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Johnson v. Wendy's Restaurant

September 22, 2006

CYNDI JOHNSON, PLAINTIFF,
v.
WENDY'S RESTAURANT, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

OPINION AND ORDER

This is an employment action in which plaintiff alleges that her work hours were reduced and she was eventually terminated in retaliation for having complained of gender harassment and race discrimination at the workplace. Plaintiff asserts her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5. This matter is now before the Court on three motions filed by defendant: Motion to Compel, Doc. No. 92; Motion to Continue Deposition, Doc. No. 94; and Motion for Continuation of Discovery Cut Off, Doc. No. 95.*fn1

These three motions are fully at issue: Doc. Nos. 92, 102, 110, 94, 101, 111, 95, 100 and 109. For the reasons set forth below, all three motions are GRANTED.

A. Defendant's Motion to Compel

In Defendant's Motion to Compel, Doc. No. 92, defendant asks that plaintiff, who is proceeding without the assistance of counsel, be compelled to produce notes, calendars, journals and/or diaries to which she referred during her August 10, 2006, deposition.

1. Standard

Fed. R. Civ. P. 37(a) permits a discovering party to file a motion for an order compelling discovery if another party fails to respond to discovery requests, provided that the motion to compel includes a certification that the movant has in good faith conferred or attempted to confer with the party failing to respond to the requests. The Court is satisfied that the prerequisites to a motion to compel have been met in this case. See Defendant's Motion to Compel at 7-8 and Exhibits 4, 5, 6 attached thereto.

Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). Rule 34 of the Federal Rules of Civil Procedure provides for discovery of documents in the "possession, custody or control" of a party, provided that the documents "constitute or contain matters within the scope of Rule 26(b)." Fed. R. Civ. P. 34(a). In turn, Rule 26(b) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). Relevance for discovery purposes is extremely broad. Miller v. Fed. Express Corp.,186 F.R.D. 376, 383 (W.D. Tenn. 1999). "The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence." Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).

2. Discussion

Throughout her deposition, plaintiff testified under oath that she is in possession of notes, calendars, journals and/or diaries in which she recorded specific instances of misconduct by defendant or its employees and which gave rise to the claims asserted in this action. See, e.g., Plaintiff's Deposition*fn2 ("Pl. Dep.")at 127-130, 132, 143, 146-47, 149, 152, 155-56, 161, 164. Moreover, plaintiff indicated in her deposition that she had purposely withheld these documents from defendant so that she would not "give [her] whole case," Pl. Dep. at 146, away before it could "all come out" in court.*fn3 Defendant's Motion to Compel seeks production of these documents.

In her unsworn response to defendant's Motion to Compel, plaintiff makes no express reference to these notes, calendars, journals and/or diaries, but merely states that she has produced all relevant information. Objection to Defendant's Motion to Compel and Motion to Dismiss*fn4 at 1. According to defendant, plaintiff has produced only her tax returns since her deposition. Defendant's Reply Memorandum in Support of Defendant's Motion to Compel and Memorandum Contra Plaintiff's Objection to Defendant's Motion to Compel and Motion to Dismiss at in Support of Motion to Compel at 2.

These notes, calendars, journals and/or diaries are without question relevant to the claims asserted by plaintiff in this action and are therefore discoverable by defendant. Plaintiff testified under oath at her deposition that she is in possession of such relevant documents and her unsworn, non-specific response to defendant's Motion to Compel simply does not demonstrate that plaintiff has met her discovery obligations in this regard.

Accordingly, defendant's Motion to Compel is GRANTED; plaintiff is ORDERED to produce the notes, calendars, journals and/or diaries within ten (10) days of the date of this Opinion and Order.

B. Defendant's Motion to Continue Deposition

In its Motion to Continue Deposition, defendant seeks leave to continue plaintiff's deposition for an additional day following production of her ...


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