Francis Woukop Yomi v. The Arc of Washington County, Inc Civil No. SAG-22-964 United States District Court, D. Maryland Filed May 16, 2023 Maddox, Matthew J., United States Magistrate Judge MEMORANDUM ORDER *1 May 15, 2023 Dear Counsel: Currently pending are a second motion to compel and a second motion for sanctions filed pro se by Plaintiff Francis Woukop Yomi (“Plaintiff”). ECF 42 & 49. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636. For reasons stated herein and during the virtual hearing conducted on May 15, 2023, the second motion to compel is GRANTED IN PART and DENIED IN PART, and the second motion for sanctions is DENIED. I. BACKGROUND Plaintiff filed this civil action against his alleged former employer, The Arc of Washington County, Inc. (“Defendant” or “AWC”) in April 2022, alleging discriminatory termination of employment based on race, color, and national origin, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ECF 1. Specifically, Plaintiff alleges that Defendant unlawfully discriminated against him by “not allow[ing] [him] to redo or retake the training after it said that [he] failed the Medication Pass (also called the Med. Pass) that [he] took on 12/17/2018, whereas [Defendant] allows Caucasian, White, and/or native of the U.S.A. caregivers who fail their Med. Pass to retake or redo the training.” ECF 1-1 at 1. Plaintiff further alleges that Defendant unlawfully discriminated and retaliated against him by terminating his employment for the purported reason that he failed the Med. Pass, among other reasons, “whereas it allows other employees of the non-protected group to redo or retake the Med. Pass when they fail it....” Id. Defendant “does not dispute that Plaintiff sought employment with Defendant” and “admits it terminated Plaintiff's probationary employment on or around December 20, 2018.” ECF 11 at 1. Defendant denies that it terminated Plaintiff's employment for any unlawful reason. Id. On February 28, 2023, Judge Stephanie A. Gallagher entered an Order denying Plaintiff's first motion for sanctions, ECF 27, and a separate Order referring Plaintiff's first motion to compel discovery responses to the undersigned magistrate judge. ECF 28. The undersigned conducted a virtual hearing on the first motion to compel on March 14, 2023, and entered an Order granting the motion in part and denying it in part on March 20, 2023. ECF 38. On the same date, Plaintiff filed a second motion to compel, ECF 42, to which Defendant filed an opposition on April 3, 2023, ECF 46. Plaintiff filed a reply in support of his second motion to compel on April 17, 2023. ECF 52. Additionally, Plaintiff filed a second motion for sanctions on April 10, 2023. ECF 49. Defendant filed an opposition to the second motion for sanctions on April 25, 2023, ECF 53, and Plaintiff replied on May 8, 2023, ECF 55. The undersigned conducted a hearing on the second motion to compel and second motion for sanctions by video teleconference on May 15, 2023. II. DISCUSSION The pending motion to compel challenges the sufficiency of Defendant's responses to one request for admission, one interrogatory, and four requests for production of documents, ECF 42, and the pending motion for sanctions concerns Defendant's response to a fifth request for production, ECF 49. A party may serve interrogatories, requests for production of documents, and requests to admit the truth of any matters relating to any matter that may be inquired into under Rule 26(b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 33(a)(2), 34(a), & 36(a)(1). “Central to resolving any discovery dispute is determining whether the information sought is within the permissible scope of discovery, as stated in Fed. R. Civ. P. 26(b)(1).” Lynn v. Monarch Recovery Mgmt., Inc., 285 F.R.D. 350, 355 (D. Md. 2012). Rule 26(b)(1) provides that *2 [p]arties 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. Fed. R. Civ. P. 26(b)(1). Importantly, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable[,]” Fed. R. Civ. P. 26(b)(1), but “all permissible discovery must be measured against the yardstick of proportionality[,]” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010), aff'd in part, modified in part, Civ. No. MJG-06-2662, 2010 WL 11747756 (D. Md. Nov. 1, 2010) (citing Fed. R. Civ. P. 26(b)(2)(C)). District courts have been accorded “a wide berth to control discovery.” Bost v. Wexford Health Sources, Inc., Civ. No. ELH-15-3278, 2020 WL 1890506, at *9 (D. Md. Apr. 15, 2020) (citing United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 323 (4th Cir. 2018)). Each issue raised in Plaintiff's second motion to compel and second motion for sanctions is addressed below. A. Second Motion to Compel 1. Request for Admission No. 8 In his second motion to compel, Plaintiff first challenges Defendant's response to Request for Admission No. 8. ECF 42 at 1. The request is lengthy—well over 300 words long—but, in its final sentence, states: Please admit now that in the AWC at the time of my employment, the AWC (management, supervisors and caregivers) used the term or expression “Med Pass” to refer to the “Med Pass Examination,[”] as my former supervisor Cramer Julia even said on December 19, 2018, when she called me over the phone and told me that I was terminated because I did not pass the Med Pass evaluated by the nurse Heather Rice, RN. ECF 46-1 at 2–3. In its response dated February 17, 2023, Defendant states that “is unable to respond to this request because, contrary to Plaintiff's assertion, the terms ‘med pass’ and ‘med pass evaluation,’ may have multiple meanings, as the ‘med pass’ evaluation system has multiple components.” Id. at 3. However, the response continues: When Defendant refers to Plaintiff having failed a “med pass examination,” it has exclusively meant that term to refer to the examination conducted in the field at a client's home under the supervision of Heather Rice. To the extent a further response to this request is required, the request is denied. Id. In a letter to Defendant's counsel dated March 1, 2023, Plaintiff contends that “Defendant did not answer [Request for Admission No. 8], or gave an incorrect answer.” ECF 42-1 at 2. In a reply letter dated March 8, 2023, Defendant states that the request “is not a proper request for admission[,]” but points out that “[t]o the extent a response was required, the request was denied[,]” and maintained that Defendant's response “was appropriate[.]” ECF 42-2 at 1. In his motion to compel, Plaintiff attempts to re-phrase Request for Admission No. 8 as follows: “In the Arc of Washington County in Hagerstown, Maryland in 2018, the term Med Pass meant Medication Pass Examination.” ECF 42 at 1. The purpose served by requests for admission under Rule 36 is “to narrow the array of issues before the court, and thus expedite both the discovery process and the resolution of the litigation.” Lynn, 285 F.R.D. at 363 (citation omitted). “If a matter raised in a request for admission is not admitted, the responding party's answer ‘must specifically deny [the matter] or state in detail why the answering party cannot truthfully admit or deny it.” Id. (quoting Fed. R. Civ. P. 36(a)(4)). Any denial “must fairly respond to the substance of the matter.” Fed. R. Civ. P. 36(a)(4). “[W]hen good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.” Id. “The requesting party may move to determine the sufficiency of an answer or objection.” Fed. R. Civ. P. 36(a)(6). *3 The undersigned finds Defendant's response to Request for Admission No. 8 to be sufficient under Rule 36. Although the response contends that Defendant is “unable to respond[,]” it goes on to state specifically what was meant when Plaintiff was advised that he was terminated due to his failure to pass the “med pass examination.” Defendant denies the request for admission in all other respects. During the virtual hearing on May 15, 2023, Plaintiff objected that Defendant used the term “med pass examination” instead of the term “med pass” in the second sentence of its response. This argument is unpersuasive. Defendant's response “fairly respond[s] to the substance of the matter[,]” Fed. R. Civ. P. 36(a)(4), and “narrow[s] the array of issues” to be litigated in this case, Lynn, 285 F.R.D. at 363. Plaintiff's motion to compel a different response to Request for Admission No. 8 is DENIED. 2. Interrogatory No. 21 Plaintiff's second motion to compel challenges the sufficiency of Defendant's response to Interrogatory No. 21. ECF 42 at 1–2. This interrogatory requests a list of all tests given to “caregivers” at AWC that the caregivers were only permitted to take once such that if the caregiver failed the test, her or his employment would be terminated. ECF 42-4 at 1. Defendant responded, “Certified Technicians are only given one opportunity to take the practical portion of the ‘Med-Pass’ examination.” Id. The undersigned finds Defendant's response insufficient because it addresses “Certified Technicians” instead of “caregivers” and does not state whether the “Med-Pass” examination was the only test that caregivers were permitted to take only once such that failure to pass the test would result in termination. Plaintiff's motion to compel a proper response to Interrogatory No. 21 is GRANTED, and Defendant is directed to supplement its response to this interrogatory. 3. Requests for Production Nos. 13 and 14 Plaintiff's second motion to compel challenges the sufficiency of Defendant's responses to Plaintiff's Requests for Production Nos. 13 and 14. ECF 42 at 2. Each of these requests call for sets of documents that Defendant contends are contained within a large personnel file Defendant has already produced. ECF 46 at 3; ECF 46-3 at 2. In its written responses, however, Defendant fails to identify what documents within the personnel file are responsive to each of the two requests. ECF 46-3 at 2. In the context of this case, Defendant should identify by Bates range or other means what documents it contends are responsive to each request for production, including Requests for Production Nos. 13 and 14. Plaintiff's motion to compel Defendant to provide this information in its responses to these requests is GRANTED, and Defendant is directed to supplement its responses to Requests for Production Nos. 13 and 14 accordingly. 4. Request for Production No. 20 Plaintiff's second motion to compel challenges the sufficiency of Defendant's production of documents in response to Request for Production No. 20. ECF 42 at 2. Plaintiff requests certain documents pertinent to a related proceeding before the Maryland Commission on Civil Rights (“MCCR”). ECF 46-3 at 4. Defendant contends that it produced all documents it provided to MCCR in connection with this proceeding, which would include documents responsive to Request for Production No. 20. ECF 46 at 3–4. Plaintiff contends that any such production is incomplete because Defendant did not produce an attachment to a letter it sent to MCCR dated July 19, 2019. ECF 52 at 3–4. The letter in question refers to AWC's “Inservice Policy” as an attachment to the letter. ECF 52-1. At the virtual hearing on May 15, 2023, Defendant's counsel was unable to confirm that Defendant produced the “Inservice Policy” attachment. Plaintiff's motion to compel production of this attachment and all other documents Defendant provided to MCCR is GRANTED. 5. Request for Production No. 25 *4 Plaintiff's second motion to compel challenges the sufficiency of Defendant's response to Request for Production No. 25. ECF 42 at 2–3. Here, Plaintiff requests “any and all documents [Defendant] will present as evidence for [its] defense in this complaint/lawsuit[.]” ECF 46-3 at 5. Defendant objects to this request “to the extent that it is premature” and states that it will identify its “exhibits” in accordance with applicable rules of procedure and the Court's Scheduling Orders. Id. At this stage of the litigation, Defendant is under no requirement to identify what documents it intends to present as evidence in connection with dispositive motions or trial. Calling for Defendant to identify and produce all documents it might use as evidence in connection with dispositive motions and trial is far too broad a request to pass muster under the “reasonable particularity” requirement of Rule 34. See Fed. R. Civ. P. 34(b)(1)(A) (requests for production and inspection of documents “must describe with reasonable particularity each item or category of items to be inspected”); Swallow v. Harrisburg Rys. Co., 99 F. Supp. 305, 305 (M.D. Pa. 1951) (finding that a request to produce “all photographs, exhibits, sketches, plans and documents which Defendant proposes to use at the trial” “is entirely too broad”); M. McGee Design Studio, Inc. v. Brinson, No. 94 C 1644, 1994 WL 380613, at *10 (N.D. Ill. July 18, 1994) (finding that a request for “every document upon which [plaintiff] intends to rely is overbroad” and would require plaintiff “to prematurely identify all its trial exhibits” and that “[i]nquiring into an attorney's trial strategy[,]” including “what documents are important[,] is outside the scope of discovery”); Atcherley v. Clark, No. 1:12CV00225 LJO DLB, 2014 WL 4660842, at *2–3 (E.D. Cal. Sept. 17, 2014) (finding that a request for “any and all documentation relied upon by defendants in support of any defense in this action” is “vague and overbroad” and that “Defendant's exhibits in support of summary judgment, or those he will use at trial, will be provided to Plaintiff at the appropriate time”). Plaintiff argues that Defendant should be compelled to produce a policy referenced in Defendant's response to Interrogatory No. 19 pursuant to Request for Production No. 25. ECF 52 at 4. Defendant's response to Interrogatory No. 19 states, “It is AWC's policies to not allow [Certified Medication Technicians] who fail the practical portion of the Med-Pass exam to retake that portion of the exam.” ECF 46-2 at 1. Request for Production No. 25 does not request any such policies. Moreover, during the virtual hearing on May 15, 2023, Defendant's counsel confirmed that AWC's policies regarding testing have been produced. For the foregoing reasons, Plaintiff's motion to compel production of documents responsive to Request for Production No. 25 is DENIED. B. Second Motion for Sanctions and Request for Production No. 1 Plaintiff requests sanctions for Defendant's failure to produce documents responsive to Request for Production No. 1. ECF 49. Plaintiff's first set of Requests for Production of Documents was served on December 16, 2022. Id. at 1. Request for Production No. 1 requests copies of “the authentic test scores of the observational field exam part of the Med Pass Examination of any and all caregivers in probation during the period of October 2018 to March 2019 who took it....” ECF 53-2 at 1–2. In a response served on or about January 19, 2023, Defendant states, without objection, that it would produce responsive documents. ECF 49 at 1; ECF 53-2 at 2. Plaintiff's first motion to compel was filed on January 31, 2023. ECF 21. Later, on or about February 10, 2023, Defendant served a supplemental response to Request for Production No. 1, now stating an objection to the request “on the ground that it is overly broad, unduly burdensome, and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.” ECF 53-2 at 2. “Without waiving these objections,” Defendant agreed to produce “a list of all individuals that it hired or rehired during the requested time period, along with their races[,]” and later produced this list. Id. Plaintiff's second motion for sanctions is founded on the proposition that Defendant violated the Court's Order dated March 20, 2023 (ECF 38), in failing to produce documents in response to Plaintiff's Request for Production No. 1. ECF 49. The March 20, 2023, Order addressed Plaintiff's first motion to compel, which did not challenge Defendant's objections to Request for Production No. 1 or its refusal to produce responsive documents. Plaintiff was not in a position to challenge Defendant's objections to Request for Production No. 1 at the time he filed the first motion to compel because Defendant did not state its objections until after the motion was filed. Because this issue was not raised in the first motion to compel, the matter was not addressed in the March 20, 2023, Order at all. The Order only directed Defendant to “identify by Bates range or other means what documents it contends are responsive to each request for production and interrogatory....” ECF 38 at 3. It would be improper for sanctions to be imposed upon Defendant for failing to follow a directive the Court never issued. For this reason, Plaintiff's request for sanctions is DENIED. *5 However, the sufficiency of Defendant's objections to Request for Production No. 1 remains in dispute. In his second motion for sanctions, Plaintiff points out that Defendant's objections were untimely raised and argues that they are therefore waived. ECF 49 at 2; ECF 55 at 3. In Hall v. Sullivan, then Magistrate Judge Paul W. Grimm found “implicit within Rule 34” “the requirement that objections to document production requests ... be stated with particularity in a timely answer,” such that “a failure to do so may constitute a waiver of grounds not properly raised, ... unless the court excuses this failure for good cause shown.” 231 F.R.D. 468, 473–74 (D. Md. 2005) (citing several cases); see also Quan v. TAB GHA F&B, Inc., Civ. No. TDC-18-3397, 2020 WL 9349573, at *2 (D. Md. Nov. 25, 2020) (untimely objections to interrogatories and document production requests “will be deemed waived” without a showing of “good cause to excuse the failure” to produce objections on time). Here, Defendant's responses to Plaintiff's first set of Requests for Production were due within 30 days of being served the requests, on or about on December 16, 2022. See Fed. R. Civ. P. 34(b)(2)(A). The supplemental response in which Defendant stated objections to Request for Production No. 1 for the first time was not served until approximately February 10, 2023. Defendant fails to offer good cause for its failure to state timely objections to Request for Production No. 1. The undersigned agrees with the analysis presented in Hall and other cases cited therein and holds that, absent good cause, Defendant's failure to make a timely objection to Request for Production No. 1 waives any objection to the request. Moreover, even had Defendant's stated objections to Request for Production No. 1 had been timely served, the undersigned finds the objections to be without merit. Defendant objects on the grounds of overbreadth, undue burden, and lack of relevance. The undersigned finds the documents Plaintiff requests to fall within the broad scope of relevance for purposes of discovery. In his Complaint, Plaintiff states that he “was discriminated against based on race, and/or color, and/or national origin when [Defendant] did not allow [him] to redo or retake” the Med Pass exam and related training after he was informed that he failed exam. ECF 1-1 at 1. Plaintiff further alleges that Defendant “allows Caucasian, White, and/or native of the U.S.A. caregivers who fail their Med. Pass to retake or redo the training” and exam. Id. Request for Production No. 1 is aimed squarely at documents that would tend to make Plaintiff's allegations more or less probable: “authentic test scores of the observational field exam part of the Med Pass Examination of any and all caregivers in probation during the period of October 2018 to March 2019 who took [the exam.]” ECF 53-2 at 1–2. Defendant contends that there are “more than 80” caregivers who fall within the scope of Plaintiff's request. ECF 53 at 4–5. At the virtual hearing on May 15, 2023, Defendant's counsel indicated that compilation of responsive documents may require reviewing each of these caregiver's personnel file to find documents reflecting responsive test scores. The undersigned appreciates that Plaintiff's request calls for considerable effort by Defendant but does not find that the burden on Defendant is so great that it outweighs the likely benefit of production, given the high probative value of the requested documents and Plaintiff's need for the documents to support his claims. For the forgoing reasons, Defendant's objections to Request for Production No. 1 are OVERRULED, and Defendant is directed to supplement its response to Request for Production No. 1 and to produce responsive documents. III. CONCLUSION For the reasons stated above and during the virtual hearing on May 15, 2023, Plaintiff's second motion to compel (ECF 42) is GRANTED IN PART and DENIED IN PART, and Plaintiff's second motion for sanctions (ECF 49) is DENIED. Defendant's objections to Request for Production No. 1 are OVERRULED. Defendant shall supplement its production of documents in response to Request for Production Nos. 1 and 20 and its written responses to Interrogatory No. 21 and Requests for Production Nos. 1, 13, 14, and 20, as directed above no later than May 30, 2023. Despite the informal nature of this letter, it is an ORDER of the Court and will be docketed accordingly.