Norma GUDELJ, Plaintiff, v. VITALITY WORKS, INC., and Mitchell Coven, Defendant Civ. No. 19-14 KG/JFR United States District Court, D. New Mexico Filed October 16, 2019 Counsel Glenn R. Smith, Stephanie Landry, Landry & Ludewig, L.L.P., Albuquerque, NM, for Plaintiff. Charles J. Vigil, Rodey Dickson Sloan Akin & Robb, P.A., Albuquerque, NM, for Defendant. Robbenhaar, John F., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S FIRST MOTION TO COMPEL *1 THIS MATTER is before the Court on Plaintiff's First Motion to Compel Vitality Works, Inc.’s Responses to Plaintiff's First Set of Discovery (“Motion”), filed August 8, 2019. Doc. 27. Defendants filed a Response on August 27, 2019. Doc. 28. Plaintiff filed a Reply on September 19, 2019. Doc. 35. Having reviewed the parties’ submissions and the relevant law, the Court finds that Plaintiff's Motion is well taken in part and is GRANTED IN PART. This case arises from Plaintiff's allegations that one or both Defendants violated Title VII of the Civil Rights Act, the Family Medical Leave Act, the American With Disabilities Act, the Age Discrimination in Employment Act, and the New Mexico Human Rights Act during the course of and when they terminated Plaintiff's employment. Doc. 27 at 2. Plaintiff also alleges Defendants preemptively and retaliatorily discharged her before she could exercise her rights under the Family Medical Leave Act. Id., Doc. 4 at 16-17. In her Motion, Plaintiff moves to compel Defendants to respond to Interrogatory No. 7,[1] Request for Production No. 6, Request for Production No. 9, Interrogatory No. 8, Request for Production No. 11, and Request for Production No. 13. The Court will address each in turn. Standard of Review Regarding Discovery Generally The proper 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[.]” Fed. R. Civ. P. 26(b)(1). The factors that bear upon proportionality are: “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.” Id. The Federal Rules of Evidence define relevant evidence as that which has “any tendency to make a fact more or less probable than it would be without the evidence,” where “the fact is of consequence in determining the action.” Fed. R. Evid. 401. The scope of discovery under the federal rules is broad. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004) (“The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve full disclosure of all potentially relevant information.”). The federal discovery rules reflect the courts’ and Congress's recognition that mutual knowledge of all the relevant facts gathered by all parties is essential to proper litigation. Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). As a result, Rule 26 “contemplates discovery into any matter that bears on or that reasonably could lead to other matter[s] that could bear on any issue that is or may be raised in a case.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649 (D.N.M. 2007) (internal quotation marks omitted) (brackets in original). “[B]road discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez, 50 F.3d at 1520 (internal quotation marks omitted). *2 When discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Johnson v. Kraft Foods N. Am., Inc. 238 F.R.D. 648, 653 (D. Kan. 2006). “Conversely, when the request is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.” Id. While it is true that relevance in discovery is broader than that required for admissibility at trial, “the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue.” Zenith Elec. Corp. v. Exzec, Inc., No. 93 C 5041, 1998 WL 9181, at *2 (N.D. Ill. Jan. 5, 1998) (unpublished) (internal quotation marks omitted). A district court, however, is not “required to permit [a party] to engage in a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes, 2002 WL 1608456, 43 F. App'x 214, 217 (10th Cir. July 22, 2002); see Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697(WK), 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002) (unpublished) (“Discovery, however, is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.” (internal quotation marks omitted)); Hardrick v. Legal Servs. Corp., 96 F.R.D. 617, 618 (D.D.C. 1983) (noting that courts do, and should, remain “concerned about fishing expeditions, discovery abuse[,] and inordinate expense involved in overbroad and far-ranging discovery requests” (internal quotation marks omitted)). 1. Request for Production No. 6. In Request for Production No. 6, Plaintiff requested Defendants “[p]roduce all documents that contain positive or negative comments regarding Plaintiff's performance of her job with Vitality Works.” Doc. 27-1 at 5, 7. Defendants objected to this request for production on the grounds that the requested information is not proportional to the needs of the case as it seeks information as to the state of knowledge of every conversation or written exchange involving any employee at Vitality Works regarding Plaintiff's work performance over the 21 months of her employment when the only relevant issue is the reason for her termination by the decision maker, Mitchell Coven. Defendant therefore limits its response to a summary of the information on which Mr. Coven made his termination decision. Doc. 27-1 at 5, 7-8. In her Motion, Plaintiff argues that Vitality Works’ production presented a one-sided picture regarding Plaintiff's job performance and that the requested information is necessary for impeachment and may lead to information regarding witnesses who provided information related to Plaintiff's work performance. Doc. 27 at 10. In conferral, Vitality Works suggested that it would provide archived emails of employees with whom Plaintiff interacted most often. Doc. 27 at 11. In further conferral, Plaintiff's counsel stated, “We would propose, instead, to limit Interrogatory No. 7 and Request for Production No. 6 to Plaintiff's department, Mr. Coven, Mr. Priest, and any customers/clients as Vitality Works is now claiming that Plaintiff's work was the cause of a loss of income from three customers/clients.” Id. at 11-12. Vitality Works rejected Plaintiff's compromise and stated, “we will agree as to Mr. Priest, Mr. Coven and customers/clients who complained.” Id. at 12. Defendants asserted in its Response that “[e]ven with that very minor concession, her requests are still not proportionate to the needs of the case[,]” where the question is whether there was a legitimate business reason for the termination decision and not whether Plaintiff occasionally pleased a customer or co-worker. Doc. 28 at 2-3. *3 The Court, having reviewed Plaintiff's claims in this case, finds that information related to Plaintiff's work performance is relevant and proportional to the needs of the case; i.e., evidence of individual contribution, professionalism, problem solving and judgment, interpersonal skills, job specific contributions, performance reviews, salary increases, and promotions. That said, the Court finds that the request for production is vague and overly broad and will limit its scope. Plaintiff's Motion regarding Request for Production No. 6, therefore, is granted in part and denied in part. Defendants are ordered to produce any and all written documents prepared by Mr. Coven, Mr. Priest, or any of Plaintiff's supervisors and/or managers, that were maintained in the ordinary course of business, related to or based on any interviews, meeting notes, conversations, or reviews regarding Plaintiff's work performance with Vitality Works, both positive and negative. See generally, Moss v. Blue Cross and Blue Shield of Kansas, Inc., 241 F.R.D. 683, 695 (D. Kan. 2008) (finding that a document request for memorandum of any interviews, meeting notes, or conversations with employee from any time from her initial interview to period of termination was not overly broad and unduly burdensome, for purposes of employee's motion to compel employer to respond to request, in her action against employer alleging violations of the FMLA, where employer would likely only have to search files of supervisors and managers who kept notes of any interviews, meetings or conversations with employee). Defendants are also ordered to produce any written documents in their custody, possession, or control that reflect interviews, meeting notes, conversations or reviews regarding Plaintiff's work performance, both positive and negative, requested from or offered by customers/clients with whom Plaintiff interacted. Id. 2. Request For Production No. 9. In Request for Production No. 9, Plaintiff requested Defendants “[p]roduce copies of contracts regarding the services of Jonathan Priest to Vitality Works for the last five years either as an independent contractor or an employee.” Defendants responded that [a] Consulting Agreement between Vitality and Mr. Priest, as well as Mr. Priest's COO employment letter are attached. ... Note that the salary amount has been redacted as that is not relevant to any issues in this lawsuit and is sensitive, confidential information involving a third-party to this litigation. That information is therefore not proportional to the needs of the case and Vitality Works objects to this production. Doc. 27-1 at 9. In her Motion, Plaintiff seeks production of Mr. Priest's salary information. She argues that this information is relevant to her claims based on gender and age discrimination and that Mr. Priest, a younger man, took over all or a portion of Plaintiff's job following her termination. Doc. 27 at 13. In not disclosing Mr. Priest's salary information, Defendants contend that Plaintiff has not alleged any equal pay type of claim. Doc. 28 at 4. They further contend that Mr. Priest was Plaintiff's supervisor and that while he may have been forced to take over her job duties after her termination, he still had his own work to do as well. Id. Defendants therefore argue that comparing Mr. Priest's pay to Plaintiff's proves nothing. Id. The Court finds that Mr. Priest's salary is not relevant or proportional to the needs of Plaintiff's gender and age discrimination claims given the facts presented. Here, Plaintiff states that in late April 2017, Mr. Priest was initially hired by Vitality Works as an outside consultant, and that his duties included reviewing all of Plaintiff's purchase orders and contacting suppliers to whom she had submitted purchase orders. Doc. 27 at 5, 7. Although Plaintiff argues that Vitality Works “admitted that Mr. Priest, a man who is younger than Plaintiff, took over the work responsibilities of Plaintiff” (Doc. 27 at 8), and Vitality Works also stated that “[i]t is possible that, from time to time and in addition to their regular job duties, many employees of Vitality Works perform or have performed a duty also expected of Plaintiff during her employment.” Doc. 27-1 at 3 (emphasis added). Vitality Works listed eleven employees who performed significant work on tasks expected of Plaintiff, including Mr. Priest. Id. Vitality Works further responded that Mr. Priest “[a]ssumed purchasing manager position after Plaintiff's termination.” Id. That said, as previously stated, Vitality Works asserted in its Response that Mr. Priest was Plaintiff's supervisor, and that after Plaintiff's termination he still had “his own work to do” while also taking over Plaintiff's job duties. Doc. 28 at 4. Thus, the Court is not persuaded that comparing Plaintiff's and Mr. Priest's salaries is appropriate given they were not similarly situated in their hiring or their job responsibilities at Vitality Works. See generally Furaus v. Citadel Communications Corporation, 168 F. App'x 257, 261-62 (10th Cir. 2006) (unpublished) (noting that comparison of plaintiff's salary with her direct supervisor was inappropriate because they were not similarly situated). For these reasons, Plaintiff's Motion with respect to Request for Production No. 9 is denied. 3. Interrogatory No. 8 and Request for Production No. 11. *4 In Interrogatory No. 8, Plaintiff requested Defendants [f]or the last seven years, describe in detail each complaint made to or received by Vitality Works involving the type of discrimination alleged by the Plaintiff in this case (that is, gender discrimination, sexual harassment, gender discrimination resulting in a hostile environment, discrimination based on medical leave and/or medical condition and/or disability, or age discrimination and/or retaliation for exercising rights regarding gender discrimination, sexual harassment, gender discrimination resulting in a hostile environment, discrimination based on medical leave and/or medical condition and/or disability, or age discrimination). Such description should include the date each complaint was made, the identity of the alleged perpetrator, the steps taken (if any) by Vitality Works to investigate the complaint, the remedial action taken (if any) by Vitality Works to respond to the complaint, and the manner in which said complaint was resolved. For purposes of this interrogatory, the term “complaint” means any lawsuit (regardless of whether in court or arbitration), administrative charge or complaint filed with the Equal Employment Opportunity Commission, New Mexico Human Rights Bureau or any other state or local human rights or civil rights commission or agency and/or any demand letter. Defendants responded: Defendant objects to this interrogatory on the grounds that it is not proportional to the needs of the case as it seeks information that is not relevant or likely to lead to the discovery of admissible evidence. Plaintiff's claims are that she was discriminated against by Mitchell Coven in connection with his decision to terminate her employment. Her interrogatory, however, would seek information on complaints against any employee at Vitality Works and is therefore overbroad. The temporal breadth of the request is likewise overbroad as it seeks complaints going back to 2012 and extends after Plaintiff's termination. Defendant therefore limits its response to the complaints made against Mr. Coven during the period of Plaintiff's employment. There are none. Doc. 27-1 at 5-6. In Request for Production No. 11, Plaintiff requested Defendants [p]roduce all documents relating to any complaint alleging harassment, discrimination and/or retaliation of any type or kind for the last seven years. For purposes of this interrogatory, the term “complaint” means any lawsuit (regardless of whether in court or arbitration), administrative charge or complaint filed with the Equal Employment Opportunity Commission, New Mexico Human Rights Bureau or any other state or local human rights or civil rights commission or agency and/or any demand letter. Defendants responded: Defendant objects to this interrogatory on the grounds that it is not proportional to the needs of the case as it seeks information that is not relevant or likely to lead to the discovery of admissible evidence. Plaintiff's claims are that she was discriminated against by Mitchell Coven in connection with his decision to terminate her employment. Her interrogatory, however, would seek information on complaints against any employee at Vitality Works and is therefore overbroad. The temporal breadth of the request is likewise overbroad as it seeks complaints going back to 2012 and extends after Plaintiff's termination. The request is also overbroad on its face in that it seeks “all documents” related to such complaint, rather than just the complaint itself. The scope of that request would therefore include irrelevant documents, confidential documents (such as confidential settlement agreements), attorney client communications regarding the complaint, and attorney work product related to the complaint. Defendant therefore limits its response to the complaints made against Mr. Coven during the period of Plaintiff's employment. There are none. *5 Doc. 27-1 at 9-10. In conferral, Plaintiff voluntarily limited Request for Production 11 to complaints and responses to the complaints. Doc. 27 at 15. Plaintiff states, therefore, that the “sole issue with respect to Interrogatory No. 8 and Request for Production No. 11 is whether the requests should be limited to Mr. Coven and a time period before Plaintiff's termination.” Id. Plaintiff argues that limiting complaints to the time period before her termination would exclude her complaint, and any other complaints filed by others after her termination, and that production of complaints after her termination “could well shed light on the continuing hostile environment that existed when Plaintiff was employed by Vitality Works.” Id. Plaintiff also argues that her complaints of discrimination were not limited to Mr. Coven, but included Vitality Works. Id. Finally, Plaintiff argues that the seven-year time period requested is not burdensome. Id. Defendants contend that Plaintiff's EEOC complaint only alleged discrimination against Mr. Coven, and that Plaintiff did not allege that the discrimination began until February 2017. Doc. 28 at 6. As such, Defendants argue the time period requested is overly broad. Id. Defendants further contend that Plaintiff's limited request for all complaints and responses to complaints remains overly broad because it includes any sort of discrimination claim even if it is completely different from that alleged here. Id. at 6-7. The Court, having reviewed Plaintiff's claims in this case, finds that information related to discrimination complaints and responses is relevant and proportional to the needs of the case; i.e., gender discrimination, sexual harassment, gender discrimination resulting in a hostile environment, discrimination based on medical leave and/or medical condition and/or disability, or age discrimination and/or retaliation for exercising rights. See Ortiz v. Norton, 254 F.3d 889, 896-97 (10th Cir. 2001) (explaining that pattern evidence could support an inference that the decision-maker harbored a bias against female workers which might have affected other decisions); Estes v. Dick Smith Ford. Inc., 856 F.2d 1097, 1103 (8th Cir. 1988), overruled on other grounds by, Foster v. University of Ark., 938 F.2d 111 (8th Cir. 1991) (explaining that in discrimination cases circumstantial proof of discrimination may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive); Rodger v. Electronic Data Systems Corp., 155 F.R.D. 537, 541 (E.D.N.C. 1994) (“[I]n an employment discrimination context, information regarding prior discrimination suits against the defendant would be highly relevant to evaluate the defendant's employment practices as a whole and provide evidence regarding intent and willfulness.”); Rich v. Martin Marietta Corp., 522 F.2d 333, 344 (10th Cir. 1975) (finding evidence of employment practices are relevant when they likely would prove crucial to the establishment or rebuttal of a prima facie case). Additionally, Plaintiff's Complaint does not limit her discrimination claims to only Defendant Coven, nor does her Charge of Discrimination. See Doc. 4 (First Amended Complaint for Damages for Discrimination and Retaliatory Conduct) and Doc. 28-1 (Charge of Discrimination). To the contrary, Plaintiff alleges discrimination against Vitality Works as well. Id. That said, the Court finds that the interrogatory and request for production are overly broad and will limit their scope. Plaintiff's Motion regarding Interrogatory No. 8 and Request for Production No. 11, therefore, is granted in part and denied in part. *6 Defendants are ordered to produce copies of complaints against Mr. Coven and Vitality Works related to gender discrimination, sexual harassment, gender discrimination resulting in a hostile environment, discrimination based on medical leave and/or medical condition and/or disability, or age discrimination and/or retaliation for exercising rights, and responses to complaints, for a period of two years prior to the date of Plaintiff's employment through one year after Plaintiff's termination. See Owens v. Sprint/United Management Co., 221 F.R.D. 649, 655-56 (D. Kan. 2004) (explaining that discovery of information both before and after the liability period within a Title VII lawsuit may be relevant and/or reasonably calculated to lead to the discovery of admissible evidence and courts commonly extend the scope of discovery to a reasonable number of years) (citations omitted). Defendants are ordered to redact any personally identifying information, except to the extent personally identifying information may be relevant to Plaintiff's discrimination claims; i.e., gender and age. The Court further directs the parties enter into a confidentiality order to prevent further disclosure of this information and to adequately protect the confidentiality of any sensitive information contained therein.[2] 4. Request for Production No. 13. In Request for Production No. 13, Plaintiff seeks “copies of business tax returns and financial statements for Vitality Works for each of the last three years.” Doc. 27-1 at 10. Defendants responded: Defendant objects to this request on the grounds that it seeks information that Defendant maintains as private, sensitive, and confidential information. Moreover, the information is not relevant or likely to lead to the discovery of admissible evidence. The only evidence necessary for evaluation of punitive damages is the company's net worth at the time of trial and is therefore premature. Further, the information sought is not proportionate to the needs of the case. The only claims in this case that allow for punitive damages are those under Title VII and the ADA. Punitive damages under those statutes are capped at either $100,000 or $200,000 for employers of Defendant's size. (As Defendant's employee count is right at about 200 employees – the dividing line between the two caps – it is not clear which one will apply at trial.) Defendant will stipulate that it will not challenge an award of $200,000 in punitive damages as being improperly high based on its financial resources. (Defendant, however, would reserve the right to challenge both the award and amount of punitive damages on other grounds.) Id. at 11. Plaintiff argues that Defendant Vitality Works’ financial information is relevant to her claim for punitive damages. Doc. 27 at 16-17. Defendants contend that their current net worth at the time of trial may be relevant to a viable claim of punitive damages, but not its tax returns, and suggest that a statement of Vitality Works’ net worth be produced at the time of trial if any viable claims for punitive damages remain in the case at that time. Doc. 28 at 8. In her Reply, Plaintiff argues that a simple production of a figure of net worth “does not allow for any analysis or impeachment of Vitality Works’ assessment of its ‘net worth’,” and that tax returns generated in the normal course of business to gauge financial status for three years prevents Vitality Works from cherry-picking the figures. Doc. 35 at 9. “[I]f a plaintiff has alleged sufficient facts to claim punitive damages against a defendant, information of the defendant's net worth or financial condition is relevant because it can be considered in determining punitive damages.” Roberts v. Shawnee Mission Ford, Inc., No. 01-2113-CM, 2002 WL 1162438, at *4, 2002 U.S. Dist. LEXIS 9525 (D. Kan. Feb. 7, 2002) (internal quotation marks omitted). The party requesting the discovery generally does not need to “establish a prima facie case on the issue of punitive damages before it can obtain pretrial discovery of the other party's financial statements and tax returns.” Id. 2002 WL 1162438, at *4, 2002 U.S. Dist. LEXIS 9525 (internal brackets omitted). “To discover a party's financial condition in light of a claim for punitive damages, requesting parties generally must show the claim for punitive damages is not spurious.” Id. (citation omitted). A claim is not spurious if “sufficient facts have been alleged to make a claim for punitive damages.” Krenning v. Hunter Health Clinic, Inc., 166 F.R.D. 33, 34 (D. Kan. 1996) (emphasis added). *7 The Court finds that Plaintiff's claim for punitive damages is not spurious and that Plaintiff's request for financial information is relevant and proportional to the needs of the case. However, the Court also finds that Plaintiff's request is overly broad and will limit its scope. Plaintiff's Motion regarding Request for Production No. 13, therefore, is granted in part. Because the Court sees no reason to delay discovery,[3] Defendant Vitality Works is ordered to produce its audited financial statements[4] for the years 2017 and 2018. If there are no audited financial statements, Defendant Vitality Works is ordered to produce its tax returns for 2017 and 2018. Plaintiff is ordered to treat the information provided as confidential and directs the parties enter into a confidentiality order to prevent further disclosure and to assuage Defendants’ privacy concerns.[5] CONCLUSION For all of the foregoing reasons, the Court finds that Plaintiff's Motion is well taken in part. IT IS THEREFORE ORDERED that Plaintiff's Motion (Doc. 27) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Defendants produce the documents as described herein within twenty (20) calendar days. Footnotes [1] In her Reply, Plaintiff states that “[i]n an effort to compromise these two discovery requests, Plaintiff withdraws its motion to compel Interrogatory No. 7.” Doc. 35 at 2. Therefore, any dispute with respect to Interrogatory No. 7 is now moot. [2] The parties should review the Court's webpage at: https://www.nmd.uscourts.gov/content/honorable-john-f-robbenhaar, particularly noting the Procedures Tab and linked Guidelines for Proposed Protective Orders, to ensure that any protective order submitted for the Court's approval complies with the Court's Guidelines. [3] See Philmar Dairy, LLC v. Armstrong Farms, 2019 WL 2006181, at *3 (D.N.M. May 7, 2019) (reasoning that “while the Court could wait until the jury determines liability to allow discovery on punitive damages, the better exercise of discretion is to compel production now”); see also Equal Employment Opportunity Commission v. Roark-Whitten Hospitality, 2017 WL 3575731, at *8 (D.N.M. Aug. 17, 2017) (stating that “all discovery must take place within the time prescribed by the Court”). [4] Financial statements are reports prepared by a company's management to present the financial performance and position at a point in time. A general-purpose set of financial statements usually includes a balance sheet, income statements, statement of owner's equity, and statement of cash flows. https://www.myaccountingcourse.com/accounting-dictionary/financial-statements. “A financial statement audit is the examination of an entity's financial statements and accompanying disclosures by an independent auditor. The result of this examination is a report by the auditor, attesting to the fairness of presentation of the financial statements and related disclosures.” https://www.accountingtools.com/articles/what-is-a-financial-statement-audit.html. [5] See fn. 2, supra.