United States District Court, M.D. North Carolina
DANIELLE SEAMAN, individually and on behalf of all others similarly situated, Plaintiffs,
DUKE UNIVERSITY, et. al, Defendant.
MEMORANDUM OPINION AND ORDER OF UNITED STATES
Webster United States Magistrate Judge
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.
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
facultyemployed by the UNC Defendants, and
vice-versa. (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.)
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.)
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-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, 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.)
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.)
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).
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.)
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.)
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.
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.)
Documents and ESI
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.
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 ...