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Scofield v. Fishback Financial Corp.

July 2, 2010


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



This matter comes before the court pursuant to Plaintiff Gary Scofield's motion seeking an order compelling defendants Fishback Financial Corporation and its subsidiary, First Bank & Trust, N.A., to respond to two of Mr. Scofield's discovery requests. [Docket No. 25]. Mr. Scofield also moves the court to order First Bank to reimburse him for the reasonable expenses and attorney's fees incurred in resolving the motion to compel. Id. Mr. Scofield represents that he has made a good faith but unsuccessful effort to resolve this matter without the court's intervention. Id. The defendants resist the motion. [Docket No. 35]. The district court, Chief Judge Karen E. Schreier, referred the motion to compel to this magistrate judge for resolution. [Docket No. 41].


The facts, insofar as they are pertinent to the present motion, are as follows. Prior to 2006, plaintiff Gary Scofield was employed as President of the First American Bank & Trust branch in Watertown, South Dakota. Around April, 2006, defendant First Bank & Trust, N.A. (a different entity with no previous banking presence in Watertown) acquired First American Bank & Trust, and Mr. Scofield was retained as branch president. First Bank & Trust ("First Bank") is a subsidiary of its parent corporation, Fishback Financial Corporation ("Fishback Financial").

On January 12, 2007, Mr. Scofield traveled to Brookings, South Dakota, to meet with Brian Thompson, his supervisor, and Jane DeBoer, Director of Human Resources for Fishback Financial. Mr. Scofield believed he was going to receive a performance evaluation. Instead, he was terminated. He believed his termination violated the Age Discrimination in Employment Act of 1967 ("AEDA"), in that his employer used his branch bank's financial performance as a pretext for firing him, but actually fired him due to his age. At the time he was terminated, Mr. Scofield was 62 years old.

After receiving a right to sue letter from the Equal Employment Opportunity Commission, Mr. Scofield filed suit against Fishback Financial and First Bank on April 14, 2008. Docket No. 1. The district court has jurisdiction over the parties and subject matter of the underlying action pursuant to 28 § U.S.C. 1331, and 29 U.S.C. § 621 and its subsequent amendments.

Mr. Scofield served the defendants with discovery requests on October 9, 2008. Docket No. 25-2. Mr. Scofield asserts that the defendants have continually refused to answer two of those discovery requests. Accordingly, on November 24, 2009, Mr. Scofield brought the present motion to compel. Docket No. 25. The defendants resist the motion. Docket No. 35.


A. 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:

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).

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 the action. The good-cause standard warranting broader discovery is meant to be flexible.

The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard. ... In each case, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.

Fed. R. Civ. P. 26(b)(1) advisory committee's note.

"Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy . . . encompass[es] 'any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.' "

E.E.O.C. v. Woodmen of the World Life Ins. Society, 2007 WL 1217919 at *1 (D. Neb. March 15, 2007) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The party seeking discovery must make a "threshold showing of relevance before production of information, which does not reasonably bear on the issues in the case, is required." Woodmen of the World, 2007 WL 1217919 at *1 (citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). "Mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case." Woodmen of the World, 2007 WL 1217919 at *1 (citing Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).

With the appropriate scope of discovery in mind, the court now turns to the two discovery requests which are the subject of Mr. Scofield's motion to compel, and considers the respective arguments of the parties for and against production of the information sought by Mr. Scofield.

B. Interrogatory No. 2

Interrogatory 2 requests that defendants: Identify each and every employee over the age of 40 that has been terminated by First Bank and Trust and Fishback Financial Corporation from January 1, 2006, to the present. For each such employee identified, state the following:

(a) The full name of the employee and his or ...

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