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Bailey v. Grocery Haulers, Inc.

United States District Court, D. Connecticut

October 11, 2017

ANDREW BAILEY, Plaintiff
v.
GROCERY HAULERS, INC., Defendant

          RULING ON DEFENDANT GROCERY HAULERS, INC.'S MOTION TO COMPEL (Dkt. #67)

          Joan Glazer Margolis United States Magistrate Judge

         On December 2, 2015, plaintiff Andrew Bailey commenced this sexual orientation discrimination action against defendant Grocery Haulers, Inc. in the Connecticut Superior Court, Judicial District of Fairfield at Bridgeport, which was removed to this Court on December 18, 2015. (Dkt. #1). On January 14, 2016, plaintiff filed an Amended Complaint (Dkt. #16), along with a Motion to Remand (Dkt. #17), which U.S. District Judge Janet Bond Arterton denied on March 1, 2016. (Dkt. #26). On March 16, 2016, this case was referred to this Magistrate Judge for settlement (Dkt. #30); the conference was held on April 15, 2016. (Dkts. ## 34, 39).

         On March 25, 2016, plaintiff filed his Second Amended Complaint, in which he asserts two counts: (1) discharge in violation of public policy under Conn. Gen. Stat. § 31-49; and (2) employment discrimination in violation of Conn. Gen. Stat. §§ 46a-60 and 46a-81c. (Dkt. #33). On April 5, 2016, defendant filed its objection to plaintiff's Second Amended Complaint (Dkt. #37), along with its Motion to Dismiss. (Dkt. #38; see also Dkts. ##46-50, 52, 55-57). On March 16, 2017, Judge Arterton granted in part and denied in part defendant's Motion to Dismiss. (Dkt. #58). See also 2017 WL 1025664. In her decision, Judge Arterton dismissed Count One on grounds that plaintiff's wrongful discharge claim “is not a statutory claim, but rather a common [] law claim based on the public policy standards enunciated in Section 31-49[, ]” and “[b]ecause [p]laintiff[, who is a union member protected by a collective bargaining agreement, ] is not an at-will employee, his common law wrongful discharge claim fails as a matter of law[]” (Dkt. #58, at 7-8; 2017 WL 1025664, at 3-4), and she denied defendant's motion as to plaintiff's claim for discrimination in violation of Conn. Gen. Stat. § 46a-81c.[1] (Id. at 9-12; 2017 WL 1025664, at *4-6).

         On August 9, 2017, defendant Grocery Haulers filed the pending Motion to Compel (Dkt. #67), with brief and exhibits in support.[2] The next day, Judge Arterton referred this motion to this Magistrate Judge. (Dkt. #69). On August 30, 2017, plaintiff filed his brief in opposition to defendant's motion (Dkt. #71), [3] and on September 13, 2017, defendant filed its reply brief. (Dkt. #72). Discovery is scheduled to close on December 18, 2017. (Dkt. #70; see also Dkt. #68).

         For the reasons stated below, defendant's Motion to Compel (Dkt. #67) is granted in part and denied in part.

         I. BACKGROUND

         In the parties' Rule 26(f) Report, filed on February 12, 2016, defendant requested permission to serve more than twenty-five interrogatories, to which plaintiff objected, but then also added that “if such request is granted, [p]laintiff . . . requests permission to file more than [twenty-five] interrogatories.” (Dkt. #21, ¶ V.E.6). There is no docket sheet entry reflecting Judge Arterton's ruling on defendant's request.[4] Thereafter, on or about November 17, 2016, defendant served its First Set of Interrogatories and Requests for Production, in which defendant sought responses to twenty-three interrogatories, with more than twenty-five sub-parts, [5] along with twenty-eight requests for production. (Dkt. #67, Brief, Exh. A). In his responses, dated December 9, 2016, [6] plaintiff expressed a general objection to the number of interrogatories as exceeding “the number of interrogatories allowed without court approval.” (Dkt. #67, Brief, Exh. B at 1).[7] Plaintiff also objected to fourteen of the twenty-three interrogatories. (See id., Exh. B). On or about May 24, 2017, plaintiff served his Notice of Amended Compliance (id., Exh. C), [8] and on or about June 1, 2017, plaintiff served a Notice of Supplemental Compliance with Interrogatories Nos. 2, 3, 4, 5 and 23. (Id., Exh. D).

         On August 9, 2017, defendant filed the pending Motion to Compel responses to Interrogatories Nos. 12-19 and 21 and Requests for Production Nos. 2, 8, 11, 12, 16, 20, 23 and 26, relating to facts, claims and witnesses; responses to Interrogatories Nos. 6-9 and Requests for Production Nos. 2, 5, 18, 27 and 28, relating to plaintiff's claim for damages; responses to Interrogatory No. 4 and Request for Production No. 22, relating to other and/or prior litigation; and response to Interrogatory No. 22, relating to documents that have been destroyed, deleted or cannot be located. (Dkt. #67, at 1-2; Dkt. #67, Brief at 1-2, 4-33). Attached to plaintiff's brief in opposition, filed on August 30, 2017, is another supplemental compliance in which plaintiff supplemented his responses to Interrogatories Nos. 6, 9, 13-19 and 21, and responded to Interrogatory No. 12, but did not waive his objection. (Dkt. #71, Exh. 2; Dkt. #71, at 5). Additionally, plaintiff provided supplemental compliance for Requests for Production Nos. 5, 16 and 18 (Dkt. #71, Exh. 2; Dkt. #71, at 7); he supplemented his responses to Interrogatories Nos. 8 and 9 (id. at 9); he argues that he “has sufficiently produced a response to [I]nterrogatory [No.] 7[]” (id.); and he asserts that he stands by his objections to Requests for Production Nos. 2, 8, 11, 12, 20, 22, 23, 26, 27 and 28 as they are not limited in timeframe, nor are they limited to claims made in this case. (Id. at 6-9).

         In its reply brief, defendant argues that plaintiff has not responded to the subparts of Interrogatory No. 12, Interrogatories Nos. 6, 13, 14, 15, [9] 17, 19 and 21, and Requests for Production Nos. 2, 8, 11, 12, 20, 23 and 26 (Dkt. #72, at 1-7); plaintiff has not provided complete responses to Interrogatories Nos. 7 and 8, and Requests for Productions Nos. 5, 18 and 27 (id. at 7-9); plaintiff has not responded to Interrogatory No. 4 and Request for Production No. 22 (id. at 9); and plaintiff has not stated a grounds for objecting to Interrogatory No. 22. (Id.).

         II. DISCUSSION

         Rule 26(b)(1) of the Federal Rules of Civil Procedure allows discovery of

any nonprivileged 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 parties' resources, 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). "[T]o fall within the scope of permissible discovery, information must be 'relevant to any party's claim or defense.' In order to be 'relevant' for Civil Rule 26 discovery purposes, information and evidentiary material must be 'relevant' as defined in Rule of Evidence 401." Bagley v. Yale Univ., No. 13 CV 1890 (CSH), 2015 WL 8750901, at *8 (D. Conn. Dec. 14, 2015). The party objecting must state such objections with “specificity[, ]” Fed.R.Civ.P. 33(b)(4) and 34(b)(2)(B), and when withholding documents, the objecting party must state whether any responsive materials are being withheld on the basis of any objection. Fed.R.Civ.P. 34(b)(2)(C).

         A. DISCOVERY REQUESTS RELATING TO FACTS, CLAIMS AND WITNESSES - INTERROGATORIES NOS. 12-19, 21 AND REQUESTS FOR PRODUCTION NOS. 2, 8, 11, 12, 16, 20, 23, 26

         1. INTERROGATORIES NOS. 12, 13, 14, 15, 16, 17, 18, 19, 21[10]

         a. CLAIMS

         In Interrogatory No. 12, and its eleven subparts, defendant seeks information relating to the “factual basis for the allegations” in the Second Count of plaintiff's Amended Complaint and second Amended Complaint that “[d]efendant[, ] ‘including its agents, servants and/or employees including the [d]efendant's dispatcher, perceived the [p]laintiff to be bisexual.'” (Dkt. #67, Brief at 5; Id., Exh. A at 8-9; see Dkt. #33, ¶ 9 (Second Count)). Similarly, in Interrogatory No. 13, defendant seeks information relating to the “offensive comments” alleged in the Second Count of the Amended Complaint and second Amended Complaint. (Dkt. #67, Brief at 6; Id., Exh. A at 9-10; see Dkt. #33, ¶ 9 (Second Count)).

         In his Supplemental Compliance, plaintiff identifies the “agents, servants and/or employees” as requested in Interrogatory No. 12(a) and Interrogatory No. 13(c), and, in response to Interrogatory No. 12(b) and 13(b), plaintiff identifies the statements made by these agents, servants and/or employees. (Dkt. #71, Exh. 2 at 5-7). In Interrogatory No. 12(b)(i), defendant seeks the “manner in which each of [d]efendant's ‘agents, servants, and/or employees' identified in Interrogatory No. 12(a) ‘perceived the [p]laintiff to be bisexual' as alleged in Paragraph 9 of the Second Count, including: (i) Each action taken[.]” (Id. at 5)(emphasis added). In his response, plaintiff identifies the statements that were made, but does not identify which statements were made by which of the two individuals identified in response to Interrogatory No. 12(a). (See Dkt. #71, Exh. 2, Interr. No. 12(b)(i)). On or before October 31, 2017, plaintiff shall supplement his response to identify which of the individuals identified in response to Interrogatory No. 12(a) made which statement identified in Interrogatory No. 12(b)(i).

         Plaintiff's responses to Interrogatory No. 13(b), however, are sufficient as he is not asked to identify each action by each of the identified individuals, but rather, is asked the substance of the alleged “offensive comments” and then is asked the names of those “who [he] contend made ‘offensive comments' to [him][.]” (Compare Dkt. #71, Exh. 2, Interr. Nos. 12(b) and 13(b)).

         In Interrogatory No. 14, plaintiff is asked to identify and describe the manner in which he was harassed and treated differently from other employees, as alleged in paragraph 10 of the Second Count of his Amended Complaint and Second Amended Complaint. (Dkt. #71, Exh. 2, Interr. No. 14; Dkt. #67, Brief, Exh. A at 10; see Dkt. #33, ¶ 10). In his Supplemental Compliance, plaintiff responds: “Objection pending; Plaintiff was wrongfully terminated from employment. Plaintiff was requested to operate a tractor trailer beyond the time limits allowed by law.” (Dkt. #71, Exh. 2, Interr. No. 14). On or before October 31, 2017, plaintiff shall supplement his response to explain if any other employees were “wrongfully terminated” for refusing “to operate a tractor trailer beyond the time limits allowed by law[, ]” and if so, he shall provide the names of these employees.[11]

          b. DATES AND TIMES

         In Interrogatories Nos. 12(b)(ii), 12(b)(vii), 13(a), 15(b) and 15(e), plaintiff is asked, inter alia, to identify the “date(s) and time(s)” plaintiff was the subject of statements, comments, and harassment. (See Dkt. #71, Exh. 2, Interr. Nos. 12(b)(ii), 12(b)(vii), 13(a), 15(b), 15(e); Dkt. #67, Brief, Exh. A at 8-11). In his responses to these Interrogatories, plaintiff states that he was the subject of statements, comments, and harassment on a “daily basis[, ]” and explains that he does not recall “specific ‘dates and times[.]'” (See Dkt. #71, Exh. 2, Interr. Nos. 12(b)(ii), 12(b)(vii), 13(a), 15(b), 15(e)). On or before October 31, 2017, plaintiff shall identify exactly when such statements were made, or, at minimum, identify the precise time line (beginning date, ending date, and frequency) that such statements were made.

         In Interrogatories Nos. 17(d) and 17(e), defendant seeks the “words spoken by the person(s) who terminated [p]laintiff's employment[, ]” and plaintiff's “response, if any[.]” (Dkt. #71, Exh. 2, Interr. Nos. 17(d), 17(e); Dkt. #67, Brief, Exh. A at 11-12). In his Supplemental Compliance, plaintiff responds that “[p]laintiff was discharged for refusing to drive an assigned additional delivery to New Jersey[, ]” and that plaintiff “[d]isagreed with the reason for the discharge.” (Dkt. #71, Exh. 2, Interr. Nos. 17(d), 17(e)). Plaintiff's responses suffice.

         c. WITNESSES

         In Interrogatories Nos. 12(b)(iii), 12(b)(viii), 13(d), 15(c) and 15(f), plaintiff is asked to identify the names and addresses of witnesses of actions, communications, “offensive comments[, ]” and “harass[ment, ]” as well as the names of those who witnessed plaintiff “being ‘treated differently than all other employees[.]'” (Dkt. #71, Exh. 2, Interr. Nos. 12(b)(iii), 12(b)(viii), 13(d), 15(c), 15(f); Dkt. #67, Brief, Exh. A at 8-11). In his responses to these five interrogatories, plaintiff states that “[o]ther drivers witnessed the actions including Lenford Allen, Ray Dennicon and Keddy (last name is not recalled).” (Dkt. #71, Exh. 2, Interr. Nos. 12(b)(iii), 12(b)(viii), 13(d), 15(c), 15(f) (emphasis added)).

         Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure requires that a party disclose the name of any individual likely to have discoverable information that may be used to support its claims or defenses. Moreover, parties who make disclosures or respond to interrogatories or requests for production must supplement their disclosures throughout the discovery process. Fed.R.Civ.P. 26(e)(1)(A). Should plaintiff fail to identify a witness as required, plaintiff will not be allowed to use that witness at trial, unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c)(1). Thus, to the extent there are witnesses other than Allen, Dennicon, and Keddy, on or before October 31, 2017, plaintiff shall, in response to Interrogatories Nos. 12(b)(iii), 12(b)(viii), 13(d), 15(c) and 15(f), identify said witnesses. Similarly, to the extent that plaintiff is “[p]resently aware of other drivers [who] witness[ed] the statement” made by plaintiff in response to the offensive comments made, on or before October 31, 2017, plaintiff shall identify those witnesses in response to Interrogatory No. 13(e)(ii).

         d. DOCUMENTS AND COMMUNICATIONS

         In Interrogatories Nos. 12(b)(iv) and 12(b)(ix), defendant requests “[a]ll documents relating to the action(s) taken[, ]” and all documents “relating to the communication(s)[, ]” in response to which plaintiff states that he “is currently aware of documents submitted to the CHRO pertaining to the comments made that the [p]laintiff was bisexual.” (Dkt. #71, Exh. 2, Interr. Nos. 12(b)(iv) and (ix); Dkt. #67, Brief, Exh. A at 9). Similarly, in Interrogatories Nos. 19(b)-(e) plaintiff is asked about specific allegations in the complaint, in response to which plaintiff answers as to what he “[p]resently recall[s].” (See Dkt. #71, Exh. 2, Interr. Nos. 19(b), (c), (d), (e); Dkt. #67, Brief, Exh. A at 12-13). On or before October 31, 2017, plaintiff shall clarify his responses to Interrogatories Nos. 12(b)(iv) and 12(b)(ix) by identifying the written documents, if any. Additionally, to the extent plaintiff has additional information to provide regarding Interrogatories ...


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