The opinion of the court was delivered by: Proud, Magistrate Judge
Before the Court are plaintiff's motions to compel the defendants to: (1) fully comply with requests for production Nos. 10, 16 and 19 (Doc. 42); and (2) allow testing of a tape recorder that purportedly broke during the March 21, 2005, School Board meeting where plaintiff's employment status was admittedly discussed (Doc. 43). Each will be addressed in turn.
Request No. 10 seeks: "Minutes of board meetings and executive sessions, including audio and/or video recordings, since 1-1-97." (Doc. 42-2, p. 8 (as numbered in the CM-ECF system)). At this juncture, the only minutes at issue are the minutes of the June 2004 closed session in which the creation of an office manager position was purportedly discussed. Defendants have agreed to produce the original tape of the March 21, 2005, closed session.*fn1
Defendants object to producing the June 2004 minutes, noting that the meeting was five months before plaintiff even requested FMLA leave, and nine months before she was relieved as bookkeeper. (Doc. 44, p. 10). According to the declaration of Superintendent/defendant Hawkins, plaintiff, her performance, absenteeism or position were not discussed during the March 2004, closed session. (Doc. 44-12, ¶ 5). Plaintiff counters that the March 2004 minutes reflecting the creation of the office manager position are relevant to her claim for intentional infliction of emotional distress. Plaintiff argues that the minutes may reflect why the office manager position was needed and why plaintiff was not give that job. Plaintiff views the creation of the position and failure to appoint her office manager to be a result of Hawkins' "scheme" "against plaintiff and in favor of Mr. Janssen since June 2004." (Doc. 58, p. 2).
Although there are strong indications that plaintiff's counsel has lost his perspective and as a result is stretching the bounds of the complaint, the Court does deem the creation of the office manager position to be relevant to plaintiff's intentional infliction of emotional distress claim. Therefore, the minutes of the June 2004 closed session must be produced. Insofar as portions of the minutes may not be relevant, the defendant School Board must proffer a proper privilege log. The School Board may also argue that not all portions of the June 2004 meeting are relevant. At this late juncture, in the interest of judicial economy, if any privilege is asserted, or if defendant does not want to argue for the production of only a limited portion of the minutes and/or recording, the School Board should file the appropriate motion and materials with the and which plaintiff desires leave to utilize. (See Docs. 44 and 58). Defendants have not properly asserted that the note is privileged, nor have they sought its return. Plaintiff has not properly filed a motion regarding the note. Therefore, this Court need not address the note and the parties' informal contentions further.
Court, including filing the minutes and/or recordings under seal. The Court will then be able to quickly separate the wheat from the chaff.
Request No. 16 seeks: "Communications between any defendant and any trainer or training entity that was involved with training Mark Janssen, including bills." (Doc. 42-2, p. 9 (as numbered in the CM-ECF system)). "Communication" is broadly defined and specifically includes written or oral communications. (Doc. 42-2, p. 6 (as numbered in the CM-ECF system)). The defendants have admittedly produced some written documents, which Superintendent Hawkins declares are all the documents that have been located. (Doc. 44-12, ¶ 8). Plaintiff complains that there obviously had to be multiple communications in order to secure trainer Deb Wuebbens' services, and plaintiff therefore questions if all written and oral communications have been produced. (Doc. 58, p. 3).
Plaintiff is apparently blind to the possibility that there may have been oral or written communications between the School District and the trainer or training company, but those communications may not be in the possession and control of the defendants, or those communications may not have been memorialized in writing or on tape. The Court has no cause to question the declaration of Superintendent Hawkins, or the assertions of defense counsel. Therefore, plaintiff's motion to compel with respect to Request No. 16 is denied.
Plaintiff contends the "instructions" tendered as part of her request for production, require the defendants to provide a host of information aimed at tracking down documents no longer in existence or no longer in defendants' custody and control. (See Doc. 42-2, p. 7, ¶¶ 5 and 6 (as numbered in the CM-ECF system)). Such "instructions" are better characterized as interrogatories under Federal Rule of Civil Procedure 33, rather than as part of the defendants' obligation for production under Federal Rule of Civil Procedure 34. Therefore, defendants are not obligated to answer plaintiff's "instructions."
Request No. 19 seeks: "All emails [sic] with attachments sent or received by anyone at the school since 1-1-97." (Doc. 42-2, p. 9 (as numbered in the CM-ECF system)). The defendants initially objected that the request was vague, ambiguous, overly broad, unduly burdensome, oppressive, and would encompass matters not relevant to this litigation. (Doc. 44-3, pp. 6-7). Defendants subsequently have produced some e-mails, which Superintendent Hawkins' declaration indicates are all the e-mails known to ...