TONY MORROW, Plaintiff, v. TYSON FRESH MEATS, INC., Defendant No. 20-cv-2033-CJW United States District Court, N.D. Iowa, Eastern Division Filed June 09, 2021 Counsel Melissa Carol Hasso, Emily Elaine Wilson, Sherinian and Hasso Law Firm, Des Moines, IA, Menaka Fernando, Pro Hac Vice, Outten & Golden LLP, San Francisco, CA, Aliaksandra Ramanenka, Pro Hac Vice, Tammy Marzigliano, Pro Hac Vice, Outten & Golden LLP, New York, NY, for Plaintiff. Michael R. Reck, Kelsey J. Knowles, Mariah L. Slocum, Erika Lauren Bauer, Belin McCormick PC, Des Moines, IA, for Defendant. Roberts, Mark A., United States Magistrate Judge ORDER *1 Before me is a Motion to Compel (Second) filed by Defendant Tyson Fresh Meats, Inc. on May 14, 2021. (Doc. 48.) Plaintiff Tony Morrow timely filed a resistance. (Doc. 54.) Defendant filed a timely reply. (Doc. 59.) No hearing on the motion is necessary. I. DISCUSSION As I have stated in prior orders regarding discovery: Plaintiff was employed by Defendant from August 2012 through August 2019. She alleges she was subject to workplace harassment because of her gender and sexual orientation and seeks, among other things, damages for emotional distress. Plaintiff has obtained an opinion from her expert witness regarding the nature of her injuries, their cause, and anticipated treatment. Defendant claims it requires additional medical and mental health records to respond to this report and prepare its defense. Defendant also contends it needs all of Plaintiff's social media content for these purposes. (Doc. 43.) The instant motion also involves Plaintiff's mental health records. This time, instead of social media content, Defendant seeks communication between Plaintiff and its employees. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Rule 34(a) provides for discovery by production requests “within the scope of Rule 26(b).” A party may obtain, as of right, discovery “relevant to any party's claim or defense.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2008 (3d ed. 2010). A. Communications Between Morrow and Witnesses Defendants request for production no. 5 seeks: All documents constituting, reflecting, memorializing or otherwise relating to any communications between you and any employee, former employee or agent of Defendant, including, but not limited to, emails and text messages. (Doc. 48-3.) Plaintiff objected as follows: Plaintiff objects to this Request on the grounds of Overbreadth and Relevance as not all of Plaintiff's communications with Defendant's employees or former employees relate to this action. Subject to and without waiving these objections, Plaintiff will produce responsive documents. Plaintiff is withholding documents on the bases of the foregoing objections. (Id.) Defendant believes Plaintiff has in her possession communications covered by the request, including communications with Defendant's employees who are witnesses to events relevant to the lawsuit or who have allegedly harassed Plaintiff. Defendant asserts that it has focused on the production of communications between Plaintiff and Defendant's employees who are witnesses in the case. Because these employees are witnesses, Defendant contends the communications are relevant to their credibility and, because of their relationship with Plaintiff, their potential bias. Tacitly arguing that turnabout is fair play, Defendant points out that Plaintiff sought communications between Plaintiff and a lengthy list of witnesses associated with Defendant. *2 Plaintiff contends that the request is harassing and not proportional to the needs of the case. Plaintiff argues that Plaintiff happened to make friends with many people who also happened to be employed at Defendant's plant which is a major employer in the area and who she knew independently of her employment. Plaintiff argues that the fact these people are witnesses does not make all of their communications with her relevant. Plaintiff further points out that her request for communications “seeks only communications ‘concerning Plaintiff’ as opposed to simply ‘all’ communications as requested by Tyson.” (Doc. 54 at 4.) Plaintiff states that she has produced all of her electronic communications with Defendant's employees derived from certain search terms and produced all photos with Defendant's employees. However, she has also “disclosed to Defendant that she was withholding communications with approximately ten Tyson employees on the bases of relevance and proportionality ...” (Doc. 54 at 6.) Plaintiff also complains that Defendant's motion is untimely because it was not filed as soon as practicable as required by Local Rule 37. Plaintiff contends that she disclosed the fact she was withholding communications in November 2020. Plaintiff describes the negotiations regarding those communications between the parties' attorneys in January 2021 and again in April 2021. Finally, Plaintiff contends Defendant is attempting a “second bite at the apple” after I denied its request for all of Plaintiff's social media content. (Doc. 43.) Plaintiff relies principally on Ousterhout v. Zukowski, where an objection was made to a request to: “produce all communications with witnesses or potential witnesses ... and all documents that related to the allegations of this case,” in this Court's opinion, the request is overbroad. While the Ousterhout Parties have provided examples, they have not explained who the other “witnesses and potential witnesses” are nor have they explained what bearing production of information would have with respect to the claims at issue. Documents and related correspondence, as sought by the Ousterhout Parties, may be responsive to discovery requests but the Ousterhout Parties have not described the information they seek with more particularity in their motion. 11 CV 9136, 2016 WL 3675564, at *5 (N.D. Ill. Apr. 5, 2016), report and recommendation adopted, 11-CV-9136, 2016 WL 3612086 (N.D. Ill. July 6, 2016). The instant case is distinguishable because Defendant has adequately explained the relevance of the communications to issues in this case. Defendant has narrowed the request to people who, although perhaps friends of Plaintiff, are also employees of Defendant and witnesses in the case. The communications between Plaintiff and these witnesses, not filtered through Plaintiff's search terms, are reasonably anticipated to yield information regarding the witnesses' recollection of pertinent events as well as shed light on their credibility and biases. Moreover, because the request has been narrowed to witnesses and because Plaintiff's counsel appears to have collected at least some of the data to have searched, production of these communications should not impose a significant burden or be disproportional to the needs of the case. Finally, in the context of the discovery in this case, the on-going discovery disputes on multiple issues and the delay in taking Plaintiff's deposition, I conclude the motion was timely. Plaintiff's objections are overruled. Defendant's motion regarding this issue is granted. B. Mental Health and Medical History Records Defendant's request for production of documents no. 29 seeks *3 Any and all documents provided to or prepared by any hospital, clinic, treatment center, physician, specialist, psychiatrist, psychologist, therapist, counselor, substance abuse counselor, social worker, family practitioner, or other health care worker who examined or treated Ms. Morrow in any way regarding or relating to her mental health, including but not limited to, any document that addresses any sort of mental health screening, mental health concerns, prescriptions, testing, or treatment. (Doc. 48-4 at 24.) Plaintiff objected as follows: Plaintiff objects to this Request on the grounds of Harassment, Irrelevant Time Period and that it invades Plaintiffs reasonable expectation of privacy. Subject to and without waiving these objections, Plaintiff has already produced responsive documents from August 2012 to the present and will additionally produce responsive documents, if any, from January 1, 2010 to July 31,2012. (Id. at 24-25). Defendant subsequently limited its request to the records from Dr. Kantemneni, Plaintiff's current treating psychiatrist, and records pertaining to Plaintiff's behavioral issues described in the deposition of Chassity Deur, a social worker. I previously ordered Plaintiff to produce certain mental health records. In so doing, I stated: In the instant case, a protective order is in place. Because Plaintiff has placed her mental and physical health at issue in this case by asserting a claim for emotional distress, these records are relevant to the cause, nature, and extent of any emotional distress. See Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (addressing psychotherapist-patient privilege and holding that when patient placed medical condition at issue, patient waived privilege). This request covers the time Plaintiff was employed by Defendant, as well as a short period prior thereto. I conclude it is reasonable to obtain records for this short period prior to her employment because these records may disclose preexisting symptoms or help establish a baseline of Plaintiff's mental and physical health prior to the commencement of her employment with Defendant. Moreover, as I stated at the hearing, Plaintiff would have the option of obtaining and producing the records at her own expense or providing Defendant with waivers so it could obtain them. This would reduce the burden on Plaintiff. Therefore, Plaintiff's objections to request no. 19 are overruled and Defendant's motion to compel is granted on this issue. (Doc. 43 at 2-3.) Here, Plaintiff claims that permitting Defendant to obtain even the smaller subset of records it now seeks, is still not proportional to the needs of the case and harassing. I disagree. While I was reluctant, as Plaintiff points out, to permit a broad search of Plaintiff's childhood mental health records, it appears that the course of discovery has disclosed reason to believe that certain childhood mental health records could be significant in ascertaining the cause, nature, and extent of mental health problems Plaintiff currently attributes to her employment with Defendant. I have considered all of the factors under Federal Rule of Civil Procedure: “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26. Given the nature of Plaintiff's claimed injury and the focused nature of Defendant's request, I conclude the request is proportional to the needs of the case. Thus, Plaintiff's objections are overruled. Defendant's motion is granted and the mental health records from Dr. Kantamneni and the records regarding Plaintiff's “behavioral issues” as described in the motion shall be produced. II. CONCLUSION *4 Defendant's Motion to Compel against Plaintiff (Doc. 48) is granted. Plaintiff shall produce the documents as required by June 21, 2021. IT IS SO ORDERED this 9th day of June, 2021.