McMillin v. Lowe's Home Ctrs., LLC
McMillin v. Lowe's Home Ctrs., LLC
2023 WL 11261004 (M.D. Tenn. 2023)
July 24, 2023
Frensley, Jeffery S., United States Magistrate Judge
Summary
Lowe's Home Centers, LLC filed a motion to compel discovery, claiming that Paul L. McMillin had not adequately responded to their requests for information. The court found that McMillin's responses to the disputed interrogatories and requests for production were sufficient, but Lowe's could seek further details through other means.
PAUL L. MCMILLIN, Plaintiff,
v.
LOWE'S HOME CENTERS, LLC, Defendant
v.
LOWE'S HOME CENTERS, LLC, Defendant
Case No. 3:22-cv-00294
United States District Court, M.D. Tennessee, Nashville Division
Filed July 24, 2023
Counsel
Paul L. McMillin, Mt. Juliet, TN, Pro Se.Mary Leigh Pirtle, Timothy K. Garrett, Bass, Berry & Sims, Nashville, TN, for Defendant.
Frensley, Jeffery S., United States Magistrate Judge
ORDER
I. INTRODUCTION
*1 In his second amended complaint, Paul L. McMillin (“Plaintiff”) brought various claims against Lowe's Home Centers, LLC (“Defendant”) under Title VII of the Civil Rights Act of 1964, including employment discrimination, hostile work environment, retaliation, and negligence, and an additional claim under the Equal Pay Act of 1963. Docket No. 25, p. 1. Plaintiff alleges that Defendant “unlawfully discriminated against Plaintiff on the basis of [his] sex, creating a hostile work environment and thereafter retaliated against Plaintiff by altering and otherwise changing Plaintiff's work assignment and conditions to permit associate employee to neglect assigned duties and responsibilities to earn lucrative bonuses.” Id. at 2.
This matter is now before the Court upon Defendant's “Motion to Compel Discovery and Memorandum of Law in Support.” Docket No. 26. In this Motion, Defendant asserts that “Plaintiff has disregarded his obligations to meaningfully respond to Defendants' [sic] discovery requests in violation of Rule [sic] 33 and 34 of the Federal Rules of Civil Procedure, despite numerous requests and reminders.” Docket No. 26, p. 1. Plaintiff has filed a Response to Defendant's Motion that advances three arguments. Docket No. 30, pp. 1-3. First, Plaintiff argues that “Defendant has asked for items of discovery that Plaintiff does not have in his possession and are not available to Plaintiff.” Id. at 1. Second, Plaintiff claims “[n]early every item of discovery with respect to documents requested by Defendant are articles of confidential nature.” Id. Finally, Plaintiff argues that “Defendant has also request [sic] items unrelated to any facts in the complaint.” Id.
Defendant subsequently filed a Reply to Plaintiff's Response, maintaining that “Plaintiff has failed to respond to Defendant's motion with any particularity” and “Defendant continues to be prejudiced by Plaintiff's failure to supplement his responses, as Defendant cannot move forward with deposition discovery without first having an opportunity to review Plaintiff's complete answers, responses and/or documents in response to discovery.” Docket No. 31, pp. 1, 3. For the following reasons, Defendant's Motion to Compel is GRANTED IN PART and DENIED IN PART.
II. LAW AND ANALYSIS
A. Discovery Requests and Motions to Compel
Discovery in federal court is governed by the Federal Rules of Civil Procedure, which provide that a party may request production of documents or other tangible items as long as the information sought is within the scope of discovery. Fed. R. Civ. P. 34(a); see also Fed. R. Civ. P. 26(b)(1). Interrogatories are covered by Rule 33, which provides that “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).
In general, the scope of discovery extends to nonprivileged information that is relevant to any party's claim or defense, regardless of whether the information sought is admissible, that is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The Rules were amended, effective December 1, 2015, in part to address the alleged costs and abuses attendant to discovery. Under Rule 26, “[t]here is now a specific duty for the court and the parties to consider discovery in the light of its ‘proportional[ity] to the needs of the case ...’ ” Turner v. Chrysler Grp. LLC, No. 3:14-1747, 2016 U.S. Dist. LEXIS 11133, at *2, (M.D. Tenn. Jan. 27, 2016) (quoting Fed. R. Civ. P. 26(b)(1)). The following factors are relevant to a consideration of whether the scope of discovery is proportional:
*2 (1) the importance of the issues at stake in the action,
(2) the amount in controversy,
(3) the parties' relative access to relevant information,
(4) the parties' resources,
(5) the importance of the discovery in resolving the issues, and
(6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1) (numbering added). “Nevertheless, the scope of discovery is, of course, within the broad discretion of the trial court.” United States v. Carell, No. 3:09-0445, 2011 U.S. Dist. LEXIS 57435 at *5 (M.D. Tenn. May 26, 2011) (quoting Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998) (internal quotation marks omitted)).
After making a good faith effort to resolve a dispute, a party may move for an order compelling discovery. Fed. R. Civ. P. 37(a)(1). The moving party “must demonstrate that the requests are relevant to the claims or defenses in the pending action.” Carell, 2011 U.S. Dist. LEXIS 57435 at *5 (quoting Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008) (internal quotation marks omitted)). “Relevance for purposes of discovery is broadly construed and the information sought need not be admissible to be discoverable.” T.C. ex rel. S.C. v. Metro Gov't of Nashville & Davidson Cty., No. 3:17-01098, 2018 WL 3348728, 2018 U.S. Dist. LEXIS 113517, at *17 (M.D. Tenn. July 9, 2018). “If relevancy is shown, the party resisting discovery bears the burden of demonstrating why the request is unduly burdensome or otherwise not discoverable under the Federal Rules.” Carrell, 2011 U.S. Dist. LEXIS 57435, at *5 (internal quotation marks and citation omitted).
B. Case at Bar
In the Motion to Compel, Defendant asserts that Plaintiff has failed to properly respond by providing incomplete responses to Interrogatory Nos. 3, 5, and 16, which ask Plaintiff the following:
Interrogatory No. 3
3. Please identify all oral communications you have had with any current or former employee of Defendant regarding the allegations in the Complaint, specifying each person with whom you spoke and the subject matter and date of each communication.
Interrogatory No. 5
5. For every lawsuit, unfair labor practice charge, EEOC charge, or other proceeding before state or federal courts and agencies in which Plaintiff has been a party, a deponent, or a witness, state when the lawsuit, charge or other proceeding was filed; in what forum such lawsuit, charge or other proceeding was filed; its docket number or other identifying number; the names of all parties; the substance of each claim; and the disposition of each matter.
Interrogatory No. 16
16. Identify each and every position to which Plaintiff has applied as alleged in Paragraph 94 of the Amended Complaint.
Docket No. 27-1, pp. 3, 7, 15. In response to Interrogatory No. 3, Plaintiff identified 21 people and their job positions, but did not give specific dates of the communications. Id. at 1-5. To Interrogatory No. 5, Plaintiff responded:
1988 - Los Angeles County Court
Plaintiff Paul L. McMillin v. Defendant [John Doe - Unrecalled]
*3 Negligence
Agreed Settlement
------------
2001 - Knox County Circuit Court
Plaintiff Paul L. McMillin v. Defendant Associates Housing Finance
Fair Debt Practices Act and Fraud
Agreed Settlement
------------
Knox County General Sessions Court
Plaintiff Paul L. McMillin v. Defendant City Heating and Air
Conditioning Co.
Negligence
Judgement for Plaintiff
------------
Knox County Circuit Court
Plaintiff Paul L. McMillin v. Defendant Lincoln Memorial
University
Fraud
Jury Trial - Judgment for Plaintiff
------------
Knox County Chancery Court
Plaintiff James C McMillin and Iris McMillin
Defendant(s) Paul L. McMillin and Johneta McMillin
Negligence & Undue Influence
Judgement for Plaintiff
------------
Id. at 7-8. Finally, to Interrogatory No. 16, Plaintiff responded that “[a]pplications for positions outside of Sales Specialist – Millwork to which Plaintiff has applied are readily available in Plaintiff's personnel file. Upon receipt of responses in Plaintiff's discovery request, Plaintiff will supply those position application particulars.” Id. at 15.
The Court finds that Plaintiff has answered the disputed interrogatories and that his responses are sufficient. Defendant can pursue further clarity and details through other means, including deposition testimony.
Further, Defendant maintains that Plaintiff gave “the same canned response” to the Requests for Production (“RFP”) Nos. 1-8, 13, 16-17, 20, which request the following:
RFP Nos. 1-8, 13, 16-17, 20:
1. Produce all non-privileged documents referred to or relied upon or consulted in preparing responses to Defendant's First Set of Interrogatories to Plaintiff.
2. All documents you contend establish any fact upon which you base your claims for relief against Defendant.
3. All documents, recordings, or video that discuss, refer to, or relate to your employment with Defendant or the termination of your employment with Defendant.
4. All documents, recordings, or video created during or following any oral communications you had with any present or former employee, agent, servant, or officer of Defendant regarding or pertaining to the allegations in the Complaint that evidence in some way such communications.
6. All written, including electronic, communications or documents received from any present or former agent or employee of Defendant related to any allegation in the Complaint.
7. Produce copies of all materials received by Plaintiff from Defendant or any present or former agent or employee of Defendant concerning Plaintiff's employment with Defendant or related to any allegation in the complaint.
8. All statements of any person, written or otherwise, who had knowledge of, or claims to have knowledge of, the alleged unlawful acts that are subject of Plaintiff's Complaint.
13. Please produce copies of any and all written (including electronic) complaints submitted to any representative of Defendant concerning the allegations raised in the Complaint.
16. Produce a copy of the e-mail directive referenced in Paragraph 41 of the Amended Complaint.
17. Produce a copy of the sales figures and photographs referenced in Paragraph 54 of the Amended Complaint.
*4 20. Produce a copy of any emails, text messages, instant messages, and/or social media messages or postings with any Lowe's employee which concern or relate to the claims alleged in this matter.
Docket No. 26, pp. 2-3. To all of these requests, Plaintiff responded, “All documents requested are maintained in the computer files of Defendant or physical project folders maintained in the files of Defendant. Individual project folders contain all information relied upon to respond to the interrogatories.” Docket No. 27-1, p. 23.
Defendant also asserts that Plaintiff improperly objected to RFP No. 9, which requests Plaintiff's “complete state and federal income tax returns, whether filed individually, separately, or jointly, including all schedules and exhibits, for year 2019 through the present.” Id. at 19. Plaintiff objected to “the production of Plaintiff's tax returns on the basis of privilege. The tax returns are not relevant to any claim made by the Plaintiff in the complaint. Defendant is in possession of any and all records of compensation paid to Plaintiff as an employee; this to include pay and / or bonuses received.” Id.
Next, Defendant asserts that Plaintiff did not produce documents responsive to RFP No. 18, which requests “copy of all e mails, text messages, instant messages, and / or social media messages or postings between Plaintiff and Jennifer.” Docket No. 27–1, p. 22. Defendant further asserts that Plaintiff failed to identify files responsive to RFP No. 19, which requests a copy of photographs related to Plaintiff's claim that he would show up to work and none of the ancillary tasks given to his co-worker, Ms. Weems, would be complete. Docket No. 25, p. 15. Finally, Defendant argues that Plaintiff has failed to provide “any meaningful response to the Deficiency Letter, despite being provided ample time to respond.” Docket No. 26, pp. 2-5. As previously noted, Plaintiff maintains the items requested by Defendant are not in his possession, are articles of confidential nature, or are unrelated or irrelevant to the case at bar. Docket No. 30, pp. 2-3.
As set forth above, on a motion to compel, the moving party must demonstrate the relevance of the requested information to the claims and defenses in the case. Carell, 2011 U.S. Dist. LEXIS 57435 at *5. Information need not be admissible to be discoverable. T.C. ex rel. S.C., 2018 U.S. Dist. LEXIS 113517, at *17. Under that liberal standard, the Court finds that Defendant has met the burden of demonstrating the relevance of RFP No. 9 (albeit in its reply brief), which requests Plaintiff's “complete state and federal income tax returns, whether filed individually, separately, or jointly, including all schedules and exhibits, for year 2019 through the present.” Docket No. 27-1, p. 19; see Docket No. 31, p. 2-3. The burden therefore passes to Plaintiff to show that the request is “unduly burdensome or otherwise not discoverable under the Federal Rules.” Carrell, 2011 U.S. Dist. LEXIS 57435, at *5 (internal quotation marks and citation omitted). Plaintiff's objection to this request relating to privacy concerns is insufficient, as the parties have agreed to a Protective Order to govern the production of confidential information. Docket No. 19, pp.1-5. Therefore, the Court grants Defendant's motion as to RFP No. 9, and Plaintiff must produce his “complete state and federal income tax returns, whether filed individually, separately, or jointly, including all schedules and exhibits, for year 2019 through the present.” Docket No. 27-1, p. 19.
*5 Otherwise, Defendant has failed to meet the burden of demonstrating the relevance of the information sought by the disputed interrogatories and RFP to the claims or defenses in this matter. Carell, 2011 U.S. Dist. LEXIS 57435 at *5; see Docket Nos. 26, 31. Aside from RFP No. 9 (discussed above), there is no language in either the motion or the reply regarding the relevance of the disputed requests; Defendant states only that “Defendant continues to be prejudiced by Plaintiff's failure to supplement his responses, as Defendant cannot move forward with deposition discovery without first having an opportunity to review Plaintiff's complete answers, responses and/or documents in response to discovery.” Docket No. 26, p. 6; Docket No. 31, p. 3. This is insufficient. Indeed, the words “relevant” or “relevance” are not included anywhere in Defendant's motion/memorandum, and appear in the reply brief only when referring to RFP No. 9's request for tax returns. See Docket Nos. 26, 31. Given that relevance is the threshold burden for a moving party on a motion to compel, the Court need not move on to considering Plaintiff's argument as to why production of the requested information would be unduly burdensome.
Even if Defendant had properly met its burden of relevance, Plaintiff has made a good-faith effort to respond to Defendant's requests, despite Defendant's claims otherwise. Plaintiff asserts that the items requested by Defendant are not in his possession. Docket No. 30, pp. 2-3. As other courts have explained, a court cannot compel a party to provide documents that are not in his possession. Alexander v. FBI, 194 F.R.D. 305, 310 (D.D.C. 2000) (citing 8A Charles Alan Wright et al., Federal Practice and Procedure § 2210 (2d ed. 1994) (“[A] party can not be required to permit inspection of documents or things that it does not have and does not control.”)); see Fed. R. Civ. P. 34(a)(1). Plaintiff has made it clear that he “has repeatedly informed Defendant that each and every item of requested discovery is in the custody of Defendant.” Docket No. 30, p. 2. Plaintiff even notes that “[p]roject files that Plaintiff regularly accessed were no longer available to Plaintiff” and “[p]rior to the initiation of this complaint, Plaintiff was provided a key to the secure room [with the files]. The lock has been changed and access denied.” Id.
Defendant has “requested for Plaintiff to either provide the exact documents to which he was referring in his discovery responses, or submit written responses under oath attesting that he does not have any responsive documents.” Docket No. 31, p. 1. Noting that “[i]t appears now that Plaintiff is representing to the Court that he has no responsive documents in response to these RFPs,” Defendant requests that the Court “require Plaintiff to confirm as much in writing to [Defendant] by providing correspondent written responses to RFP No.'s [sic] 19, 20 in accordance with Fed. R. Civ. P. 34(b)(2).” Id. at 2, footnotes omitted.
As previously noted, Plaintiff has responded to the RFP by asserting: “Documents requested are maintained in the computer files of Defendant or physical project folders maintained in the files of Defendant. Individual project folders contain all information relied upon to respond to the interrogatories.” Docket No. 27-1. Additionally, in his brief, Plaintiff states that “Defendant has asked for items of discovery that Plaintiff does not have in his possession and are not available to Plaintiff,” that “Plaintiff does not have physical control of the documents,” and that “Plaintiff is physically unable to obtain a copy of the documents and / or give them to the Defendant.” Docket No. 30, p. 1-2. The Court finds that this is sufficient to bind Plaintiff to the representation that he does not have the documents. Defendant has not provided any legal authority for the proposition that Plaintiff must attest under oath that he does not have responsive documents, and the Court knows of no such requirement. Therefore, Defendants' requests for further assurances are denied.
C. Defendant's Request for Attorney's Fees
Defendant asserts that under Fed. R. Civ. P. 37(a)(5)(A), a court that grants a motion to compel must “require the party... whose conduct necessitated the motion...to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Docket No. 26, p.6 (citing Fed. R. Civ. P. 37(a)(5)(A)). But, this only applies when a court grants a motion to compel; because the Court is mostly denying the motion, Defendant's argument regarding sanctions and attorney's fees is significantly weakened.
*6 Regardless, sanctions are not warranted in this instance. The Sixth Circuit has considered that a plaintiff's status as a pro se litigant can be a circumstance that makes an award of attorney's fees unjust. See Asamoah v. Sygma Network, Inc., No. 21-3286, 2022 U.S. App. LEXIS 24818, *10 (6th Cir. 2022) (ruling that the district court abused its discretion because it “did not consider whether [being a pro se plaintiff] made an award of nearly $8,000 in attorneys' fees ‘unjust’ ” under Fed. R. Civ. P. 37(a)(5)(A)(iii)). Further, this Court has not previously ordered Plaintiff to produce discovery. Additionally, Plaintiff has made good faith attempts to respond by stating that he is not in possession of the materials and that Defendant is requesting confidential information and information unrelated to the lawsuit. Finally, Defendant's almost total failure to demonstrate the relevance of its requests weighs against the imposition of sanctions. Therefore, the Court denies Defendant's request for attorney's fees.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion (Docket No. 26) is GRANTED IN PART and DENIED IN PART. In response to RFP No. 9, Plaintiff is required to produce his “complete state and federal income tax returns, whether filed individually, separately, or jointly, including all schedules and exhibits, for year 2019 through the present.” Docket No. 27-1, p. 19. Otherwise, Plaintiff is not required to make any further response to Defendant's discovery requests.
IT IS SO ORDERED.