I. BACKGROUND

*1 The plaintiff, Sharon Sweeney, the former Chief Regulatory Officer at Post University, commenced this employment discrimination action on November 2, 2017. (Doc. No. 1). The plaintiff filed an Amended Complaint on June 14, 2019. (Doc. No. 74). She alleges that she was retaliated against because she expressed opposition to defendants’ “unethical and illegal practices designed to increase enrollment numbers.” (Doc. No. 74, at 13-14).

On February 22, 2019, the plaintiff filed a Motion to Compel. (Doc. No. 37). On May 20, 2019, the defendants filed their Opposition, (Doc. No. 61), and on June 3, 2019, the plaintiff filed her Reply. (Doc. No. 65). The motion to compel was referred to the undersigned on May 22, 2019. On June 12, 2019, at the parties’ joint request, the undersigned denied the plaintiff's Motion to Compel without prejudice to renewal and extended the deadlines for discovery and the filing of dispositive motions. (Doc. No. 72). On October 21, 2019, after the parties informed the Court that they were ready to proceed with discovery and sought another extension of the applicable deadlines, the plaintiff filed a Motion for Ruling on Plaintiff's Motion to Compel. (Doc. No. 103). For the reasons stated below, the plaintiff's Motion to Compel, (Doc. Nos. 37 and 103), is GRANTED IN PART and DENIED IN PART.

II. MOTION TO COMPEL

A. LEGAL STANDARD

Parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1). The proportionality determination limits the scope of discovery by “considering the importance of the issues at stake[,]” the “amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense ... outweighs the likely benefit” of the discovery sought. FED. R. CIV. P. 26(b)(1).

B. DISCUSSION

In this request, the plaintiff asks the defendants to “identify all persons who answered these Interrogatories and Requests for Production of Documents or who provided information or responses used in responding to each [ ] interrogator[y].” (Doc. No. 37-3 at 2). In response, the defendants provided one name, Raymond Lagasse, the Assistant Director of Human Resources at Post University. (Id.). In their opposition to the instant motion, the defendants agreed to supplement their response by identifying additional persons who supplied information in connection with the plaintiff's interrogatories. (Def.’s Mem. at 4). The plaintiff considers this to be a “partial response” and seeks an order for “full compliance,” which appears to be an order compelling the defendants to answer with a representative “who has personal knowledge and [is] able to testify that a fact is correct.” (Pl.’s Mem. at 11; Pl.’s Reply at 1). In light of the defendants’ agreement to supplement their response, the plaintiff's motion as to this Interrogatory is DENIED as moot. The plaintiff's insistence that the defendants be directed to answer with an individual with personal knowledge is premature. To the extent the defendants have not yet supplemented their response, they shall do so by November 29, 2019.

*2 In this request, the plaintiff asks the defendants to “[s]tate whether any complaint, whether formal, or informal, written or oral, has been made against Plaintiff by any employee of Defendant,” and if so, to “identify or state ... a. the nature of the complaint; b. the identity of the individual who made the complaint; c. the date on which such complaint was made; d. whether an investigation occurred, and if so, who handled the investigation and what were the results of the investigation; and e. all documents related to, reflecting or concerning the complaint and any investigation thereof including any outcome report[.]” (Doc. No. 37-3, at 6). The defendants provided two complaints made against the plaintiff but did not provide the date of the complaints, whether an investigation occurred, or the results of any investigations. (Id.). In their opposition to the instant motion, the defendants represented that they would supplement their response to provide additional information “to the extent it exists.” (Def.’s Mem. at 5). Accordingly, the plaintiff's motion as to this Interrogatory is DENIED. To the extent the defendants have not yet supplemented their response, they shall do so by November 29, 2019.

In Interrogatory Request No. 11, the plaintiff asks the defendants to “state the reason for the management change at Post University that led to the hiring of John Hopkins and Bobby Reese, and specifically, whether they were recruited to make Post University market ready for a sale.” (Doc. No. 37-3, at 6). The defendants objected on several grounds, but they then provided an answer: “Mr. Hopkins and Mr. Reese were not recruited to make Post University marketable and ready for a sale. The reason was that Post University's CEO, Tom Samph, decided to retire.” (Id. at 6-7). In light of this answer, the plaintiff's motion as to this Interrogatory is DENIED.

In these requests, the plaintiff asks the defendants to describe “the compensation, including salary and benefits, given to [Reese and Hopkins] by Post University” and to “describe specifically any compensation or benefit for which [Reese and Hopkins] [were] eligible in the event of a sale of Post University.” (Doc. No. 37-3, at 7-8). The defendants objected on the ground that the interrogatories request “confidential salary and benefit information of Defendant's officers,” which is “not relevant to any party's claim or defense and is not proportional to the needs of the case.” (Id.). The defendants, however, provided an answer: “there are no additional compensation or benefits that [Reese and Hopkins] would receive in the event Post University was sold.” (Id.). The defendants did not provide an answer describing “the compensation, including salary and benefits,” given to Reese and Hopkins. The plaintiff argues that she “intends to prove that there was a financial motive for John Hopkins and Bobby Reese to increase enrollment by illegal means in order to increase the value [of] Post University for a potential sale.” (Pl.’s Mem. at 15). It is on this basis that she seeks a description of the compensation packages given to Hopkins and Reese by Post University. The Court will address these Interrogatories in Section II.B.2.c., which discusses the plaintiff's document requests related to Hopkins's and Reese's personnel files, including their compensation packages.

In Document Request No. 4, the plaintiff seeks: “all documents identified in response to Interrogatory 10 that reflect, relate to or concern complaints against Plaintiff.” (Doc. No. 37-3 at 10). The defendants represent that they “already produced documents reflecting, relating or concerning informal complaints made against the plaintiff” and “[would] supplement [their] response to provide references to bates numbers.” (Def.’s Mem. at 5). Accordingly, the plaintiff's motion as to this Document Request is DENIED as moot. To the extent that the defendants have not yet supplemented their response, they shall do so by November 29, 2019.

In Document Request No. 6, the plaintiff seeks “all documents that concern, reflect or relate to the management change as identified in response to Interrogatory 11.” (Doc. No. 37-3 at 2). In response to Interrogatory 11, the defendants state: “Mr. Hopkins and Mr. Reese were not recruited to make Post University marketable and ready for a sale. The reason was that Post University's CEO, Tom Samph, decided to retire.” (Doc. No. 37-3 at 6-7). In response to Document Request No. 6, the defendants represent that “documents related to a planned sale [of Post University] do not exist.” (Def.’s Mem. at 6). The defendants also “produced the strategic planning documents for Post University, including drafts of those strategic plans,” “to corroborate the lack of a planned sale.” (Id. at 7). In light of the defendants’ representations and production, the plaintiff's motion to compel further production as to this Document Request is DENIED.

*3 In Document Request Nos. 9 and 10, the plaintiff asks for “the personnel files” of Bobby Reese and John Hopkins “as defined in Section 31-128a of the Connecticut General Statutes.” (Doc. No. 37-3 at 3-4). Document Request Nos. 40 and 41 seek “documents that reflect or concern John Hopkins’[s] job description, work assignments, job duties and compensation for which he was hired by Post University,” and “documents which reflect, concern or relate to the basis for the decision to recruit and hire John Hopkins.” (Doc. No. 37-3 at 17-18). Document Requests Nos. 42 and 43 ask those same two questions but with respect to Bobby Reese. (Doc. No. 37-3 at 18-19). Because these requests relate to information that may be found in those individuals’ personnel files, the Court considers these six requests together.

The plaintiff argues that the personnel files are relevant because the plaintiff “intends to prove” that Reese and Hopkins were hired by Post University to prepare it for sale and that they “were given a [financial] incentive to increase enrollment and sell Post University.” (Pl.’s Mem. at 17). She thus seeks information regarding their compensation and benefits. The plaintiff also argues that documents showing Reese and Hopkins's background and job descriptions may indicate the reason Post University hired them. The defendants object based on confidentiality, relevance, and proportionality. The defendants also represent that neither Reese nor Hopkins was recruited to prepare Post University for a sale, nor were they to receive additional compensation upon such a sale. (Def.’s Mem. at 10). Thus, according to the defendants, any documents concerning Reese and Hopkins's compensation are not relevant to the case. (Id.).

Section 31-128f of the Connecticut General Statutes recognizes a privacy interest in personnel files, providing, in pertinent part: “No individually identifiable information contained in the personnel file [ ] of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer ... except ... pursuant to a lawfully issued administrative summons or judicial order....” Id. Thus, “courts may order the disclosure of employee documents that are relevant to a particular case as part of discovery.” Metcalf v. Yale University, No. 15-CV-1696, 2017 WL 627423, at *5 (D. Conn. Feb. 15, 2017) (citing Ruran v. Beth El Temple of West Hartford, Inc., 226 F.R.D. 165, 169 (D. Conn. 2005)); see also Gibbs v. Am. Sch. for the Deaf, No. 05-CV-563 (MRK), 2007 WL 1079992, at *1 (D. Conn. Apr. 4, 2007) (holding that “Judges in this District have repeatedly recognized that when personnel information ... is necessary and relevant to a case, a court may order limited disclosure of that information consistent with the dictates of § 31-128f.”).

Here, rather than just take the defendants’ word for it, the plaintiff is entitled to discover whether Reese or Hopkins was recruited to prepare Post University for a sale, and whether either was to receive additional compensation upon such a sale. The requested personnel files may contain such information, which should be disclosed to the plaintiff. The personnel files may also include, however, private and personal information that is not necessary or relevant to this litigation. Accordingly, the defendants are directed to submit the personnel files—as well as any other documents reflecting Reese's and Hopkin's job descriptions, job duties and compensation, and any other documents Post University relied upon in deciding to hire Reese and Hopkins—to the Court for in camera review by November 19, 2019. The defendants need not supplement their responses to Interrogatories 13 and 14 pending the Court's in camera review.

*4 Document Request No. 11 requests “all documents that concern, refer or relate to the decision to terminate Plaintiff's employment with Defendant, including, but not limited to, correspondence, letters, emails, notes, meeting notes, agendas, and calendar entries.” (Doc. No. 37-3 at 4). In its May 31, 2018 Amended Responses to Plaintiff's Interrogatories and Document Requests, the defendants represented that they produced all non-privileged documents and that all privileged materials being withheld are communications or work product created after commencement of the action. (Id.). In light of this statement, the plaintiff's motion to compel further production is DENIED. Further, contrary to the plaintiff's argument, the defendants are not required to serve a privilege log. See Local Civil Rule 26(e) (privilege log not required for “written or electronic communications between a party and its trial counsel after commencement of the action and the work product material created after commencement of the action.”).

Document Request No. 14 seeks “all documents that concern, refer or relate to the potential sale of Post University” from “2015 to the present,” and Document Request No. 20 seeks “all documents which reflect any plan or possibility of the sale of Defendant or of making Defendant more marketable to a buyer from 2015 to the present,” respectively. (Doc. No. 37-3 at 5, 8). In its May 31, 2018 Amended Responses to Plaintiff's Interrogatories and Document Requests, the defendants represented that responsive documents are not being withheld as to Document Request No. 14. (Doc. No. 37-3 at 5-6). The defendants objected to Document Request No. 20 on the grounds of confidentiality, relevance, and proportionality. (Doc. No. 37-3 at 8). The defendants also maintained that the statement “which reflect any plan or possibility of the sale of Defendant or of making Defendant more marketable to a buyer” was overly broad. (Id.).

In their opposition, the defendants represent that no documents are being withheld “regarding a non-existent potential sale.” (Def.’s Mem. at 13). Documents are being withheld, however, as to the request for documents related to “making Defendant more marketable to a buyer,” which the defendants argue is “vague” and “overbroad.” (Id.). The defendants argue that, “like any business, everything that Post University does is intended to improve its operations and increase profitability, making every document about Post University's business operations related to making Post University ‘more marketable.’ ” (Id.). The Court agrees with the defendants that the request is vague and overbroad. Moreover, in the plaintiff's motion, she makes clear that her objective is to obtain documents “related to [the] objective of selling Defendant, preparing Defendant for sale or formulating a plan to sell Defendant.” (Pl.’s Mem. at 19); see Pl.’s Reply at 5 (“Plaintiff seeks documents which refer to the plan to attempt to sell post, whether or not an actual sale ever came to fruition.”). The defendants represent that they are not withholding such documents. Accordingly, the plaintiff's motion as to these two requests is DENIED.

In these requests, the plaintiff seeks “documents which reflect the entry of online students without a high school transcript,” “documents which reflect, relate to or concern the removal of online students from Post for the last four years and/or the reason for the removal,” and “documents which reflect online student bad debt accounts for the last four [ ] years.” (Doc. No. 37-3 at 6-7). In the plaintiff's motion, she claims that, for each of these categories, the defendants can easily generate reports reflecting the requested information. (Pl.’s Mem. at 19-21).

The requested information is relevant to the claim. As to Document Request No. 16, the plaintiff contends that the defendants “tracked each and every student that enrolled without a high school transcript or failed to provide ‘proof of graduation.’ ” (Pl.’s Mem. at 19). She claims that a report with this information “will assist [her] in showing the jury that [the defendant] ... removed the most basic requirement of attending college,” proof of graduation from high school, as “part of [its] desperation to increase enrollment.” (Id. at 20). In Document Request No. 17, the plaintiff seeks documents reflecting student “drop out numbers.” (Id.). The plaintiff seeks this information because she argues that a large number of students dropped out of Post University once they found out they were not eligible for the financial aid the defendants had allegedly promised they would receive. In Document Request No. 18, the plaintiff seeks documents reflecting accounts of the students who enrolled and incurred tuition charges but who were unable to pay because their circumstances disqualified them from receiving financial aid. (Id. at 21). This information is relevant to the plaintiff's contention that Post University terminated her employment because she expressed opposition to these alleged practices.

*5 In their opposition, the defendants do not appear to contest the relevancy of these documents to the plaintiff's claims. Instead, the defendants take issue with the plaintiff's assertion that they should be compelled to generate reports of this specific data. (Def.’s Mem. at 14). The defendants are correct that “Rule 34 cannot be used to compel a party to produce a document that does not exist.” Grayson v. General Electric Co., No. 13-CV-1799 (WWE)(WIG), 2016 WL 1275027, at *2 (D. Conn. Apr. 1, 2016); see Hallmark v. Cohen & Slamowitz, Midland Funding LLC, No. 11-CV-842S(F), 2014 WL 5017859, at *5 (W.D.N.Y. Oct. 8, 2014) (“It is basic that in responding to a document production request, pursuant to Fed. R. Civ. P. 34(a), a party is not required to create documents meeting the document requests, only to produce documents already in existence”). Thus, the plaintiff's motion to compel is DENIED as to reports that do not yet exist. However, to the extent defendants possess other documents responsive to Document Request Nos. 16, 17, and 18, and, in particular, documents which contain the underlying data containing the requested information, they shall produce them to the plaintiff by November 29, 2019.

Document Request No. 21 seeks “all email communications to or from Plaintiff on which she was copied six months prior to the separation of employment[,]” including “email communications from Plaintiff's laptop.” (Doc. No. 37-3 at 8). In their Amended Responses, the defendants indicated that “defense counsel will work with Plaintiff's counsel to agree upon reasonable search terms for a search of Plaintiff's emails,” but the defendants objected to production of all of these emails. (Doc. No. 37-3 at 8-9). The plaintiff's emails are highly relevant to her discrimination and retaliation claims and production is proportional to the needs of the case. Further, the defendants have not demonstrated that producing them would be overly burdensome. Indeed, the request is limited to a six-month period. See Saliga v. Chemtura, No. 12-CV-832 (VAB), 2013 WL 6182227, at *3 (D. Conn. Nov. 25, 2013) (defendant in employment discrimination action agreed to produce “the plaintiff's email file in its entirety”). Finally, to the extent the defendants are concerned about confidentiality, there is protective order in this case. Accordingly, the plaintiff's motion as to this Document Request is GRANTED.

These requests relate to email communications from three custodians: Hopkins, Reese, and Whisenhant. Document Request 22 asks for “all email communications to or from Hopkins on which he was copied which refers to or relates to Plaintiff in any manner in the last six months of Plaintiff's employment.” (Doc. No. 37-3 at 9). Document Request 28 is same request but for Reese. (Doc. No. 37-3 at 11-12). Document Request No. 29 seeks “all email communications to or from Bobby Reese or John Hopkins, or on which they were copied, which reflect increasing enrollment or admissions to Post University.” (Doc. No. 37-3 at 12). Document Request No. 30 asks for “all email communications to and from Whisenhant on which she was copied referring to or relating to Plaintiff in any manner in the last six months of her employment.”

The defendants do not fully oppose responding to these Documents Requests, but instead ask the Court to order the parties to meet and confer on reasonable search terms. (Id. at 19). The defendants argue that the plaintiff's requests are overbroad. The Court agrees.

The language “which refers to or relates to Plaintiff” in Document Requests Nos. 22, 28, and 30 is vague and overbroad. It is unclear whether the plaintiff seeks to compel the defendants to apply the plaintiff's name as a search term to the email accounts of Hopkins, Reese, and Whisenhant, or whether she seeks a broader search. Indeed, to the extent she requests a broader search, the defendants represent that, because the plaintiff was the Chief Regulatory Officer at Post University, “nearly every email communication relates to the plaintiff and her regulatory compliance duties in some manner.” (Def.’s Mem. at 18). Similarly, as to Document Request No. 29, the defendants represent that, given the nature of their positions, “every single decision that Mr. Reese and Mr. Hopkins considered or made is likely to, in some manner, relate to or concern expanding enrollment.” (Id. at 18-19).

*6 The plaintiff's motion to compel a further response to these document requests is thus GRANTED in part and DENIED in part. The plaintiff is entitled to all email communications to or from Hopkins, Reese and Whisenhant, or emails on which they were copied, which includes the plaintiff's name, from the last six months of her employment. To the extent that the plaintiff seeks a broader search in Document Request Nos. 22, 28, 29 and 30, the parties are in a far better position than the Court to decide the search terms to be applied to the emails of these three custodians. Therefore, the parties are directed to meet and confer on reasonable search terms as to Document Request Nos. 22, 28, 29, and 30.

This request asks for “all documents reflecting, concerning or relating to moving the financial aid employees in close proximity to the admissions personnel.” (Doc. No. 37-3 at 13). The plaintiff argues that such information is relevant because this move caused financial aid personnel to feel pressured by the admissions staff to approve students for financial aid who were not eligible for such aid. (Pl.’s Mem. at 25). In its Amended Responses, the defendants noted that responsive documents were being withheld. In their opposition, however, the defendants indicate that they will “produce responsive documents in connection with a search of the three email custodians using appropriate search terms.” (Def.’s Mem. at 19). The Court agrees with the plaintiff that documents reflecting this move are relevant. Moreover, the request is sufficiently specific, such that search terms do not appear to be necessary. Accordingly, the plaintiff's motion to compel as to this request is GRANTED.

Document Request No. 34 asks for “all documents related to the [Ability to Pay] Policy, including but not limited to documents regarding where the ATP Policy is stated, how quickly it is applied, any variances or modifications, and the prerequisites for an ATP designation for Post University's students” from “2015 to the present.” (Doc. No. 37-3 at 15). Document Request No. 45 requests “documents to or from Bobby Reese or on which he was copied that reflect, concern or relate to ATP designation policy or giving any student or potential student an ATP designation.” (Doc. No. 37-3 at 20). In support of her motion, the plaintiff submits two draft ATP policies produced by the defendant. (Doc. 37, Ex. S). She maintains, however, that the defendants have not produced a final ATP policy or any communications regarding creation of the policy.

In their opposition, the defendants maintain that the requests are “overly broad and vague.” The Court is not persuaded by the defendants’ argument that they “cannot reasonably determine the scope of what the plaintiff seeks.” (Def.’s Mem. at 20). Accordingly, the plaintiff's motion to compel a further response as to these document requests is GRANTED. All documents reflecting the ATP Policy, including, if it exists, a final version of the ATP Policy, how quickly the ATP Policy is applied, any variances from or modifications to the policy, and the prerequisites for an ATP designation, must be produced to the plaintiff by November 29, 2019. The defendants are also directed apply the search term “ATP” to Reese's email account and produce to the plaintiff the results of such a search by November 29, 2019. To the extent the defendants are concerned about confidentiality, the Court notes that there is a protective order in this case.

In this request, the plaintiff seeks “all documents which concern, refer or relate, in any manner to the dinner meeting July 26, 2017, including, but not limited to, any agenda, handwritten notes, emails, calendar invites, memos and letters.” (Doc. No. 37-3 at 16). The defendants represent that they have produced all responsive non-privileged documents in their possession, custody, and control, and that all privileged materials being withheld are communications or work product created after commencement of this action. (Def.’s Mem. at 21). Accordingly, given this representation, the plaintiff's motion to compel as to this Document Request is DENIED.[1]

*7 Document Request No. 38 requests “all documents related to a staff meeting during July of 2017 concerning military admissions to Post University, including, but not limited to, complaints about the Plaintiff.” (Doc. No. 37-3 at 17). The defendants now represent that they have produced all responsive non-privileged documents in their possession, custody, and control, and that all privileged materials being withheld are communications or work product created after commencement of this action. (Def.’s Mem. at 21-22). Accordingly, given the defendants’ statement, the plaintiff's motion to compel as to this Document Request is DENIED.[2]

In this request, the plaintiff asks for “all documents from 2015 to the present which reflect, concern or relate to a design, policies or practices to expand enrollment numbers.” (Doc. No. 37-3 at 19). The defendant objects on the grounds that the request is “overly broad and unduly burdensome” and is not “relevant” or “proportional” to the needs of the case. (Def. Mem. at 23-24). The Court agrees with the defendant that this request, as written, is overbroad. However, in the instant motion, the plaintiff makes clear that she seeks 1) “documents which reflect on a monthly basis the admissions counselors hired[,] including their current employment status”; 2) “notes of contact that the counselors were required to maintain”; and 3) documents reflecting operating expenses, such as payroll and marketing expenses, from March 2016 to July 2017. (Pl.’s Mem. at 28-29). The plaintiff has limited these requests to 2016 and 2017. (Id. at 28).

In response, the defendants argue that “every [ ] decision [ ] Post University makes is likely to, in some manner, relate to or concern expanding enrollment[ ].” (Def.’s Mem. at 23). The defendants, however, do not respond to the plaintiff's specific requests. The plaintiff's motion is GRANTED in part. The Court finds that the plaintiff's first two requests are relevant and sufficiently specific to enable the defendants to appropriately respond to them. The defendants are directed to produce to the plaintiff documents, limited to 2016 and 2017, reflecting the number of admissions counselors hired monthly and those admissions’ counselors “notes of contact.” The defendants are not, however, required to provide to the plaintiff documents reflecting the operating expenses of Post University. Such a request is not proportional to the needs of this case.

III. CONCLUSION

Accordingly, this Court concludes that the plaintiff's Renewed Motion to Compel (Doc. No. 103) is GRANTED IN PART and DENIED IN PART.

This is not a Recommended Ruling. This Ruling is reviewable pursuant to the “clearly erroneous” statutory standard of review. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); and D. CONN. L. CIV. R. 72.2. As such, it is an order of the Court unless reversed or modified by the district judge upon timely made objection.