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Murphy v. Kmart Corp.

December 27, 2008

DOUG MURPHY, PLAINTIFF,
v.
KMART CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge

ORDER ON PLAINTIFF'S MOTION TO COMPEL [DOCKET 57]

INTRODUCTION

This matter is before the court pursuant to plaintiff Doug Murphy's motion to compel Kmart Corporation to completely answer his first set of interrogatories and first request for production of documents. [Docket 57]. Mr. Murphy has represented to the court that he has made a good-faith effort to resolve this discovery dispute without the court's intervention. Id.

Mr. Murphy's motion to compel was referred to this magistrate judge for resolution pursuant to Chief Judge Karen E. Schreier's order dated November 3, 2008. See Docket 94.

FACTS AND PROCEDURAL HISTORY

The court will limit the following recitation to those facts relevant to this discovery dispute. Mr. Murphy brought suit in this court against Kmart Corporation ("Kmart"),*fn1 alleging one count of age discrimination and one count of intentional infliction of emotional distress stemming from the loss of his employment as a Kmart store manager on November 15, 2005.*fn2 Id. Mr. Murphy had been employed at Kmart for approximately thirty years, from May 1975 to October or November 2005,*fn3 and, at the time his employment was terminated, was a store manager at the Rapid City Kmart location. Id. Mr. Murphy alleges that his supervisor, Kmart district manager Jerry Rudrude, constructively discharged Mr. Murphy by creating intolerable working conditions designed to force Mr. Murphy to resign. Id. Mr. Murphy alleges that Mr. Rudrude subjected him "to open criticism and verbal abuse before subordinates," gave him "poor-performance appraisals that were unwarranted," subjected him "to a disciplinary proceeding which was unwarranted," and required him "to meet heightened performance standards." Id. Mr. Murphy claims that Kmart knew or should have known of the harassment, yet failed to take prompt remedial action, and that Kmart willfully and intentionally discriminated against Mr. Murphy on the basis of age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Id. Mr. Murphy also claims that he suffered severe emotional distress as a result of the deliberate actions of Kmart and Mr. Rudrude. Id. Mr. Murphy seeks to recover liquidated damages, compensatory damages, punitive damages, attorney's fees, costs, and front pay or, if appropriate, reinstatement of employment with retroactive restoration of benefits. Id.

Kmart denies Mr. Murphy's claims in their entirety and asserts numerous defenses. See Docket 8. Kmart moves to dismiss the complaint on the ground that Mr. Murphy failed to state a claim upon which relief may be granted and failed to comply with the applicable statute of limitations. Id. Kmart also argues that Mr. Murphy's claims are barred or limited by the doctrines of waiver, estoppel, accord and satisfaction, ratification, laches and/or presumption and by the exclusivity provisions of the South Dakota Worker's Compensation Act. Id. Kmart alleges that it acted in good faith based upon reasonably necessary business concerns and that Mr. Murphy's misconduct would have resulted in his termination. Id. Kmart maintains that, if Mr. Murphy suffered damages, those damages were the result of his own intentional or negligent acts or omissions. Id. Kmart also charges Mr. Murphy with failing to mitigate his damages, failing to pursue the preventative and corrective opportunities offered by Kmart, and failing to comply with jurisdictional, procedural, and administrative prerequisites for filing his complaint. Id.

On March 25, 2008, Mr. Murphy served Kmart with his first set of interrogatories and first request for production of documents. See Docket 57. Relevant to this discovery dispute are interrogatory number18,*fn4 interrogatory number 23,*fn5 and request for production number 15.*fn6 Id. On or about April 29, 2008, Kmart served its responses to Mr. Murphy's discovery requests.*fn7 See Docket 57, Exhibit A. With respect to interrogatory numbers 18 and 23 and request for production number 15, Kmart stated that it was investigating Mr. Murphy's requests and would file a supplemental response thereafter. See Docket 57, Exhibits A & B. On or about July 14, 2008, Kmart served its first set of supplemental answers to Mr. Murphy's discovery requests.*fn8 See Docket 57, Exhibits C & D. With respect to interrogatory number 18, Kmart listed the charges of age discrimination filed against Kmart from January 1, 2003, to the present; however, Kmart limited its answer to lawsuits filed only in Kmart's District 917, the district in which Mr. Murphy worked. See Docket 57, Exhibit C. Kmart provided no supplemental answer to interrogatory number 23. See id. With respect to request for production number 15, Kmart referenced its supplemental response to interrogatory number 18, in which Kmart limited its answer to lawsuits filed in Kmart's District 917. See Docket 57, Exhibit D.

On or about September 28, 2008, Kmart served its second set of supplemental answers to Mr. Murphy's discovery requests. See Docket 57, Exhibit E. With respect to interrogatory number 18, Kmart stated that no other lawsuit alleging age discrimination, with the exception of Mr. Murphy's present suit and those previously listed, were filed against Kmart in District 917*fn9 from January 1, 2003, to the present. Id. With respect to interrogatory number 23, Kmart listed only the formal complaints of age discrimination referring or relating to Jerry Rudrude. Id. Kmart provided no additional supplemental response for request for production number 15.

On October 1, 2008, Mr. Murphy filed a motion to compel Kmart to completely answer interrogatory numbers 18 and 23 and request for production number 15. [Docket 57]. With respect to interrogatory number 18, Murphy moves the court to order Kmart to identify all charges, notices of intent to sue, and judicial complaints of age discrimination filed against Kmart from January 1, 2003, to the present, without limit to the place of filing. See Docket 59. For request for production number 15, Mr. Murphy moves the court to order Kmart to produce copies of all of the deposition and trial transcripts from the lawsuits and claims identified in interrogatory number 18, again without limit to the place of filing. Id. Finally, for interrogatory number 23, Mr. Murphy moves the court to order Kmart to identify all persons making any complaint, formal or informal, or raising any concern of age discrimination, retaliation, or inappropriate conduct by Jerry Rudrude. Id. Mr. Murphy requests that, if the court grants his motion to compel in whole or in part, the court would set a deadline by which Kmart must comply with the court's order and would allow Mr. Murphy 90 days*fn10 or some other reasonable period of time to complete discovery once Kmart has complied with the court's order. See Docket 96.

Kmart opposes Mr. Murphy's motion to compel on the following grounds:

(1) Mr. Murphy seeks discovery that is not relevant to his claims and will not lead to the discovery of admissible evidence in this case; (2) Mr. Murphy's motion to compel is untimely and in violation of the district court's scheduling order; and (3) Mr. Murphy's request for information regarding complaints made against Jerry Rudrude (interrogatory number 23) is moot as it has been resolved. See Docket 76. Kmart argues that Mr. Murphy should not be allowed to engage in a "nation-wide fishing expedition" "[w]ithout some specific allegations regarding employees outside District 917 who were involved in the circumstances of his departure from Kmart." Id.

DISCUSSION

A. Whether the Information Sought is Discoverable

1. Scope of Discovery Under Rule 26 Federal Rule of Civil Procedure 26(b)(1) sets forth the standard governing the scope of discovery in civil cases:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

See Fed. R. Civ. P. 26(b)(1).

The advisory committee's note to the 2000 amendments to Rule 26(b)(1) provide guidance on how courts should define the scope of discovery in a particular case:

Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of ...


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