O'Malley v. Naphcare Inc.

311 F.R.D. 461, 2015 U.S. Dist. LEXIS 143200, 2015 WL 6180234
CourtDistrict Court, S.D. Ohio
DecidedOctober 21, 2015
DocketCase No. 3:12-cv-326
StatusPublished
Cited by68 cases

This text of 311 F.R.D. 461 (O'Malley v. Naphcare Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Malley v. Naphcare Inc., 311 F.R.D. 461, 2015 U.S. Dist. LEXIS 143200, 2015 WL 6180234 (S.D. Ohio 2015).

Opinion

ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL (DOC. 64); AND (2) GRANTING DEFENDANT’S MOTION TO COMPEL (DOC. 63)

Michael J. Newman, United States Magistrate Judge

This civil case is before the Court on Plaintiff Teresa Lynn O’Malley’s (“O’Malley”) and [463]*463Defendant NaphCare, Inc.’s (“NaphCare”) cross motions to compel discovery. Does. 63, 64, 65. Both motions have been fully briefed, see docs. 66, 67, 68, 69, 71, and are now ripe for decision.

I. BACKGROUND

O’Malley initiated this case in October 2012, alleging a number of claims stemming from the termination of her employment with NaphCare.1 See doc. 3. O’Malley, a Licensed Practical Nurse (“LPN”), worked for NaphCare from 2007 through 2011 at the Montgomery County Jail (“MCJ”) in Dayton, Ohio. Doc. 41 at PagelD 350. NaphCare provides healthcare to MCJ inmates. Id. A “discharge summary” prepared by NaphCare states that O’Malley was the nurse in charge when certain inmate medications were missing. Doe. 41-2 at PagelD 377. O’Malley claims that this allegation is wrong and defamatory, and that she was terminated for “speaking out against abuse and inmate safety issues.” Doc. 41 at PagelD 370. O’Malley has filed three amended complaints, see docs. 27, 29, 41, and NaphCare has moved to dismiss, or partially dismiss, each one. See docs. 24, 33, 42. O’Malley’s third amended complaint alleges three claims2 against Napheare: (1) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (2) defamation under Ohio law; and (3) wrongful discharge in violation of Ohio public policy. Doc. 41 at PagelD 364-71.

O’Malley served her initial written discovery requests on Naphcare in August 2014, including interrogatories and requests for production of documents. Doc. 64 at PagelD 672. The calendar in this case was later stayed pending resolution of NaphCare’s motion to dismiss O’Malley’s third amended complaint. See docs. 42, 49, 51. Following the Court’s ruling on NaphCare’s motion, NaphCare responded to O’Malley’s written discovery requests. Doc. 64 at PagelD 672. NaphCare also served its first set of interrogatories and requests for production of documents on O’Malley in April 2015, and received responses in June 2015. Doc. 63 at PagelD 569.

Both parties identified alleged deficiencies in the other’s discovery responses, and counsel conferred to resolve some, but not all, of the alleged deficiencies. See doc. 64 at Pa-gelD 672-73; doc. 63 at PagelD 569-71. On August 7, 2015, the Court held a status conference; discussed the parties’ outstanding discovery issues; and ordered counsel to resolve such disputes extrajudicially. Aug. 10, 2015 Notation Order. During the Court’s follow-up status conference on August 21, 2015, the parties asked for a lengthy extension of the September 8, 2015 discovery deadline in light of the still-unresolved discovery issues. The parties were then ordered to brief any and all remaining discovery issues. See Aug. 24, 2015 Notation Order.

II. STANDARD

“[T]he scope of discovery” encompasses “any nonprivileged matter that is relevant to any party’s claim or defense[.]” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Rule 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production or inspection” if a party fails to provide discovery responses. Fed. R. Civ. P. 37(a)(3)(B). The “proponent of a motion to compel discovery bears the initial burden of proving that the information sought is relevant.” Hendricks v. Hazzard, No. 2:11-cv-399, 2013 WL 4052873, at *3 (S.D.Ohio Aug. 12, 2013) (internal citation omitted). ‘When the information sought appears to be relevant, the party resisting production has the burden of establishing that the information either is not relevant or is so marginally relevant that the presumption of broad disclosure is outweighed by the potential for undue burden or harm.” Wagner v. Circle W Mastiffs, No. 2:08-cv-431, 2013 WL 4479070, at *3 (S.D.Ohio Aug. 19, 2013) (citation omitted).

[464]*464Under Rule 37 and the corresponding provision of the Southern District of Ohio’s Local Rules, counsel have an obligation to attempt in good faith to resolve all discovery disputes extrajudieially (ie,, without Court intervention) before filing motions to compel discovery. See Fed. R. Civ. P. 37(a)(1); S.D. Ohio Civ. R. 37.1 This “meet and confer” requirement, satisfied in this instance, requires counsel to communicate in good faith with each other — via telephone, letter correspondence, or email — to attempt to resolve any discovery disputes prior to the filing of a motion to compel. Such extrajudicial efforts must also be undertaken by counsel before an informal telephone discovery conference is sought with the judicial officer supervising discovery. S.D. Ohio Civ. R. 37.1.

III. O’MALLEY’S MOTION TO COMPEL

In her motion, O’Malley argues that many of NaphCare’s responses to her requests for production of documents and interrogatories are insufficient. Doc. 64 at PagelD 674-78. Such arguments are addressed in turn.

Production of ESI

First, O’Malley argues that NaphCare has not produced all requested electronically stored information (“ESI”). Doc. 64 at Pa-gelD 674-75; doc. 65 at PagelD 752-56. Specifically, O’Malley claims that NaphCare has not searched and produced emails from the accounts of Karina Carlisle, Gary Blair, Pam Jamison, and Jeff McIntyre utilizing the search terms she identified. Doc. 64 at Pa-gelD 674-75. NaphCare argues that O’Malley’s arguments are moot because counsel for the parties, after service of O’Malley’s discovery requests, subsequently agreed that the emails of Carlisle, Blair, Jamison, and McIntyre would be searched using limited search terms (“Teresa,” “Theresa,” “O’Malley,” and “Omalley”). Doc. 66 at PagelD 769-70; doc. 66-1 at PagelD 784-85; doc. 63-3 at PagelD 662. NaphCare represents that it produced all non-privileged emails obtained from such search.3 Doc. 66 at PagelD 769-70; doc. 66-1 at PagelD 784-85; doe. 63-3 at PagelD 662. Accordingly, O’Malley’s argument in this regard is moot.

Privilege Log

O’Malley next argues that NaphCare has failed to produce a privilege log listing documents withheld from production on the basis of attorney client and/or work-product privilege. See doc. 64 at PagelD 677; doc. 69 at PagelD 890. NaphCare represents that it produced a privilege log on August 28, 2015, and provided an updated log on September 4, 2015. Doc. 66 at PagelD 771; doc. 66-1 at PagelD 785. O’Malley has not claimed any deficiencies with regard to the privilege log produced by NaphCare, and her motion to compel production of a privilege log is denied as moot.

Document Requests 6, 7, 8, 9, 11, 12, 64

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311 F.R.D. 461, 2015 U.S. Dist. LEXIS 143200, 2015 WL 6180234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omalley-v-naphcare-inc-ohsd-2015.