FORM 128. APPELLANT’S FORMAL BRIEF AND ADDENDUM (Cover) Case No. 0:15-jcv-0103532-RHR STATE OF MINNESOTA IN COURT OF APPEALS ABC INTERNATIONAL
Respondent, vs. Petitioner.
Respondent BRIEF AND ADDENDUM Attorney for Respondent By
(address, zip code, telephone number, and Attorney for Petitioner attorney registration license number). (address, zip code, telephone number, . and attorney registration license number)
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TABLE OF CONTENTS
Page
Table Authorities
Legal Issues
Statement of Facts
Argument
1. (Concise statement of each legal argument advanced)
2.
3.
Conclusion
ADDENDUM AND ITS INDEX
Order Denying Motion for New Trial and Memorandum
[SEE RCAP 130.02]
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TABLE OF AUTHORITIES
Statutes: The request for Production No. 4 should be denied based solely on F.R.C.P. 26(b)(3).
Minn. Stat. § 518.58 (2012)
Cases (list applicable authorities and page where argument found)
Lafate v. Vanguard Group, Inc., 2014 U.S. Dist., see e.g.; Safco Prods. Co. v. WelCom Prods., 730 F. Supp. 2d 959, 11(D. Minn., 2010). Pg. 5
Burns v. Hy-Vee, Inc., 2002 U.S. Dist. Lexis 23662 (D. Minn., November 21, 2002, Decided). Pg. 6
Taylor v. Southwestern Bell Telephone Co., 251 F.3d 735, 740 (8th Cir. 2001). Pg. 6
Kaufman v. W. Sugar Coop., Inc., 2007 U.S. Dist. LEXIS 64464 (D. Neb. Aug. 29, 2007). Pg. 7
Onwuka v. Federal Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997). Pg. 7
Haselhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10, 11 (D. Kan. 1995). Pg. 7
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351(6th Cir. 1998). Pg. 7
Mitchell v. Toledo Hosp., 964 F.2d. 577, 583 (6th Cir. 1992). Pg. 8
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). Pg. 8
Gehring v. Case Corp., 43 F.3d 340, 342-43 (7th Cir. 1994). Pg. 9 515 U.S. 1159, 132 L. Ed. 2d 855, 115 S. Ct.2612 (1995). Pg. 9
Carlson Cos., Inc. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1089 (D. Minn. 1974). Pg. 10
Jensen v. AstraZeneca, Civ. No. 02-4844, 6 (D. Minn. 2004). Pg. 10
Raddatz v. Standard Register Co., 177 F.R.D. 446 (D. Minn. 1997). Pg. 10
I. Trial court held: error to plaintiff request to motion to compel, Full and completed response to motion to compel to the following written request.
II. Onwuka v. Federal Express Corp., 178 F.R.D. 508 (D.C. Dist. Minn., 1997), United States v. Nobles, 422 U.S. 225, 239, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975)), Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.1995), ”); Phillips Electronics, Inc. v. ______, 892 F.Suup. 108, 110 (D. Del. 1995), Roberts v. Air Capitol Plating, Inc., 1997 U.S. Dist LEXIS 11245, 1997 WL446266 at *6 (D.Kan.1997), Raddatz v. The Standard Register Co., 177 F.R.D. 446 (D.C. Dist. of Minn., 1997), Cardenas v. The Prudential Ins. Co., 2003 U.S. LEXIS 1825 (D.C. Dist. Of Minn. 2003), (Alabama v. United States, 304 F.2d 583, 586 (5th Cir.), aff’d 371 U.S. 37, 83 S. Ct. 145, 9 L. Ed. 2d 112 (1962)); National Org. for Women, Inc. (NOW), St. Paul Chapter v. Minnesota Mining & Mfg. Co., 73 F.R.D. 467, 472 (D. Minn. 1977), Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990), Willis v. ______, 1991 U.S. Dist. LEXIS 18520, 1991 WL 350036 at **3-4, ."); Welker v. SmithKline Beckman, 1989 U.S. Dist. LEXIS 12207, 1989 WL 121894 at *1 (E.D. Pa. Oct. 12, 1989), Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 91 L.Ed. 451 (1947), citing Burns v. Thiokol Chemical Corp.,483 F. 2nd 300 (5th Cir. 1973).
[List of most apposite cases]( I added there case should I have or do I add mine?)
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STATEMENT OF FACTS
The Plaintiffs are all Asian American females who worked at ABC’s loading docks. Two of the Plaintiffs had noted citations in their personnel file and were terminated from ABC due to the inability to perform the required expectations of the position. The other two Plaintiffs also had noted citations in their personnel files and separated their employment with ABC voluntarily. Though they have been employed with ABC International for years without any prior claims, all have alleged in this action that they were terminated and/or left their employment with ABC because of sexual and/or racial discrimination.
All working parties of ABC’s loading docks are held to the same standard of performance in regards to completing tasks and duties required by the dock position. The physical demands of the dock position can be trying on individuals at times, depending upon the orders being filled for ABC clients. At the time of hiring, employees are all given a written description of the expected physical demands of the position and are aware that maximum lifting and production rates expected of the position. Though, at the time of hiring, ABC International noted concern about the physical requirements being too much for the Plaintiffs’ to meet, Plaintiffs’ all assured ABC Int. that they would be able to fulfill the required expectations of a dock employee.
Through the first portion of their employment with ABC, the Plaintiffs’ performed work tasks to expectation. Issues about performance and work attitude developed over the several months prior to ending employment with the Plaintiffs’. As the client orders ABC received became larger both in volume and physical size, both the work attitude and performance of duties failed. Plaintiffs’ claims refusal to accept a demotion and a pay cut as the reason for employment terminations, yet have not provided one piece of evidence supporting these allegations as fact.
ABC International has articulated the legitimate business reasons for the terminations, those being, poor work performance, an inability to perform their required duties, as well as a poor work attitude, all which was documented over the course of several months.
ARGUMENT
I. Request for Production No. 4: is seeking information conflicting with the Work Product Doctrine.
Investigations into claims of discrimination (either racial or sexual) as well as allegations of harassment or hostile work environment are not a part of regular business duties for ABC’s Human Resources department and management, and so ABC International consulted with counsel at the rise of all complaints made and throughout all matters that resulted in investigations pertaining to the alleged issues presented by the Plaintiffs. With direction from counsel throughout all internal investigations, ABC interviewed, took notes, collected statements and collected other documents that pertained to the complaint. ABC’s communication with counsel and counsel’s direction to hold an investigation shows “anticipation of litigation”. It is clearly shown by ABC’s decision to keep communications with counsel throughout all the investigations, ABC predicted future litigation. " The Supreme Court has recognized that work product covers written materials obtained or prepared by counsel with an eye toward litigation, including "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs." See Lafate v. Vanguard Group, Inc., 2014 U.S. Dist., see e.g.; Safco Prods. Co. v. WelCom Prods., 730 F. Supp. 2d 959, 11(D. Minn., 2010) (“where a supervising manager documented various actions by a disgruntled employee, and at the time the employer anticipated the employee would litigate his grievances, the documents were within the scope of the work product doctrine”). In Plaintiffs argument for RFP No. 4, they cited Burns v. Hy-Vee, Inc., 2002 U.S. Dist. Lexis 23662 (D. Minn., November 21, 2002, Decided). In subsequent history of this case, “the employer’s motion for summary judgment was granted. The employee’s complaint was dismissed with prejudice.” Burns v. Hy-Vee, Inc. 2003 U.S. Dist. Lexis 9518 (D. Minn., May 23, 2003, Decided). The court questioned multiple claims in Burns v. Hy-vee, including establishing prima facie in discrimination cases. The court held that to make a prima facie case of discrimination, a party must show that: (1) he was a member of a protected group; (2) he performed his job at a level that met legitimate expectations; (3) he suffered an adverse employment action; and (3) the facts permit an inference of discrimination. Taylor v. Southwestern Bell Telephone Co., 251 F.3d 735, 740 (8th Cir. 2001). Here, ABC International has documentation in file on each of the Plaintiffs’ addressing inability of performing their job with legitimate expectation. In discrimination claims, establishing prima facie prior to the exchange of discovery is within reasonable expectation. Plaintiff has not truly met the burden to establish prima facie and ABC International believes it is unforeseeable that they will be able to. The request for Production No. 4 should be denied based solely on F.R.C.P. 26(b)(3).
II. Request for Production No. 5: is seeking information which intrudes upon the privacy interests of other non-party employees. It also fails to meet the “similarly situated” criteria required.
Even where company records are shown to be relevant, Courts have been reluctant to permit discovery, when the requested disclosures would intrude upon the privacy interests of other, non-party employees. As a consequence, a party seeking the discovery of personnel information must demonstrate, “notwithstanding the breadth of discovery, that the value of the information sought would outweigh the privacy interests of the affected individuals.” Kaufman v. W. Sugar Coop., Inc., 2007 U.S. Dist. LEXIS 64464 (D. Neb. Aug. 29, 2007). Citing Onwuka v. Federal Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997). Even where company records are shown to be relevant, courts have been hesitant to permit discovery when the requested disclosures would intrude upon the privacy of non-party employees. Discovery in employee discrimination cases, have been limited to information about employees in the same department or office absent a showing of a more particularized need for, and the likely relevance of, broader information. See, e.g., Haselhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10, 11 (D. Kan. 1995) (limiting discovery to plaintiff’s “employing unit”).
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The expectations by the courts has been that for an employee to be considered comparable or “similarly situated” to the Plaintiff, “the plaintiff and employee must be similar in ‘all of the relevant aspects.’ “See, e.g., Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351(6th Cir. 1998). The courts held in Mitchell v. Toledo Hosp., 964 F.2d. 577, 583 (6th Cir. 1992), (“In the context of an allegation of disciplinary discrimination, the comparable to be similarly situated “must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.”); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) ("to meet her burden of demonstrating that another employee is "similarly situated," a plaintiff must show that there is someone who is directly comparable to her in all material respects"). The court held that the plaintiff failed to show that the value of the information outweighs the privacy rights of the non-party and denied motion to compel. The court held portions of the pertinent personnel files that are clearly relevant to the plaintiff’s claims are open for disclosure.
The expectations by the courts has been that for an employee to be considered comparable or “similarly situated” to the Plaintiff, “the plaintiff and employee must be similar in ‘all of the relevant aspects.’ “See, e.g., Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351(6th Cir. 1998). The courts held in Mitchell v. Toledo Hosp., 964 F.2d. 577, 583 (6th Cir. 1992), (“In the context of an allegation of disciplinary discrimination, the comparable to be similarly situated “must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.”); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) ("to meet her burden of demonstrating that another employee is "similarly situated," a plaintiff must show that there is someone who is directly comparable to her in all material respects"). Plaintiff here, has requested personal information on a number of ABC employees holding a variety of positions, but has failed to make any showing that (i) the requested information meets the requirement of relating to “similarly situated” individuals or (ii) they have a particular need to intrude on the privacy interests of non-party individuals for these specific files. Nor is there any foreseeable way they have the means to make any showing. Therefore, we object to Production No. 5.
III. Interrogatory No. 5: is making requests that are Overly Burdensome, Too Broad in Timeframe and Intrude in Privacy Interests of Non-party Persons.
Even where company records are shown to be relevant, Courts have been reluctant to permit discovery, when the requested disclosures would intrude upon the privacy interests of other, non-party employees. These Courts have concluded that the personnel files of an entire class of employees should not be produced, even in an employment discrimination proceeding, absent a compelling showing of relevance. See, e.g., Gehring v. Case Corp., 43 F.3d 340, 342-43 (7th Cir. 1994). (Privacy interests was proper basis upon which to disallow counsel from "rooting through the personnel files."), cert. denied 515 U.S. 1159, 132 L. Ed. 2d 855, 115 S. Ct.2612 (1995). Plaintiff, in seeking the discovery of the entire class of ABC Corporation dock employees both past and present, must demonstrate the relevance of this request and that its value outweighs the burdens and privacy concerns of the non-party, third party individuals. See e.g., Carlson Cos., Inc. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1089 (D. Minn. 1974) (“… despite the liberality of discovery, we will remain reluctant to allow any party to "roam in the shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so"). As a consequence, a party seeking the discovery of personnel information must demonstrate, notwithstanding the breadth of discovery, that the value of the information sought would outweigh the privacy interests of the affected individuals. See Whittingham v. Amherst Coll., 164 F.R.D. at 127-28.
Several courts have limited the time frame of discovery in discrimination cases to a more reasonable time frame. Plaintiffs request for information from January 1, 2006, and the present date, is beyond a reasonable time frame. See e.g., Jensen v. AstraZeneca, Civ. No. 02-4844, 6 (D. Minn. 2004) (However, discovery of information related to prior claims of discrimination is properly limited to the employment practices and classes at issue in the particular case, the facility and people implicated in the allegations, and to a reasonable time period around the alleged discriminatory action). “(W)e are troubled by the expansive time parameters of the Plaintiff’s requested discovery…… requiring the Defendant to produce documents and information which span more than ten years. We agree with those courts that, in employment discrimination cases, having placed reasonable limits upon the time periods for which discovery responses must be produced (discovery allowed for period of two years from date of alleged discrimination)” Raddatz v. Standard Register Co., 177 F.R.D. 446 (D. Minn. 1997). The extended time frame, along with vast, sweeping requests for private personnel information makes this request beyond a reasonable time frame, over burdensome and an intrusion of non-party personnel due to privacy. (“…relevancy, however, necessarily diminishes as the time between the plaintiff's discipline, and that imposed upon a co-employee, increases. Moreover, is the fact that the inquiry infringes upon the privacy interests of third-parties… and the sweeping requests for personnel files, have been received by the Courts with mounting disfavor…”), see Onwuka at 29. We object to Interrogatory No. 5 based upon it being overly burdensome, too broad in time frame and infringing upon the privacy rights of non-parties.
CONCLUSION
Though discovery is liberal in scope, there are boundaries and thresholds to be met before requests for discovery are allowed to be completely open without regard for privacy, relevancy, or confidentiality. Plaintiffs’ Motion to Compel Written Discovery Requests seeks information that requires Prima Facie to be established, is protected by the Work Product Doctrine, intrudes upon the privacy interests of non-party employees, is overly burdensome, and too broad in time frame. For the foregoing reasons, ABC International respectfully requests the Court to deny the order compelling the Defendant, to comply with the Written Discovery Requests made by the Plaintiff’s.
Respectfully submitted,
By
Attorney for Appellant
(address, zip code, telephone number, and attorney registration license number)
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ADDENDUM AND INDEX
( Is this where I add the Petitioner Brief or there Appellant for my response if I had it, I looked up the definition and dropped it below for the rules that need to be done for this, Endless I should have just added the their opposition.)
130.02Addendum
(a) Contents. Appellant must prepare an addendum and file it with the opening brief or petition. The addendum must include:
(1) a copy of any order, judgment, findings, or trial court memorandum in the action directly relating to or affecting the issues on appeal;
(2) any agreed statement of the record; and
(3) if the constitutionality of a statute is challenged, proof of compliance with Rule 144.
(b) Length. The addendum must not exceed 50 pages excluding the orders and judgments or other materials required by section (a) of this rule or included pursuant to Rule 128.04. The addendum must be incorporated into the back of the brief, unless it includes a long trial court decision, in which event it may be bound separately.
(c) Respondent's Addendum. The respondent's brief or response to a petition may include an addendum not to exceed 50 pages, which must be incorporated into the back of the brief. If the addendum filed by the appellant omits any material required by section (a) of this rule or pursuant to Rule 128.04, the respondent may include it in the respondent's addendum in addition to the 50 pages otherwise allowed.
(d) Other Addenda. Any addendum required other than with a formal brief shall also comply with the requirements of this rule.
(e) Non-Duplication. A party may not include an addendum any material included in any other party's previously filed addendum.
(Amended effective for appeals taken on or after January 1, 1992; amended effective July 1, 2014.)
Full and completed response to motion to compel to the following written request
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[ 1 ]. The court held that the plaintiff failed to show that the value of the information outweighs the privacy rights of the non-party and denied motion to compel.
[ 2 ]. The court held portions of the pertinent personnel files that are clearly relevant to the plaintiff’s claims are open for disclosure.
