Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Joan H. Lefkow than Assigned Judge Geraldine Soat Brown
For the reasons set out below, Plaintiff's Motion for Protective Order Regarding Subpoenas Addressed to MIMSAD, Inc.  is denied. At the status hearing on December 15, 2011, the parties shall be prepared to advise the court when discovery in this case will be concluded, and the court will set a final fact discovery cut-off date.
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In this lawsuit, plaintiff alleges that she was improperly terminated as a tenured professor at Columbia College as a result of discrimination on the basis of gender, religion and/or national origin, in retaliation for protected activity, and in violation of her civil rights and her contract. (Compl.) [Dkt 1.] Defendants state that Columbia College terminated plaintiff for misuse of government grant funds. (Answer ¶ 46.) [Dkt 15.]
Fact discovery in this case was set to close on November 18, 2011. [Dkt 66.] On November 8, 2011, defendants filed a motion to extend the time for discovery after they discovered that two payments of $10,000 each had been made from grant monies to an entity named MIMSAD, Inc., of which plaintiff is the president and treasurer. [Dkt 80.] Apparently, plaintiff approved those payments from grant funds. (See Pl.'s Supp., Ex. E.) [Dkt 87.] Although defendants have always been in possession of the payment records to MIMSAD, they were only prompted to investigate their possible significance when information about questionable grant payments to other entities came to light during the discovery process. Subsequently, defendants state, they found other evidence of payments to, and invoices and check requests from, MIMSAD. (Defs.' Resp. Pl.'s Supp. at 1-2.) [Dkt 88.] According to defendants, none of the individual defendants nor the representative of the College responsible for the direction of this litigation knew of MIMSAD, Inc. or its relationship to plaintiff. (Mot. Extend Disc. ¶ 8.) Defendants then issued a subpoena duces tecum to MIMSAD and a notice for a 30(b)(6) deposition. Defendants sought an extension of the discovery cut-off in order to take discovery related to MIMSAD and some other remaining issues, which this court granted. [Dkt 85.]
Plaintiff then filed the present motion for protective order seeking, inter alia, to have the subpoenas to MIMSAD quashed. Plaintiff acknowledges that she would be the 30(b)(6) witness for MIMSAD.
Subsequently, the parties resolved all the issues in the motion except those related to MIMSAD. [Dkt. 86.] Plaintiff then filed a supplement to her motion to explain her position on the discovery directed to MIMSAD [dkt 87], and defendants filed a response [dkt 88].
Defendants argue that evidence that plaintiff received payments from Columbia both as an employee and as MIMSAD for performing the same work, and that she authorized payments to herself through MIMSAD, is after-acquired evidence concerning whether plaintiff engaged in misconduct separate from the actions that led to her discharge. (Defs.' Resp. Pl.'s Supp. at 2-4.) Under McKennon v. Nashville Banner Publg. Co., 513 U.S. 352 (1995), that evidence could limit plaintiff's right to backpay and damages.
Plaintiff's first argument in her motion is that defendants knew or should have known about MIMSAD earlier in the discovery process because the grant budget disclosed MIMSAD, and the documents about which they seek to question plaintiff came from Columbia's own files. (Pl.'s Mot.¶ 6.) From this, plaintiff argues that the purpose of discovery about MIMSAD can only be to "impede and frustrate" plaintiff ...