*1 This matter comes before the Court to consider the latest round of discovery motions, all of which are filed by Defendants, Rawlings Company, LLC, and Debra Ford. Included among the motions for our review are: a motion for permission to serve revised and narrowed subpoenas pursuant to Rule 45(a)(4);[1] a motion pursuant to Rule 26(b)(5)(B) requesting review of a financial document that Defendants contend is inappropriately deemed privileged by the Plaintiff;[2] a motion to seal the same document pending the ultimate determination of its status;[3] and finally, a motion pursuant to Rule 36(a)(6) to determine the sufficiency of the supplemental responses of the Plaintiff to Defendants' first set of requests for admission.[4] Appropriate responses and replies to these motions have now been filed. Accordingly, they are ripe for consideration by the Court.

The Court in its prior order of April 6, 2017 recited at length the facts and legal claims raised by the Plaintiff.[5] The parties are thoroughly familiar with them. Little purpose would be served therefore by their repetition at this point. Persons interested in this background information may obtain it from pages 7-12 of the April 6 order. Our focus instead falls initially on a single document, one that is the genesis for three of the current four motions. That document is a bank statement.

On August 18, 2015, Plaintiff Adrienne Popeck, while employed as an auditor at Rawlings, digitized her July-August 2015 monthly PNC bank statement using a company fax machine of her employer. She then faxed the bank statement in the form of an “Incoming Fax Report” to her work email address, after which she attached it to an email and forwarded it to her bankruptcy attorney, Walter Hudson, for his professional use in her legal representation.

Review of the bank statement reveals that once on Wednesday, July 15, 2015, and again on two occasions the following day on Thursday, July 16, Popeck's debit card was used to make an ATM withdraw at the Belterra Casino Resort and Spa in Florence, Indiana.[6] Rawlings' ADP payroll records and email communications between Popeck and her supervisor at Rawlings, Diana Chapman, reflect that on July 15, Popeck, who suffers from irritable bowel syndrome (IBS), notified Chapman that she was not feeling well and would be taking a half-day of ADA leave that afternoon. Popeck also took full-day ADA leave ostensibly due to her IBS on Monday, July 13, 2015, and on Tuesday, July 14, 2015.

*2 Because this banking record raises the possibility that Popeck misled Rawlings and potentially abused her ADA leave by departing work during normal business hours to gamble at Belterra, Rawlings has renewed its efforts to obtain her bank and gaming records for 2015 via revised subpoenas in furtherance of its after-acquired evidence defense under McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 260-63 (1995). The Court in its prior order granted Popeck's motion for a protective order and quashed the five subpoenas that Rawlings sought to serve on Popeck's two banks, Fifth Third Band and PNC Bank, and on three gaming establishments she had visited, Twin Spires, Horseshoe Casino Southeast and Belterra. In doing so, the Court held that the prior subpoenas as then drafted were unduly broad, overly burdensome and disproportionate to the needs of the case.[7]

With the discovery of the PNC bank statement,[8] Rawlings has returned with revised subpoenas, substantially narrower in scope, seeking once again to obtain Popeck's bank and gaming records for a single year, 2015. Popeck insists that Rawlings, which did not object to our prior order, is attempting now to file a de facto motion to reconsider, one that is as unpersuasive as it is untimely. Rawlings asks the Court to declare the bank statement to be non-privileged; and, given its contents, along with the greatly reduced scope of the revised subpoenas, grant it permission to issue them to pursue its McKennon after-acquired evidence defense. Popeck counters that her recently “discovered” bank statement is protected by the attorney-client privilege given that it was transmitted to her attorney for the purpose of obtaining legal services and therefor is protected in accordance with the reasoning set out in In Re Search Warrant Executed at Law Offices of Stephen Garea (hereinafter Stephen Garea), No. 97-4112, 1999 WL 137499 at *5 (6th Cir. 1999). She further maintains that Rawlings violated her legitimate expectation of privacy when it obtained the bank statement in contravention of the 4-factor test applied in In re Asia Global Crossing, Limited, 322 BR 247, 256 (Bankr. S.D.N.Y. 2005). We disagree with Popeck on both of these points.

Because Popeck relies upon the attorney-client privilege in an effort to prevent Rawlings from making further use of her PNC bank statement, she bears the burden of establishing the existence and application of the privilege. See, In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir. 2002) (“The burden of establishing the existence of a privilege rests with the party asserting it.”). Claims of attorney-client privilege ordinarily are construed narrowly by the federal courts and applied only when necessary to achieve the purpose of the privilege. Invesco Int'l (N.A.), Inc. v. Paas,, 244 F.R.D. 374, 381-82 (W.D. Ky. 2007)(“Because the proper exercise of the attorney-client privilege will often result in the nondisclosure of highly relevant information, it has been held to apply only where necessary to achieve its fundamental purpose.”) (citing Fisher, 425 U.S. at 403); In re Anti-trust Grand Jury, 805 F.2d 155, 162 (6th Cir. 1986)(same).

*3 To the extent that Popeck hopes to apply the attorney-client privilege to a pre-existing financial document she subsequently transmitted to her counsel, she faces a decided uphill battle as federal case law routinely rejects such arguments. Indeed, there are numerous cases that hold against her position. See, United States v. Judson, 322 F.2d 460, 462–63 (9th Cir. 1963) (“The cancelled checks and bank statement are not within the attorney-client privilege. These items were negotiable instruments in commerce and were never confidential from the time of their creation. Their transfer from the client to the attorney did not constitute a confidential communication.”)(citing Colton v. United States, 306 F.2d 633 (2nd Cir. 1962)); Colton, 306 F.2d at 639–40 (2d Cir. 1962)(“Insofar as the papers include pre-existing documents and financial records not prepared by the Matters for the purpose of communicating with their lawyers in confidence, their contents have acquired no special protection from the simple fact of being turned over to an attorney. It is only if the client could have refused to produce such papers that the attorney may do so when they have passed into his possession. 8 Wigmore, Evidence § 2307 (McNaughton rev. 1961); McCormick, Evidence § 93 (1954). Any other rule would permit a person to prevent disclosure of any of his papers by the simple expedient of keeping them in the possession of his attorney.”) (citing Falsone v. United States, 205 F.2d 734, 739 (5 Cir.), cert. denied, 346 U.S. 864 (1953)); United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973) (“The summons here at issue sought only financial records limited to cancelled checks, bank statements, duplicate deposit slips, and general ledger and cash receipts and disbursements journals, and taxpayer failed to carry his burden of proving that these records fell within the attorney-client privilege.”); Bauer v. Orser, 258 F. Supp. 338, 343 (D.N.D. 1966) (“Some of these items had been negotiable instruments in commerce; some were copies of bank and financial records. All were pre-existing documents and financial records not prepared by taxpayers in confidence, or for the purpose of communicating with their lawyer in confidence. These records and documents do not constitute privileged communications within the attorney-client privilege.”) (citing Colton v. United States, 306 F.2d 633; and Falsone v. United States, 205 F.2d 734, 739).

The same is true here. The PNC bank statement of July-August 2015 was not prepared by Popeck to obtain legal services. Rather, it was a common, consumer financial document routinely generated by her bank in the ordinary course of its administration of her bank account, a document which she subsequently transmitted to her bankruptcy attorney. Were we to cloak such pre-existing financial documents with the attorney-client privilege, merely because an individual fortuitously chose to later send them to an attorney, the privilege would be impermissibly transformed from a narrowly applied protection for client-attorney communications into an impenetrable barrier used to defeat access to otherwise nonprivileged facts essential to the just and proper outcome of legal disputes. The law does not support such a result, not even the Stephen Garea decision relied on by Popeck.

Contrary to Popeck's hopes, Stephen Garea does not hold that the substance of otherwise nonprivileged documents becomes protected by the attorney client privilege merely through the act of transmission from client to attorney in the course of obtaining legal advice. What Popeck seizes on in Stephen Garea is mere dicta. The majority recognizes in passing the “theory” that an item generated by a third-party such as, for example, a newspaper article, which is not otherwise privileged in its substance, when transmitted from client to attorney “with a request for legal guidance concerning its contents,” may “confer privileged status upon the exchange.” Stephen Garea, 1999 WL 137499 at *5. The Sixth Circuit in Stephen Garea, however, never applied this theory because it instead relied on the inadequacy of the defendants' privilege log, as did the district court, to reject the assertion of the attorney-client privilege as to the third-party documents seized by the government from the office of the defendants' counsel.

The fact that Stephen Garea is frequently cited concerning the need for adequacy of privilege logs, rather than as a sound basis to apply the theory mentioned in its dicta, confirms that this is the main point to be taken from the case. See, e.g., Williams v. Duke Engery Corp, No. 1:08–cv–00046, 2014 WL 3895227 at *4 (S.D. Ohio Aug. 8, 2014); Alomari v. Ohio Dep't of Public Safety, No. 2:11-CV-00613, 2014 WL 12651191 at *4 (S.D. Ohio June 19, 2014); Osborn v. Griffin, 2013 WL 5221663 at *2 (E.D. Ky. Sept. 17, 2013); Cooey v. Strickland, 269 F.R.D. 643, 649 (S.D. Ohio Aug. 16, 2010); Pravak v Meyer Eye Group, PLC, No. 2:07-2433-MlV, 2009 WL 10664851 at *5 (W.D. Tenn. Oct. 22, 2009).[9]

*4 Popeck also overlooks the unique factual circumstances that led to the discussion of what we have designated as the “act of transmission” theory of attorney-client privilege mentioned in Stephen Garea. The case factually involved the criminal prosecution of two, mafia-connected Pittsburg businessmen, Dominic and Lenine “Lenny” Strollo,[10] both of whom were federally indicted in the Western District of Pennsylvania for “attempting to subvert the lawful activities of the National Indian Gaming Commission.” Among the items seized by the government from the case files of the Strollos' defense attorney, Mr. Garea, were a series of newspaper articles concerning Indian gaming casinos that the Strollos had sent to Mr. Garea to obtain his legal advice.

As Judge Kennedy explained in her dissent, the only purpose for the government to seize such facially innocuous articles, which were otherwise publicly available, was the hope to use them as a form of testimonial admission, i.e., the mere act of the Strollos in providing them to their counsel confirmed their interest and involvement in Indian gambling activities and therefor supported the link between the two men and the alleged unlawful activities in the indictment. Stephen Garea, 1999 WL 137499 at *12-13 (Kennedy, J., dissent). Accordingly, Judge Kennedy explained in her dissent that:

Stephen Garea, 1999 WL 137499 at *16.

We simply do not have that situation here. Rawlings does not appear to attach any evidentiary significance to the mere act of transmitting the PNC bank statement to Popeck's bankruptcy attorney or her possession of the bank statement itself. It is purely the factual contents of the PNC statement, rather than the act of its transmission to counsel, that has potential evidentiary significance. This distinguishing feature alone renders Stephen Garea materially distinguishable as even the defendants in Stephen Garea conceded that the substance of the newspaper clippings was nonprivileged. Accordingly, we do not believe that Stephen Garea justifies departure from the prevailing rule that previously prepared, third-party documents that were not created to obtain legal advice are not made privileged merely because they have been transmitted to an attorney involved in the legal representation of the sender.

We likewise do not believe that In re Asia Global Crossing, Limited, et al.,Debtors, 322 B.R. 247, 256 (Bankr. S.D.N.Y. 2005) offers support for exclusion of the July-August 2015 bank statement on grounds of attorney-client privilege either. There the main question was whether the employee's use of the company e-mail system to communicate with her attorney waived an existing attorney-client privilege. In other words, the privileged status of the emailed documents was assumed for the purpose of legal analysis and the focus was whether “transmission of a privileged communication through unencrypted e-mail [does or] does not, without more, destroy the privilege.” In re Asia Crossing, 322 B.R. at 256, 258 (“As noted earlier, the court assumes that the Insider e-mails are otherwise privileged...”).

*5 The Court in Asia Crossing held it does not where the affected employee had an objectively reasonable expectation of privacy in the use of the company's email system based on a four-factor analysis.[11] That conclusion, while interesting in an abstract sense, begs the material question now at issue—whether the bank statement itself was privileged in the first instance. It is not, as the cited decisions above on pages 4-5 repeatedly hold. In re Asia Global Crossing does not persuade us otherwise. While it contains an interesting discussion on the question of privacy of company email communications, it does not address matters of attorney-client privilege.

The Court accordingly GRANTS the motion of Rawlings pursuant to Rule 26(b)(5)(B) to designate the PNC bank statement of July-August 2015 to be non-privileged.[12] To ensure the protection of the affected bank statement pending the final determination of its status as either privileged or non-privileged, the Court provisionally GRANTS the motion of Rawlings to seal exhibit 1 to its motion to designate the bank statement as non-privileged with the understanding the should neither party appeal the present order, or should the District Court affirm the decision of the Magistrate Judge, the bank statement may be unsealed on appropriate motion.[13]

The next matter we address is the motion of the Defendants for permission to serve revised subpoenas pursuant to Rule 45(a)(4).[14] Rawlings and Ford seek leave by their motion to serve deposition subpoenas on Jeffrey Hayes, a Branch Manager of PNC bank, and Jay Simpson, a Branch Manager for Fifth Third Bank. Both of these subpoenas seek for the period of January 1, 2015 to December 31, 2015, the production of: (1) all monthly bank statements for accounts individually or jointly owned by Adrian Popeck; (2) all automated teller machine (ATM) or point-of-sale (POS) transaction records that reflect the date, time, and location for each POS or ATM transaction for any withdrawals at the Horseshoe Casino and Belterra Casino for all accounts individually or jointly owned by Adrian Popeck; and (3) all documents that reflect any claims of fraud, identity theft or unauthorized transactions for all bank accounts individually or jointly owned by Adrian Popeck. The Defendants also seek to issue deposition subpoenas to Tony Wilmot, the Director of Security at Belterra Casino, and to Scott Estes of the Horseshoe Casino Southeast. Both of these latter two subpoenas seek for the period of January 1, 2015 to December 31, 2015 the production of: (1) all records of any frequent player rewards programs and/or loyalty programs or accounts in which Adrian Popeck participated at each facility, including her current status in such programs; and (2) any and all dates and times of gaming play by Adrian Popeck.[15]

*6 Defendants now argue that, in response to our prior order of April 6, 2017, they have substantially revised and narrowed their subpoenas for the Plaintiff's bank and gaming records to a single year, 2015, from the original seven-year time frame sought by the prior five subpoenas, which the Court quashed. Defendants explain that they have further limited the number of documents sought, as well as, the temporal scope of the subpoenas and removed one of the gaming establishments.

With the discovery of the Popeck's July-August 2015 PNC bank statement, Defendants point out that they presently have a clear factual basis on which to issue the revised subpoenas to pursue their after-acquired evidence defense under McKennon, 513 U.S. at 360-63. They further maintain that, while Popeck's FMLA and FLSA claims do not encompass damages for emotional distress, her ADA and KCRA claims decidedly do provide for recovery for emotional distress, which Popeck has claimed, so that her financial records are equally relevant to determine whether her alleged financial reversals were possibly of her own making.

Popeck for her part considers the Defendants' motion for permission to serve revised subpoenas to be little more than an untimely effort “to complete an end-run around ... the Court's Order of April 6, 2017.[16] She points out that the motion in actuality is a de facto motion to reconsider filed by Defendants four days after the expiration of the 14-day objection time period set out in Rule 72(a) and therefore is time barred. Additionally, Popeck argues that the motion is based on “an unethically obtained document ... filed in the [court] record as part of an ongoing pattern” by Rawlings to scare off employees who would otherwise assert their employment rights under the ADA, FMLA or FLSA. Popeck insists that there remains no evidence that she participated in casino gambling during work hours or FMLA or ADA leave time. She offers the affidavit of Chris Seiler, who confirms that he has used Popeck's rewards membership card with her knowledge and consent on various occasions when going to the same casinos during the day, given his third-shift employment. Seiler also avers that Popeck often would allow him to use her debit card when necessary.[17] Consequently, she dismisses the motion as yet another attempt by the Defendants at an unjustified fishing expedition.

Defendants reply that their current motion does not seek reconsideration, but rather to serve “entirely new subpoenas that differ materially from the subpoenas at issue in the April 6 order.”[18] Because the subpoenas are not those originally considered by the Court, and because of the recent discovery of the July-August PNC bank statement, Defendants argue that their motion cannot be characterized as one for “reconsideration” of items – – the bank statement and revised subpoenas – – that have never previously been put before the Court. Further, the revised subpoenas, Defendants explain, are based on Popeck's own bank statement that shows an ATM withdrawal on the day that an email exchange with her supervisor confirms that she took disability leave from her work at Rawlings, as the ADP records reflect.

We are compelled to agree with the Defendants. The revised subpoenas are substantially narrower in the scope of gaming and financial records originally sought, and are reasonably limited to a single, critical year. We do not have the situation that occurred in Boyar v. Modell, No. 85 Civ. 1174 (CSH),1986 WL 5381 at *1-2 (S.D.N.Y. May 5, 1986), wherein Defendants admitted that they untimely moved for “reconsideration” of the order of a magistrate judge offering as justification only their unfamiliarity with the Federal Magistrates Act, 28 U.S.C. § 631 et seq. Id. Just as importantly, Defendants have now come forward with evidence, a non-privileged bank statement, that suggests that their after-acquired evidence defense has a basis in fact. Thus, we are not faced with the same type of extreme overbreadth, or the absence of a factual basis, that created the possibility of unfair prejudice and disproportionate discovery that originally led to our April 6 Order.

*7 The standard for the issuance or denial of the revised subpoenas remains the same as that discussed in the April 6 Order, wherein we explained that:

*8 (DN 71, Order of April 6, 2017 at pp. 12-14).

Because the revised subpoenas are not overbroad, rest on an adequate factual basis to establish their relevance to the defendants' after-acquired evidence defense, do not appear to be unfairly prejudicial in that context, and are proportional to the needs of the case, the Court shall GRANT the motion of the Defendants for permission to serve the revised subpoenas pursuant to Rule 45(a)(4).

The final motion that we consider is the Rule 36(a)(6) motion of Rawlings and Ford to determine the sufficiency of Popeck's responses to Defendants' First Set of Requests for Admission .[19] Defendants maintain that a number of the responses provided by the Plaintiff fail to comply with the requirements of Rule 36(a). On December 13, 2016, Defendants served the Plaintiff with 52 requests for admission.[20] Plaintiff provided her responses on January 6, 2017 after which the Defendants sent Plaintiff a written request in March to revise 30 of her responses based on certain alleged deficiencies under the Rule as explained in Aprile Horse Transp. Inc. v. Prestige Delivery System (Aprile Horse), No. 5:13–CV–15– GNS, 2015 WL 4068457 at *2 (W.D. Ky. 2015). Plaintiff provided supplemental responses on April 28, 2017. Defendants now maintain that 15 of the 30 initial responses of the Plaintiff continue to be deficient.

Specifically, Rawlings and Ford asked the Court to review the Plaintiffs answers to requests no. 1, 2, 5, 6, 22, 27, 35, 39, 40, 41, 43, 49, 50, 51 and 52.[21] According to the Defendants, the supplemental responses to requests no 5, 6, 22, 35, 41 and 43 are evasive. Defendants claim that rather than admit or deny each request as written, Plaintiff essentially has redrafted the affected request to provide a response that does not fairly meet the substance of the request actually made. Defendants next protest that supplemental responses to requests no. 1 and 2 improperly contained both an objection and a response, rather than an objection or a response as required by Aprile Horse. Plaintiff incorporates in both these supplemental responses the objection she earlier raised in her answer to Defendants' interrogatory no. 19. Finally, Defendants contend that the Plaintiffs supplemental responses to request no 27, 39, 40, 49, 50, 51 and 52 each improperly respond that “the document speaks for itself” again contrary to the tenants of Aprile Horse.

Popeck in response to Rawlings' motion to determine the sufficiency of her supplemental responses first points out that Defendants failed to comply with the Agreed Scheduling Order provisions that require a telephonic conference with the Magistrate Judge prior to filing a discovery motion, as well as the provisions of Joint Local Rule 37.1 that likewise require a good faith effort by counsel to extrajudicially resolve such discovery disputes by conference prior to filing any discovery motions along with a certificate of consultation to that effect—all of which are absent in the present case.

*9 Second, Popeck points out that, at the time Defendants filed their motion to determine the sufficiency of her responses, the Rule 30(b)(6) deposition testimony of Rawlings Co. LLC had not yet been concluded. Plaintiff in her email communication to Defendants had advised them that her responses would be further amended after the conclusion of the corporate deposition. Defendants responded by suggesting that Plaintiff wait until the Rule 30(b)(6) deposition had been completed, given its potential impact on Plaintiff's responses to requests for admission. Despite this assurance, Defendants filed their present motion. Popeck therefore concludes that it is “disingenuous in design solely to waste Plaintiff's resources.”[22]

Third, Popeck counters that the very same correspondence reveals that the responses of the Defendants to the Plaintiff's own requests for admission are equally deficient under the Aprile Horse decision. Further, Defendants have not provided the Plaintiff with any supplemental responses despite now demanding immediate attention of the Plaintiff to an issue raised near the close of discovery without the prior involvement of the Magistrate Judge. Because the Federal Rules of Civil Procedure require prior consultation and a certification of such efforts before any discovery motions are filed, and because the Defendants have entirely violated such requirements, Plaintiff concludes that the present motion of the Defendants was not filed in good faith, should be denied in its entirety and that reasonable expenses and attorney's fees in opposing the motion be awarded to her under Rule 37(a)(5)(B).

Defendants in their Reply initially point out that Popeck does not substantively counter any of the arguments raised in their motion concerning the deficiencies in her supplemental responses so that the merits are essentially uncontested. Instead, Defendants argue that the Plaintiff's Response “presents only gross misrepresentations of fact.”[23] For example, Defendants insist that the parties did confer prior to the present motion. Defendants also point out that Plaintiff filed her supplemental responses prior to the completion of the Rule 30(b)(6) deposition of Rawlings, despite the Defendants willingness to await completion of the corporate deposition before receiving the Plaintiff's supplemental responses. Defendants note that they remain open to discussions with the Plaintiff, and the Court, regarding the adequacy of the supplemental responses and have even proposed that an agreed order holding their present motion in abeyance be entered until completion of the Rule 30(b)(6) deposition, which Plaintiff declined to do. These events suggest to the Defendants that the Plaintiff has no genuine intent to further supplement her responses regardless of the outcome of the Rawlings corporate deposition.

Here, neither party disputes the requirements of Rule 36 or the explanation of such requirements set out in Aprile Horse. Rawlings is correct in at least one regard. Plaintiff does not substantively challenge Defendants' reliance on Aprile Horse, or its application to the affected supplemental responses to requests for admission. Aprile Horse teaches several basic points about Rule 36 that are worth repeating verbatim below:

Aprile Horse Transp., Inc. v. Prestige Delivery Sys., Inc., No. 5:13-CV-15-GNS-LLK, 2015 WL 4068457, at *2 (W.D. Ky. July 2, 2015).

With the above principles in mind, the Court agrees with Rawlings that to the extent that the Plaintiff's supplemental responses to requests for admission nos. 27, 39, 40, 49, 50, 51 and 52 state, or otherwise materially suggest, that the “document speaks for itself,” such responses run afoul of Rule 36 and Aprile Horse. See, Gina Jones v. University of Memphis, No. 2:15-cv-02148-JPM-cgc, 2016 WL 6123510 (W.D. Tenn. Sept. 23, 2016)(citing with approval Aprile Horse). Likewise, it appears clear that supplemental responses no. 1 and 2 contain both an objection and an answer and therefor are likewise deficient under Aprile Horse. See, Poole v. Textron, Inc., 192 FRD 494, 499 (D. Md. 2000)(hair-splitting answers that contained both an objection and a complexly-worded response that appeared “crafted to sabotage the legitimate use of requests for admission” reflected an “unarticulated goal to unfairly burden the opposing party.”)

The Court has examined the remaining supplemental responses nos 5, 6, 22, 35, 41 and 43 to determine whether they are, as Rawlings and Ford insist, evasive in nature. The Court agrees as to supplemental responses 22, 35, 41 and 43. The supplemental responses in these instances do not fairly meet the request for admission as asked by Defendants. For example, if Popeck truly lacks sufficient information to admit or deny whether Rawlings took an appeal from the decision of the unemployment referee after making reasonable inquiry, then she cannot deny this particular request for admission. On the other hand, if Popeck knows that she did not receive notice of appeal or other indication that Rawlings sought further review of the referee's decision of February 1, 2016, than she must admit so in her supplemental response.

*11 The remaining three requests for admission, nos. 35, 41 and 43 are straightforward. Either Popeck did or did not execute a written employment agreement with Rawlings. Apparently, she by her current supplemental response attempts to reserve the opportunity to argue that some other document, other than a written employment agreement, created a contract of employment, i.e., such as a company personnel/policy manual. Regardless of whether that is so, if no written employment agreement was entered into between the parties, Popeck must admit so.

The same is true of the remaining two requests for admission, nos. 41 and 43. If Popeck did not request to work from home as an accommodation, nor ask for part-time work as an accommodation, she must admit so even if she did not ask because she correctly believed that Rawlings would not consider such an accommodation. Whether the Plaintiff was willing or unwilling “to engage in an interactive process” to consider various accommodations, while not irrelevant, is certainly nonresponsive in the context of requests no. 41 and 43.[24] Accordingly to the extent set forth above, the motion to determine the sufficiency of Popeck's supplemental responses is GRANTED. Popeck shall have 20 days from the date of entry of the present order in which to further revise her supplemental responses to address the deficiencies discussed herein.[25] Appeal of the present order is governed by the terms of the time limitations of Rule 72(a) of the Federal Rules of Civil Procedure. Each party shall bear its own costs in this matter.

Cc: Counsel of Record.