United States District Court, D. Nebraska
D. Thalken United States Magistrate Judge
matter is before the court on Tracy Shelby's (Shelby)
Motion to Compel (Filing No. 67). Shelby seeks production of
documents comprising disciplinary investigations about two
individuals who were involved in the alleged decision to
terminate Shelby from her employment. Shelby filed a brief
(Filing No. 68) and an index of evidence (Filing No. 69) in
support of the motion. The defendants filed a brief (Filing
No. 73) opposing production. Shelby filed a brief (Filing No.
74) and an index of evidence (Filing No. 75) in reply.
worked part-time conduct maintenance for the City of Omaha
Public Works Department from April 30, 2012, until May 24,
2013, when she alleges she was constructively discharged. See
Filing No. 46 - Amended Complaint ¶ 10. Shelby alleges
she immediately suffered a pattern of sexual harassment,
discrimination, and retailiation, in violation of 42 U.S.C.
§1983, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., Title I of the Civil
Rights Act of 1991, and the Nebraska Fair Employment
Practices Act Neb. Rev. Stat. §48-1101, et seq.
Id. at 1. Specifically, Shelby was subjected to a
hostile work environment based on her gender, including
frequent demeaning comments and comments about her breasts
and one exposure to a pornographic movie clip. Id.
at 3-4. Additionally, Shelby alleges the defendants delayed
her raise and gave her unfavorable job assignments.
Id. A supervisor, Bernard L. Post (Post), provided
copies of the civil service exam to men in the traffic
division. Id. at 4. After previous complaints went
unaddressed, Shelby complained about discriminatory conduct
to Mike Paukert (Paukert), on April 11, 2013. Id. at
6-7. Shelby alleges the harassment continued compelling
Shelby to resign her position. Id. at 7. The
defendants deny Shelby's allegations and deny liability.
See Filing No. 47 - Answer. On July 29, 2016, the defendants
filed a motion for summary judgment. See Filing No. 41. The
motion is fully briefed and awaiting a court ruling.
of this case is scheduled for December 12, 2016, with the
final pretrial conference on November 18, 2016. See Filing
No. 24. The deposition and discovery deadline was May 31,
2016, and discovery motions were due by February 1, 2016, for
matters then ripe for determination. Id.
parties engaged in the exchange of discovery throughout 2015
and into 2016. Shelby served discovery requests on the
defendants in September 2015 and April 2016, and the
defendants produced documents, mostly without objection. See
Filing No. 67 - Motion p. 1; see Filing No. 27 - Notice of
Service. However, Shelby learned, during a July 2016 Rule
30(b)(6) deposition, two supervisors, Post and Paukert, were
disciplined for conduct they disclosed in previous
depositions taken as part of this lawsuit. See Filing No. 67
- Motion p. 2. Subsequently, Shelby requested additional
discovery be produced. Id. On August 5, 2016, the
defendants supplemented their responses to previous requests
for production of documents, but objected to disclosure of
the City of Omaha's Labor Relations Director's
investigation files. See Filing No. 49 - Notice of Service;
Filing No. 73 - Response p. 3. The parties were unable to
resolve their dispute about whether the investigation files
are discoverable under the circumstances surrounding this
filed the instant motion to compel on October 20, 2016. See
Filing No. 67. Shelby argues the investigation files are
responsive to her requests for Post's and Paukert's
personnel files, which requests included “any files . .
. maintained . . . within the organization.”
Id. at 3-4. Shelby also relies on her requests for
any witness statements pertaining to the subject matter of
this lawsuit or mentioning Shelby. Id. at 2-3.
Shelby contends the requested files are relevant to the
underlying investigation regarding Shelby's
pre-termination complaints. Id. at 5. Specifically,
although Post's investigation was not due to his conduct
toward Shelby, the investigation surrounded Post's
conduct during the City of Omaha's investigation into
Shelby's complaints, including whether Post denied
stealing a copy of the civil service exam and distributing it
to male employees. Id. Shelby contends,
admissibility aside, Post being accused of lying, his
termination and later rehiring are all
“certainly” relevant to this lawsuit.
Id. Shelby denies the events could be considered
“subsequent remedial measures” or too attenuated
to Shelby's employment. Id. Similar to
Post's investigation, the City of Omaha investigated
Paukert for his ignorance of the discrimination polices and
procedures, rather than his direct conduct toward Shelby.
Id. at 6. Shelby notes Paukert's statements
during the investigation were different form his deposition
testimony. Id. Shelby seeks the investigatory
materials to determine their full relevance and admissibility
in this lawsuit. Id. Shelby argues the investigatory
materials are relevant to the individual's motivations
and participation in her termination, even though the
investigation post-dated her termination, and are also
relevant to the defendants' response to Shelby's
complaints. See Filing No. 74 - Reply.
defendants deny the investigatory materials are responsive to
Shelby's discovery requests and whether they are relevant
or admissible for this lawsuit. See Filing No. 73 - Response
p. 3-5. The defendants seek to prevent disclosure of the
investigatory files of Tim Young, the Labor Relations
Director. Id. at 3. The defendants contend these
files are not part of the employees' personnel files for
the investigations conducted in the last year about
complaints regarding Post and Paukert. Id. The
defendants argue the notes, impressions, and investigation of
the Labor Relations Director cannot aid in impeachment or be
of any other use to Shelby in this matter. Id. at 5.
The defendants reiterate any disciplinary records are part of
the personnel files and have been produced.
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)). The federal
rules provide for broad, but not unlimited, discovery:
Parties may obtain discovery regarding 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
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); see Fed.R.Civ.P.
26(c)(1). 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). The court has authority to
limit the scope of discovery. Roberts v. Shawnee Mission
Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003).
has met her burden of demonstrating the relevance of the
discovery sought. The requests incorporate the investigation
files, which include information bearing on her claims about
her underlying treatment and the process following her
complaints. Shelby has shown the requested information bears
on her claims and are appropriate even when considering the
pertinent factors indicative of the proportional needs of the
case. The information's admissibility at trial is not