I. Background

*1 Plaintiff Stephanie Hunsberger alleges that Defendants Inperium, Inc., Alternative Consulting Enterprises, Inc. “(ACE, Inc.”), Alternative Consulting Enterprises, LLC (“ACE, LLC”), and Supportive Concepts for Families, Inc. breached their contracts with Plaintiff, engaged in discrimination and retaliation against her on the basis of both her sex (female) and sexual orientation (gay) in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000) and the Pennsylvania Human Relations Act (43 Pa. C.S. § 951), and defamed her. ECF No. 1, ¶¶ 37-63.

Ms. Hunsberger is the founder of Ace, Inc., which specializes in tele-psychiatric outpatient counseling and behavioral health services. Id., ¶ 5. In March 2018, Ms. Hunsberger sold Ace, Inc. to Inperium through a stock purchase agreement and entered into a five-year employment agreement offering her a salary, incentive compensation, and benefits. Id., ¶¶ 8-9. At some point, Supportive Concepts converted ACE, Inc. into Ace, LLC. Id., ¶¶ 6-7.

Ms. Hunsberger alleges that after her company was acquired by Inperium, she was consistently subjected to discrimination and harassment because of her sex and sexual orientation—including, inter alia, being treated worse than male executives, being excluded from meetings of the Board of Directors, and being denied benefits that males received, such as reimbursement for certain expenses and receipt of certain bonuses. Id., ¶¶ 11-12. Ms. Hunsberger also alleges that Inperium was “unhappy” with her for discovering regulatory violations at the Children's Home of Reading (“CHOR”) outpatient program in Northampton and Lehigh Counties and refusing to cover them up. Id., ¶ 15.[1]

In September 2018, Ms. Hunsberger made a formal discrimination complaint to Inperium, she was suspended with pay roughly a week later, and she was ultimately terminated in April 2019. Id., ¶¶ 16, 18, 21. Although Ms. Hunsberger was told that she was being terminated “for cause,” she claims that all of the reasons that Defendants cited for terminating her were false and pretextual. Id., ¶¶ 21-22.

Defendants have denied all allegations of wrongdoing. ECF No. 6. They instead allege that Ms. Hunsberger was terminated following an internal investigation into improper billing practices, as well as an investigation by the Office of the Inspector General for the U.S. Department of Health and Human Services, and for conduct that violated the representations and warranties in the stock purchase agreement. Id., Counterclaim ¶¶ 15-29. Defendants have asserted counterclaims against Ms. Hunsberger for breach of contract, indemnification, unjust enrichment, and two forms of declaratory relief. Id., Counterclaim ¶¶ 33-60.

II. Plaintiff's Motion to Compel

On December 14, 2020, after the parties had engaged in some initial discovery, Ms. Hunsberger filed a motion to compel Defendants to provide answers to certain of her first set of requests for production of documents to which Defendants had objected. ECF No. 23. Defendants responded to Ms. Hunsberger's motion on December 18, 2020, ECF No. 25, and the Court (the Honorable John M. Gallagher) thereafter ordered the parties to provide supplemental briefing. ECF No. 26. Consistent with the Court's order, Ms. Hunsberger filed her supplemental brief on January 27, 2021, ECF No. 29, and Defendants filed their supplemental brief on February 10, 2021. ECF No. 30.

*2 On March 24, 2021, the Court issued an order appointing the undersigned as Special Discovery Master for purposes of determining which documents sought by Ms. Hunsberger warrant an order from the Court granting Ms. Hunsberger's discovery requests. ECF No. 34. The order directed the parties to provide the Special Discovery Master with documents and other information necessary for carrying out the assigned duties. Id.

On April 5, 2021, counsel for Defendants (with a copy to counsel for Ms. Hunsberger) provided the undersigned with a binder containing the pleadings, Ms. Hunsberger's document requests, Defendants' objections thereto, the parties initial and supplemental briefing on the motion to compel, an appendix of authorities, and other related information (roughly four hundred pages of material). After reviewing those materials, on April 19, 2021, I engaged in a conference call with the parties, during which they explained that there had been some additional negotiation on the motion to compel and that they believed they had reached further agreement as to some of the document requests. The parties also explained and debated their positions on the document requests that remain in dispute.

As reflected both in the parties' briefing and during the conference call, the parties' dispute largely turns on issues of relevance and Defendants' claims that Ms. Hunsberger's requests are overly broad, a “fishing expedition,” will result in undue burden, and are disproportionate to the needs of the case under Federal Rule of Civil Procedure 26. Defendants do not appear to claim that the documents at issue are protected by the attorney-client privilege, the work product doctrine, or other such protections, although they have noted that protected health information may need to be redacted from some materials in accordance with HIPAA if it is decided that they must be produced.

During the April 5, 2021 call, Ms. Hunsberger's counsel conceded that some of Plaintiff's requests could be narrowed, and defense counsel appeared to acknowledge the relevance of at least some of the information that Plaintiff seeks if the scope of the requests is narrowed.

After reflecting on the parties' submissions and the joint conference call, conducting additional legal research, and initiating the preparation of this Report and Recommendation, I convened a separate conference calls with the parties—as permitted by this Court's order of March 24, 2021—speaking with Ms. Hunsberger's counsel on May 20, 2021 and Defendants' counsel on May 26, 2021.

The parties have entered into a Protective Order, ECF No. 19, as well as a Joint Stipulation on Electronically Stored Information. ECF No. 20. In their briefing, Defendants represent that they have produced roughly 23,000 pages of material.

Having considered all of the above, I will set forth my recommendations as to the document requests that were addressed during the joint conference call of April 19, 2021 below. Notably, the parties' filings addressed document requests in addition to those that were discussed during the conference call. It is my understanding, based on the call, that any disputes concerning those additional document requests have been resolved, and this Report and Recommendation will not address those additional items in detail.[2]

III. Legal Standards

*3 “Unless otherwise limited by court order,” a party “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.” Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. The United States Supreme Court has held that “the requirement of Rule 26(b)(1) that the material sought in discovery be ‘relevant’ should be firmly applied.” Herbert v. Lando, 441 U.S. 153, 177 (1979).

“While the scope of discovery under the Federal Rules is broad, it is not unlimited,” and parties should appropriately tailor their discovery requests to the issues involved in the case. Atkinson v. Luitpold Pharms., Inc., 414 F. Supp. 3d 742, 744 (E.D. Pa. 2019) (citation omitted).

In a given case, decisions regarding the “scope and conduct of discovery are within the sound discretion of the trial court.” Id. (citing, inter alia, In re Cendant Corp. Sec. Litig., 343 F.3d 658, 668 (3d Cir. 2003)). A court's assessment of the proper scope of discovery should take into consideration “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.” Fed. R. Civ. P. 26(b)(1).

A party moving to compel discovery in accordance with Federal Rule of Civil Procedure 37 bears the initial burden of proving the relevance of the material requested. First Niagara Risk Mgmt., Inc. v. Folino, 317 F.R.D. 23, 25 (E.D. Pa. 2016) (citation omitted). “If the moving party meets this burden, the party resisting discovery can establish a lack of relevance by showing that the material requested does not fall within the broad scope of relevance defined by Rule 26 or is of such little relevance that the potential harm occasioned by discovery outweighs the ordinary presumption favoring its disclosure” id. (citation omitted),

IV. Recommendations

In document request no. 2, Ms. Hunsberger seeks “[a]ll emails from and to Plaintiff in ACE LLC's e-mail system.” To date, Defendants have produced some of Ms. Hunsberger's email messages based on key word searches agreed upon by the parties, but not all of her messages.

Defendants assert that Ms. Hunsberger has not shown how all of her e-mails are relevant and cite case law (from other jurisdictions) for the proposition that courts routinely reject discovery requests seeking the production of entire e-mail accounts as disproportionate.[3] Defendants have also noted the burden of potentially having to redact HIPAA information if they are required to produce additional e-mails, given that the e-mails were created in the context of providing tele-psychiatric outpatient counseling and behavioral health services. In addition, Defendants have argued that Ms. Hunsberger used her personal e-mail address for almost anything important and that the e-mails in Defendants' system are likely to be mostly if not entirely irrelevant. Defendants have offered to run additional key word searches if Ms. Hunsberger is willing to supplement her key word list. Defendants have asked that, if they are required to produce all relevant e-mails from Ms. Hunsberger's account in their system, Ms. Hunsberger be required to cover Defendants' legal fees for conducting the relevance review and producing documents.

*4 Plaintiff urges that her request is narrower than requests in other cases because it spans a period of just six months and that she needs the e-mail messages to prove her claims, as well as to defend against Defendants' counterclaims. She does not feel that additional key word searches are an adequate solution, asserting that they do not always capture all relevant information. She has also asserted that the production would not be burdensome, since it would be a matter of simply turning over all of the e-mail messages, and that Defendants may “claw back” e-mails under the parties' Protective Order.

There can be little doubt that many of Ms. Hunsberger's e-mails on Defendants' system are wholly irrelevant to this case, and Ms. Hunsberger does not argue to the contrary. While she focuses on the technological ease with which her entire e-mail box could be produced, her argument ignores relevance, proportionality, and the burden that would fall on Defendants in having to review all of Ms. Hunsberger's e-mail messages for not only relevance, but also protected health information under HIPAA. See Fed. R. Civ. P. 26(b)(1), Fed. R. Evid. 401, Herbert, 441 U.S. at 177. The ability of Defendants' to “claw back” documents does not solve this problem, as they could only know which e-mails to “claw back” by reviewing them in their entirety. Ms. Hunsberger has had the opportunity to propose search terms—of which she identified eighty—and Defendants have produced e-mails that hit on those terms. Defendants have also reasonably offered to run additional key word searches, but Ms. Hunsberger has declined, instead seeking 100% of her e-mails. For these reasons, I recommend that the Court deny document request no. 2.

Document request nos. 3 and 4 seek certain tax returns and financial statements from three of the named defendants and another entity. During the conference call of April 19, 2021, the parties expressed that they believed that they had reached an agreement as to what Defendants would produce in response to these requests. For this reason, I recommend that the Court deny Plaintiff's motion on these two requests as moot. Should the parties advise me or the Court that these requests remain in dispute, I would be happy to hear further argument as to them and issue a recommendation.

Document request no. 6 seeks “[a]ll documents referring or relating to any investigation by any government agency of Defendants or Plaintiff,” and document request no. 8 seeks “[a]ll documents referring or relating to any third party audits for the period of 2018 to present for the following organizations: ACE, LLC, Imperium Management Services, Inc., Supportive Concepts for Families, Imperium, Inc., Children's Home of Reading.”

Defendants have represented that they already produced all such materials from ACE, Inc. and ACE, LLC, as well as all such materials that relate to the CHOR Easton project in which Ms. Hunsberger was involved. Defendants argue that Plaintiff's request is overbroad, as it could—for example—require the production of OSHA documents that have no relevance to this case.

During the conference call of April 19, 2021, and again on May 20, 2021, Plaintiff agreed to narrow her requests to investigations or audits in the past five years in similar cases involving the issue of purported billing errors or irregularities. I believe that this is a reasonable compromise in light of the allegations concerning billing practices in both the complaint and Defendants' counterclaims and would recommend that the Court grant Plaintiff's request nos. 6 and 8, subject to those limitations and the requirements of the Protective Order.

*5 In document request no. 28, Ms. Hunsberger seeks “[s]alary, benefits and discretionary compensation for Ryan Smith, Dan Stump, Rich Hunt, Joe Leone, Jay Depeler, Ryan Krause, Vince LaSorsa, Jennifer Tursi from 01/2016 to present.”

For purposes of determining what a Title VII plaintifff would have earned absent discrimination, a plaintiff “cannot ‘pick and choose’ a damages comparator,” and “must [instead] choose similar employees against whom to compare herself.” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 90 (3d Cir. 2009). The Third Circuit has held that to make a prima facie case under Title VII, a plaintiff cannot rely on statistical evidence, but must show “causation for any salary disparities, analyze individualized circumstances,” and explain the qualitative differences between individuals. Summy-Long v. Pennsylvania State Univ., 715 F. App'x 179, 183 (3d Cir. 2017).

Plaintiff describes her former position as that of a “high-level executive” and seeks salary, benefits, and compensation information for other employees at the defendant companies who reported to the president of Inperium, Ryan Smith. ECF No. 29, pp. 9-10. Without citing any case law, she simply argues that her request is “routine” and that “all of the named employees” in request no. 28 “work as executives at Inperium reporting to Ryan Smith.” Id.

Defendants assert that, with one exception, all of the persons whom Plaintiff claims are comparators held higher positions than Plaintiff, and the exception, Jennifer Tursi, was an administrative assistant. Defendants also dispute that Plaintiff reported directly to Ryan Smith and claim that she instead reported to Vince LaSorsa.

“Discovery of personnel records is usually permitted only for parties or similarly situated individuals.” Jeffress v. Ocwen Fin. Corp., No. CV 15-6330, 2016 WL 6276443, at *4 (E.D. Pa. Oct. 27, 2016). “[T]o be considered similarly situated, comparator employees must be similarly situated in all relevant respects.” Wilcher v. Postmaster Gen., 441 F. App'x 879, 882 (3d Cir. 2011). Where a plaintiff has failed to demonstrate how other officers or employees are similarly situated, courts will deny discovery of salaries and other personnel information as to those officers or employees. Hicks v. Arthur, 159 F.R.D. 468, 470 (E.D. Pa. 1995) (denying discovery where “Plaintiffs have not demonstrated how the CEO or Director, or other named categories of employees[,] are similarly situated to them”).

In Plump v. La Salle Univ., No. 19-CV-4579, 2020 WL 3250532, at *3-4 (E.D. Pa. June 15, 2020), for example, Magistrate Judge Sitarski found that the plaintiff, a professor, had failed to establish that other professors who had different educational backgrounds, did not teach the same courses, held higher ranks, and were hired earlier than the plaintiff were “similarly situated.” The plaintiff had argued that they were similarly situated based only on the fact that they all served in the same department. Id. at *3.

Like the plaintiff in Plump, Ms. Hunsberger seeks salary information based on a scant assertion—i.e., that she and the other persons identified in document request no. 28 all reported to Mr. Smith. She offers no information about their educational backgrounds, other qualifications, years of experience, job duties, or other factors based on which an assessment can be made as to whether Plaintiff was similarly situated to them. Her request for information as to Ms. Tursi is particularly questionable, given that Plaintiff holds herself out as a high-level executive and Ms. Tursi is an administrative assistant. Because of this, I would recommend that the Court at this time deny Plaintiff's motion with respect to request no. 28, without prejudice to her renewing the motion at such time that she is able to produce sufficient information to establish a plausible claim that she is similarly situated to the persons whose salary, benefits, and discretionary compensation she seeks to discover. Cf. Sims v. Ct. of Common Pleas of Allegheny Cty., No. 2:10-CV-151, 2010 WL 3896428, at *4 (W.D. Pa. Sept. 30, 2010) (holding that where the plaintiff's amended complaint plausibly alleged that four comparators were similarly situated, and giving all reasonable inferences in favor of the plaintiff, the plaintiff was entitled to discovery as to whether the alleged comparators were in fact so situated, and noting that the defendants could renew their contentions that the plaintiff was not, if warranted, on summary judgment).

*6 Document request no. 37 seeks “[a]ll documents reflecting or relating to any claims or complaints of discrimination based on sex or sexual orientation, or harassment, that have been made against Defendants or their affiliates or employees thereof.”

Defendants assert that this request is overly broad and not limited “to any individuals, organizations, departments, locations, or time periods.” ECF No. 30, p. 18. Defendants have not, however, provided specific suggestions as to how those parameters might be appropriately narrowed.

During the teleconference of April 19, 2021, Plaintiff agreed to limit her request to the past five years, but did not otherwise narrow it.

“[E]vidence of past conduct or prior incidents of alleged discrimination has a tendency to make the existence of a fact that is of consequence—the defendant's discriminatory motive or intent—more probable than it would be without the evidence, and therefore such evidence is, as a general rule, relevant” in a discrimination case. Stair v. Lehigh Valley Carpenters Loc. Union No. 600 of United Bhd. of Carpenters & Joiners of Am., 813 F. Supp. 1116, 1119 (E.D. Pa. 1993). See also Morrison v. Philadelphia Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001) (“Evidence of other acts of discrimination is generally discoverable.”).

In a sex discrimination case, for example, “evidence that women other than the plaintiff were subjected to a hostile work environment clearly meets Rule [of Evidence] 401's [relevance] requirements in a number of situations.” Hurley v. Atl. City Police Dep 7, 174 F.3d 95, 110 (3d Cir. 1999). See also Ford v. Cty. of Hudson, 729 F. App'x 188, 193 (3d Cir. 2018) (citing Hurley and holding that the trial court did not err in allowing the testimony of four other employees as to rape and harassment in a gender discrimination case).

In general:

Syed v. Dir., F.B.I., No. CIV. A. 90-1801, 1990 WL 259734, at *2 (E.D. Pa. Jan. 30, 1991) (citation omitted).

Other claims of discrimination on the basis of sex or sexual orientation—the key allegations in Counts II through V of Plaintiff's Complaint—are relevant to Plaintiff's case. Further, as noted, Plaintiff has now placed a reasonable time limitation on her request. See Miller v. Hygrade Food Prod. Corp., 89 F. Supp. 2d 643, 657 (E.D. Pa. 2000) (limiting the scope of discovery to a period of five years prior to the filing of the earliest EEOC charge was reasonable in a Title VII case).

Given that Plaintiff worked for or with Defendants in Pennsylvania, a further reasonable limitation on Plaintiff's requests would be to limit it to Defendants' Pennsylvania operations. See Jeffress 2016 WL 6276443, at *3 (finding merit to the defendants' argument that the plaintiff's request for documents concerning other claims of race discrimination initially “was overly broad in that it was not limited to the relevant employment unit,” but finding the evidence discoverable after the request was so limited). This would include complaints regarding conduct initiated in Pennsylvania, even if the complainant was in another state.

*7 Defendants have asked that an “Attorneys' Eyes Only” designation be applied to any documents that they are ordered to produce in response to request no. 37. Defendants concede, however, that such a designation is not in the parties' Protective Order. Presumably, Defendants could have negotiated such a designation, but did not.

“Protective orders that allow for ‘attorneys' eyes only’ designations have been utilized often in circumstances where the requesting party could use the information to the disadvantage of the disclosing party.” Mains v. Sherwin-Williams Co., No. 5:20-CV-00112-JMG, 2021 WL 1298237, at *2 (E.D. Pa. Apr. 7, 2021) (quoting Deman Data Sys., LLC v. Schessel, No. 4:13-mc-00520, 2014 WL 204248, at *4 (M.D. Pa. Jan. 16, 2014)). Such a designation is generally used for “the most highly confidential information,” such as trade secrets, Deman Data Sys, LLC, 2014 WL 204248, at *5, or other sensitive, proprietary business information. Mains, 2021 WL 1298237, at *2.

The parties' Protective Order in this case provides for the designation and protection of confidential information. While Defendants have not formally moved for a modification of the Protective Order to add an Attorneys' Eyes Only designation, a party doing so generally must come forward with good cause. Arnold v. Pennsylvania, Dep't of Transp., 477 F.3d 105, 108-09 (3d Cir. 2007). Defendants' stated reasons for seeking the Attorneys' Eyes Only designation, while not entirely clear, appear to be that Plaintiff may use the information in online postings, disseminate it to former employees of Defendants, or use it on social media. The Protective Order prohibits Plaintiff from taking such actions and—without crediting or denying Defendants' allegations as to Plaintiff's past conduct—I would caution her that she may face sanctions or other consequences should she not abide by the Protective Order.

Setting aside Defendants' concerns, and while not raised by the parties, I am sensitive to the potential privacy concerns of other complainants and employees (whether current or former) and am thus inclined to recommend that any pages of documents produced in response to this request that bear the names of complainants or employees be marked and produced for Attorneys' Eyes Only. See United States v. Mount Sinai Hosp., 185 F. Supp. 3d 383, 396 (S.D.N.Y. 2016); Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 565-66 (S.D.N.Y. 2013). Should Plaintiff find the need to challenge this designation in the future, after her counsel has had an opportunity to review the materials, she shall meet and confer with Defendants and, if the parties cannot resolve the issue, she may seek a ruling from the undersigned as to whether the designation should be lifted. Such a solution would serve to balance Plaintiff's right to relevant discovery and the privacy interests of third parties. See Chen-Oster, 293 F.R.D. at 565-66.

In sum, I would recommend granting Plaintiff's motion to compel as to document request no. 37, subject to the terms of the Protective Order, limited to claims of discrimination on the basis of sex or sexual orientation within the past five years in Defendants' Pennsylvania operations, and requiring that documents bearing the names of complainants or other employees (whether current or former) be marked and produced for Attorneys' Eyes Only.

*8 In document request no. 38, Ms. Hunsberger seeks “[a]ll documents reflecting or relating to any claim or complaints made by Stacy Olsen DiStefano.”

Defendants argue that because Ms. DiStefano did not make a claim against a particular individual, Dan Stump, whom Plaintiff allegedly identified by name in her formal complaint to Inperium, see ECF No. 1, ¶ 16, Plaintiff cannot discover this information.

Plaintiff's complaint, however, fairly read, claims discrimination by all Defendants and their agents and “supervisory-level employees or above, including second-line supervisors and Human Resource officials,” see id., ¶¶ 11, 26, not just Mr. Stump.

To the extent that Ms. DiStefano made a claim or complaint involving discrimination on the basis of sex or sexual orientation (a point that Defendants do not appear to deny), I would recommend that request no. 38 be granted subject to the same parameters as request no. 37, but with the exception that Ms. DiStefano's name—which is already well known to Plaintiff, who is aware of Ms. DiStefano's claim or complaint—need not be subject to the Attorneys' Eyes Only restriction. The restriction would, however, apply to the names of other current or former employees.

V. Conclusion

For the reasons set forth above, I would recommend that the Court:

(1) deny Plaintiff's motion to compel as to document request no. 2,

(2) deny Plaintiff's motion to compel as moot with regard to document request nos. 3-5, 11-14, and 22-23, as the parties have reached a resolution as to them.

(3) grant Plaintiff's motion to compel as to document request nos. 6 and 8, narrowed to investigations or audits in the past five years in similar cases involving the issue of purported billing errors or irregularities and subject to the terms of the Protective Order.

(4) deny Plaintiff's motion to compel as to document request no. 28, without prejudice to her renewing the motion at such time that she is able to produce sufficient information to establish a plausible claim that she is similarly situated to the persons whose salary, benefits, and discretionary compensation she seeks to discover.

(5) grant Plaintiff's motion to compel as to document request no. 37, subject to the terms of the Protective Order, limited to claims of discrimination on the basis of sex or sexual orientation within the past five years in Defendants' Pennsylvania operations, and requiring that documents bearing the names of complainants or other employees (whether current or former) be marked and produced for Attorneys' Eyes Only.

(6) grant document request no. 38, provided that Ms. DiStefano made a claim or complaint involving discrimination on the basis of sex or sexual orientation, subject to the same parameters as request no. 37, but with the exception that Ms. DiStefano's name (only) need not be subject to the Attorneys' Eyes Only restriction.

Plaintiff's allegations regarding CHOR Easton are more clearly articulated in her briefing on her motion to compel (discussed below) than they are in her complaint.

These include document request nos. 5, 11-14, and 22-23. With regard to these items, I would recommend that the Court deny Plaintiff's motion to compel as moot.

Defendants cite Martinez Patterson, 2019 WL 5294532, at *5 (W.D. Wash. 2019) (denying a request for all of the plaintiff's e-mails over a sixteen-year period) and Odeh v. City of Baton Rouge/Par. of E. Baton Rouge, 2016 WL 1254361, at *3–4 (M.D. La. 2016) (denying a request for all of the plaintiff's e-mails over a thirteen-year period).