In Berry v. Town of Front Royal, Virginia, No. 5:21-cv-00001 (W.D. Va. Oct., 20, 2021), Virginia Magistrate Judge Joel C. Hoppe granted the plaintiff’s motion to compel, rejecting the defendant’s challenge of the relevance of the requested information by noting (among other things) that the defendant’s HR director testified that she investigated a dozen allegations of harassment, which refuted the defendant’s assertion that the plaintiff’s harassment claim was the only harassment charge covered by the plaintiff’s requests.

Case Background

In this discrimination and retaliation case involving termination of the plaintiff after she made a sexual harassment claim, the discovery dispute concerned two requests for production issued by the plaintiff:

• All documents submitted by Defendant to, or received by Defendant from, any governmental entity, including without limitation the EEOC and/or the Department of Labor, in connection with claims of discrimination by any employee or applicant to become an employee of Defendant based on sex, including sexual harassment, or retaliation from January 1, 2016 through the date on which you respond to this request.
• To the extent not produced in response to any other request, any and all documents reflecting or referring to each and every charge, lawsuit, or administrative complaint of sex discrimination, including sexual harassment, or retaliation that has been made or filed within the past five years by any current or former employee of Defendant.

The defendant responded to the requests with identical “proportionality” objections, asserting that the amount in controversy did not justify the expense required to produce such documents, that the requests sought documents unrelated to the claims, that the burden of producing the documents outweighed their likely benefit, and that the information is confidential and protected from disclosure by state and federal law.  The plaintiff ultimately narrowed the timeframe to January 1, 2017 through December 31, 2020 and limited the scope of the first request to only documents submitted to or received from the EEOC, but the defendant continued to object, leading to the motion to compel.

In the motion to compel, the plaintiff asserted that all proportionality factors weighed in her favor based on the importance of the issues at stake, the information asymmetry between the parties, and the minimal burden and expense of production. She also argued that the protective order entered in the case mitigated any confidentiality concerns and contended that the documents sought were relevant and highly probative of discriminatory or retaliatory intent, defendant’s enforcement of its sexual harassment policies, and defendant’s handling of investigations into allegations of sexual harassment.

In its response brief, the defendant did not assert objections as to proportionality and confidentiality, instead arguing that the requested discovery was not relevant, contending that during the period covered by the Requests, only one other charge of sexual harassment was reported and that it was factually dissimilar to the plaintiff’s allegations and not relevant.

Judge’s Ruling

Noting that “Defendant, as the party resisting discovery, bears the burden of persuasion regarding its objections”, Judge Hoppe stated: “In its response, Defendant did not argue that the requested discovery was not proportional to the case or that it was protected from discovery by confidentiality laws. Accordingly, the Court considers those arguments to be abandoned and limits its analysis to Defendant’s relevance objections.”

As for the defendant’s relevance objections, Judge Hoppe noted: “information may be discoverable even if it is not admissible as evidence” and also that “[i]n discrimination cases, courts have generally allowed discovery of other actions or proceedings against a defendant because ‘evidence of general patterns of discrimination by an employer is clearly relevant in an individual disparate treatment case, and is therefore discoverable pursuant to Fed. R. Civ. P. 26(b)(1).’”

Judge Hoppe also stated: “Here, Berry alleges a failure by Defendant to enforce its sexual harassment policies and properly investigate her claims of sexual harassment…While Defendant asserts that the Charge is the sole incident covered by the Requests, Plaintiff points to {defendant HR director} Bush’s deposition testimony as raising reasonable questions about that assertion…According to Berry, Bush testified that she investigated a dozen allegations of harassment, although the dates of the allegations were not provided. Information about other claims may provide relevant insight into Defendant’s enforcement of its sexual harassment policy and handling of investigations, depending on the particulars of those other claims.”

As a result, Judge Hoppe ruled that “Defendant has not carried its burden. The Court finds that the Requests are relevant to discerning Defendant’s enforcement of its sexual harassment policy, its handling of investigations into alleged sexual harassment, and whether it acted with discriminatory or retaliatory intent. As such, the Court will grant Berry’s motion to compel. All disclosures remain subject to the protective order previously entered in this case.”

So, what do you think?  Did the defendant “blow it” by not carrying it’s proportionality and confidentiality objections forward into its response?  Please share any comments you might have or if you’d like to know more about a particular topic.

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