United States District Court, D. Nebraska
DEBRA K. JAMES ex rel. UNITED STATES OF AMERICA, Plaintiff,
MIDLANDS CHOICE, INC., a Nebraska corporation, Defendant.
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the defendant's, Midlands Choice, Inc. (Midlands), Motion to Compel Production of Documents and Request for Sanctions (Filing No. 93). Midlands filed a brief (Filing No. 94) and an index of evidence (Filing No. 95) in support of the motion. The plaintiff, Debra K. James (James), filed a brief (Filing No. 99) and index of evidence (Filing No. 100) in opposition. In reply, Midlands filed a brief (Filing No. 105) and index of evidence (Filing No. 106).
This case involves James' termination from Midlands in June of 2012. See Filing No. 90 - Second Amended Complaint. James generally alleges Midlands terminated her for exercising her rights under the Family Medical Leave Act (FMLA), submitting a workers' compensation claim, and for identifying Midlands' breach of contract with a health care provider. Id. James, an at-will employee, worked full-time as Midlands' Director of Provider Contracting from 2004 to June 1, 2012. Id. at 4-12. James' job responsibilities included negotiating contracts with health care providers. Id. In late 2010, James discovered and reported to Midlands' management that Midlands failed to implement negotiated contract terms with a provider. Id. As a result, the pricing on claims was incorrect. Id. James alleges Midlands unilaterally altered the effective date of the negotiated contract with the provider to avoid re-adjudicating the claims. Id. James reported to senior management failure to implement the contract terms was illegal and fraudulent. Id.
During James' employment she suffered a non-work related injury in May of 2011 and a work related injury in April of 2011. Id. The second injury required surgery and rehabilitation. Id. James took FMLA leave for the second injury. Id. Midlands did not timely report or file James' workers' compensation matter regarding the second injury. Id. Following James' inquiry into Midlands' treatment of her FMLA leave time for both injuries, Midlands recalculated the amount of time attributed to James' leave. Id. James also questioned Midlands' allocation of time attributed to workers' compensation for work related injuries James reported. Id. Within months after raising such questions, Midlands terminated James' employment. Id.
James initiated this action on March 1, 2013. See Filing No. 1 - Complaint. On July 22, 2014, James filed a Second Amended Complaint. See Filing No. 90 - Second Amended Complaint. Midlands generally denies James' allegations, asserts several affirmative defenses, and alleges a counterclaim. See Filing No. 92 - Answer to Second Amended Complaint. In Midlands' counterclaim, Midlands alleges James breached her Employee Confidentiality Agreement by removing and disclosing confidential and proprietary information belonging to Midlands without Midlands' knowledge or authorization. Id.
The parties have exchanged numerous emails in an attempt to obtain and provide discovery. See Filing No. 94 - Brief p. 1-4; Filing No. 99 - Response p. 1-3; Filing Nos. 95-7-95-18 - Email Correspondence. Midlands' instant motion stems from discovery requested in two sets of requests for production of documents as well as correspondence and recordings James referenced during her deposition, which were not previously produced. See Filing No. 94 - Brief p. 1-4; Filing Nos. 95-1 and 95-2 - First and Second Requests for Production of Documents; Filing Nos. 95-3-95-6 - James' Depo. Gradually, James produced the requested discovery; however, some repeatedly requested discovery remains outstanding. See Filing No. 94 - Brief; Filing No. 99 - Response. Specifically, Midlands argues the following discovery remains outstanding: 1) James' second deposition; 2) Midlands' request to inspect James' personal home computers for confidential documents from Midlands; 3) 2009 and 2013 tax returns; 4) audio recordings; and 5) email correspondence with former coworkers. See Filing No. 94 - Brief. Midlands argues the second deposition is necessary, and court authorized, due to additional discovery provided and James' added claim in her Second Amended Complaint. Id. Additionally, Midlands argues the outstanding discovery is relevant to Midlands' affirmative defenses and counterclaim. Id. 
In response, James argues she has not engaged in any conduct that would warrant a motion to compel and sanctions under Fed.R.Civ.P. 37. See Filing No. 99 - Response. James argues she does not have responsive emails with former co-workers and states the tax returns and third audio recording will be produced. Id. at 4. James contends she searched her personal computers and provided responsive documents to her counsel for production. Id. at 4-7. James argues the response delays were due to circumstances outside James' control. Id. James' counsel explains during Midlands' requests for discovery, James' counsel underwent unexpected surgery and follow-up procedures and moved to a new law firm after her previous firm closed its office. Id.
Midlands replies its discovery requests were served well before the occurrence of James' counsel's life events, thus its motion to compel and request for sanctions should be granted. See Filing No. 105 - Reply. Midlands reiterates it was forced to file the instant motion because relevant discovery remains outstanding or was not provided until after the filing of this motion. Id. Midlands argues James previously admitted in her deposition she emailed former co-workers but now, without explanation, claims she has no responsive documents. Id. at 3-4 (citing Filing No. 106-1 - James' Depo.). Regarding documents on James' personal computers, Midlands contends James did not conduct a complete search of her computers and argues James has not provided an explanation for refusing to let a thirdparty search her computers. Id. at 7-9. Midlands asserts the court should order a third-party diagnostic search at James' expense due to the delay and lack of explanation. Id. Additionally, Midlands argues to the extent one of James' computers is destroyed, the court should issue a spoliation sanction against James. Id.
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). "Broad discovery is an important tool for the litigant, and so [r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.'" WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011) (alteration in original) (quoting Fed.R.Civ.P. 26(b)(1)). Accordingly, relevant information includes "any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity the information they hope to obtain and its importance to their case. See Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972). Once the requesting party meets the threshold relevance burden, generally "[a]ll discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing the documents to bear that burden." Continental Ill. Nat'l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation omitted).
A. Discovery Dispute
The issue in this motion is not an objection to discovery requests but the delay in production of discovery. The requested discovery, if it exists, is relevant to James' and Midlands' claims. The court ...