Summary: A number of discovery motions were brought by the parties. First, defendant brought a motion for a mental examination pursuant to Rule 35. In response, plaintiff withdrew her emotional distress claims but persisted in her "garden variety" claim for compensatory damages for mental anguish. The court held that because plaintiff's mental condition is genuinely not in controversy, the defendant has failed to make a showing of good cause and a mental examination is not warranted. Next, the court ruled that defendant is entitled to recover plaintiff's complete tax returns of the subject years, even though some of the plaintiff's husband's financial information is contained therein. As to plaintiff's motion for protective order and to quash subpoena directed to plaintiff's husband, the court held that it is not satisfied that a marital privilege exists in a federal civil action under the law of the Eighth Circuit, and certainly is not available in North Dakota except in criminal actions. As to the documents themselves, the court found the subpoena to be duplicative and an annoyance, granting plaintiff's motion for protective order as to the documents listed in the subpoena. Neither party was awarded costs or attorney's fees.
Case Name: Debra Bjeke v. Nash Finch Co.
Case Number: A3-98-134
Docket Number: 57
Date Filed: 2/1/00
Nature of Suit: 442
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Debra I. Bjerke,
Nash Finch Company,
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) ) ) ) ) Civil No. A3-98-134 ) ) ) ) |
ORDER
The parties have each filed motions relating to discovery in this case. The court has continued the settlement conference pending resolution of these motions.
1. Defendant's Motion for Mental Examination of Plaintiff
This is an employment discrimination case. In her initial complaint plaintiff included state law claims of intentional and negligent infliction of emotional distress. These allegations prompted a motion by defendant for a Rule 35 mental examination of plaintiff by a clinical psychologist. In response plaintiff amended her complaint, withdrawing the emotional distress claims, but still including in the prayer for relief a claim for compensatory damages, including mental anguish and humiliation, and in addition filed a brief opposing the request for mental examination. Defendant contends a mental examination is still appropriate to determine plaintiff's stressors and to assess how the alleged employment discrimination affected her.
Plaintiff's basis for seeking damages for mental anguish and humiliation is the low self esteem she suffered as a result of being paid less than male employees for allegedly the same work. She describes the effects as loss of sleep, loss of appetite, and a general feeling of worthlessness. This court views plaintiff's claim as a "garden variety" claim of emotional distress that does not place her mental condition genuinely in controversy. Fox v. The Gates Corp., 179 F.R.D. 303 (D. Colo. 1998). Although plaintiff has produced copies of her medical records and agreed to allow access to clergy counseling records (although apparently no records exist), she does not concede that her mental condition is in controversy. Plaintiff does not intend to offer expert testimony, since her claimed emotional distress is a general loss of self esteem rather than a serious mental or psychiatric injury. She no longer makes any separate claim for infliction of emotional distress; it is simply a component of her compensatory damages for discriminatory treatment. Under these circumstances, defendant has failed to make a showing of good cause and a mental examination is not warranted. See O'Sullivan v. State of Minnesota, 176 F.R.D. 325 (D. Minn. 1997). Defendant's motion for Rule 35 examination is denied, as is its request for oral argument on the motion.
2. Defendant's Motion to Compel Discovery of Tax Returns
Defendant requested in its first set of document requests complete copies of all of plaintiff's federal and state tax returns for the years 1990 through 1998. Plaintiff produced in response the Schedule C (Profit or Loss From Business) and Schedule SE (Self -Employment Tax) for each of the years 1992 through 1998 for her hair styling business, as well as a W-2 form (Wage and Tax Statement) for 1998 relating to her employment by Easter Seals. Defendant seeks complete, signed federal and state income tax returns as well as W-2 and 1099 forms, but has narrowed its request to the time frame covering 1992 through 1998.
Plaintiff objects primarily on grounds of relevance and duplication, claiming defendant already has all relevant information to plaintiff's earnings. She filed joint income tax returns with her husband in the subject years and contends her husband's income is irrelevant and not discoverable. Even though the complete returns may reveal nothing more about plaintiff's income than the information already provided, the court finds that defendant is entitled to discover complete copies of plaintiff's tax returns for the subject years even though her husband's income and business information appear on the returns as well. Defendant is entitled to verify that the schedules it has received contain complete information about plaintiff's earnings for that time period. Defendant's motion to compel production of plaintiff's complete income tax returns as well as W-2 earnings statements and 1099 forms for the years 1992 through 1998 is granted.
Although defendant has requested oral argument on its motion, the court finds oral argument unnecessary. The court has received too many briefs from counsel relating to this discovery dispute, and oral argument would add nothing to the court's understanding of the matter.
Defendant has also requested "sanctions" for plaintiff's failure to produce the requested information. Actually what defendant seeks is a Rule 37(a) award of fees and costs incurred in having to bring the motion. Sanctions are available under Rule 37(b) only after the court has ordered a party to provide discovery and the party has failed or refused to do so. Although the reference to "sanctions" in requesting fees and costs is fairly common, it has heightened the aggravation index between counsel in this case. The court declines to award fees and costs in connection with this motion (and plaintiff's related motion) because of the over-briefing and because of the acrimonious tone of the briefs, particularly the references to opposing counsel.
3. Plaintiff's Motion for Protective Order and to Quash Subpoena
Defendant's unsuccessful efforts to acquire complete copies of plaintiff's tax returns in part led to its subpoena of plaintiff's husband for a deposition. The subpoena directs plaintiff's husband to bring with him to the deposition his tax returns for the years 1992 through 1998, his wife's personnel file from his business (which appears not to exist), and all employee records from his business. Plaintiff seeks not only an order protecting plaintiff's husband from producing the subpoenaed documents, but also relief from having to give a deposition at all.
With respect to plaintiff's husband's proposed testimony, plaintiff contends his testimony is not relevant to her claim of employment discrimination since he never worked with her at Nash Finch and that any testimony he could give would be subject to the marital privilege. The court finds that plaintiff's objections are improper. Relevant evidence is not limited to the workplace. How conditions in the workplace affected plaintiff outside the workplace is a proper subject of discovery. Plaintiff's husband is very likely to have relevant observations about plaintiff's claims, particularly her claim of mental anguish in the form of loss of sleep, loss of appetite and feelings of worthlessness. Such testimony would not be subject to any claim of privilege, even assuming marital privilege applies to this situation.
The court is not satisfied that a marital privilege exists in a federal civil action under the law of the Eighth Circuit. The parties acknowledge that no Eighth Circuit decision has recognized a marital privilege in a civil case, indicating to the court that such a privilege is not applicable. The court further notes that plaintiff has brought a claim under the North Dakota Human Rights Act. The application of privileges to a claim in federal court that is governed by state law are determined in accordance with state law. F.R. Evid. 501. Under North Dakota law, the marital privilege is available only in criminal actions. N.D.R. Evid. 504(b). Therefore, no privilege is available at least for the state law claim, and Mr. Bjerke may not refuse to give deposition testimony on that ground. (1)
The court now turns to the documents subpoenaed from Mr. Bjerke. Apparently defendant has already requested plaintiff's personnel file from Mr. Bjerke's business and was told there was no such file. Subpoenaing it from Mr. Bjerke is duplicative and an annoyance. Defendant may ask Mr. Bjerke during the deposition to confirm that his business has no personnel records on plaintiff, but the court will not require Mr. Bjerke to respond to this portion of the subpoena.
Defendant has also subpoenaed "all employee records" from Mr. Bjerke's business, apparently in an effort to determine the value of time contributed by plaintiff to her husband's business. The court finds the request is unduly burdensome as well as inordinately intrusive and overly broad, particularly considering the lack of significance of the issue to which the records may relate. The subpoena will not be enforced with respect to the demand for production of employee records.
Finally, the subpoena seeks Mr. Bjerke's income tax returns from 1992 through 1998. Defendant seeks these joint tax returns from Mr. Bjerke because of its lack of success in acquiring them from plaintiff. The court notes that it has now ordered plaintiff to produce these tax returns, which makes the subpoena of them from Mr. Bjerke superfluous. In addition, even though plaintiff and her husband filed joint tax returns, it is not Mr. Bjerke's tax records that are relevant here; only plaintiff's are. Since the court has ordered plaintiff to provide her tax returns, the subpoena will not be enforced with respect to production of tax returns.
Plaintiff's motion for protective order is granted as to the documents listed in the subpoena served on Wayne Bjerke but denied as to the deposition of Mr. Bjerke. Since the court finds defendant should be allowed to depose Mr. Bjerke, the portion of the motion seeking an order quashing the subpoena is denied.
Plaintiff also seeks an award of attorney's fees and costs incurred in bringing the motion for protective order and to quash subpoena. As defendant did, plaintiff calls the request one for "sanctions." Since the court has granted the relief sought only with respect to the demand for production of documents, but not with respect to the deposition testimony, the request for an award of fees and costs is denied.
On a related matter, plaintiff moved to strike the affidavit of Adele Hedley Page, defendant's counsel, which was submitted by defendant along with its brief opposing the motion for protective order and to quash subpoena. The affidavit did improperly recite factual material from a deposition, but apparently that was because the deposition transcript was not yet available, and defendant later substituted the affidavit with a supplemental affidavit with attached pages from the deposition transcript. Therefore, there is no need to clutter up the record with an order striking the initial affidavit. The motion to strike is denied.
Finally, the court has not yet ruled on a motion by plaintiff for leave to file a reply brief. Ordinarily these motions are considered at the time they are submitted, but since plaintiff did not submit a proposed order, the matter did not immediately come to the court's attention. The court has already granted a request by defendant to reply to plaintiff's reply brief, so it is appropriate to allow the filing of plaintiff's reply brief. Had the court realized that defendant's brief was the fourth brief on this motion, at least that brief, if not plaintiff's as well, would have been disallowed. All of the discovery matters in this case have had multiple rounds of briefing, with little assistance to the court beyond the first round. This seems to be a case of playing tag between counsel to prevent the other side from getting in the last word.
4. Defendant's Motions to Extend Dispositive Motion Deadline and to Respond to Plaintiff's Summary Judgment Motion
The deadline for filing dispositive motions in this case is February 10, 2000. Plaintiff filed a motion for summary judgment on January 26. Defendant has requested an extension of time to file its response to plaintiff's motion and to file its own motion until eight weeks following the court's ruling on the discovery motions. It appears from defendant's brief that most of the additional time would be needed to complete an independent medical examination and obtain a report from the expert. Since the court has denied defendant's Rule 35 motion for examination, defendant should need less time than requested. The court assumes defendant should be able to obtain plaintiff's tax returns and depose her husband within four weeks. Therefore, the court grants an extension of four weeks beyond the present deadline for defendant to file dispositive motions and to respond to plaintiff's summary judgment motion. The new deadline is March 10, 2000. The final pretrial conference and trial dates will remain as originally set.
IT IS ORDERED:
1. Defendant's motion for Rule 35 examination of plaintiff (doc. # 24) is denied, as is its request for an extension of time to provide expert witness reports, its request for oral argument on the motion, and its alternative request for an order precluding plaintiff from introducing any evidence of emotional distress at trial.
2. Defendant's motion to compel production of plaintiff's income tax returns (doc. # 19) is granted for the years 1992 through 1998. Plaintiff shall immediately produce the returns. Defendant's request for an award of attorney's fees and costs on the motion and for oral argument on the motion are denied.
3. Plaintiff's motion for protective order and to quash subpoena (doc. # 26) is granted in part and denied in part. The motion is granted as to the documents listed in the subpoena served on Wayne Bjerke, but denied as to deposition testimony by Wayne Bjerke. Plaintiff's motion to strike the affidavit of Adele Hedley Page and for an award of attorney's fees and costs on the motion are denied. Plaintiff's motion for leave to file a reply brief on the motion is granted.
4. Defendant's motions for extension of time to file dispositive motions (doc. # 48) and to respond to plaintiff's summary judgment motion (doc. # 56) are granted in part. Defendant shall have until March 10, 2000 to file dispositive motions and to respond to plaintiff's summary judgment motion.
Dated: February 1, 2000.
Karen K. Klein
United States Magistrate Judge
1. The court notes that even if the privilege were available in this case, the witness should appear for the deposition and affirmatively assert the privilege in response to questions that inquire into confidential communications. The application of a privilege does not excuse a witness from appearing.