I. INTRODUCTION

*1 This class-action suit involves claims of racial discrimination against guests of the Sesame Place Philadelphia amusement park (“Sesame Place Philadelphia”), operated by Defendants SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC (collectively, “SeaWorld” or “Defendants”). Specifically, Plaintiffs allege that costumed SeaWorld employees, performing as various Sesame Street characters (“the costumed performers”), refused to interact with Black and Hispanic children at Sesame Place events, opting to interact with White children instead.

Now before the Special Master is Plaintiffs’ Letter Motion to Compel (attached hereto as Exhibit “A”) and Defendants’ Letter Response (attached hereto as Exhibit “B”). After reviewing all relevant filings, for the reasons set forth below, the Special Master recommends that the Court grant in part and deny in part Plaintiffs’ Motion to Compel, as set forth below.

II. FACTS AND PROCEDURAL HISTORY

Plaintiffs initiated this action via Complaint filed July 27, 2023. (Doc. 1). On September 28, 2023, Plaintiffs filed an Amended Complaint, asserting a claim for racial discrimination under 42 U.S.C. § 1981 (“Section 1981”), along with state law negligence claims. (Doc. 25). On June 5, 2023, the Court dismissed Plaintiffs’ negligent hiring and negligent training claims with prejudice and dismissed Plaintiffs’ negligent supervision claim without prejudice.[1] (Doc. 48). The Court permitted Plaintiffs to proceed on their Section 1981 claim, as well as on their state law negligence per se claim, which was premised upon Defendants’ alleged violations of Section 1981.

On August 31, 2023, the Parties filed letter motions informing the Court of discovery disputes involving Plaintiffs’ Requests for Production of Documents (“RPDs”) (attached hereto as Exhibit “C”) and topics identified in Federal Rule of Civil Procedure 30(b)(6) Deposition Notices to Defendant SeaWorld Parks & Entertainment, LLC (“LLC Topics”) (attached hereto as Exhibit “D”) and Defendant SeaWorld Parks & Entertainment, Inc. (“Inc. Topics”) (attached hereto as Exhibit “E”). On September 8, 2023, the Court appointed the Special Master to resolve various discovery disputes, including those described above. (Doc. 63). The Special Master held oral argument on the instant discovery disputes on September 25, 2023. The Parties subsequently submitted brief memoranda regarding the authorities cited at oral argument. (Plaintiffs’ Memorandum of Law is attached hereto as Exhibit “F”; Defendants Memorandum of Law is attached hereto as Exhibit “G”).

III. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 26(b)(1), the scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

*2 A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses. See Federal Rule of Civil Procedure 37(a). When a party moves to compel discovery pursuant to Federal Rule of Civil Procedure 37, the moving party “bears the initial burden of showing the relevance of the material requested.” See Morrison v. Phila. Housing Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001). Once relevancy has been established, the party objecting to the discovery request bears the burden of showing why the request is improper. See Northern v. City of Philadelphia, 2000 WL 355526, *2 (E.D. Pa. Apr. 4, 2000); Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996).

IV. THE SPECIAL MASTER'S ANALYSIS

Prior to addressing the Parties’ specific discovery disputes, it is necessary to discuss the issue of relevancy. Defendants argue that, because the Court dismissed Plaintiffs’ negligent hiring, supervision, and training claims, discovery requests dealing with Defendants’ hiring, supervision, and training practices are no longer relevant. (See Ex. B at 4). Defendants’ point is well taken. See Oppenheimer Fund, Inc., 437 U.S. at 352 (“it is proper to deny discovery of a matter that is relevant only to claims or defenses that have been stricken, unless the information is otherwise relevant to issues in the case”).

Plaintiffs note that the Court dismissed their negligent supervision theory without prejudice and suggest that they intend to seek leave to amend their Amended Complaint to reassert that theory. (Ex. F). Plaintiffs argue that they are permitted to take discovery relevant to the negligent supervision theory in order to gather sufficient evidence to amend their complaint. Id. In support of their argument, Plaintiffs cite to Mancuso v. USAA Savings Bank, a Nevada case noting that leave to amend may be granted “when a movant waits to amend until it has sufficient evidence upon which to base new claims.” 2021 WL 3024282 at *3 (D. Nev. 2021). However, Plaintiffs have not sought leave to amend. Additionally, Mancuso does not address whether discovery on dismissed claims is permitted. Notably, the Mancuso Court, in granting leave to amend, ordered the parties to “file a joint proposed discovery plan and scheduling order to complete discovery on [p]laintiff's new claims,” suggesting that prior discovery had been limited to the claims asserted in the original complaint. Id. at 4. In any event, the discovery requests at issue are not narrowly tailored to the issue at the heart of the Court's dismissal of Plaintiffs’ negligent supervision theory—whether Defendants’ employees acted within the scope of their employment. (See Doc. 48, at 22) (“[g]iven Plaintiffs’ allegations that the employees acted within the scope of their employment, a claim for negligent supervision cannot survive”).

As Plaintiffs are not entitled to discovery on their dismissed claims, the only remaining question is whether their discovery requests regarding hiring, supervision, and training may be relevant to Plaintiffs’ Section 1981 claim, bearing in mind the broad scope of discovery afforded by Rule 26.[2]

*3 Security and Data Technologies, Inc. v. Sch. Dist. of Philadelphia, 145 F.Supp. 3d 454, 464 (E.D. Pa. 2015) (citing Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 569 (3d Cir. 2002)). A plaintiff must also prove that “but for race, it would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020).

A Section 1981 plaintiff may prove intentional discrimination via direct or indirect evidence. Calhoun v. TJM Trevose, LLC, 2023 WL 5208853, at *3 (E.D. Pa. 2023). Permissible indirect evidence of intentional discrimination “may take a variety of forms.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 269 (3d Cir. 2010). Despite the dismissal of Plaintiffs’ negligence theories, it is conceivable that Plaintiffs’ requests regarding the training, supervision, and hiring of the costumed performers could lead to the discovery of indirect evidence regarding the costumed performers’ discriminatory intent, or lack thereof. Specifically, these topics may provide insight into the state of mind of the costumed performers and the context in which they acted.

Accordingly, as is outlined in greater detail below, the Special Master recommends that the Court permit discovery regarding Defendants’ hiring, supervision, and training of the costumed performers. In making this recommendation, the Special Master makes no determination as to the relevancy of any information produced in response to the discovery requests.

a. Plaintiffs’ Requests for Production

RFPs 5, 7, 10, 13, 16, and 17 seek production of policies and procedures regarding “the height a child must be to ride each ride,” “the use of cellphones on rides,” “adult[s] riding with children on water attractions,” “administration of parking lots,” “administration of lines,” and “disability access. (Ex. C). RFPs 14, 15 and 22 seek production of the benefits, terms, and conditions of “parking passes,” dining with costumed character packages,” and “birthday packages.” Id. RFPs 47 and 49 seek production of documents relating to “vacation packages” and “group admission ticket sales”. Id.

Plaintiffs claim that the requested documents are relevant to the claims of certain putative class members. (Ex. A at 2). Plaintiffs’ Amended Complaint defines the proposed Class as “[a]ll minority persons who, [s]ince July 27, 2018, entered contracts with SeaWorld for admission into Sesame Place Philadelphia who suffered disparate treatment from SeaWorld and/or its agents and/or employees by ignoring minority children while openly interacting with similarly situated white children.” (Doc. 25 at ¶ 109). Defendants argue that the requested documents have no possible relevance to any claim encompassed by Plaintiffs’ proposed class definition. (Defendants’ Letter Brief). While not obviously relevant, it is possible that the requested documents could shed light on allegations of discriminatory behavior encompassed by Plaintiffs’ proposed class definition. Accordingly, the Special Master recommends that the Court order Defendants to respond to RFPs 5, 7, 10, 13, 14, 15, 16, 17, 22, 47, and 49.

*4 RFPs 43 and 44 seek documents relating to “policies on employee use of social media” on and off the job. (Ex. C). Despite the dismissal of Plaintiffs’ negligent supervision claim, Defendants’ social media policies may still be relevant to Plaintiffs’ Section 1981 claim. Certainly, the social media postings of costumed performers might disclose a discriminatory state of mind on the part of those performers and thus may prove relevant to whether the performers acted with discriminatory intent. Conversely, the costumed performers’ postings may show no discriminatory state of mind. Defendants’ social media policies could be relevant in analyzing the context in which any such postings were made. Accordingly, the Special Master recommends that the Court compel Defendants to respond to RFPs 43 and 44.

RFP 50 seeks documents relating to “any promotions [Defendants] engaged in to encourage ticket sales to Sesame Place Philadelphia.” (Ex. C). Plaintiffs claim that these documents are necessary to prove that Defendants marketed Sesame Place to Plaintiffs. However, this is not a false advertising case, and Plaintiffs were unable to explain the relevancy of Defendants’ promotional materials to their Section 1981 claim. As Plaintiffs have failed to meet their initial burden of showing the relevance of the requested material, the Special Master recommends that the Court deny Plaintiffs’ attempt to compel a response to RPD 50.

RFP 64 seeks “any and all documents that relate to instances in which minorities were escorted out of the Sesame Place Philadelphia theme park for any reason.” (Ex. C). As an initial matter, the relevance of this Request is marginal, as the allegations in Plaintiffs’ Amended Complaint do not concern the removal of minority guests from Sesame Place Philadelphia. Furthermore, Defendants have already applied the agreed-upon “race discrimination” search terms to the Sesame Street Philadelphia security department. Requiring Defendants to review documentation from all instances in which guests were escorted from the park and then determine whether the guest was a racial minority would prove overly burdensome, given the limited relevance of the requested documents. As such, the Special Master recommends that the Court deny Plaintiffs’ attempt to compel a response to RFP 64.

b. 30(b)(6) Topics

LLC Topic 3 and Inc. Topic 1 seek testimony regarding written communications between Defendants and any non-privileged person or entity “concerning complaints of racism at the Sesame Place Philadelphia Amusement Park between 2018 and 2020.” (Exs. D and E). Defendants argue that mutually agreed upon search terms were used to search for and produce written communications pertaining to allegations of race discrimination at Sesame Place Philadelphia. Defendants argue that testimony on these topics should be limited to the documents produced in these searches. Plaintiffs claim that the search terms were inadequate as the searches failed to yield certain emails, obtained independently obtained by Plaintiffs, which ought to have been captured by the search.

The Special Master takes Defendants at their word that the agreed upon search terms were applied. At this late date, it would be neither practical nor expedient to devise and apply new search terms. However, while a new search is not warranted, if Plaintiffs possess unproduced communications regarding complaints of racism at Sesame Place Philadelphia, they should be able question the designee-witness regarding those communications. Accordingly, the Special Master recommends that the Court order Defendants to produce witnesses to testify regarding any written communications concerning complaints of racial discrimination at Sesame Place Philadelphia.

*5 LLC 6 and Inc. 3 seek testimony regarding “the creation, authorship, edits and use of manuals, handbooks, handouts, PowerPoint presentations, videos, photographs and/or Presenter scripts addressing or omitting to address discrimination and/or guest interaction presented to Sesame Place Philadelphia employees.” (Exs. D and E). As discussed above, the training of the costumed performers could plausibly shed light on their state of mind and/or the context in which they acted. Accordingly, the Special Master recommends that the Court order Defendants to produce witnesses to testify regarding LLC Topic 6 and Inc. Topic 3.

LLC Topic 21 and Inc. Topic 17 seek testimony on Defendants’ “knowledge of incidents of racial discrimination Bucks County high schools.” (Exs. D and E). LLC Topic 8 seeks testimony regarding “the extent to which SeaWorld Parks and Entertainment, LLC interacted with Bucks County, Pennsylvania's high schools.” (Ex. D). Plaintiffs explained that a large number of Sesame Place Philadelphia's employees attended Bucks County high schools, where Plaintiffs allege there has been “a significant amount of racial discrimination enacted upon minorities by their fellow white high school students.” (Ex. A at 1). As discussed above, while Plaintiffs’ negligent hiring claim has been dismissed, it is conceivable that evidence of racial discrimination at the costumed performers’ schools, in combination with other facts, might suggest discriminatory bias.[3] Accordingly, the Special Master recommends that the Court order Defendants to produce witnesses to testify regarding LLC Topics 8 and 21 and Inc. Topic 17.

LLC Topic 16 seeks testimony on the management of Sesame Place's social media presence. LLC Topic 17 seeks testimony regarding “policies and procedures governing the extent to which Sesame Place Philadelphia monitors and/or responds to social media content that relates to Sesame Place Philadelphia.” Plaintiffs have not explained the relevancy of these topics in the wake of the dismissal of their negligent supervision claim. As such, the Special Master recommends that the Court deny Plaintiffs’ attempt to compel Defendants to produce a witness to testify regarding LLC Topics 16 and 17.

LLC Topic 20 seeks testimony regarding “[l]icensing agreements between SeaWorld Parks & Entertainment, LLC and Sesame Workshop as it concerns race discrimination.” (Ex. D). Inc. Topic16 seeks testimony regarding “agreements between SeaWorld Parks & Entertainment, Inc. and Sesame Workshop.” (Ex. E). Plaintiffs claim that the licensing agreements between Defendants and Sesame Workshop, owner of the Sesame Street Intellectual Property, contain provisions in which Defendants agreed to refrain from racial discrimination. Plaintiffs have not explained how the existence of such a provision would have any bearing on their Section 1981 claim. As such, the Special Master recommends that the Court deny Plaintiffs’ attempt to compel Defendants to produce witnesses to testify regarding LLC Topic 20 and Inc. Topic 16.

LLC Topic 23 and Inc. Topic 19 seek testimony regarding “[t]he extent to which [Defendants’] kept [their] employees informed and updated of the specific laws relating to racial discrimination.” (Exs. D and E). Testimony on these topics could conceivably shed light on the costumed performers’ state of mind and, thereby, any discriminatory bias, or lack thereof. Accordingly, the Special Master recommends that the Court order Defendants to produce witnesses to testify regarding LLC Topic 23 and Inc. Topic 19.

*6 Inc. Topic 6 seeks testimony regarding “[a]ll facts and documents which form the basis of your contention that none of the named Plaintiffs in the Amended Complaint suffered racial discrimination while guests at the Sesame Place Philadelphia Amusement Park.” (Ex. E). Federal Rule of Civil Procedure 30(b)(6) states that the subpoenaing party must “describe with reasonable particularity the matters for examination.” Inc. Topic 6 fails this requirement as it seeks testimony on essentially the entirety of Plaintiffs’ Amended Complaint. See Fifth Third Bank v. Westwood Zamias, Ltd. P'ship, 2019 WL 1383713, at *2 (W.D. Pa. 2019) (holding that plaintiff was unable to adequately prepare a corporate deponent to testimony on all topics in or related to Complaint). Accordingly, the Special Master recommends that the Court deny Plaintiffs’ attempt to compel Defendants to produce a witness to testify regarding Inc. Topic 6.

Inc. Topic 11 seeks testimony regarding “[t]he facts surrounding the denial of Kaylah Connelly's request to perform as the costume character “Zoe” on her last date of employment in the Sesame Place Philadelphia Entertainment Department.” (Ex. E). At oral argument, Plaintiffs explained that Ms. Connelly is a former Sesame Place Philadelphia employee who testified at her deposition that the amusement park was a hostile work environment for Black employees and that her request to perform as “Zoe” on her last day was denied in favor of a White employee. Needless to say, this is not an employment discrimination case and Plaintiffs’ Amended Complaint exclusively concerns allegations of discrimination against guests. Inc. Topic 11 simply has no possible relevance to Plaintiffs’ claims. Accordingly, the Special Master recommends that the Court deny Plaintiffs’ attempt to compel a witness to produce a witness to testify regarding Inc. Topic 11.

Inc. Topic 20 seeks testimony regarding “[t]he extent to which Defendant took steps to ensure that the employees of SeaWorld Parks and Entertainment, LLC would not engage in racially discriminatory conduct.” (Ex. E). Despite the dismissal of Plaintiffs’ negligent hiring, supervision, and training claims, testimony on this topic could conceivably lead to the discovery of relevant evidence regarding the costumed performers and their intent to discriminate or lack thereof. However, as Plaintiffs’ Amended Complaint exclusively involves Sesame Place Philadelphia and the employees working there, testimony regarding the measures taken to ensure that all SeaWorld Parks and Entertainment, LLC employees would not engage in racially discriminatory conduct is unnecessary. Therefore, the Special Master recommends that the Court order SeaWorld Parks and Entertainment, Inc. to produce a witness to testify regarding the extent to which SeaWorld Parks and Entertainment, Inc. took steps to ensure that the Sesame Street Philadelphia employees would not engage in racially discriminatory conduct.

V. RECOMMENDATION

For the reasons set forth above, the Special Master recommends that the Court: