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Melgoza v. Rush University Medical Center

United States District Court, N.D. Illinois, Eastern Division

June 14, 2019


          Gabriel A. Fuentes, Magistrate Judge.


          Gabriel A. Fuentes, United States Magistrate Judge.

         Plaintiff Norma Melgoza ("Plaintiff) brings a motion to compel Defendant Rush University Medical Center ("Defendant" or "Rush") to produce, in response to Rule 34 document requests, (1) a mask purporting to depict the face of President Donald J. Trump ("the Donald Trump Mask" or "the Mask"), and (2) a pay equity report dated February 24, 2017 and created for Defendant by the consulting firm Arthur J. Gallagher & Co. ("the Gallagher Report"). After the June 13, 2019 oral argument on Plaintiffs Motion to Compel (D.E. 112) ("the Motion"), the Court took the Motion under advisement and ordered that the Defendant preserve the Donald Trump Mask. For the reasons stated below, the Motion is granted as to the Donald Trump Mask and entered and continued as to the Gallagher Report, pending Defendant's submission of additional information before the close of business on June 21, 2019 as requested by the Court during a telephonic status hearing on June 14, 2019.


         I. Discoverability of the Donald Trump Mask

         A. Background

         Plaintiff has alleged, as part of her Equal Pay Act "glass ceiling" claim, that Defendant's relevant conduct included an incident in which, she alleges, she was interviewing for a position as cancer center administrator for Defendant. During an interview with one of Defendant's doctors, she alleges the doctor wore "a Donald Trump mask" (the "Donald Trump Mask"), an act she described as "humiliating and offensive" to her, insofar as she inferred from this alleged act that the doctor (and, by extension, Defendant) "did not take her or her position seriously and thought nothing of impersonating a man who publicly antagonized Melgoza's community and many members of her gender."[1] Plaintiffs Motion to Compel (D.E. 112) at 2. Plaintiff describes the Donald Trump Mask as "vital" to proof of her claims in this matter, id., and at oral argument, Plaintiffs counsel affirmed that upon discovery of the Donald Trump Mask, he may seek to introduce it as evidence at trial. (Counsel for Plaintiff and Defendant agreed at oral argument that the admissibility of the Donald Trump Mask at trial is not before this Court - only its discoverability.)

         According to the information proffered by Plaintiff, and supported by deposition testimony attached to the Motion, Defendant conducted an internal investigation of Plaintiff s allegation that the doctor had donned the Donald Trump Mark during his interview of Plaintiff, and as a result of the investigation, Defendant's investigators obtained possession of three masks from the doctor's office, including the Donald Trump Mask, along with masks of former Illinois Gov. Rod Blagojevich and former Chicago Mayor Rahm Emanuel. Motion, Ex. D (Schopp 194-201).

         At the conclusion of the investigation, Defendant returned all three masks to the doctor and "asked him to remove them from the environment" because the masks "had no place at Rush." Id. (Schopp Dep. at 198, 199). For its part, the record on the Motion indicates that the investigation's findings "were not consistent with the allegations; and specifically what I recall is the description of the mask was inconsistent with what we found to be the actual look of the mask." Id. (Schopp Dep. at 200).

         In a Rule 34 document request timely served within the discovery period, Plaintiff sought "[a]ny and all Documents and ESI relating or referring to Rush's investigation into Dr. Decrease wearing a Donald Trump Mask during Plaintiffs interview for the Cancer Service Line Administrator position." Motion, Ex. A, Doc. Req. No. 28. Plaintiff defined "documents," in that request, as follows in relevant part:

'Documents' is used in the broadest possible sense and shall mean and refer to all written, printed, electronic, typed, graphic, recorded or illustrative matter, computer memory, tapes, or any other tangible thing by which information is contained, stored or displayed, of every kind or description, however produced or reproduced

Id., Def. No. 6 (emphasis added).

         Defendant has resisted producing the Donald Trump Mask. In written communications to Plaintiffs counsel (Motion, Ex. B, ¶ 12) and in oral argument before the Court through its counsel, Defendant has contended that it need not produce the Donald Trump Mask because Plaintiff never asked for it, or did not ask for it specifically enough, in her Rule 34 document request. As counsel made clear at oral argument, Defendant contends that the definition of "documents" in Plaintiffs Rule 34 document request does not expressly ask for "tangible things," except for "tangible things by which information is contained," meaning that if a tangible thing contains, for example, a data compilation or some form of ESI, Defendant believes that such tangible thing was specifically requested. But Defendant construes this definition, notwithstanding the specificity of Request No. 28 (asking, as it does, for "Documents" relating to Defendant's investigation of the alleged Donald Trump Mask incident) as excluding the Donald Trump Mask. When the Court proposed that it consider extending the discovery period (which is to close on June 14) by 30 days to allow Plaintiff to serve a new document request asking for discovery of the Donald Trump Mask specifically and leaving no room at all for argument as to whether it is being requested, Defendant objected and said the additional time for discovery would impose burdens and inconveniences on Defendant.

         B. Discussion

         Rule 34 of the Federal Rules of Civil Procedure prescribes a procedure for both sides to produce, on request, documents or tangible things. Rule 34 discovery shall be within the scope of Rule 26(b), which, per the 2015 amendments, allows discovery of:

all non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1) (emphasis added). In describing what discovery parties may obtain through a Rule 34 document ...

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