United States District Court, D. South Carolina, Orangeburg Division
John S. Garrett, Plaintiff,
Melvin Bromell, Jr., individually and as Employee Agent of Heritage Hauling, Inc., Heritage Hauling, Inc., Alexis Winburn, individually and as Employee Agent of Travelers Indemnity Company of Connecticut, Travelers Indemnity Company of Connecticut, Defendants.
matter is before the court for review of Plaintiff John S.
Garrett's (“Plaintiff”) Motion to Compel
Discovery Responses (“Motion to Compel”) filed on
June 15, 2018. (ECF No. 57.) After Defendant Travelers
Indemnity Company of Connecticut (“Defendant
Travelers”) responded to Plaintiff's Motion to
Compel on July 13, 2018 (ECF No. 61), the court conducted a
hearing by telephone regarding Plaintiff's Motion on
November 2, 2018. (ECF No. 67.)
the hearing, the court held Plaintiff's request for his
insurance claim file in abeyance because Defendant Travelers
agreed to examine the file in order to determine the specific
documents protected by the work-product doctrine. The court
ordered that non-protected documents, within the insurance
claim file, be produced by November 12, 2018. Additionally,
at a minimum, Defendant Travelers also agreed to explore
whether it possessed any policies regarding the recording of
telephone calls. As to remaining issues, the parties did not
agree fully about the discovery of (1) Defendant
Travelers' policies and procedures for monitoring and
retaining telephone calls; (2) Defendant Travelers'
training of claim adjusters in Orangeburg County, South
Carolina; (3) Defendant Travelers'
“roundtable” discussions, procedures, and
policies involving liability claims; and (4) Defendant Alexis
Winburn's (“Defendant Winburn”) employment
file. (ECF No. 57-1 at 5-8.) Defendant Travelers adamantly
objected to any discovery of the training for claim adjusters
and any roundtable discussions because of concerns involving
trade secrets and unfairness.
Rule 26(b)(1) of the Federal Rules of Civil Procedure:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). However, a party may not discover
“documents and tangible things that are prepared in
anticipation of litigation” unless “they are
otherwise discoverable under Rule 26(b)(1)” and the
moving party shows “that it has substantial need for
the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means.” Fed.R.Civ.P. 26(b)(3). A moving party may move
to compel discovery if the opposing party fails to make a
requested disclosure. Fed.R.Civ.P. 37(a). Generally, federal
district courts have “wide latitude in controlling
discovery and [their] rulings will not be overturned absent a
showing of clear abuse of discretion.” Ardrey v.
United Parcel Serv., 798 F.2d 679, 683 (4th Cir. 1986).
Plaintiff seeks to compel the production of Defendant
Travelers' “policies and procedures regarding the
monitoring and recording of phone calls made and received by
the claims department.” (ECF No. 57-1 at 8.) A disputed
fact in this case involves whether Defendant Winburn made
racial comments, which, depending upon company policy, may or
may not have been recorded. (Id. at 9-10.) Defendant
Travelers maintains, quite unequivocally, that an alleged
telephone call concerning Defendant Winburn does not exist
and was not recorded. (ECF No. 61 at 2-5.) Given that the
existence of such a call is relevant to Plaintiff's
discrimination claim, and Defendant Travelers admitted that
some calls “may be recorded” during the
hearing-while also denying the existence of a recording-the
court grants in part and denies in part Plaintiff's
Motion to Compel Defendant Travelers' policies and
procedures for monitoring and recording phone calls. See
generally Fisher v. Sw. Bell Tel. Co., No.
07-CV-433-CVE-FHM, 2009 WL 414040, at *2 (N.D. Okla. 2009)
(requiring the disclosure of company policy regarding unpaid
suspensions); Breon v. Coca-Cola Bottling Co. of New
England, 232 F.R.D. 49, 53 (D. Conn. 2005) (compelling
discovery of the internal hiring procedures of a company).
Defendant Travelers should only supply Plaintiff with the
company policies regarding the monitoring and recording of
phone calls during the time in which the alleged call took
Plaintiff seeks to discover Defendant Travelers'
“policies and procedures” for “claims
evaluation” and the “training of claims
adjusters” in Orangeburg County, South Carolina. (ECF
No. 57-1 at 9.) Defendant Travelers objects to this
disclosure, arguing that it is irrelevant to Plaintiff's
discrimination claim, overly broad, and seeks trade secrets.
(ECF No. 61 at 3-4.) Since Plaintiff's discrimination
claim invokes race, it is relevant if Defendant
Travelers' policies and procedure include racial
considerations or criteria. See generally Toy v. Am.
Family Mut. Ins. Co., No. 12-cv-01683-PAB-MJW, 2013 WL
3093641, at *2 (D. Colo. June 18, 2013); Kaufman v.
Nationwide Mut. Ins. Co., No. Civ. A. 97-1114, 1997 WL
703175, at *2 (E.D. Pa. Nov. 12, 1997). While Plaintiff's
request is certainly overbroad and burdensome, the request
certainly remains relevant. As such, Plaintiff's Motion
is granted in part and denied in part. Defendant Travelers is
required to only disclose those training policies and
procedures, including those in Orangeburg County, South
Carolina, in place during the relevant time period involving
Plaintiff requests the court to compel Defendant Travelers to
provide “policies and procedures regarding
‘roundtable' discussions of claims, including
information and documentation regarding . . . the underlying
claim.” (ECF No. 57-1 at 9.) During the telephone
hearing, Plaintiff argued that Defendant Travelers should at
least provide the names of individuals who participated in a
roundtable discussion involving his discrimination claim.
Defendant Travelers objects to the disclosure of any
roundtable discussions because they are supposedly trade
secrets, irrelevant to the action, and may reveal mental
impressions of a separate action in state court. (ECF No. 61
at 12-13.) Any discussions concerning the substance of the
separate tort action are irrelevant to Plaintiff's
discrimination claim and are not discoverable, which makes
Plaintiff's Motion overbroad in this regard. See
Fed. R. Civ. P. 26(b)(1). However, the policies and
procedures concerning roundtable discussions are relevant to
the extent they involve the use of race, particularly as
alleged by Plaintiff. (ECF No. 1.) While Defendant Travelers
is not required to disclose all of the conversations within
the roundtable discussions, Defendant Travelers must at least
provide a list of individuals who participated in the
roundtable discussions regarding Plaintiff's
discrimination claim and general policies and procedures
regarding roundtable discussions at the time. Thus,
Plaintiff's Motion is granted in part and denied in part
as it relates to the roundtable discussions.
in a discrimination action, personnel files are generally
discoverable, particularly when those files belong to an
employee involved in the underlying claim. See Moss v.
Blue Cross & Blue Shield of Kan., Inc., 241 F.R.D.
683, 698 (D. Kan. 2007) (“[A]n individual's
personnel file is relevant and/or reasonably calculated to
lead to the discovery of admissible evidence, and therefore
discoverable, if the individual is alleged to have engaged in
the . . . discrimination at issue or to have played an
important role in the decision or incident that gives rise to
the lawsuit.” (quoting Oglesby v. Hy-Vee,
Inc., No. 04-2440, 2005 WL 857036, at *1 (D. Kan. Apr.
13, 2005)). Additionally, if an employment file was
maintained during the course of Defendant Travelers'
business, it cannot be maintained that the employment file
was made “in anticipation of litigation” in an
attempt to avoid discovery. Fed.R.Civ.P. 26(b)(3). Defendant
Travelers' reliance upon Am. Modern Select Ins. Co.
v. Cain, No. 3:14-cv-2952-TLW, 2015 WL 11027031 (D.S.C.
July 24, 2015), is misplaced. Am. Modern involved
the scope of insurance coverage in a declaratory judgment
action and failed to implicate the discriminatory actions of
a specific employee. 2015 WL 11027031, at *1. Here, given
that Defendant Winburn is a party in this lawsuit and alleged
to have engaged in discrimination (see ECF No. 1-1
at 7-8), the court grants Plaintiffs Motion as it relates to
her employment file.
these reasons, the court GRANTS IN PART and
DENIES IN PART Plaintiffs Motion to Compel
(ECF No. 57.) Defendant Travelers must comply with this Order
on or before November 19, 2018.