at 11). After engaging in continued negotiations, the parties have resolved their disputes related to this request. (Id.). Korbel's Motion to Compel and Defendants' Motion for Protective Order are therefore denied as moot as they relate to Request for Production Set 4, Number 5.
j. Plaintiff's Request for Production Set 4, Number 6
In Request for Production Set 4, Number 6, Korbel seeks the production of “all documents which evidence the payment of bonuses for 2012 and 2013 for [Kuhn, Stieg, Borjon, and Touray] at Texas Terrace.” (Joint Status Report at 12). After engaging in continued negotiations, the parties have resolved their disputes related to this request. (Id.). Korbel's Motion to Compel and Defendants' Motion for Protective Order are therefore denied as moot as they relate to Request for Production Set 4, Number 6.
k. Korbel's Request for Production Set 4, Number 7
In Request for Production Set 4, Number 7, Korbel requests that Defendants make available the premise of Texas Terrace for “photography and video recording of areas pertaining to events in this case, including the first floor dining room, first floor nurses station, first floor hallways, and the telephones of [Borjon, Kuhn, and Stieg] including the appearance of the caller ID screens after calls have been received.” (Joint Status Report at 12). Defendants have agreed to permit photography of the caller ID screens of the designated telephones. (Id.). To the extent Korbel's Motion to Compel seeks such photography and Defendants' Motion for Protective Order seeks an order prohibiting such photography, the motions are denied as moot.
The only remaining dispute is whether, and under what conditions, Korbel is permitted to take photographs and video at other locations within the Texas Terrace facility. Korbel contends that photography and videotaping of the area where events giving rise to this lawsuit occurred is relevant because it will provide “demonstrative evidence” that will “assist[ ] the jury to see ... where the events took place.” (Korbel's Mem. in Supp. at 26). Defendants' object on the ground that the proposed photography and videotaping is not reasonably calculated to lead to the discovery of relevant evidence because “the requested inspection will not make it more or less likely that [Korbel's] report [of suspected abuse] was untimely, or that [Defendants'] legitimate non-retaliatory investigation was a pretext for retaliation.” (Joint Status Report at 12–13); see also (Defs.' Mem. in Supp. at 35–36). In addition, Defendants assert that Korbel's request “seeks confidential or proprietary information or private, personal and confidential medical information about third parties not a party to this matter.” (Defs.' Mem. in Supp. at 35–36). Similarly, Defendants contend that the proposed discovery will violate the privacy rights of Texas Terrace residents as protected under the Health Insurance Portability and Accountability Act (“HIPAA”). (Id. at 36).
The Court agrees with Korbel that photographs and video of the areas of Texas Terrace where events giving rise to this lawsuit occurred is relevant demonstrative evidence. Korbel contends that other employees were nearby at the time of the alleged abuse, observed the alleged abuse, and failed to report it, which Korbel argues supports her assertion of pretext. In light of these contentions, the jury will be aided by photo and video evidence of the relevant areas. See Welzel v. Bernstein, 233 F.R.D. 185, 187 (D.D.C. 2005) (concluding that inspection of defendant's headquarters was warranted when inspection would allow plaintiff to “obtain demonstrative evidence” in support of her claims and suggesting that photographic evidence can aid in the presentation of evidence about physical locations). To the extent Defendants object on the grounds that photography and videotaping of relevant areas will expose confidential or proprietary information and/or personal and confidential medical information about third parties, the Defendants have made blanket and conclusory statements in this regard. Defendants do not explain how photographs and video of locations such as a dining room, nurses station, and hallway on a single floor will reveal such information or, even if it did, why the Protective Order would not adequately protect the information. Defendants also make conclusory assertions regarding limitations imposed by HIPAA, failing to acknowledge that HIPAA provides specific means by which parties can respond to discovery requests and remain HIPAA-compliant. See, e.g., 45 C.F.R. § 164.512(e). In light of the tools available to Defendants' to ensure HIPAA compliance and the protective order in this matter, the Court concludes that the photography and videotaping of Texas Terrace can be conducted to appropriately protect the privacy interests involved. As Korbel agrees, inspection should take place at a time when resident traffic is low. See (Joint Status Report at 12). Moreover, the parties should discuss what steps need to be taken to allow Defendants to comply with their legal obligations under HIPAA or other law, and should work collaboratively to ensure that those steps are taken.
*24 With regard to Korbel's Request for Production Set 4, Number 7, Korbel's Motion to Compel is granted to the extent the photography and videotaping of Texas Terrace is limited as described above. Defendants' Motion for Protective Order as it relates to Korbel's Request for Production Set 4, Number 7, is therefore denied.
Finally, the Court notes that the deadlines for discovery and both non-dispositive and dispositive motions has passed in this case. The parties shall have thirty (30) days to complete the discovery contemplated by this Order, and, should any additional motion practice be sought, the party seeking to file a motion should request permission to do so by filing a letter with the Court.
III. CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants Extendicare Health Services, Inc. and Extendicare Homes, Inc.'s Motion for Protective Order [Doc. No. 24] is GRANTED in partand DENIED in part as described in this Order.
2. Plaintiff Kathleen Korbel's Motion to Compel Discovery, Motion for Sanctions, and Motion to Amend Complaint to State a Claim for Punitive Damages [Doc. No. 30] is GRANTED in part and DENIED in part as follows:
a. To the extent Korbel seeks to compel discovery, the Motion is GRANTED in part and DENIED in part as described in this Order.
b. To the extent Korbel seeks sanctions, the Motion is GRANTED in part and DENIED in part as described in this Order.
c. To the extent Korbel seeks to amend her complaint to add a claim for punitive damages, the Motion is DENIED.
Footnotes
The Court uses only the first name “Tara,” as Korbel has done in her Amended Complaint.
According to the parties, a “lap buddy” is an approved device that is used for this purpose. See (Am. Compl. ¶ 4).
The Court notes that Korbel's phone calls as alleged in the Amended Complaint appear to differ slightly from the view of the facts presented by the parties in their briefing. For instance, neither party asserts that Korbel left a “message” or voicemail for Borjon on June 3, 2013, and neither party relies on this allegation in the context of arguing in support of their motions addressed below. As a result, the Court does not discuss this allegation.
Specifically, Korbel alleges violations of Minn. Stat. § 181.932, subdiv. 1(1), which makes it unlawful for an employer to penalize or discharge an employee because “the employee ... in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official” and § 181.932, subdiv. 1(4), which makes it unlawful for an employer to penalize or discharge an employee because “the employee, in good faith, reports a situation in which the quality of health care services provided by a health care facility, organization, or health care provider violates a standard established by federal or state law or a professionally recognized national clinical or ethical standard and potentially places the public at risk of harm.” See(Am. Compl. ¶¶ 15–18).
Effective May 4, 1990, Minnesota changed its punitive damages statute standard to require proof that the defendant acted with “deliberate disregard” instead of “willful indifference.” See Ulrich, 848 F. Supp. at 868 (citations omitted). Swanlund was decided in August 1990; presumably, the actions at the root of the punitive damages claim occurred before the change from “willful indifference” to “deliberate disregard” became effective earlier that year because the Minnesota Supreme Court uses the “willful indifference” standard throughout its opinion. See generally Swanlund, 459 N.W.2d 151. Regardless of the standard, the motion and supporting affidavits must still “reasonably allow” the conclusion that clear and convincing evidence is present. Id. at 154.
Throughout this Order, the Court cites to page numbers of exhibits as assigned by CM/ECF, rather than individual pagination that is reflected on such documents.
At various points in her memorandum, Korbel refers to some of the factors delineated in Minn. Stat. § 549.20, subdiv. 3, including the seriousness of the hazard to the public posed by the defendant's misconduct, the profitability of the misconduct to the defendant, and the concealment of any misconduct. (Korbel's Mem. in Supp. at 46, 49, 50). Korbel contends that Defendants' conduct poses a risk to the public because it discourages reporting of abuse, Defendants have financial motivations for discouraging reporting, making their alleged misconduct profitable, and Defendants have concealed their misconduct through inadequate investigation and destruction of evidence. (Id.). These arguments, based on § 549.20, subdiv. 3, are not the proper focus of the inquiry at this stage of the litigation, where the Court's task is to determine whether Korbel has presented prima facie clear and convincing evidence that Defendants have shown deliberate disregard for Korbel's rights, so as to permit the allegation of punitive damages. In contrast, the factors in § 549.20, subdiv. 3, are to be considered when measuring the amount of punitive damages. See Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 918 (Minn. 1990) (describing § 549.20, subdiv. 3 as “the statute enumerating factors relative to the establishment of the amount of a punitive damage award”); see also Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 229 (Minn. 1982)(distinguishing between factors that are considered “in determining how to assess punitive damages” and those that “may reasonably be taken into account in deciding where punitive damages will be allowed”).
Defendants' response to Korbel's Motion to Amend largely contends that Korbel has failed to establish a claim for retaliatory discharge under the Whistleblower Statute and that Korbel was terminated “because she failed to protect the health and safety of a Texas Terrace resident and unnecessarily delayed her report of a suspected standard of care violation.” (Defs.' Resp. Mem. in Opp'n at 38). That is, Defendants focus on Korbel's underlying retaliatory discharge claim, and not on whether Korbel's evidence is prima facie evidence of deliberate disregard as required for a punitive damages claim.
Korbel also generally asserts that “Minnesota has a strong interest in protecting people who report suspected abuse of residents in a nursing home” and contends that terminating an individual who reports “suspected abuse sends the wrong message to all employees.” (Korbel's Mem. in Supp. at 45). In this same vein, Korbel contends that the firing of another of Defendants' employees who reported suspected abuse “provides the explanation” as to why Korbel, who was unaware of the previous firing, “was the only employee to have reported suspected abuse conducted in the dining area directly across from the nurses' station.” (Id.). Neither of these contentions are supported by citations to evidence and are not, themselves, evidence that “show[ ] the factual basis for” Korbel's punitive damages claim. See Minn. Stat. § 549.191.
Korbel also contends that the timing of the voicemail does not matter because “there are no time limits stated in the whistleblower law for when a report of a suspected violation of law becomes unprotected because of timing.” (Korbel's Mem. in Supp. at 44–45). Rather than provide this Court with evidence of Defendants' deliberate disregard for Korbel's rights, this legal argument addresses questions about the extent to which Korbel is protected by the Whistleblower Statute and therefore also relates to the merits of Korbel's underlying claim. The parties have advanced opposing arguments regarding this question in their cross-motions for summary judgment, and the Court must defer to the Honorable Susan Richard Nelson for the resolution of this question.
The Court notes that Korbel has not cited to this particular portion of Borjon's testimony, though this testimony is included in the deposition excerpt submitted by Korbel. See generally(Borjon Dep.). While the Court must consider Korbel's evidence unrebutted, “[t]o consider only those select portions of a deposition transcript a litigant chooses to place before the court on a motion to amend to add a claim of punitive damages and ignore other portions of that transcript ... would only encourage plaintiffs to mischaracterize the evidentiary record by selective presentation.” Stepnes, 2010 WL 7093560, at *7 n.4; see also27 Minnesota Practice Series: Prods. Liab. Law § 13.19 (2014) (“To the extent that the plaintiff has submitted only a portion of the deposition testimony and documentary evidence relevant to his claim for punitive damages, the court should consider the full evidentiary record in determining whether the plaintiff has met his burden of demonstrating a prima facie case of entitlement to punitive damages.”).
In reaching this conclusion, the Court does not intend to express an opinion regarding whether Korbel's claim under the Whistleblower Statute can survive a motion for summary judgment.
The Court also notes that Korbel seeks to amend her Amended Complaint to add a claim for punitive damages only with regard to her claim under the Whistleblower Statute. (Korbel's Mem. in Supp. at 2). Stieg's testimony that she was aware it is unlawful to terminate an employee because the employee reported suspected abuse was in response to a question regarding Stieg's knowledge of what is prohibited under the Vulnerable Adults Act. (Stieg 30(b)(6) Dep. at 54).
The preparedness of Defendants' Rule 30(b)(6) deponent and the need for an additional Rule 30(b)(6) deposition is also discussed in Korbel's Motion to Compel and Defendants' Motion for Protective Order. (Mot. for Protective Order at 1); (Mot. to Compel at 1).
Defendants also request attorney fees and costs under Rule 11 and pursuant to the Court's inherent authority to impose sanctions for bad faith conduct. (Defs.' Mem. in Supp. at 38–39). To the extent Defendants seek sanctions for bad faith conduct, Defendants' assertions of bad faith merely repeat their general opposition to Korbel's positions throughout the discovery process. See (id.). The Court is not persuaded by these conclusory assertions and finds no bad faith on Korbel's part.
The Defendants' request for sanctions under Rule 11 must also fail. First, Defendants request sanctions under Rule 11 at the close of their memorandum in support of their Motion for Protective Order and refer generally to Korbel's discovery requests, her failure “to identify any factual or legal support for” her positions during discovery, and her intent to bring several motions (including Korbel's subsequently filed Motion to Compel and Motion for Sanctions). (Defs.' Mem. in Supp. at 38–39). A motion for sanctions under Rule 11, however, “must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). In addition, a Rule 11 motion is not to be filed with the court until at least 21 days after service of the motion on the appropriate party, to allow the party whose conduct is the subject of the motion to withdraw a filing or otherwise modify its position. See id. Finally, to the extent Defendants' complain of Korbel's conduct during discovery, Rule 11 “does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.” Fed. R. Civ. P. 11(d).
It is unclear to the Court whether Korbel also seeks sanctions under Federal Rule of Civil Procedure 37(d)(1). Assuming Korbel does so and assuming without deciding that this provision is applicable here, for reasons similar to those stated above with regard to Korbel's request for fees and costs under Rule 37(a)(5), the Court declines to impose sanctions under Rule 37(d)(1).
It is true that some of the questions Foster was unable to answer pertained to some aspects of the email system. However, as Foster's deposition testimony bears out and as Defendants must have known, the email system and voicemail system are fundamentally intertwined, in that voicemails are never stored on the voicemail system, but are instead created directly on the email system. (Foster Dep. at 40). Indeed, the fact that Foster was prepared, to a limited degree, to testify about Dobbs's search of Borjon's email demonstrates that Defendants were on notice that aspects of and searches within the email system, as it relates to voicemails, would be at issue in Foster's deposition.
The Court also finds unpersuasive Defendants' general contention that “discovery of preservation efforts” through an additional 30(b)(6) deposition “improperly attempts to impose on confidential attorney-client privileged communications and attorney work product.” (Defs.' Mem. in Supp. at 23). In support of this contention Defendants cite three cases, all of which involved the protected nature of litigation hold letters themselves, and none which stand for the general proposition that all inquiry into preservation efforts are inappropriate because they call for information protected by the attorney-client privilege or the work-product doctrine. See Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116, 1123 (N.D. Ga. 2007); Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D. Ill. 2007); Turner v. Resort Condos Int'l, LLC, No. 1:03–CV–2025 DFH-WTL, 2006 WL 1990379, at *7–8 (S.D. Ind. July 13, 2006). Indeed, Defendants have not asserted that such an inquiry would actually require disclosure of protected information, only that it would “improperly attempt[ ] to impose” on the alleged protections. The Defendants are, of course, free to make specific objections on attorney-client privilege and work-product grounds during the deposition, but the Court declines to limit all discovery regarding preservation efforts based on Defendants broad and speculative contentions. Cf. Major Tours, Inc. v. Colorel, Civil No. 05-3091(JBS/JS), 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009) (“Despite the fact that plaintiffs typically do not have the automatic right to obtain copies of a defendant's litigation hold letters, plaintiffs are entitled to know which categories of electronic storage information employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.”).