311 F.R.D. 461
S.D. Ohio2015Background
- Plaintiff Teresa O’Malley, an LPN, worked for NaphCare at the Montgomery County Jail and was terminated in 2011; her third amended complaint alleges ADEA age discrimination, Ohio defamation, and wrongful discharge in violation of Ohio public policy.
- A NaphCare discharge summary stated O’Malley was nurse in charge when narcotics went missing; O’Malley contends that allegation is false and was a pretext for retaliation for raising safety concerns.
- The parties exchanged written discovery and identified numerous alleged deficiencies; the Court ordered meet-and-confer efforts and briefing on unresolved discovery disputes.
- O’Malley moved to compel production of various ESI, documents, and interrogatory answers; NaphCare cross-moved to compel supplementation of O’Malley’s discovery responses.
- The court found many requests relevant to O’Malley’s claims (including documents about missing narcotics, contracts with the jail, personnel files, terminations of similarly situated older employees, and certain interrogatory answers) and ordered supplementation; some issues were rendered moot by parties’ supplemental productions.
- The parties were ordered to complete all required supplemental discovery within 14 days; no fee award was imposed under Rule 37(a)(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of ESI searches (emails of specific custodians) | O’Malley argued NaphCare failed to search custodians and terms she identified | NaphCare said parties agreed limited search terms and it produced non-privileged results | Moot — NaphCare represented it produced non-privileged responsive emails |
| Privilege log production | O’Malley sought a privilege log for withheld documents | NaphCare produced a privilege log and update | Moot — log produced; no deficiencies asserted |
| Documents re: "missing narcotics" (Doc. Requests 6,7,8,9,11,12,64; Interrog.6) | O’Malley said narcotics/missing-pill evidence is central to termination and defamation claims | NaphCare argued it never claimed termination was for a missing pill and sought to limit relevance | Granted — court found requests relevant and ordered production/supplementation |
| Contracts with Montgomery County Jail (Doc. Req.16) | O’Malley sought contracts to show NaphCare’s medication responsibilities | NaphCare said jail had no role in termination decisions | Granted — relevant to show scope of NaphCare’s responsibility to administer meds |
| Personnel materials and diaries (Doc. Req.30,43) | O’Malley sought calendars/diaries and evaluations mentioning her to show contemporaneous comments | NaphCare searched and claimed none for ESI; equivocal production for evaluations | Partially granted — produce non-ESI materials from diaries; produce evaluations from termination date to Dec 2013 that mention O’Malley or state none exist |
| Discovery of terminations of other older employees (Doc. Req.68) | O’Malley argued “me too” evidence could show pattern or similarly situated treatment | NaphCare argued no class/pattern claim and such evidence is irrelevant | Granted — court allowed discovery into circumstances of listed terminations as potentially relevant |
| Whether excess interrogatories must be answered (Interrog.7–10) | O’Malley requested leave to have additional interrogatories answered | NaphCare objected that interrogatories exceeded Rule 33 limits | Court granted leave — ordered NaphCare to answer Interrogatories 7–10 |
| Defendant’s requests to compel supplementation (various Interrogatories and Doc. Requests) | N/A (NaphCare sought details: contacts, damages computation, employment/tax records, medical providers, social media, authorizations) | NaphCare argued O’Malley must provide detailed disclosures and authorizations per Rule 26 | Granted — court ordered O’Malley to supplement responses (contact info, damages amounts or ranges, post-termination employment details and W-2/tax returns, medical/provider info from 1/1/2009 onward, social media posts, signed auths) |
Key Cases Cited
- Jones v. St. Jude Med. S.C., 823 F. Supp. 2d 699 (S.D. Ohio 2011) (discusses admissibility and limits of “me too” evidence in employment discrimination contexts)