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Jason Lee Nieman v. Grange Mutual Insurance Company

October 17, 2012

JASON LEE NIEMAN, PLAINTIFF,
v.
GRANGE MUTUAL INSURANCE COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Wednesday, 17 October, 2012 10:39:30 AM Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Plaintiff Jason Nieman's Motion to Compel Depositions of Grange Officers Beth Murphy and Peter McMurtrie, and Motion Requesting the Court to Extend the Time Permitted for Discovery by 60 Days (d/e 77) (Motion to Compel), and Defendants Grange Mutual Casualty Company (Grange) and Integrity Mutual Insurance Company's ("Integrity") Motion to Quash Notices of Deposition (d/e 78) (Motion to Quash). For the reasons set forth below, the Motions are allowed in part and denied in part. The Court directs that Defendants make Peter McMurtrie available for deposition in the district of McMurtrie's residence, but limits the deposition to matters that occurred August 4, 2011, and to matters relevant to that particular hiring process for the position for which Nieman applied with Defendants during that time period. The deposition notice for Beth Murphy is quashed. Nieman's request to compel additional discovery production is allowed in part as set forth below. Nieman's request to extend the time for discovery is denied.

BACKGROUND

Nieman brings a Complaint against Defendants Grange and Integrity for age discrimination in employment and retaliation. Nieman is more than 40 years of age. In 2009, Nieman applied for the position of Vice President for Claims Administration at Integrity (Position). Nieman had previously sued his former employer Nationwide Mutual Insurance Company (Nationwide) for employment discrimination and additional claims. Nieman v. Nationwide, C.D. Ill. Case Nos. 09-3304 and 10-3230. Publically recorded information about that lawsuit was available on the Internet. On August 4, 2011, Nieman discovered a news release that on or about June 22, 2011, Integrity had hired someone other than Nieman for the Position. Complaint (d/e 1), ¶ 31. Nieman alleges that Integrity and Grange discriminated against him because of his age and in retaliation for engaging in protected activity by suing Nationwide. See Complaint, at 15-48.

Nieman served interrogatories and requests to produce on Defendants. The Defendants responded. Nieman raised deficiencies in the responses. The parties have communicated back and forth regarding these requests, and the Defendants have provided some additional material. Nieman believes the responses are still inadequate and asks the Court to compel additional responses. Nieman also asks the Court to compel the depositions of McMurtrie and Murphy. The Defendants move to quash those deposition notices. Nieman also asks the Court to extend the discovery deadline to allow the deposition of a third-party witness named Michael Tingley. Motion to Compel, at 21-24. The Court will address these matters in order below.

PRINCIPLES OF DISCOVERY Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party. Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. The rule gives the district courts broad discretion in matters relating to discovery. See Brown-Bey v. United States, 720 F.2d 467, 470-471 (7th Cir.1983); Eggleston v. Chicago Journeymen Plumbers' Local Union 130, 657 F.2d 890, 902 (7th Cir.1981); see also, Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 183 (7th Cir.1985) (on review, courts of appeal will only reverse a decision of a district court relating to discovery upon a clear showing of an abuse of discretion). ". . . if there is an objection the discovery goes beyond material relevant to the parties' claims or defenses, the Court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible." Federal Rule of Civil Procedure 26(b)(1) Advisory Committee Notes, 2000 Amendment.

The federal discovery rules are to be construed broadly and liberally. Herbert v. Lando, 441 U.S. 153, 177 (1979); Jeffries v. LRP Publications, Inc., 184 F.R.D. 262, 263 (E.D .Pa. 1999). Federal Rule of Civil Procedure 26(b)(1) provides that the "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . .," but "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id. The party opposing discovery has the burden of proving that the requested discovery should be disallowed. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204, 207 (N.D. Ind. 1990); Flag Fables, Inc. v. Jean Ann's Country Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1989).

District Courts have broad discretion in discovery matters. Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir., 2001). The Court may limit the frequency or extent of discovery if: the discovery is unreasonably cumulative or duplicative, or can be secure for a more convenient and less expensive source; the party seeking discovery has had ample opportunity to conduct discovery; or if the burdens of the proposed discovery outweighs the benefits. Fed. R. Civ. P. 26(b)(2)(C). A party must be diligent in pursuing the perceived inadequacies in discovery and the trial court does not abuse its discretion if a party untimely seeks to compel inadequate discovery responses. Packman, 267 F.3d at 647. However, even an untimely filed motion to compel may still be allowed if the party demonstrates actual and substantial prejudice resulting from the denial of discovery. Id. Remember, we are talking discovery, not admissibility at trial. With these principles in mind, the Court addresses each aspect of the Motions:

A. Interrogatories

The Motion to Compel complains about the Defendants' answers to Interrogatories 2, 3, 15, 22, 23, 24 and 25.

1. Interrogatory Number 2

Interrogatory Number 2 states: INTERROGATORY NO. 2: If you or any of your employees, agents, or assigns, have ever talked to the Plaintiff or Plaintiff's co-workers, former co-workers, agents, servants, employees, friends, partners, or anyone who has or who may have knowledge of Plaintiff regarding Plaintiff's claims in this lawsuit or have any knowledge, either directly or indirectly, of any statement or admission of any kind made by Plaintiff or anyone acting on Plaintiff's behalf regarding Plaintiff's claims or any other fact that might be relevant to this lawsuit, describe in detail such statement and/or admission and identify who made the statement or admission, to whom it was made, and the date it was made.

Motion, Exhibit C, Plaintiff's First Set of Interrogatories to Defendant Integrity Mutual, at 5.

Defendants' answers state:

RESPONSE: Objection. This interrogatory asks Integrity to identify any of its "employees, agents or assigns" who have ever spoken with anyone that Plaintiff knows who may have knowledge related to "any statement or admission of any kind" that Plaintiff has made. Integrity has no way of knowing if any of its "employees, agents or assigns" know any of Plaintiffs "co-workers, former co-workers, agents, servants, employees, friends, partners," much less whether Plaintiff's "co-workers, former co-workers, agents, servants, employees, friends, partners" have knowledge of any statements or admissions made by Plaintiff. This interrogatory is overbroad, unduly burdensome, unlimited in time and not calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, Integrity states:

(a) Please refer to Plaintiff's Deposition Transcript.

(b) Please refer to Plaintiff's e-mails to Defendant's Counsel.

Motion, Exhibit G, Defendant Integrity Mutual Insurance Company's Response to Plaintiff's First Set of Interrogatories, at 3; and Exhibit I, Defendant Grange Mutual Casualty Company's Response to Plaintiff's First Set of Interrogatories, at 3. The Court quotes the Integrity response throughout. The Grange response is substantially similar. Sometimes the only difference is that "Grange" is substituted for "Integrity." In other responses, Grange adopts Integrity's response by reference.

Nieman complains that the Defendants' answer is non-responsive. Motion, at 5. The Court disagrees. The Defendants properly objected to the overbreath of the Interrogatory. The Interrogatory is unlimited in time and is vague in other respects. For example, the Interrogatory presupposes that the Defendants know the identity of Nieman's friends. The objection that the Interrogatory is overly broad is well taken. Still, the Interrogatory seeks some relevant information, specifically whether any of Defendants' employees spoke to a former employer about Nieman during the hiring process for the Position. The Defendants provided this information by letter from their attorney David Croysdale to Nieman dated August 1, 2012. Motion, Exhibit M, Letter Dated August 1, 2012, at 1-2. The Court, therefore, will not compel any further response to this Interrogatory.

2. Interrogatory Number 3

Interrogatory Number 3 states: INTERROGATORY NO. 3: Describe in detail all facts, proof, or evidence which, in whole or in part, form the basis of any defense or affirmative defenses pled in this lawsuit.

Motion, Exhibit C, Plaintiff's First Set of Interrogatories to Defendant Integrity Mutual, at 5.

Defendants' answers state:

RESPONSE: (a) The February 11, 2010 interview of Plaintiff conducted by Cindy Heindel.

(b) Ms. Heindel's notes of such interview.

(c) Ms. Heindel's standard interview format.

(d) Complete lack of communication between Integrity and Plaintiff after the interview.

(e) Jeff Gipson's internal notes dated on or about February 11,2010.

(f) E-mail from Jeff Gipson to Cindy Heindel dated ...


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