UNITED STATES OF AMERICA, ex rel. PATRICK GRIFFIS, and PATRICK GRIFFIS, individually, Plaintiffs, v. EOD TECHNOLOGY, INC. (N/K/A JANUS GLOBAL OPERATIONS LLC), Defendant No. 3:10-CV-204-TRM-DCP United States District Court, E.D. Tennessee, Northern Division, AT KNOXVILLE Filed August 02, 2024 Poplin, Debra C., United States Magistrate Judge MEMORANDUM AND ORDER *1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02. Now before the Court is Defendant's Motion to Compel Relator's Discovery Responses [Doc. 268]. Relator responded in opposition to the motion [Doc. 277], and Defendant filed a reply [Doc. 279]. The motion is ripe for adjudication. See E.D. Tenn. L.R. 7.2(a). For the reasons explained below, the Court GRANTS IN PART AND DENIES AS MOOT IN PART the motion [Doc. 268]. I. BACKGROUND Defendant seeks Relator's post-employment records with the Office of Personnel Management (“OPM”).[1] On April 12, 2023, Defendant served Relator with its First Set of Requests for Production of Documents (“RFP”) [Doc. 268 p. 5]. Relator responded to RFP Nos. 7 and 8 as follows: No. 7. Documents sufficient to identify all employment and other positions You held since February 18, 2010, including the name and address of each employer, the dates worked for each employer, Relator's position with each employer, the annual compensation paid to Relator by each employer, and the total amount of compensation Relator received from each employer. RESPONSE: Relator refers EODT to his Response to Interrogatory 12. No. 8. All Documents relating to personnel records for all positions or employment that Relator held after February 18, 2010, including but not limited to, performance evaluations, professional licenses, professional certifications, college, or other degrees and termination records. RESPONSE: Relator objects to this Request as it is overbroad and unduly burdensome. Subject to the foregoing objections, Relator is not aware of any documentary evidence in his possession, custody, or control which is responsive to this Request. Relator refers EODT to his Response to Interrogatory 12. [Doc. 277-1 p. 8]. According to Defendant, “in lieu of producing his employment records, [Relator] provided [Defendant] with a self-created ‘Resume and Employment Summary’ ” [Doc. 268 p. 5]. Defendant states that Relator identified the OPM in this Resume and Employment Summary [Id.]. On April 15, 2024, Defendant subpoenaed Relator's employment records from the OPM, seeking in part: All documents and communications relating to [Relator's] employment with You, including but not limited to employment applications and any supporting materials, resumes, references, background checks, documents reflecting his hiring, documents reflecting any terms or conditions of his employment, dates of employment, job title(s), job description(s), work performance, salary information (including wages, commissions, tips, bonuses, and equity grants), employment benefits, termination or conclusion of employment, letters of resignation, documents contained in his personnel file, disciplinary actions, corrective action plans, severance agreements, separation agreements, and any other document or record in Your possession, custody and control, or to which You may have access, relating to [Relator]. *2 [Doc. 277-3 pp. 9–10]. Defendant states that the OPM responded “that it could only provide Relator's employment records upon receipt of a signed authorization from Relator” [Doc. 268 p. 5 (footnote omitted)]. Defendant contends that “[Relator's] employment records are undeniably relevant to Relator's economic damages and mitigation efforts” [Id.]. It seeks an order “compel[ling] Relator to provide [Defendant] with his employment records and a signed authorization for the release of his records from OPM” [Id.]. In response, Relator asserts that he “has agreed to execute such a release that would allow [Defendant] to collect directly from the OPM Relator's ‘SF-50s’ and personnel evaluations from OPM” [Doc. 277 p. 2]. Relator explains that “[t]he SF-50 form contains employment related information, including wages, benefits, and personnel actions” [Id.]. But Defendant seeks, Relator states, “a[n] unqualified release for all documents in OPM's possession relating to Relator including his personal medical information that is not at issue in this case and not even contemplated in [Defendant's] actual request to either Relator or to OPM” [Id.]. Relator states that his medical records are not relevant in light of the parties' stipulation that he would only seek a garden variety emotional distress claim in return for Defendant not seeking his medical records [Id. at 3]. Regardless, Relator states, the motion is untimely because Defendant filed it after the discovery deadline and that it is moot because he agreed to produce the documents that Defendant actually requested [Id. at 4–6]. Defendant replies that Relator waived any objections to the scope of the OPM authorization by failing to timely object to the subpoena [Doc. 279 p. 2]. It states that the subpoena sought “a number of categories of documents that would cover any medical information contained in Relator's employment records with OPM” [Id.]. Further, Defendant argues, “[s]uch medical information within Relator's employment records is unquestionability relevant” [Id. at 3]. It explains that “Relator is seeking substantial damages in connection with his employment retaliation claims, including millions of dollars in front and back pay damages” [Id. at 4]. As such, Defendant contends, it “may obtain discovery of Relator's mitigation efforts, including information concerning his post-EODT employment” [Id. (citation omitted)]. Defendant denies its motion is untimely, stating that it served the subpoena on April 15, 2024 [Id.]. And here, Defendant argues, it has demonstrated good cause for seeking the relief when it did and that the circumstances warrant the Court's consideration [Id. at 5]. II. ANALYSIS The only issue before the Court is whether Relator should be compelled to sign a release for his OPM records, which contain medical information.[2] Relator sets forth two reasons why the Court should deny the motion [Doc. 277 p. 2]. He argues that the Court should deny the motion because it is untimely and what Defendant seeks is not included in the discovery it seeks to compel [Id.]. Turning to Relator's timeliness argument, the discovery deadline in this case expired on May 31, 2024 [Doc. 248], and Defendant filed its motion on June 7, 2024. The Sixth Circuit Court of Appeals has stated that “[a] district court may properly deny a motion to compel where the motion to compel was filed after the close of discovery.” Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (quoting Willis v. New World Van Lines, Inc., 123 F. Supp. 2d 380, 401 (E.D. Mich. 2000)). Indeed, many courts within the Sixth Circuit “have denied discovery motions filed after the close of discovery.” Id. (collecting cases). And this Court has followed suit. Ecolab, Inc. v. Ridley, No. 1:22-CV-050, 2023 WL 11762603, at *2 (E.D. Tenn. May 5, 2023) (“A motion to compel filed within days of the close of discovery is plainly untimely.” (collecting cases)). But this Court has also recognized that it is within its discretion to authorize discovery beyond the discovery deadline. Id. at *6. And some courts have noted that they “may choose to consider an untimely motion to compel on its merits if there is a good cause, or if the circumstances of the case warrant such consideration.” Sensat v. Sw. Airlines Co., No. 17-CV-12468, 2018 WL 11312204, at *2 n.6 (E.D. Mich. Oct. 11, 2018) (citing Santifer v. Inergy Auto. Sys., LLC, No. 5:15-CV-11486, 2016 WL 4011268, at *2 (E.D. Mich. July 27, 2016) and Phoenix Life Ins. Co. v. Raider-Dennis Agency, Inc., No. 07-cv-15324, 2010 WL 4901181, at *5 (E.D. Mich. Nov. 24, 2010)). *3 Under the unique circumstances of this case, the Court will consider the merits of the motion, despite it being filed after the close of discovery. Defendant served its subpoena on April 15, 2024, requesting that the OPM comply by April 29, 2024 [Doc. 277-3 p. 4]. In the cover letter, defense counsel explained that while “OPM require[d] 45 days to respond to requests of this nature[,]” Defendant sought “an expedited response to comply with the deadline for the close of [l]itigation” [Id. at 3]. OPM replied on April 25, 2024, stating: Per protocol, we submitted your subpoena request to the [OPM] for review on (date). All subpoena requests must be forwarded to OPM where they review the request and then authorize how we proceed with our responses. However, due to the extensive time it is taking for OPM to work through their backlog of these requests, we want to provide you with an option to determine if you want to proceed with your subpoena. If you can provide a signed authorization with a handwritten signature from [Relator] or proof of death and authorization from the executor of the estate, we can proceed with your request as soon as we receive it. If you are able to do this, it can prevent any further timely delays. [Doc. 279-2 p. 2]. The following day, in an email dated April 26, 2024, defense counsel wrote, “Lastly, Richard [Rose, Relator's counsel,] regarding the authorization to release [Relator's] records from OPM, you asked us to prepare something for him to sign. Please see attached—it is simple and straightforward, and references the subpoena we served on OPM (that we also sent to you)” [Doc. 279-4 p. 4]. About an hour late, Relator's counsel responded, “Thank you—we will review and respond” [Id. at 3–4]. On April 30, 2024, during Relator's deposition, defense counsel asked if he would sign an authorization to access his personnel files from OPM [Doc. 279-3 p. 3]. Relator responded that he would need to consult with counsel about that request [Id.]. On June 6, 2024, defense counsel followed up regarding the authorization [Doc. 279-4 p. 3]. About an hour later, Relator's counsel noted that the discovery deadline had expired but that Relator was willing to sign the SF-50 form [Id. at 4]. Defense counsel responded the same day, “Good to know that [Relator] is willing to authorize the release [of] his personnel files (to include the SF-50s)” [Id. at 2].[3] Here, Defendant acted with due diligence in serving the subpoena before the discovery deadline and seeking Relator's authorization. Relator argues that “[t]here are no special circumstances that warrant [Defendant's] decision to wait until the end of discovery to move to compel based on 14-month old discovery responses” [Doc. 277 p. 6]. But Defendant's request is not based on 14-month old discovery responses. Instead, the request relates to Defendant's subpoena to the OPM and not Defendant's RFP Nos. 7 and 8. Notably, in these discovery requests, Defendant sought records from Relator regarding his previous employment. Although Relator provided a boilerplate objection, he also noted that the records were not in his possession or control, and he referred Defendant to a list of his employers [Doc. 277-1 p. 8]. Defendant then sought the records from the OPM and did so within the discovery deadline. The OPM simply requested Relator's authorization prior to responding to the subpoena. And there is no evidence before the Court that any party or non-party served objections to the subpoena, nor is there any evidence that Relator is prejudiced by the request. *4 Turning to Relator's second objection, he argues that Defendant's motion is moot because “[he] has agreed to produce any such OPM personnel records in his possession and agreed to execute a release that would allow EODT to collect any other employment-related personnel records from OPM, specifically the SF-50 and personal evaluations” [Doc. 277 p. 4]. He states that Defendant's request to the OPM and to him during discovery “are clearly targeted at employment documents, and not medical records” [Id.]. Defendant responds that the Court should not consider Relator's arguments because “Rule 45 provided Relator fourteen days to object to the [s]ubpoena, until April 29, 2024” [Doc. 279 p. 2 (citation omitted)]. Defendant maintains that because Relator did not timely object, he cannot do so here [Id.]. In any event, Defendant argues, the subpoena covers medical records [Id. at 2–3]. Relator did not seek a protective order prior to the response to the subpoena becoming due. See RPM Freight Sys., LLC v. K1 Express, Inc., No. 21-11964, 2023 WL 2933208, at *3 (E.D. Mich. Apr. 13, 2023) (finding that the plaintiff's motion was untimely because it was filed after the non-party's response was due pursuant to the subpoena). Regardless, however, the Court finds that the subpoena covers medical information. Specifically, the subpoena, covers “[a]ll documents and communications relating to [Relator's] employment with [OPM], ... documents contained in his personnel file ... any other document or record in [OPM's] possession, custody, and control or to which [OPM] may have access, relating to [Relator]” [Doc. 277-3 pp. 9–10]. As set out, “[t]he [s]ubpoena requested a number of categories of documents that would cover any medical information contained in Relator's employment records with OPM” [Doc. 279 p. 2]. As mentioned above, Relator requests that the Court deny the motion because it is untimely and what Defendant now seeks was not previously requested [Doc. 277 p. 2]. In his response, however, he also mentions that the parties met and conferred about Defendant's “requests for information and documents related to Relator's medical history and treatment” and that “[t]he parties reached an agreement that Relator would stipulate that he was asserting only a ‘garden variety’ emotional distress claim and that he did not intend to seek damages for physical or emotional distress and did not intend to call an expert to opine on that issue” [Id. at 3]. In exchange, Defendant “agreed not to pursue medical discovery as it was no longer relevant in light of Relator's stipulation” [Id. (citation omitted)]. Relator points to an email dated September 14, 2023, wherein defense counsel stated that Relator had agreed to stipulate that he “does not intend to seek damages for physical or emotional harm and will not retain an expert regarding such issues” [Doc. 277-2 p. 1]. Defendant does not dispute the parties made an agreement, but it argues that “it was only in the context of discovery related to Relator's emotional distress damages claim” [Doc. 279 p. 3]. “Courts will enforce discovery agreements reached between two parties.” J.S.T. Corp. v. Robert Bosch LLC, No. 15-13842, 2019 WL 1857080, at *5 (E.D. Mich. Apr. 23, 2019) (citing In re Santa Fe Nat. Tobacco Co. Mktg. & Sales Pracs. and Prod. Liab. Litig., No. MD 16-2695, 2018 WL 3972909, at *11 (D.N.M. Aug. 18, 2018)), report and recommendation adopted by No. 15-13842, 2019 WL 1790250 (E.D. Mich. Apr. 24, 2019); see also Libertarian Party of Ohio v. Husted, 302 F.R.D. 472, 478 (S.D. Ohio 2014) (“[Rule] 29 permits the parties to make agreements about discovery.”). But based on the record [see Doc. 277-2 p. 1], the Court does not have sufficient information to read their agreement “fairly and reasonably” as to determine the terms thereof. Libertarian Party of Ohio, 302 F.R.D. at 478 (“[T]he Court has an obligation to read any purported written discovery agreement fairly and reasonably, and to place the burden of persuasion on the party asserting that an agreement has been reached.” (citation omitted)). And Defendant has explained why the records are relevant—not to Relator's emotional distress claim—but to his mitigation efforts [Doc. 279 p. 3]. According to Defendant, “Relator's post-EODT employment was impacted by his health[,]” stating that, during his deposition, he testified that he had “received retirement from the federal government in 2013 due to a medical condition he suffered years before worked for [Defendant]” [Id. (citation omitted)]. As such, “[Relator's] voluntary retirement and any health condition underpinning the request for retirement goes directly to whether [he] mitigated his economic damages (and whether [Defendant] could even be held responsible for Relator's purportedly lost wages from the point he retired)” [Id. (footnote omitted)]. The Court therefore finds Defendant's request well taken. III. CONCLUSION *5 For the reasons explained below, the Court GRANTS IN PART AND DENIES AS MOOT IN PART the motion [Doc. 268]. IT IS SO ORDERED. Footnotes [1] Defendant originally sought Relator's tax returns and documents sufficient to show the income or revenue he earned after his employment with Defendant ended [See Doc. 268]. The parties, however, resolved these issues [See Doc. 277 p. 1; Doc. 279 p. 1]. The motion is therefore moot with respect to these requests. [2] Defendant's motion seeks “employment records and a signed authorization” [Doc. 268 p. 6]. And both parties reference Defendant's RFP Nos. 7 and 8 [See Doc. 268 p. 5; Doc. 277 pp. 2–3]. But Defendant's reply only seeks a Court order compelling Relator to “produce to [Defendant] a signed, complete Authorization for the release of his OPM employment records” [Doc. 279 p. 5]. To the extent Defendant sought an order relating to RFP Nos. 7 and 8, the Court need not address that issue. [3] It appears to the Court that the parties miscommunicated about what Relator was willing to execute [See Doc. 279-4 pp. 3–4; see also Doc. 268 p. 5 n.3; Doc. 227 p. 3 n.2].