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Nathan v. Ohio State University

United States District Court, Sixth Circuit

May 23, 2013

NADIA NATHAN, Plaintiff,
v.
THE OHIO STATE UNIVERSITY, et al., Defendants.

OPINION AND ORDER

ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.

Plaintiff, Dr. Nadia Nathan, brings this employment action against Defendants, The Ohio State University, The Ohio State University Medical Center, and Ohio State University Physicians, Inc. (collectively "OSUMC"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination and Employment Act, 29 U.S.C. § 626 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615 et seq., asserting discrimination and retaliation claims. This matter is before the Court for consideration of Plaintiff's Motion to Compel and for Sanctions (ECF No. 122), Defendants' Memorandum in Opposition (ECF No. 125), Plaintiff's Reply (ECF No. 132), Defendants' Motion for Leave to File Sur-reply (ECF No. 133), and Plaintiff's Response to Defendants' Sur-Reply (ECF No. 134). For the reasons that follow, Plaintiff's Motion to Compel is GRANTED IN PART AND DENIED IN PART, and Defendants' Motion to file a Sur-Reply is GRANTED.

I.

On October 29, 2012, the Court issued a Discovery Order, compelling Defendants to respond to Plaintiff's discovery requests. (ECF No. 110.) The Court incorporates by reference herein the October 29, 2012 Discovery Order. After the Court overruled their objections to the Discovery Order (ECF No. 120), Defendants produced approximately 30, 000 documents. Upon review of these documents, Plaintiff's counsel notified Defense counsel that Defendants failed to produce a number of responsive documents. (Feb. 20, 2013 Loring Corres., ECF No. 122-2.) In correspondence dated February 22, 2013, Plaintiff's counsel provided a detailed list of more than twenty categories of documents she believed to be missing from Defendants' production. Defense counsel subsequently acknowledged that the production was lacking with regards to several types of documents, but maintained that the remainder of the documents had been provided to the extent they existed. (Feb. 25, 2013 Corl Corres., ECF No. 122-3.) On March 25, 2013, Defendants produced approximately 5, 000 additional documents. Upon review of these documents, Plaintiff's counsel again informed Defense counsel that she believed the production to be deficient in a number of regards. (Mar. 29, 2013 Lorring Corres., ECF No. 122-5.) The parties have been unable to resolve their disputes regarding the sufficiency of Defendants' production, prompting the subject Motion to Compel.

In her Motion, Plaintiff asks the Court to issue an order compelling Defendants to produce various categories/types of documents that she maintains were compelled in the Court's October 29, 2012 Discovery Order, but never Produced. These documents include the following:

1. All complaints about anesthesiologists during the compelled time frame, including all event reports and/or all correspondence to the Quality Control/Assurance Committee, Professionalism Committee, PEC committees and/or those committee's member and/or any other member of hospital management.
2. All email and other documentation of pager response times and failures;
3. All performance-related documents not contained in the "personnel file, " whether or not those documents are kept in paper copy or electronically, including evaluation comment spreadsheets, employee relations files, bonus letter and reports for teaching, CRNA evaluations, timeliness of surgery starts, research, clinical evaluations with comment spreadsheets, overall evaluation score, and salaries.

(Pl.'s Mot. 8, ECF No. 122.) Plaintiff further asks the Court to sanction Defendants for their repeated failure to comply with this Court's October 29, 2012 Discovery Order.

Defendants oppose Plaintiff's Motion. Defendants posit that Plaintiff limited her request for performance-related documents to certain, discrete types of documents when she filed her April 30, 2012 Motion to Compel (ECF No. 59). Defendants assert that their production is sufficient because they produced these discrete types of documents Plaintiff listed as well as any documents Dr. Harter represents were actually utilized to evaluate anesthesiologist performance. Defendants maintain that Plaintiff is now, for the first time, seeking new types of performance-related documents that were never the subject of a formal discovery request and were not addressed in the Court's October 29, 2012 Discovery Order. Defendants further represent that all documents related to pager response times and failures have been produced.

In her Reply, Plaintiff asserts that she indisputably requested the performance-related documents that are the subject of the instant Motion. She also asserts that Defendants improperly limited the universe of performance-related documents to those Dr. Harter represents were utilized for performance evaluations. Finally, Plaintiff attaches examples of the types of documents she maintains Defendants have failed to produce, such as documents reflecting late surgery start data and event reports.

Defendants have moved for leave to file a sur-reply, attaching their proposed Sur-Reply. (ECF No. 133.) Plaintiff does not oppose Defendants' Motion, but responded in opposition to the substance of the Sur-Reply. (ECF No. 134.) In their Sur-Reply, Defendants re-assert their position that the Court's October 29, 2012 Discovery Order did not compel them to produce all discovery documents, emphasizing that Plaintiff did not request all performance documents in the first instance and that such a request would be overbroad. Defendants also re-assert that they have produced all responsive documents, including the late-surgery start documents. In her Response to Defendants' Sur-Reply, Plaintiff continues to assert that she did not limit her discovery requests to performance-related documents actually utilized or specifically identified, explaining that she cannot be expected to know what types of performance-related data and documents Defendants possess. With regard to the late-start documents, Plaintiff asserts as follows: "If... Defendants offer an affidavit from its IT Department affirming that the two reports measure the same data and briefly describing the data measured, Plaintiff will obviously be satisfied with this explanation." (Pl.'s Resp. to Defs.' Sur-Reply 3, ECF No. 134.)

II.

As a threshold matter, the Court GRANTS Defendants' Motion for Leave to File a Sur-Reply because the proposed Sur-Reply potentially resolves an issue of the existence of late-start documents. (ECF No. 133.) The Court now considers the sufficiency ...


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