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Seaman v. Duke University

United States District Court, M.D. North Carolina

March 21, 2018

DANIELLE SEAMAN, individually and on behalf of all others similarly situated, Plaintiffs,
v.
DUKE UNIVERSITY, et. al, Defendant.

          MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          Joe L Webster United States Magistrate Judge

         This matter is before the Court on Plaintiff Danielle Seaman's Motion to Compel Discovery, pocket Entry 198.) For the following reasons, the Court will GRANT IN PART and DENY IN PART Plaintiffs motion to compel and order Defendants to respond to Plaintiffs discovery requests as set forth below.

         I. BACKGROUND

         The Plaintiff Dr. Danielle M. Seaman ("Plaintiff) has been an Assistant Professor of Radiology at Duke University School of Medicine from 2011 to the present. (Pl's Second Am. Compl. ¶ 10 (hereinafter "Compl"), Docket Entry 109 at 5.) In 2015, Plaintiff inquired about a posted opening in the UNC radiology department. (Id., ¶ 56.) Via email, the UNC department head told her that he had confirmed that the deans at Duke and UNC had agreed not to permit lateral moves of faculty between Duke and UNC. (Id. ¶ 57.) Plaintiff alleges that the defendants, Duke University, Duke University Health Systems, Dr. William Roper, the University of North Carolina at Chapel Hill, the University of North Carolina School of Medicine, the University of North Carolina Health Care System, and Does 1-20, conspired and agreed that the Duke Defendants ("Duke") would not hire or attempt to hire faculty[1]employed by the UNC Defendants, and vice-versa.[2] (Id. ¶¶ 46-49.) Plaintiff alleges that the Defendants historically have had the no-hire agreement, but that the agreed-to hiring restraints were "tighten[ed] up" in 2012 following the Duke Defendants' attempt to recruit the UNC bone marrow transplant physician faculty. (Docs. Supp. Mot. Certify Class, Docket Entry 93 at 17; see also Compl. ¶ 59.) According to Plaintiff, the no-hire agreement suppressed compensation for the Defendants' faculty, physicians, nurses, and other skilled medical staff. (Compl. ¶¶ 62-68.)

         On August 22, 2016, the undersigned approved the parties' joint motion establishing a period for discovery. (See Joint 26(f) Report, Docket Entry 56; Docket Entry 57.) Fact discovery was to conclude sixty days from the Court's ruling on Plaintiffs motion for class certification. (Joint 26(f) Report at 3.) The joint report provided, "[r]eports required by Rule 26(a)(2)(B) and disclosures required by Rule 26(a)(2)(C) are due during the discovery period." (Id. at 5.) In early August, 2016, Plaintiff served her first set of interrogatories (Harvey Decl. ¶ 4, Docket Entry 66-1 at 2; id. Ex. B, Docket Entry 66-3) and first set of requests for production of documents (id. Ex. A, Docket Entry 66-2) on Defendants Duke University and Duke University Health Systems (collectively, "Duke"). After lengthy discussions, the parties agreed on search terms to utilize in searching electronically stored data ("ESI"). (See e.g., Id. ¶¶ 13-24; Flatley Deck ¶¶ 36-48, Mar. 17, 2017, Docket Entry 70; Defs.' Br. Opp. Mot. Compel, Docket Entry 203 at 6-7 & n.4; id. Ex. F, Docket Entry 203-6; Pl's Stipulation Withdrawal Pl's First Mot. Compel, Docket Entry 73.)

         In the motion at issue, Plaintiff moves the Court to compel Duke to produce additional documents and ESI. On June 13, 2017, Plaintiff asked Duke to search the ESI of additional custodians[3]-individuals who had been members of the Duke President's cabinet-from 1993 to the present. (Shaver Decl. ¶ 9, Docket Entry 200; Defs.' Br. Opp. Mot. Compel Ex. E, Docket Entry 203-5 at 5-6.) Duke agreed in part[4], but objected to the bulk of Plaintiffs request as overbroad, unduly burdensome, and not proportional to the needs of the case. (Defs.' Br. Opp. Mot. Compel Ex. E, Docket Entry 203-5 at 5.) In a letter dated January 22, 2018, Plaintiff renewed her request and named seventeen specific custodians that had been members of the cabinet during that time period. (Shaver Decl. ¶ 9.) Duke again objected on January 26, 2018. (Id.)

         Plaintiffs second request is for a complete response to her Interrogatory 11. On November 29, 2017, Plaintiff served her second set of interrogatories and second set of requests for production of documents on Duke. (Shaver Decl. ¶ 10.) In pertinent part, Interrogatory 11 asked Duke to identify meetings and communications between the present and former deans of UNC's medical school and Duke's present and former Chancellors for Health Affairs. (Id. Ex. F ¶ 11, Docket Entry 200-6 at 12-13.) Plaintiff also asked Duke to produce documents relating or referring to such meetings. (Id. Ex. G ¶¶ 46-50, Docket Entry 200-7 at 5-9.) Duke served its responses on December 29, 2017, objecting, generally, that Plaintiffs interrogatories were "vague, ambiguous, confusing, burdensome, harassing, redundant, and/or [sought] to impose duties or responsibilities upon [Duke] beyond those imposed by the Federal Rules of Civil Procedure." (Id. ¶ 10; id. Ex. G ¶ 1, Docket Entry 200-7 at 1-2.) Specifically, with respect to Interrogatory 11, Duke objected "on the grounds that it is misleading . . . cumulative . . . overbroad and unduly burdensome therefore not proportional to the needs of the case." (Id. Ex. F ¶ 11, Docket Entry 200-7 at 13.) On January 17, 2017, Plaintiff notified Duke that its responses were deficient. (Id. ¶ 11.) By letter dated February 12, 2017, Duke confirmed that it would not further respond to Interrogatory 11. (Id.)

         Plaintiffs third request is for information regarding Duke Expert Witness Dr. Pierre-Yves Cremieux's compensation for his services. Dr. Cremieux's report, filed October 23, 2017, disclosed an hourly rate. (Cremieux Report ¶ 5, Docket Entry 123 at 5.) At his deposition, Dr. Cremieux explained that this rate was paid to Analysis Group, the consulting firm by which he is employed; he refused to disclose his own compensation from Analysis Group, . (Pl's Br. Supp. Mot. Compel at 11 (citing Shaver Decl. Ex. B, Docket Entry 200-2 at 41:12-16).) In a November 3, 2017 letter, Plaintiff asked Duke to provide this information, and set forth her argument and relevant authority explaining why such information was required by Federal Rules of Civil Procedure. (Shaver Decl. ¶ 12.) On November 9, 2017, Duke stated that it would not provide the requested information (id), and objected that the information was not relevant and the request was overbroad (Defs.' Br. Opp. Mot. Compel Ex. I, Docket Entry 203-9 at 4).

         On February 13, 2018, Plaintiff informed Duke that the parties had reached an impasse as to these three requests; in a letter dated February 17, 2018 Duke again stated its opposition to each request. (Id. ¶¶ 9, 11, 12.) Duke invited Plaintiff to meet and confer if she had new grounds for her request for additional information and documents in response to Interrogatory 11 beyond those already provided. (Defs.' Br. Opp. Mot. Compel Ex. I, Docket Entry 203-9 at 3.) Duke also invited Plaintiff to meet and confer to discuss the basis of her request for Dr. Cremieux's compensation and to entertain a more moderate request. (Id. at 4; Shaver Decl. ¶¶11-12.)

         Between November, 2016 and March, 2017, Duke located and produced more than five million documents composed of ESI and hard-copy data from more than eighty-five custodians. (Flatley Decl. ¶¶ 14 & 21, Mar. 1, 2018, Docket Entry 204 at 5.) On February 1, 2018, the Court granted Plaintiffs motion for certification of a litigation class. (Docket Entry 189.) Fact Discovery thus concludes on April 2, 2018. (See Joint 26(f) Report, Docket Entry 56; Docket Entry 57.)

         II. DISCUSSION

         "The purpose of discovery is to provide a mechanism for making relevant information available to the litigants." Fed.R.Civ.P. 26 advisory committee's note to 1983 amendment. Under the Federal Rules of Civil Procedure (the "Rules"), "[u]nless otherwise limited by court order, the scope of discovery is as follows: 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 . . . ." Fed.R.Civ.P. 26. Traditionally, the party opposing discovery bears the burden in a discovery dispute. See Htighes v. Research Triangle Inst., No. 1:11CV546, 2014 WL 4384078, at *2 (M.D. N.C. Sept. 3, 2014) (unpublished) (observing that "district judges and magistrate judges in the Fourth Circuit. . . have repeatedly ruled that the party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion" (citing Kinetic Concepts, Inc. v. ConvaTec Inc, 268 F.R.D. 226, 243-44 (M.D. N.C. 2010))).

         Plaintiff now moves the Court to compel Duke to provide or produce (1) additional documents and ESI; (2) a complete response to Interrogatory 11 and related documents; and (3) information relating to Duke's expert economist's compensation. (Pl's Br. Supp. Mot. Compel, Docket Entry 199 at 5-6.)

         1. Documents and ESI

         Under the Rules, any party may "serve on any other party a request... to produce and permit the requesting party or its representative to inspect, copy, test, or sample [designated documents or electronically stored information] in the responding party's possession, custody, or control." Fed.R.Civ.P. 34(a). "The party to whom the request is directed must respond in writing within 30 days after being served." Fed.R.Civ.P. 34(b)(2)(A). "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." Fed.R.Civ.P. 34(b)(2)(B).

         Here, Plaintiff first seeks additional documents and ESI. (Pl's Br. Supp. Mot. Compel at 5, 13-15.) Specifically, Plaintiff asks the Court to compel Duke to search, using previously agreed-to search terms, the documents and ESI of seventeen individuals who serve or served as Duke President ...


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