United States District Court, D. Nevada
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
PIONEER HOTEL, INC. d/b/a PIONEER HOTEL AND GAMBLING HALL, Defendant.
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the court on Plaintiff EEOC's Motion to Compel Discovery Propounded on Defendant Pioneer Hotel, Inc. (#92), filed on August 25, 2014. Defendant filed its Opposition (#100) on September 11, 2014 and Plaintiff filed its Reply (#105) on September 19, 2014. The court conducted a hearing in this matter on September 23, 2014.
BACKGROUND AND DISCUSSION
The following background and discussion addresses each discovery request at issue in Plaintiff's motion and the court's decision regarding that request.
Interrogatory No. 2. The EEOC served its First Set of Interrogatories on Defendant on August 9, 2013. Defendant served its responses to the interrogatories on October 25, 2013. Interrogatory No. 2 asked Defendant to identify every person employed at its facilities in Nevada since January 1, 2006 through the present, including the person's (a) name, (b) date of birth, (c) last known address and telephone number, (d) dates of employment, (e) if separated from employment, the reason for separation, (f) department worked, (g) position worked, and (h) name of immediate supervisor. Motion to Compel (#92), Exhibit 2. Defendant objected to Interrogatory No. 2 on the grounds that "it is over broad and unduly burdensome, and to the extent it seeks information that is neither relevant to the subject matter involved in this action nor reasonably calculated to lead to the discovery of admissible evidence." Motion to Compel (#92), Exhibit 4. The EEOC argues that the identification of Defendant's employees for the period from January 1, 2006 to the present is relevant because it may lead to the identification of additional witnesses to the alleged harassment of Latino or dark-skinned employees by Defendant's supervisory or other employees. Motion to Compel (#92), pgs. 18-19.
Interrogatory No. 2 is the type of interrogatory that a party serves at the beginning of the discovery period. Once Plaintiff obtained a list of Defendant's employees, it could have pursued additional investigation to identify employees who have relevant information, including employees who were victims of the alleged harassment or witnessed it being committed against others. If Plaintiff had promptly moved to compel a response to Interrogatory No. 2, the court would have likely ordered Defendant to provide the requested information, subject to some limitations on the scope of the interrogatory. Plaintiff, however, filed its motion to compel on the last day of discovery. While this, in and of itself, does not render Plaintiff's entire motion untimely, it raises a concern with respect to Interrogatory No. 2.
As stated in Krause v. Nevada Mut. Ins. Co., 2014 WL 428675, *1 (D.Nev. 2014), "[n]either the Federal Rules, Local Rules, nor scheduling order establishes a specific deadline for filing discovery motions." In Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D Nev. 1999), the court, quoting 8A Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d §2285 (1994 & Supp. 1998), stated that "[i]f the moving party has unduly delayed, the court may conclude that the motion [to compel] is untimely." Gault further stated that a motion to compel filed during the discovery period will rarely be considered untimely. A motion to compel may also be filed after the close of discovery, but, absent unusual circumstances, should be filed before the scheduled date for dispositive motions. Id. In Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 398 (S.D. Tex. 2006), the court identified the following factors that courts consider in deciding whether a motion to compel is timely filed: (1) the length of time since the expiration of the discovery deadline, (2) the length of time the moving party has known about the discovery, (3) whether the discovery deadline has been extended, (4) the explanation for tardiness or delay, (5) whether dispositive motions have been scheduled or filed, (7) the age of the case, (8) any prejudice to the party from whom late discovery is sought, and (9) disruption of the court's schedule.
In this case, the parties had approximately 10-11 months in which to conduct discovery from the time the scheduling order was filed on September 9, 2013. See Order (#63). The court granted two extensions of the discovery and other pretrial deadlines, with the last order extending discovery through August 25, 2014. See Order (#78). It is the court's understanding that the depositions of the charging party, other class members, and employees of Defendant and other witnesses have been taken. Neither party sought an extension of the August 25, 2014 discovery deadline.
Plaintiff represented at the hearing that it deferred filing its motion to compel while the parties engaged in extended efforts to settle the case. While this is not an unreasonable excuse for deferring the filing of the motion to compel, in general, the court cannot accept it as a valid excuse with respect to Interrogatory No. 2. If the court were to require Defendant to answer Interrogatory No. 2, it would surely result in the Plaintiff undertaking efforts to identify and disclose additional witnesses or possibly additional class members. This, in turn, would likely result in a request by either or both parties to reopen discovery. There is no purpose in ordering Defendant to answer Interrogatory No. 2 unless the court is also willing to reopen and extend the discovery period. The court is not willing to do so because good cause has not been shown for such an extension, which would also be untimely at this stage of the case. The court therefore denies Plaintiff's motion to compel an answer to Interrogatory No. 2 on the grounds that Plaintiff's motion to compel a response to this interrogatory is untimely.
Request for Production No. 1. Request No. 1 asked Defendant to produce the complete personnel files for the listed individuals, including, but not limited to, employment records, employment applications, resumes, cover letters, letters of recommendation, references, certificates of achievement, commendations, diplomas, interview notes, performance evaluations, disciplinary warnings, and/or written reprimands, payroll data, and background checks. The listed individuals include both the charging party and claimants, as well as Defendant's employees whom the Plaintiff alleges engaged in unlawful discrimination or harassment.
Defendant states that it is willing to produce the complete personnel files of the listed individuals, but requests that a protective order be entered to preclude the disclosure of the files to third persons not connected with this litigation. Defendant is not requesting any limitation on Plaintiff's evidentiary use of materials in the personnel files in this action. Nor does the court understand Defendant to request an order that would preclude Plaintiff from sharing relevant information in the personnel files with the claimants, or where appropriate, witnesses in this action. Plaintiff argues that production of the files should be ordered without the requirement for any type of protective order. Plaintiff vaguely asserts that there are restrictions on its ability as a governmental entity to enter into a protective order governing the distribution of discovery, but does not state what those restrictions are.
Courts generally grant protective orders such as that requested by Defendant with respect to the personnel files of its employees. As stated by the court in Duling v. Gristede's Operating Corp., 266 F.R.D. 66, 72-73 (S.D.N.Y, 2010):
Although "[t]he fact that sensitive information is involved in litigation gives a party neither an absolute nor automatic right to have the discovery process hindered, " Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405, 409 (N.D.N.Y. 1973), courts have generally characterized personnel files as confidential and found it appropriate to enter protective orders governing their use in litigation because of the inherent potential for harm or embarrassment if the information they contain is revealed.
The court generally regards personnel files of employees to be confidential by their nature. The subjects of such files are often non-parties to the litigation. Such files commonly contain addresses, phone numbers, income information, medical histories, employment discipline, criminal records, and other sensitive, personal information having little or no relevancy to the issues in litigation. To permit wide dissemination of personnel files would result in a clearly defined, serious, and unnecessary injury to the privacy of the employee who is not a party to the lawsuit. Revelation of such information could cause economic or emotional harm. The files could ...