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Albritton v. Cvs Caremark Corporation

United States District Court, W.D. Kentucky, Paducah Division

July 30, 2015



LANNY KING, Magistrate Judge.

District Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for the resolution of all discovery disputes. (Docket # 24). After attempting to resolve the parties' discovery disputes without a motion, the Court granted Plaintiff leave to move for an order compelling discovery on April 16, 2015. (Docket # 31). Plaintiff moved the Court to compel discovery, Defendants responded, and Plaintiff replied. (Docket ## 34, 35, 36). The Court held oral argument concerning the motion on July 20, 2015. (Docket # 38). The motion is now ripe for the Court's consideration.

Plaintiff, a licensed pharmacist, brought this case and alleged age discrimination related to the termination of his employment. (Docket # 1). Plaintiff served the request to produce and interrogatories subject to his motion on April 22, 2014. (Docket # 34, p. 2). Over the course of approximately 15 months, Defendants provided some documents and answered interrogatories. Plaintiff, not satisfied with the completeness of the discovery, brought the instant motion after the parties attempted to resolve the dispute extra-judicially. (Docket # 34, pp. 3-5).

The Court grants Plaintiff's motion in part and denies the motion in part. Generally speaking, Plaintiff may discover information related to Defendants' employees who either worked in the same store as Plaintiff or both worked in the same operating district and held the same title. Plaintiff may not discover documents related to incorrectly filled prescriptions. The Court also denies some portions of Plaintiff's motion as moot, the parties having resolved the issues since briefing them and notified the Court during oral argument.

Requests for Production

The parties briefed their argument as to five aspects related to the discovery of documents: the scope of discovery based on relevant comparators, compensation information related to other employees, customer complaints, incorrect prescriptions (so called mis-fills), and privilege.[1] The Court will address these issues in turn.

The Court notes that once the party seeking discovery demonstrates an appearance of relevance, the party resisting the discovery bears "the burden to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure." Invesco Inst'l (N.A.), Inc. v. Paas, 244 F.R.D. 374, 380 (W.D. Ky. 2007) (citing Horizon Holdings, LLC v. Genmar Holdings, Inc., 209 F.R.D. 208, 211-12 (D. Kan. 2002)). To resist Plaintiff's discovery that appears relevant, Defendants "bear[] a heavy burden of demonstrating that disclosure will work a clearly defined and very serious injury." Id. (quoting Empire of Carolina, Inc. v. Mackle, 108 F.R.D. 323, 326 (S.D. Fla. 1985)).

I. Scope of Discovery-Relevant Comparators

Plaintiff argued that he sought documents related to all pharmacists within the same CVS operating district with the same managers who disciplined and terminated Plaintiff. (Docket # 34, p. 5). Defendants argued that only information related to pharmacists in the same role as Plaintiff, namely Pharmacists in Charge, who Defendants counseled for performance issues involving the same metrics ( i.e., internal performance statistics related to the store's overall performance) come within the scope of discovery. (Docket # 35, p. 10). Defendants stated that Plaintiff should only have discovery related to similarly situated employees and argues for applying the Sixth Circuit's Carey precedent to limit discovery. Id. (citing Carey v. Foley & Lardner LLP, 577 Fed.App'x 573, 581-82 (6th Cir. 2014)).

The Court finds Defendants' argument unavailing for several reasons. First, Carey did not involve a discovery dispute, but rather an appeal after the district court granted summary judgment. 577 Fed.App'x at 575. Second, Carey did not involve a termination, but rather a wage dispute after the plaintiff's retirement. Id. Third, the plaintiff in Carey testified to the unique nature of his legal practice within the firm, other partners never having done the same work, and therefore effectively argued that no other partner served as a relevant comparator. Id. at 580. Finally, the Carey court stated that the plaintiff did not establish his prima facie case of age discrimination because "there is no evidence in the record to support an inference that there is another partner who was similarly situated to [the plaintiff] in all relevant respects except age." Id. at 582.

In the instant case, Defendants seeks to block Plaintiff's access to documents related to other pharmacists, without which his case will fail for the same reason as Mr. Carey's. The scope of discovery includes nonprivileged matters admissible at trial or reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Discovery is inherently broader than admissible evidence. While the parties may argue at a later time if Plaintiff may admit certain documents to prove his case, to allow Defendants to define the bounds of discovery (as contrasted to admissibility) so narrowly would severely limit Plaintiff's ability to prove his claim. "A plaintiff in an ADEA [Age Discrimination in Employment Act, 29 U.S.C. ยง 621, et seq. ] case... should not be hamstrung by the district court in limiting his discovery." Sempier v. Johnson & Higgins, 45 F.3d 724, 734 (3d Cir. 1995).

Defendants further argued their point by citing to the Sixth Circuit's opinion in Laws for the proposition that comparator employees must have had the same supervisor, same standards for their position, and same conduct, without differentiating or mitigating factors. (Docket # 35, p. 10). The court in Laws, reviewing a grant of summary judgment, stated that those factors cited by Defendants are generally "all relevant considerations in cases alleging differential disciplinary action, '" but also acknowledged that they "may not be relevant in cases arising under different circumstances.'" Laws v. HealthSouth N. Ky. Rehab. Hosp. Ltd. P'ship, 508 Fed.App'x 404, 411 (6th Cir. 2012). Defendants believe that many of the individuals for whom Plaintiff seeks personal documents will not serve as relevant comparators. But the Court will not restrict discovery to Defendants' theory of the case. Defendants may argue for the exclusion of certain employees at trial or on a dispositive motion, but Plaintiff must have access to documents before that stage so he can present argument based on his theory of the case. Rule 26 states that "[r]elevant information need not be admissible at the trial." Fed.R.Civ.P. 26(b)(1). Arguing that Plaintiff cannot admit the evidence sought does not meet Defendants' burden to avoid discovery.

Plaintiff must "shoulder the burden of proving" the illegality of Defendants' employment practices and therefore "should not normally be denied the information necessary to establish that claim." Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991) (speaking in a Title VII, gender-discrimination context). Nonetheless, Rule 26 requires the Court to "limit the frequency or extent of discovery otherwise allowed, " if the Court determines the burden or expense is disproportionate to the benefit of the discovery. Fed.R.Civ.P. 26(b)(2)(C). While the Court should allow Plaintiff broad discovery, it possesses "wide discretion in balancing the needs and rights of" all parties. 925 F.2d at 906.

Based on the arguments of counsel, both in briefing and at oral argument, the Court finds documents related to other Pharmacists in Charge within the same operating district provide relevant evidence, for discovery purposes, because they performed the same basic functions in Defendants' operations and reported to the same managers in reasonably close geographical proximity. The Court also finds that the performance of all pharmacists in Plaintiff's store, number 6376, contributed to the metrics scores Defendants used to evaluate, and eventually decide to terminate, Plaintiff. As such, information about these employees provides relevant evidence. The Court finds the benefit of discovering this information outweighs the burden and expense.

The Court finds, based on the arguments before it, that Defendants did not evaluate the pharmacists at other stores, other than the Pharmacists in Charge, in a similar manner to Plaintiff. Moreover the performance of these pharmacists did not contribute to the metrics scores used to evaluate Plaintiff because they worked at different stores. Therefore, the benefit of discovering this information does not currently justify the burden and expense of production. The Court finds the link between this information and Defendants' decision to terminate Plaintiff tenuous. This remains true for both parties' theories of the case.[2]

Therefore, the Court limits Plaintiff's discovery to Pharmacists in Charge who worked in CVS's District 7 of Region 35 and all other pharmacists who worked at store number 6376. As to other employees of ...

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