Freedom Foundation v. Department of Labor & Industries

• Court: District Court, W.D. Washington
• Decided: April 20, 2020
• Docket: 3:19-cv-05937
• Status: Unknown

Opinion

1 HONORABLE RONALD B. LEIGHTON 2 3 4

5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 FREEDOM FOUNDATION, a CASE NO. 3:19-cv-05937-RBL 9 Washington non-profit corporation, ORDER ON DEFENDANT’S MOTION 10 Plaintiff, FOR PROTECTIVE ORDER AND v. PLAINTIFF’S CROSS-MOTION TO 11 COMPEL AND FOR SANCTIONS JOEL SACKS, in his official capacity as 12 Director of Washington State DKT. ## 21 & 25 Department of Labor & Industries; 13 HEATHER NORMOYLE, in her individual capacity; and ELIZABETH 14 SMITH, in her individual capacity, 15 Defendant. 16

INTRODUCTION 17 THIS MATTER is before the Court on Defendants Joel Sacks, Heather Normoyle, and 18 Elizabeth Smith’s (collectively “the Department”) Motion for Protective Order [Dkt. # 21] and 19 Plaintiff Freedom Foundation’s Motion to Compel and for Sanctions [Dkt. # 25]. Freedom 20 Foundation is an organization that opposes unionization and was present at the Washington State 21 Department of Labor & Industries on June 27, 2019 handing out pamphlets. Employees of the 22 Department asked them to leave, which precipitated this lawsuit based on alleged free speech 23 and other constitutional violations. The parties now dispute discovery served upon Normoyle and 24 1 Smith, which the Department argues is duplicative and burdensome but which Freedom 2 Foundation asserts is legitimate. For the following reasons, the Court GRANTS the 3 Department’s Motion and DENIES Freedom Foundation’s Motion. 4 BACKGROUND

5 1. Freedom Foundation’s Claims 6 On June 27, 2019, three Freedom Foundation canvassers went to the Washington State 7 Department of Labor & Industries building “to inform public-sector workers of their First 8 Amendment rights, as recognized by the Supreme Court of the United States in Janus v. 9 AFSCME, to refrain from or cease financially supporting their respective unions, allowing the 10 unions to speak for them, or associating with their unions against their will.” First Amended 11 Complaint, Dkt. # 16, at 4-5. Freedom Foundation alleges that its employees got permission from 12 the front desk receptionist and a state patrol officer to canvas inside the building. Id. at 6-7. 13 They were handing out pamphlets in the “space outside the cafeteria” when they were 14 approached Normoyle, the Assistant Director of Human Resources for the Department; Smith,

15 Deputy Director of the Department; and three to five state patrol officers “acting at the behest of” 16 the Department employees. Id. at 8. Normoyle asked if the canvassers had submitted an 17 application for their activities, and when they responded that they had not, Normoyle informed 18 them that they were in contravention of Department Policy 5.04 and asked them to leave. Id. at 19 8-9. Freedom Foundation also alleges that one of its canvassers was taking pictures, and one of 20 the officers aggressively told him to stop. Id. at 9-10. The canvassers left the building shortly 21 after. Id. at 10. 22 Based on this altercation, Freedom Foundation assert six claims. The first five allege Due 23 Process, Equal Protection, Free Speech, and Freedom of Association violations arising from the

24 1 discriminatory ejection and silencing of the canvassers, as well as one claim arising from the 2 officer’s attempt to prohibit photography. Id. at 13-22. The sixth claim is for declaratory and 3 injunctive relief. Id. at 22. The claims are either against all the Defendants or the Department 4 alone; none of the claims target the conduct of Normoyle and Smith insofar as it differs from that

5 of the Department. In fact, their names are not mentioned once in Freedom Foundation’s claims. 6 2. Freedom Foundation’s Discovery to the Department, Normoyle, and Smith 7 On January 8, 2020, Freedom Foundation served its first set of discovery to Sacks, who is 8 synonymous with the Department in this case. It included 25 requests for admission (RFA) and 9 25 interrogatories and requests for production (RFP). The Department raised various objections, 10 including that several questions were compound, but ultimately responded and produced “nearly 11 12,000 pages of records.” Motion, Dkt. # 21, at 4. However, after the parties exchanged emails 12 about some of the Department’s objections, Freedom Foundation served additional RFAs and 13 interrogatories and RFPs to Defendants Normoyle and Smith. 14 The RFAs to Normoyle and Smith seek the same information as those directed to the

15 Department. Some also equate the Department’s knowledge with that of its employees. For 16 example, RFA number 17 to the Department states, “Admit that on June 27, 2019, the 17 Washington State Patrol officers who accompanied Ms. Heather Normoyle and Ms. Elizabeth 18 Smith in ejecting the Foundation’s employees from the Tumwater Building were acting pursuant 19 to the instructions or direction of the Department,” Dkt. # 22-1 at 83; there are identical RFAs 20 directed to Normoyle and Smith, but the phrase “instructions or direction of the Department” is 21 replaced with “Your instructions.” Id. at 7, 47. Other RFAs to the Department address the actions 22 or knowledge of Normoyle and Smith, while the corresponding RFAs to Normoyle and Smith 23 address the exact same subject matter. See, e.g., id. at 9, 49 (“You knew that Policy 5.04

24 1 provided no authority . . . .”); id. at 85 (“Ms. Heather Normoyle . . . [and] Ms. Elizabeth Smith 2 knew that Policy 5.04 provided no authority . . . .”). The Department’s response to the RFAs 3 contains answers from all “Defendants” and provides information about the actions and beliefs 4 of Normoyle and Smith. Id. at 76-86.

5 The interrogatories and requests for production propounded upon the Department, which 6 address a variety of topics, seemingly differ from those directed to Normoyle and Smith, which 7 exclusively ask for factual and documentary support for each RFA answer. Compare Dkt. # 22-1 8 at 92-125 with id. at 17-35, 57-72. However, interrogatory number 22 to the Department reads, 9 “Please identify and describe with particularity, in accordance with the foregoing Definitions, all 10 factual support for Your denial of any of the Requests for Admissions served to You in this 11 matter, at any time.” Id. at 122. Because the RFAs to the Department are the same as those 12 directed to Normoyle and Smith, this question encompasses all of the interrogatories and RFPs 13 directed to Normoyle and Smith. 14 The Department objected to interrogatory number 22 as compound and stated that “the

15 factual support for the positions taken with respect to the denial of Requests for Admission is 16 included in the response to those requests.” Dkt. # 22-1 at 122. The Department’s response to the 17 Interrogatories and RFPs is signed and verified by Normoyle. Id. at 127. In an email exchange, 18 counsel for Freedom Foundation agreed that question number 22 was compound but suggested 19 that he had a plan to “circumvent” this issue. Id. at 133. This plan, apparently, was to propound 20 separate discovery on Normoyle and Smith, despite the overlap between the RFAs to the 21 Department. 22 23

24 1 DISCUSSION 2 The Department argues that Freedom Foundation’s discovery to Normoyle and Smith is 3 improper because they are only “nominally separate” from the Department itself. Alternatively, 4 The Department contends that the same discovery is unreasonably duplicative, cumulative, and

5 burdensome. Consequently, the Department asks that the challenged discovery be quashed and 6 that the Court issue a protective order that Defendants are to be treated in a unitary fashion for 7 purposes of discovery. Freedom Foundation argues that its discovery approach is legitimate and 8 that the Court should compel responses from Normoyle and Smith. Freedom Foundation makes 9 little-to-no argument for why sanctions are warranted. 10 Rule 26(b)(1) states that parties may obtain discovery on “any nonprivileged matter that 11 is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). However, discovery also 12 must be “proportional to the needs of the case, considering the importance of the issues at stake 13 in the action, the amount in controversy, the parties’ relative access to relevant information, the 14 parties’ resources, the importance of the discovery in resolving the issues, and whether the

15 burden or expense of the proposed discovery outweighs its likely benefit.” Id. Rule 26(c)(1) 16 states that “a party from whom discovery is sought” may, after a good faith conference, seek “an 17 order to protect [that] party or person from annoyance, embarrassment, oppression, or undue 18 burden.” When a party so moves, “the court must limit the frequency or extent of discovery [if it] 19 is unreasonably cumulative or duplicative, or can be obtained from some other source that is 20 more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 21 While Rule 33(a)(1) allows up to 25 interrogatories to be served upon each party, some 22 courts have observed that multiple parties on the same side may be treated as one if they are only 23 “nominally separate.” See, e.g., Zito v. Leasecomm Corp., 233 F.R.D. 395, 399 (S.D.N.Y. 2006)

24 1 (citing Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and 2 Procedure § 2168.1 at 261 (2d ed.1994)). In Vinton v. Adam Aircraft Indus., Inc., for example, 3 the court upheld the magistrate judge’s limitation of interrogatories when the plaintiff had taken 4 the position that the corporate defendant and one of its representatives were alter egos and should

5 be “treated as a single, unified entity.” 232 F.R.D. 650, 664 (D. Colo. 2005); but see 21X Capital 6 Ltd. v. Werra, No. C06-04135 JW (HRL), 2007 WL 2852367, at *1 (N.D. Cal. Oct. 2, 2007) 7 (considering the nominally separate doctrine but declining to apply it because the alter ego 8 company was not a party). Gucci Am., Inc. v. Exclusive Imports Int’l reached the same 9 conclusion where the defendants were “acting in unison and are represented by the same 10 counsel.” No. 99 CIV.11490 RCC FM, 2002 WL 1870293, at *5 (S.D.N.Y. Aug. 13, 2002). 11 Whether the Court relies on Rule 26’s prohibition of overly burdensome discovery or the 12 nominally separate doctrine, additional discovery to Normoyle and Smith is unwarranted. The 13 RFAs to Normoyle and Smith seek the exact same information as those to the Department, which 14 were answered by the Defendants collectively. The Interrogatories and RFPs seek the “factual

15 support” related to the RFAs, but the Department stated in its response to the prior discovery that 16 such information was already included in its answers to the RFAs themselves. By affirming that 17 those answers comprise the “factual support” requested in the interrogatories, the Department 18 incorporated that information into its response. There is no need to waste more time, effort, and 19 paper just so Normoyle and Smith can repeat the same information again. 20 Further, Defendants in this matter are so closely associated that an additional quota for 21 discovery to Normoyle and Smith is unjustified. Nowhere in its claims does Freedom Foundation 22 distinguish between acts of the Department and those of Normoyle and Smith. FAC, Dkt. # 16, at 23 13-25. Instead, the Complaint consistently refers to “Defendants” as a single unit, treating

24 1 Normoyle and Smith as mere vessels of the Department policy at the heart of this case.1 Id.; see 2 also RFAs to Department, Dkt. # 22-1 at 78-79 (asserting Normoyle and Smith “relied upon 3 Policy 5.04” when they asked the canvassers to leave). Defendants also share common counsel 4 (the result of an AG investigation concluding that Normoyle and Smith acted pursuant to their

5 employment duties) and have acted in unison during this litigation. The discovery propounded 6 upon Normoyle and Smith further underscores their association with the Department by 7 requesting no unique information pertaining to them individually. In light of all this, the 8 separation between Defendants is only nominal. 9 Freedom Foundation seems to believe that, by propounding separate discovery on each 10 individual Defendant, it will obtain responses that are inconsistent with those of the Department, 11 creating an opportunity for impeachment. Indeed, Freedom Foundation’s description of its 12 discovery to Normoyle and Smith as seeking “individual witnesses’ verification of the 13 Department’s factual position” suggests that this is its main goal. Opposition, Dkt. # 25, at 12. 14 But this is misguided. Defendants all have the same legal representation and are all high-level

15 directors at the Department who participated in the responses to Freedom Foundation’s earlier 16 discovery. When the exact same questions are being posed twice, the chance that Normoyle and 17 Smith would suddenly deviate from the answers provided previously is so slim as to be 18 outweighed by the additional burden imposed on Defendants. If Freedom Foundation wants 19 fodder for impeachment, it would have a much better chance of obtaining it through depositions. 20 Freedom Foundation also argues that suing Normoyle and Smith in their individual 21 capacities “introduces a slew of issues pertaining to whether they are entitled to qualified 22

1 The only actors that are identified separately are the patrol officers that allegedly prohibited 23 photography, but Freedom Foundation still claims they acted “with the approval of the Department.” FAC, Dkt. # 16, at 18. 24 1 immunity.” Opposition, Dkt. # 25, at 7. But, as the Department points out, “[t]he reasonableness 2 inquiry [for purposes of qualified immunity] is objective, evaluating ‘whether the officers’ 3 actions are objectively reasonable in light of the facts and circumstances confronting them, 4 without regard to their underlying intent or motivation.’” Peltier v. Sacks, 328 F. Supp. 3d 1170,

5 1182 (W.D. Wash. 2018) (quoting Huff v. City of Burbank, 632 F.3d 539, 549 (9th Cir. 2011)). It 6 does not turn on subjective, individualized belief. 7 In short, this case is about the Department’s policy, not Normoyle and Smith’s individual 8 actions. Freedom Foundation’s claims rely on Defendants acting under Department authority, its 9 discovery treats Defendants as a single unit with shared knowledge, and Defendants have acted 10 collectively in defending this lawsuit. It is therefore duplicative and unduly burdensome for 11 Freedom Foundation to propound additional discovery on Normoyle and Smith. 12 CONCLUSION 13 The Department’s Motion is GRANTED and Freedom Foundation’s Motion is DENIED. 14 The discovery to Normoyle and Smith is quashed and Defendants shall be treated in a unitary

15 fashion for purposes of discovery going forward.2 16 IT IS SO ORDERED. 17 Dated this 20th day of April, 2020. 18 A

19 Ronald B. Leighton 20 United States District Judge 21 22

23 2 The Court notes, however, that this Order does not limit Freedom Foundation’s ability to

depose each Defendant separately. 24