Marchionda v. Embassy Suites Franchise, LLC
Marchionda v. Embassy Suites Franchise, LLC
2018 WL 8458794 (S.D. Iowa 2018)
September 10, 2018
Jackson, Jr., Stephen B., United States Magistrate Judge
Summary
The court denied Defendants' motion to compel Plaintiff to provide a broad ongoing, continual account of her activities, including credit and banking card statements, hotel and airline rewards statements, Facebook and social media postings, and her work calendar. The court found that such overly broad discovery was not relevant or proportional to the needs of the case, and that Defendants had not shown sufficient grounds or authority for compelling the continual production of the information they sought.
Additional Decisions
CHERI MARCHIONDA, Plaintiff,
v.
EMBASSY SUITES FRANCHISE, LLC, individually and by and through its successor in interest, HILTON FRANCHISE HOLDING, LLC; HILTON WORLDWIDE, INC.; HILTON WORLDWIDE HOLDINGS, INC.; JOHN Q. HAMMONS HOTELS MANAGEMENT, LLC; ATRIUM TRS III, LP; and JOHN DOE CORPORATIONS 1-10; Defendants
v.
EMBASSY SUITES FRANCHISE, LLC, individually and by and through its successor in interest, HILTON FRANCHISE HOLDING, LLC; HILTON WORLDWIDE, INC.; HILTON WORLDWIDE HOLDINGS, INC.; JOHN Q. HAMMONS HOTELS MANAGEMENT, LLC; ATRIUM TRS III, LP; and JOHN DOE CORPORATIONS 1-10; Defendants
CIVIL NO. 4:15-cv-00479-JEG-SBJ
United States District Court, S.D. Iowa, Central Division
Filed September 10, 2018
Jackson, Jr., Stephen B., United States Magistrate Judge
ORDER
I. INTRODUCTION
*1 Before the Court is a Motion to Compel Supplemental Discovery (Dkt. 301) filed on July 13, 2018, by defendants Embassy Suites Franchise, LLC, Hilton Worldwide, Inc., Hilton Worldwide Holdings, Inc., John Q. Hammons Hotels Management, LLC, and Atrium TRS III, LP, with supporting exhibits (Dkt. 301-1 thru 301-12). Plaintiff Cheri Marchionda filed a Brief in Opposition to Defendants' Motion to Compel Supplemental Discovery (Dkt. 312) on July 27, 2018, with supporting exhibits (Dkt. 312-1, 315, 316). Defendants filed a Reply in Support of Defendants' Motion to Compel (Dkt. 339) on August 3, 2018.
The Court considers the motion fully submitted and finds oral argument by counsel is not necessary. L.R. 7(c). For the reasons which follow, the motion must be denied.
II. BACKGROUND
Cheri Marchionda seeks damages arising from a sexual assault by Christopher LaPointe which occurred in a guest room at the Embassy Suites in Des Moines, Iowa, while Ms. Marchionda was traveling on business from New Jersey. Dkt. 88. Plaintiff claims she “was attacked, assaulted, terrorized and raped in her hotel room due to the careless, grossly negligent, reckless, willful, wanton and/or outrageous conduct of Defendants.” Id. ¶ 4. She alleges hotel employees gave Mr. LaPointe a key to her hotel room without her permission and then assisted Mr. LaPointe in entering the room by physically unlocking the door. Id. ¶¶ 79-81. She specifies various acts and failures to act which she contends constitutes negligent conduct by Defendants and seeks compensatory and punitive damages. Id. ¶¶ 91-95, 97, 99-100. Defendants deny the allegations of negligence and claims for damages. Dkt. 116 ¶¶ 96-100. The incidents occurred in April of 2014 and the lawsuit was filed in June of 2015. Dkt. 1.
On April 29, 2016, defendant John Q. Hammons Hotels Management, LLC (“Hammons”) served its First Set of Requests for Production to Plaintiff, containing 45 separate requests, which sought, among other materials, a download archive of her Facebook account (No. 19), social networking communications related to the case and underlying facts (No. 20), photographs and videos posted on Facebook and other social media platforms (Nos. 21, 22), online profiles, postings, and messages related to her allegations and “any emotion, feeling, or mental state of Plaintiff on or after April 11, 2014” (No. 22 [sic], 23, 24), all documentation “such as bank or credit statements, of purchases or cash withdrawals made by Plaintiff on April 10 or April 11, 2014” (No. 25), “[a]ll of Plaintiff's bank or credit card statements, from April 2014 to the present” (No. 30), “[a]ny documents that will reflect any flights you have taken since April 11, 2014” (No. 34), “[a]ny documents that will reflect any of your hotel or motel stays since April 11, 2014” (No. 35), and any professional or personal calendar kept “from April 2014 to the present” (No. 36). Dkt. 301-1.
Before Plaintiff responded, the case was stayed from July of 2016 to February of 2017 due to bankruptcy proceedings involving Hammons. Dkt. 121, 129. Subsequently, Plaintiff served responses to the requests on May 24, 2017, producing some of the requested discovery subject to objections. Dkt. 301-2. Plaintiff objected to nearly all of the requests noted above as being unreasonably broad and burdensome, violating Plaintiff's right to privacy, and seeking irrelevant information. Id. After conferral between counsel, Plaintiff produced additional discovery on September 25, 2017. Dkt. 301-3, 301-4.
*2 Months later, on March 12, 2018, Defendants requested via email that Plaintiff “supplement any of Plaintiff's discovery responses which need to be supplemented including but not limited to those relating to Plaintiff's production of credit and banking card statements, hotel and airline rewards statements, Facebook and social media postings, and her work calendar.” Dkt. 301-5. Defendants also requested “missing” portions of Plaintiff's production, specifically, an “American Express statement with a 6/25/16 closing date, her PNC banking/check card statements for 8/20/14 through 9/20/14 and 8/20/15 through 9/20/15, and her Barclay's MasterCard statements for 12/25/14 through 5/24/15 and 6/25/14 through 6/24/16.” Id.After additional email inquiries into the status of the requested discovery, counsel for Plaintiff advised during a discussion on June 22, 2018, no further supplementation would be provided. See Dkt. 301-6 thru 301-11.
On July 13, 2018, Defendants filed the present motion asking the Court to compel Plaintiff to supplement her responses to Hammons' requests. Dkt. 301. Defendants assert such “discovery is directly relevant to the central issues presented in this suit, namely, whether Plaintiff suffers continual, ongoing emotional trauma, inhibiting her ability to travel and socialize.” Id.¶ 15 (emphasis in original). As explained by Defendants, “Plaintiff contends that from April 2014 to present, she continues to suffer emotional trauma from the alleged incident. Plaintiff does not allege that she was no longer affected by the alleged incident after September 25, 2017, the date of her last production.” Id. n. 2 (emphasis in original). From Defendants' perspective, the “documents produced thus far by Plaintiff on these issues show that Plaintiff continues to extensively travel and socialize and Defendants have every reason to believe that the required seasonal supplementation of these discovery responses would directly bear on these same issues.” Id. ¶ 16. Defendants contend the Federal Rules of Civil Procedure impose a duty on Plaintiff to provide the requested supplementation “up to the present.” Id. ¶¶ 17-18. Defendants cite to “Rule 26(e)(2)” which applies to supplementation of an expert's report, but quote from Rule 26(e)(1) which applies to supplementation of initial disclosures and discovery requests in general. Id. ¶ 17.
In opposition to the motion, Plaintiff emphasizes she “has never alleged that she has been completely prevented from traveling or socializing due to the trauma inflicted upon her by Defendants' substandard conduct, but rather that the trauma made it more difficult for her to do so, though she persevered and pushed herself to do so.” Dkt. 312 p. 2 (emphasis in original). She further notes Defendants already have discovery from Plaintiff relating to the issue including documents and her “answers to their Requests for Admissions and deposition in which she admits to traveling and socializing post-incident.” Id. pp. 1-2. Plaintiff asserts the discovery now sought is therefore “unreasonably cumulative given the veritable cornucopia of information already provided” to Defendants and, further, the discovery is not proportional to the needs of the case. Id. p. 2 (citing Fed. R. Civ. P. 26(b)(1); 26(b)(2)(C)(i), (iii)).
In addition, Plaintiff contends she is not required to supplement her prior responses because the additional information sought by Defendants relating to post-incident travel and activities has been “made known” to Defendants during the discovery process. Id. (quoting Fed. R. Civ. P. 26(e)(1)(A)). According to Plaintiff, notwithstanding her objections to “the plainly evident overbreadth of the Defendants' requests,” she produced much of the requested information in her responses on May 24, 2017:
Therein, she produced a screen shot of a Facebook post she made on April 11, 2014 (Requests 19-20); she advised that to the best of her knowledge she posted no photographs or videos on Facebook from April 11, 2014 to the time of her responses (Request 21); she advised that to the best of her knowledge she had no photographs or videos depicting herself on April 10 or 11, 2014 (Request 22); she produced the aforesaid screen shot from Facebook since it arguably related to allegations in the Complaint (Request 22 [sic] ), and was a posting by her that arguably related to her emotion, feeling or mental state on or after April 11, 2014 (Requests 23-24); she produced credit card and bank statements from April 2014 (Request 25); she produced bank and credit card statements for a reasonable time frame, from April 2014 through December 31, 2014 (Request 30); she produced screen shots of the summary of her airline flights on Delta and American Airlines since April 11, 2014 in response to the request for her airline travel since April 11, 2014 (Request 34); she produced her “Hilton past stays” report in response to the request for her hotel stays since April 11, 2014 (Request 35); and she produced her work calendar from April 2014 to the time of her responses (Request 36).
*3 Id. pp. 3-4. Plaintiff further notes she supplemented those responses on September 25, 2017,
and detailed what was being provided. ECF 301-4, at pages 4 and 5. In that regard, without waiver of any objections, Plaintiff produced a download of her Facebook account through the date of production (Requests 19-24); she provided her bank and credit card statements through the date of production (Request 30); she provided additional airline flight information through the date of production (Request 34); she provided her work expense reports which supplied further information regarding hotel stays through the date of production (Request 35); and she provided her work calendar from 2014 through the date of production, with details viewable (Request 36).
Id. p. 4. Plaintiff insists that those materials, in addition to her deposition testimony, “detail exactly what the Defendants are interested in understanding – Plaintiff's travel and social activities since the date of the incident.” Id. She further points out that “[i]n addition to being deposed for over 11 hours over three days, Plaintiff answered over three hundred fifty (350) requests for admission on this issue.” Id. p. 5.
In summary, Plaintiff emphasizes that,
[a]s it relates to her travel and social/family activities, Defendants received hundreds of pages of documents from Plaintiff detailing her activities, received hundreds of answers to requests for admissions on the same subject, and deposed Plaintiff for more than 11 hours.
Id. p. 6. From her perspective, the supplementation requested by Defendants “is purely cumulative of what has already been produced (which goes up through 2017 and into 2018) and is unnecessary given the other discovery and information produced.” Id. In her view, any additional discovery sought by Defendants “is not proportional to the needs of the case given the plethora of information already produced on the issue noted by the Defendants, and given the fact that Plaintiff is not asserting that she has been unable to travel or socialize due to the effects of the trauma caused to her by the Defendants' substandard conduct.” Id.
In reply, Defendants emphasize Plaintiff “is suing Defendants for millions of dollars, and has not only put the facts surrounding the sexual assault at issue (which are disputed), but she has claimed significant past and future medical damages, loss of income, and pain and suffering.” Dkt. 339 p. 2. They further note that “[e]ven after the close of the discovery deadline, Plaintiff disclosed (through her vocational expert and supplemental document production) that for the first time since the incident, she received a negative performance review at work, suggesting that her emotional trauma is worsening over time.” Id. As a result, in Defendants' view, “Plaintiff's post-incident conduct, evidenced through her travel and social activities, is highly relevant to this case and is vital for Defendants to adequately defend Plaintiff's claims.” Id.
Defendants further argue Plaintiff has not articulated any specific burden to be incurred by the supplementation and suggest the “requested discovery is likely available to Plaintiff in electronic form, and can be produced to Defendants at little to no cost.” Id. p. 3. Additionally, Defendants explain that the fact Plaintiff travels and socializes “is not the issue”:
*4 The overarching information that Defendants seek is how Plaintiff is spending her time. As recently as July 23, 2018, Defendants have learned that Plaintiff's supervisor rated Plaintiff's job performance as “below expectations” for the first time since the subject incident. Does this indicate that Plaintiff was not able to travel for work in the past few months? Was Plaintiff traveling socially? Did her social activity decrease because her alleged PTSD symptoms are worsening? Did her social activity increase because her alleged PTSD symptoms are improving? These questions are representative of the information Defendants seek through the supplementation of Plaintiff's credit and banking card statements, hotel and airline rewards statements, Facebook and social media postings, and her work calendar.
III. COURT'S ANALYSIS
The Federal Rules of Civil Procedure govern the procedure in all civil actions before this Court, including the discovery process. The rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1 (emphasis added). Pursuant to Rule 26(b)(1), and unless otherwise limited by court order, the scope of discovery in general is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Subsection 26(b)(2) provides for the following limitations on discovery, including:
(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2). Pursuant to Rule 26(e), the parties are required to supplement disclosures and responses, as follows:
A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
*5 (B) as ordered by the court.
Fed. R. Civ. P. 26(e)(1). If a party fails to supplement as required by Rule 26(e), “the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless” and may be subject to other sanctions. Fed. R. Civ. P. 37(c)(1).
Applying those rules here, Plaintiff certainly is required under Rule 26(e)(1)to supplement her previous discovery disclosures and responses if they are “incomplete or incorrect” in some material respect and such additional information has not otherwise been made known to Defendants. Rule 26(e)(1) is not, however, an overriding mechanism for continual and ageless discovery without bounds. Nor does Rule 26(e)(1) open the doors to discovery beyond initial disclosures required under Rule 26(a) and matters sought in a prior, timely interrogatory, request for production, or request for admission.
In the opinion of the Court, Defendants' request, as reflected in their arguments and explicitly stated within their reply, for “overarching information” as to “how Plaintiff is spending her time” and money over three years after the incident goes well-beyond the specific discovery requests at issue and purpose of Rule 26(e)(1). See Dkt. 339 p. 3. In addition, such overly broad discovery falls well-outside the scope of relevancy and proportionality under Rule 26(b)(1). Defendants have not shown sufficient grounds or authority for compelling the continual production of the broad information they seek at this point of the litigation, especially given the discovery already conducted and obtained by Defendants from Plaintiff.
The incident at issue occurred now over four years ago in April of 2014 and Ms. Marchionda initiated the action over three years ago in June of 2015. The requests for production which Defendants' motion is based upon were served in April of 2016, two years after the incident. Dkt. 301-1. Initially, trial for the case was set to begin in April of 2017 (Dkt. 74) but the case was stayed due to bankruptcy proceedings involving defendant Hammons from July of 2016 to February of 2017. Dkt. 119, 129. After the stay was lifted, Plaintiff served her responses to the requests at issue in May of 2017, which included certain objections, and provided additional information and materials in September of 2017. Dkt. 301-2, 301-3, 301-4. The trial was reset to begin September 10, 2018, with a discovery deadline of January 17, 2018, which was subsequently extended to March 2, 2018, then May 11, 2018. Dkt. 150, 185, 191. As the case progressed, Defendants deposed Ms. Marchionda in December of 2017 and late January of 2018 for a total of approximately 11 hours. In April and May of 2018, Ms. Marchionda responded to a total of 351 separate requests for admissions relating to various activities including travel and stays at hotels, and attendance at family and social events such as graduations, weddings, showers, dinners, movies, and concerts spanning from 2014 into 2018. Dkt. 315, 316.
*6 On July 30, 2018, after submission of the motion now before the Court, Defendants filed a Motion for Continuance of Trial (Dkt. 320). For reasons set forth therein, Defendants insisted they would “be severely prejudiced if” the case proceeded to trial on September 10, 2018, and requested a 60-day continuance. Id. ¶ 15. Plaintiff resisted the motion insisting she “is entitled to her day in court, and has waited long enough to get there, including through a bankruptcy stay caused by one of the Defendants.” Dkt. 337 ¶ 23. She further asserted that, “[g]iven her posttraumatic stress disorder, from which all parties agree she suffers as a result of the subject incident at Defendants' hotel, it would be unfairly prejudicial to Plaintiff to gear up for trial and then be forced to wait yet again.” Id. Defendants' motion was granted and the trial is now scheduled to begin on February 4, 2019. Dkt. 338, 348.
Under those circumstances, in the opinion of the Court, it would be fundamentally unjust and beyond the rules of discovery to compel Plaintiff to provide a broad ongoing, continual account as to how she is “spending her time” and money through production of her “credit and banking card statements, hotel and airline rewards statements, Facebook and social media postings, and her work calendar” as sought by Defendants (Dkt. 339 p. 3) without limitation in time or scope under the guise of Rule 26(e)(1)'s requirement to supplement discovery. Pursuant to this Court's Local Rules, “[m]otions to compel must be filed as soon as practicable. In any event, except for good cause shown, motions to compel must be filed within 14 days after the discovery deadline.” L.R. 37(c). Discovery for this case closed on May 11, 2018; thus, Defendants' motion to compel filed on July 13, 2018, is untimely. Further, Defendants have not shown good cause for their belated motion seeking further documents responsive to requests served over two years ago in April of 2016, initially responded and objected to by Plaintiff over a year ago in May of 2017, and supplemented by Plaintiff nearly a year ago in September of 2017. Defendants have had ample time and opportunity to challenge Plaintiff's stated objections to the requests at issue, and the sufficiency of her responsive production, but failed to timely do so.
In that regard, Plaintiff's objections to some of the specific requests served by Defendants as being unreasonably broad and burdensome, violating Plaintiff's right to privacy, and seeking irrelevant information have validity. For example, requests for “[a]ll online profiles, postings, and messages ... that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff on or after April 11, 2014” (No. 23) and “[a]ll of Plaintiff's bank or credit card statements, from April 2014 to the present” (No. 30) are, in the opinion of the Court, without question overly broad, unreasonable and beyond the scope of Rule 26(b)(1). Such requests needlessly invade into personal and private matters with no relevance to the claims and defenses at issue.
Defendants failed to timely challenge Plaintiff's objections and may not now bypass the requirements of Local Rule 37 by crafting the relief they seek after the deadline as a “motion to compel supplemental discovery” under Rule 26(e)(1). Further, contrary to Defendants' assertion, the purported negative work performance review Plaintiff received does not open the door to overly broad and irrelevant discovery which Defendants seek in their belated motion to compel. The requirements for supplementation pursuant to Rule 26(e)(1) remain in effect, as do the potential sanctions set forth in Rule 37(c)(1), and are applicable to all discovery requests and responses served by the parties. Those rules do not, however, provide a proper basis for the broad discovery Defendants seek within their motion.
IV. CONCLUSION AND ORDER
For those reasons, Defendants' Motion to Compel Supplemental Discovery (Dkt. 301) shall be, and is hereby, denied.
*7 IT IS SO ORDERED.