CHRISTINA OTHON v. WESLEYAN UNIVERSITY Civ. No. 3:18CV00958(KAD) United States District Court, D. Connecticut Filed November 18, 2019 Counsel Heena Kapadia, Carmen Chapman, Law Office of Heena Kapadia, Trumbull, CT, for Christina Othon. Emily McDonough Souza, Patricia E. Reilly, Murtha Cullina LLP, New Haven, CT, Martha McNamara Royston, Gartner, Inc., Stamford, CT, Matthew K. Curtin, Murtha Cullina, Hartford, CT, for Wesleyan University. Merriam, Sarah A. L., United States Magistrate Judge ORDER RE: DEFENDANT'S MOTION TO COMPEL (DOC. #61) *1 Pending before the Court is a motion to compel filed by defendant Wesleyan University (“defendant” or “Wesleyan”), seeking to compel additional responses from plaintiff Christina Othon (“plaintiff” or “Othon”) to Wesleyan's first set of interrogatories and requests for production (“RFP”). See Doc. #61. For the reasons set forth herein, defendant's motion to compel (Doc. #61) is GRANTED, in part, and DENIED, in part. I. Background Plaintiff, a former employee of Wesleyan, brings claims asserting gender-based retaliation and discrimination in employment, under both state and federal law. See generally Doc. #57. Plaintiff also brings state law claims for breach of contract and negligent misrepresentation. See id. at 27, 32. Plaintiff “was hired on a tenure-track appointment[ ]” as an Assistant Professor in Wesleyan's physics department in July 2010. Id. at 2. Plaintiff alleges, inter alia, that she was denied tenure in February 2017 due to ongoing and systemic gender bias within the department generally, and in Wesleyan's methods of evaluating tenure candidates. See generally Doc. #57. Plaintiff further alleges that defendant retaliated against her for seeking to address that alleged bias through defendant's office of Diversity and Equity. See id. at 12-15. Plaintiff resigned from her position with defendant on August 1, 2017, and began employment at Ripon College on August 18, 2017. See Doc. #66 at 10, 12; Doc. #68-4 at 4. II. Legal Standard Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery: 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. Fed. R. Civ. P. 26(b)(1). The advisory committee's notes to the 2015 amendment of Rule 26 further explain that: [a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. Fed. R. Civ. P. 26, Advisory Committee's note to 2015 amendment. “[T]he burden of demonstrating relevance remains on the party seeking discovery.” Bagley v. Yale Univ., 315 F.R.D. 131, 144 (D. Conn. 2016) (citation omitted), as amended (June 15, 2016); see also Republic of Turkey v. Christie's, Inc., 326 F.R.D. 394, 400 (S.D.N.Y. 2018) (same). If the party seeking discovery is able to demonstrate relevance, the burden then shifts to the party resisting discovery of relevant information to establish some basis for denying discovery of the information. See, e.g., Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). *2 “A district court has wide latitude to determine the scope of discovery[.]” In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008). “The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.” Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (quotation marks and citation omitted). III. Discussion Defendant's motion to compel seeks additional responses to Wesleyan's first set of interrogatories and requests for production. See Doc. #61. After conducting “meet-and-confer” sessions, the parties have narrowed the issues for Court review. See Docs. #139, #145 (status reports). A. Interrogatories 11, 12, and 13, and RFPs 43 and 44 Defendant moves to compel additional responses to Interrogatories 11, 12, and 13, and RFPs 43 and 44. These requests relate to “[p]laintiff's health care providers and treatment ... from 2008 to the present.” Doc. #61-1 at 1. The interrogatories are broadly framed, seeking information regarding any and all medical professionals with whom plaintiff treated, institutions where plaintiff received services, and pharmacies from which plaintiff purchased medication, for a ten year period. Defendant requests that plaintiff execute a release and authorization for any such entity to provide complete copies of her records to defense counsel. See id. at 2. Defendant contends that the requested information is relevant because “[p]laintiff placed her entire medical condition, both physical and mental, at issue[ ]” by “seeking compensatory damages concerning emotional distress and loss of enjoyment of life[.]” Id. at 2-3; see also Doc. #57 at 34. Plaintiff produced records from her treating therapist; she later produced additional records from “two separate primary care physicians” after the meet-and-confer. Doc. #66 at 5; Doc. #145 at 2. Defendant asserts that the records produced from the primary care physicians “are heavily redacted and defense counsel cannot know whether any of the redacted information is relevant to Plaintiff's emotional distress claim.” Doc. #145 at 1. Plaintiff contests this description of the records. See Doc. #66 at 5-6. Defendant “requests either: (1) an order that Plaintiff produce all medical records without redaction, pursuant to an Attorneys’ Eyes Only (AEO) designation, to afford defense counsel the opportunity to assess relevance and whether it can resolve this dispute; or (2) an in camera review to determine whether any of the redacted portions of the medical records are relevant to Plaintiff's claim of emotional distress.” Id. at 1-2. Plaintiff asserts that the redactions are appropriate because these primary care records “contain significant information that is unrelated to the emotional distress claim including gynecological information and other medical issues.” Id. at 2. Where a plaintiff seeks “compensation based at least in part upon her mental anguish and emotional distress, [the defendant] is entitled to discovery regarding plaintiff's medical history.” Cleveland v. Int'l Paper Co., No. 96CV01068(RSP), 1997 WL 309408, at *2 (N.D.N.Y. June 5, 1997). Specifically, “[d]efendant is entitled to information tending to show that [the plaintiff's] alleged emotional distress was caused at least in part by events and circumstances that were not job related.” Id. (citation and quotation marks omitted). This is particularly true where, as here, plaintiff has expressly alleged not only emotional distress, but “loss of enjoyment of life[.]” Doc. #57 at 34. *3 Defendant asserts that plaintiff testified “at her deposition that there were other stressors in her life[.]” Doc. #145 at 1. Thus, defendant contends, it is “entitled to plaintiff[’s] medical records to explore any alternate source of Plaintiff's alleged emotional distress.” Hannah v. Wal-Mart Stores, Inc., No. 3:12CV01361(JCH)(HBF), 2014 WL 2515221, at *6 (D. Conn. June 4, 2014) (citations and quotation marks omitted). Othon's claim for damages arising out of emotional distress “does not give defendant[ ] an unfettered right to pursue discovery into [plaintiff's] entire medical history.” Id. (citations and quotation marks omitted). Primary care records are potentially relevant here, and “[p]laintiff's desire to limit discovery of her medical records to those pertaining solely to her mental and emotional health does not afford the defendant an opportunity to explore other possible conditions that may be the source of plaintiff's alleged injury.” Weisbecker v. Sayville Union Free Sch. Dist., No. 10CV04645(ADS)(WDW), 2011 WL 13307926, at *1 (E.D.N.Y. Oct. 21, 2011) (citation and quotation marks omitted). “Accordingly, while the disclosure of some medical records may be appropriate, the wholesale disclosure of records is not.” Hannah, 2014 WL 2515221, at *6. The Court sees no practical way, in light of the history of this case, to determine whether the redacted portions of the records are discoverable other than to conduct an in camera review of those records. Accordingly, plaintiff shall provide a full, unredacted set of the records produced, as well as the redacted records, with appropriately matching Bates numbers, for the Court's review. The Court will determine after this review whether any of the redacted material is relevant and discoverable. Defendant's motion to compel plaintiff's response to interrogatories 11, 12, and 13, and RFPs 43 and 44 is GRANTED, in part, to the extent an in camera review is requested. B. Interrogatories 17 and 18 The parties’ joint status report dated July 25, 2019, indicates that the disputes regarding these interrogatories have been resolved. See Doc. #139 at 2. C. Request for Production 28 The parties’ joint status report dated July 25, 2019, indicates that the disputes regarding this RFP have been resolved. See Doc. #139 at 2. D. Requests for Production 34 and 39 Defendant moves to compel additional responses to RFPs 34 and 39, which concern plaintiff's post-resignation employment with Ripon College or any other employer. See Doc. #61-1 at 7. In RFP 34, defendant requests that plaintiff provide all documents concerning her “employment by any other employer from January 1, 2017, to the present[.]” Doc. #61-1 at 7 (quoting RFP 34). Defendant further requests that plaintiff provide an authorization “to obtain all employment records” from any such employers. Id. (quoting RFP 39). It now appears that the only employer responsive to this request is Ripon College.[1] In support of these requests, defendant states in its motion: “Plaintiff claims ongoing economic damages (including back and front pay) and her mitigation efforts are at issue, so Defendant is entitled to discover all documents and information concerning Plaintiff's post-resignation employment[.]” Doc. #61-1 at 8. *4 The parties’ July 25, 2019, joint status report indicated that “[p]laintiff ha[d] agreed to supplement her production concerning documents bearing upon her post-resignation employment (Request 34 and 39).” Doc. #139 at 2. The report also stated that “[d]efendant will assess the Plaintiff's supplemental production of records once received to determine whether it can narrow the scope of this dispute or withdraw.” Id. In the joint status report dated September 6, 2019, the parties identified RFPs 34 and 39 as unresolved disputes. See Doc. #145 at 2. At that time, Othon had provided some responses, and indicated that she planned to provide additional materials after a tenure vote took place at Ripon “in September or October.” Id. at 2-3.[2] In support of its motion to compel on this issue, Wesleyan cites to three cases: Talmadge v. Stamford Hosp., No. 3:11CV01239(WWE), 2012 WL 3113154 (D. Conn. July 31, 2012); Ofoedu v. St. Francis Hosp. & Med. Ctr., 234 F.R.D. 26 (D. Conn. 2006); and Croom v. W. Conn. State. Univ., No. 3:00CV01805(PCD), 2002 WL 32503668 (D. Conn. Apr. 3, 2002). While neither Ofoedu nor Croom is squarely on point here, the Court finds Talmadge instructive. The Court found in Talmadge, an employment discrimination case, “that subsequent employment records regarding plaintiff's salary, benefits, date of hire and duration of employment are discoverable.” Talmadge, 2012 WL 3113154, at *1. The Court agrees. To the extent RFP 34 seeks more expansive materials, such as a personnel file or tenure dossier, the Court does not find such materials relevant, and defendant has offered no argument why they would be. See, e.g., Bakhit v. Safety Marking, Inc., No. 3:13CV01049(JCH), 2015 WL 13647393, at *5 (D. Conn. Feb. 17, 2015) (finding that “duties and qualifications for” later employment were “not relevant to the claims in this” employment discrimination case, and that documents “relevant to [plaintiff's] mitigation efforts, including income and place and dates of employment[ ]” were sufficient). The Court sees no basis for the issuance of a signed release and authorization in this context. An authorization would be necessary only if it appeared plaintiff was refusing to comply with an order of the Court directing disclosure, which is only now being entered.[3] Plaintiff is hereby ordered to produce records regarding her salary, benefits, date of hire, and duration of employment at Ripon College. Plaintiff shall additionally produce any materials “reflecting any change in Plaintiff's salary or title” during her employment at Ripon, including any award of tenure. Doc. #145 at 3. Accordingly, defendant's motion to compel as to RFP 34 is GRANTED, in part, and defendant's motion to compel as to RFP 39 is DENIED. E. Request for Production 40 Defendant moves to compel additional responses to RFP 40, which asks plaintiff to produce: Any and all documents concerning any oral, written, online, e-mail, or internet communications (or other computer or electronic communications) between any current or former employees of Defendant, and yourself, concerning your allegations of discrimination or retaliation, from July 1, 2010, to the present and continuing to the time of trial. *5 Doc. #61-1 at 9. Defendant asserts that plaintiff used her personal email address for business purposes, and, as a result, defendant does not have access to all of plaintiff's communications with Wesleyan staff regarding her claims. See id. Defendant contends that “the Court should order Plaintiff to produce any communications, electronic or otherwise, she had with current or former Defendant employee's concerning her allegations.” Id. (sic). Plaintiff has produced certain responsive materials, and the dispute now appears to be whether the search parameters used were suitable. “Plaintiff provided Defendant with a general accounting of Plaintiff's search for electronically stored information (ESI).” Doc. #145 at 4. “Defendant's position is that Plaintiff's general explanation of her search methodology is insufficient; Defendant is entitled to know specifically what Plaintiff searched and how she searched for ESI.” Id. The Court notes that the plaintiff's motion to compel additional initial disclosures (Doc. #53) focuses on plaintiff's request that defendant disclose (and expand) its ESI search parameters. In the briefing on that motion, plaintiff's counsel indicated that she had requested that defense counsel “provide details for each search” relating to certain disputed issues conducted for ESI. Doc. #53-1 at 10. Plaintiff there takes issue with the fact that defendant “did not identify ... the specific search(es) it conducted (i.e. search terms with specific time parameters).” Doc. #53-1 at 14. The Court agrees (with both parties) that disclosure of the specific search terms, time parameters, and accounts searched by plaintiff in preparing her responses to this request is appropriate. If, after learning these details of the search(es) conducted by plaintiff, defendant believes the search was inadequate, or that additional materials remain to be disclosed, the parties shall meet and confer in an attempt to identify mutually agreeable search parameters and resolve any remaining disputes. Accordingly, defendant's motion to compel plaintiff's response to RFP 40 is GRANTED, to the extent defendant seeks the details of the search parameters applied by plaintiff in responding to the RFP. IV. Conclusion For the reasons stated herein, defendant's motion to compel (Doc. #61) is GRANTED, in part, and DENIED, in part. Plaintiff shall produce the following materials, to the extent they have not previously been produced, on or before December 4, 2019: RFP 34 -- records regarding plaintiff's salary, benefits, date of hire, and duration of employment at Ripon College, and any materials “reflecting any change in Plaintiff's salary or title” during her employment at Ripon, including any award of tenure. RFP 40 -- the specific search terms, time parameters, and accounts searched by plaintiff in preparing her responses. As to Interrogatories 11, 12, and 13, and RFPs 43 and 44, plaintiff shall provide a full, unredacted set of the records produced, as well as the redacted records, with appropriately matching Bates numbers, for the Court's review, on or before November 22, 2019. These records may be provided to the Court in hard copy or PDF format by mail or hand-delivery to chambers. It is so ordered, at New Haven, Connecticut, this 18th day of November, 2019. Footnotes [1] Defendant's motion describes these requests as seeking information “concerning all of her efforts to obtain post-resignation employment[.]” Doc. #61-1 at 7. The Court notes, however, that the actual request refers only to “your employment by any employer[,]” id., and although it mentions applications for employment, it does not appear to encompass, as written, efforts to obtain employment that were unsuccessful and did not lead to plaintiff's employment. The Court therefore construes this request as limited to Ripon College. [2] In the joint status report, defendant asserts for the first time a more expansive basis for relevance, contending that “all documents bearing upon Plaintiff's asserted tenure bid at Ripon College are relevant and responsive[.]” Doc. #145 at 2-3. The Court declines to consider this argument, not made in the motion (Doc. #61), and in any event the Court does not agree that such a broad request would be appropriate. [3] Furthermore, any authorization the Court issued would be narrowly tailored to require only the materials ordered produced herein, that is, “an appropriate authorization for salary and related benefit information.” O'Garra v. Northwell Health, No. 16CV02191(DRH)(AYS), 2018 WL 502656, at *3 (E.D.N.Y. Jan. 22, 2018).