Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Durbin v. C&L Tiling Inc.

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

September 23, 2019

KRISTOPHER DURBIN, Plaintiff,
v.
C&L TILING INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          COLIN H. LINDSAY, MAGISTRATE JUDGE

         Before the Court are (1) a Motion to Compel Discovery Responses (DN 28) filed by Plaintiff, Kristopher Durbin (“Durbin”); (2) a Motion for Protective Order (DN 30) filed by Durbin and Durbin’s wife, Mary Jacqueline Durbin (“M. Durbin”); (3) a Joint Motion to File Documents Under Seal (DN 46) filed by both Durbin and Defendant C&L Tiling Inc. d/b/a Timewell Drainage Products and Services (“Timewell”); (4) a Second Motion to Compel Discovery Responses (DN 64) filed by Durbin; and (5) a Motion to File Documents Under Seal (DN 72) filed by Timewell. District Judge Rebecca Grady Jennings referred these motions to the undersigned for disposition. (DNs 34, 50, 69, 79.) All motions are fully-briefed and ripe for decision.

         For the reasons set forth below, Durbin’s Motions to Compel (DNs 28, 64) are GRANTED IN PART and DENIED IN PART, Durbin and M. Durbin’s Motion for Protective Order (DN 30) is GRANTED, the Parties’ Joint Motion to Seal (DN 46) is GRANTED, and Timewell’s Motion to Seal (DN 72) is GRANTED.

         I. BACKGROUND

         On May 2, 2018, Durbin filed a complaint against his employer, Timewell, in Jefferson Circuit Court asserting wage and hour, breach of contract, and unjust enrichment claims alleging that Timewell had improperly withheld certain commissions from Durbin. (DN 1-1, at PageID # 8-14.) Timewell removed the matter to this Court. (DN 1.) Timewell then terminated Durbin on May 17, 2018 (DN 28-1, at PageID # 255-56), and Durbin amended his complaint to add claims of fraud by misrepresentation and wrongful termination, as well as a request for punitive damages (DN 11).

         Regarding the withheld commissions, Durbin alleged that he worked for Timewell as an agricultural sales representative since 2010. (DN 28-1, at PageID # 254.) Durbin claimed that under the terms of a 2012 employment contract, he was to be paid “a commission percentage of his gross sales based on the gross margin level of the products he sold, ” which “ranged from 1.9% to 3.7% depending on the range of his total gross margin level.” (Id. at 254; DN 28-5.) In 2014, Timewell requested Durbin sign a new employment contract that would have changed how his commission was paid. (DN 28-1, at PageID # 254; DN 28-6.) Instead of being paid commission immediately, Timewell would pay Durbin 70% of his earned commission and only pay out the remaining 30% if Timewell’s “audited net ordinary income” exceeded a certain percentage as set forth in the contract. (DN 28-1, at PageID # 254-55; DN 28-6.) However, the 2014 contract did not define “audited net ordinary income.” (DN 28-1, at PageID #255 n.3; DN 28-6.) Durbin refused to sign the 2014 contract but alleged that Timewell withheld 30% of his commissions anyway. (DN 28-1, at PageID # 255.) While Durbin claimed the 2014 contract is unenforceable, he argued in the alternative that even under the 2014 contract, Timewell’s audited net ordinary income exceeded the threshold set forth in the contract such that he should have been paid his withheld commissions. (Id.)

         Regarding his termination, Durbin alleged that he was terminated for “poor performance” shortly after this case was filed. (Id.) Durbin claimed his “poor performance” was merely a pretext and that at the time he was terminated, numerous other Timewell sales representatives were performing at a similar, or worse, level to him. (Id. at 255-56.)

         Durbin propounded discovery to Timewell in September 2018. (Id.; DN 28-17, at PageID # 345.) Durbin claimed that Timewell’s responses (DN 28-18) are unsatisfactory in several respects. (DN 28-1.) Durbin and Timewell exchanged numerous communications regarding this dispute, including letters and e-mails, and even had a four hour telephonic conference on the subject. (Id. at PageID # 257-58.) However, the Parties were unable to resolve their dispute without the Court’s intervention, and Durbin filed two Motions to Compel related to Timewell’s discovery responses. (DNs 28, 64.)

         During a February 21, 2019 telephonic status conference with the Court, the Parties indicated there were additional exhibits they believed the Court should consider in ruling on Durbin’s first Motion to Compel (DN 28). (DN 43.) On March 21, 2019, the Parties jointly-tendered additional exhibits for the Court’s consideration (DNs 47, 48), some of which they sought leave to file under seal (DNs 46, 47). Timewell later filed another Motion to Seal (DN 72) to submit other documents purportedly pertinent to the Parties’ dispute.

         Durbin also served supplemental discovery requests on several issues. (DN 64-1, at PageID # 1375; DN 58-9.) Though Timewell initially agreed to produce certain documents in response, those documents were not produced prior to the filing of Timewell’s now pending Motion for Partial Summary Judgment (DN 54) and Motion for Partial Judgment on the Pleadings (DN 55). After a conference call with the Court (DN 63), Durbin filed an additional Motion to Compel (DN 64) related to those supplemental requests.

         Additionally, Timewell sought to subpoena certain information regarding M. Durbin from her current and former employers, Jefferson County Public Schools (“JCPS”) and the Summit School. (DN 30.) M. Durbin and Durbin filed a Motion for Protective Order asking the Court to limit discovery regarding M. Durbin’s employment to only discovery obtained from the Durbins directly. (Id.) The Durbins also requested that the Court quash Timewell’s subpoenas to JCPS and the Summit School. (Id.)

         The pending discovery motions (DNs 28, 30, 64) and motions to seal (DNs 46, 72) are now ripe for the Court’s consideration.

         II. DISCUSSION

         A. Durbin’s Motions to Compel (DNs 28, 64)

         Trial courts have wide discretion in dealing with discovery matters. See S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)). Fed.R.Civ.P. 26(b)(1) provides that “[p]arties 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(b)(1). This language is broadly construed by the federal courts to include “any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The scope of discovery is not without limits, however. In assessing whether information is within the scope of discovery, the Court is directed to consider “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 the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         Federal Rule of Civil Procedure 37 allows a party to move for an order compelling disclosure or discovery when “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents . . . as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(B)(iii), (iv). Under Rule 37, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). When an objection to relevance is raised, the party seeking discovery must demonstrate that the requests are relevant to the claims or defenses in the action. Anderson v. Dillard’s, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008). If that party demonstrates relevancy, the burden shifts to the party resisting discovery to demonstrate why the information or documents are not discoverable under the Federal Rules. Id.

         Durbin requested that the Court compel Timewell to provide “full and complete” responses” to Durbin’s Interrogatory Nos. 5, 6, and 15 and Request for Production Nos. 3-7, 9, 11, 15, 18(c)-(e), 20, 24, and 25. (DNs 28, 64.) Durbin initially also requested that the Court compel Timewell to provide a “full and complete” response to Interrogatory No. 6 but later indicated that a supplemental document production resolved that issue. (DN 31.) Therefore, Durbin’s Motion (DN 28) is DENIED AS MOOT as to Interrogatory No. 6. The Court will address the remaining discovery requests below.

         1. Request for Production Nos. 3-7, 9, and 11

         In Request for Production Nos. 3-7, 9, and 11, Durbin sought federal income tax returns (Request No. 3); interim financial statements, including balance sheets and income statements (Request No. 4); fixed asset depreciation schedules (Request No. 5); detailed general ledgers (Request No. 6); adjusting journal entries (Request No. 7); information regarding salaries and commissions paid to employees (Request No. 9); and accounting manuals/documents to describe accounting policies and procedures (Request No. 11) of Timewell and Timewell’s subsidiaries. (DN 28-17, at PageID # 337-39.) Timewell asserted multiple, identical objections to these Requests as follows:

OBJECTION: Defendant objects to this Request to the extent it seeks the release of confidential or proprietary information, the release of which would be injurious to Defendant and/or third parties in the absence of an adequate confidentiality agreement or protective order. Documents responsive to this request are being withheld on the basis of this objection.
OBJECTION: Defendant objects to this Request on the grounds that it seeks information that would be unduly burdensome to obtain and not proportional to the needs of the case. Documents responsive to this request are being withheld on the basis of this objection.
OBJECTION: Defendant objects to this Request on the grounds that the interrogatory [sic] does not seek information that is relevant to claims or defenses asserted in this action, nor is it reasonably calculated to lead to the discovery of admissible evidence. Documents responsive to this request are being withheld on the basis of this objection.

(DN 28-18, at PageID # 369-78.) Timewell also objected that certain terms contained within the Requests were “vague, ambiguous, imprecise” or “subject to multiple interpretations that are not properly defined or explained.” (Id.) Timewell only provided a response to Request No. 11, but the response simply stated that it would produce responsive documents after entry of a confidentiality agreement or protective order “sufficient to protect Defendant’s interest.” (Id. at 378.) Consistent with these objections, Timewell did not initially produce any responsive documents. (DN 28-1, at PageID # 257.) However, Timewell subsequently produced financial statements for 2014, 2015, 2016, and 2017; some journal entries and detailed general ledgers from 2016-2017; the relevant income goals for 2014-2017; and the reports of its external auditors for the same period. (DN 28-17, at PageID # 259; DN 31, at PageID # 475, 478; DN 35, at PageID # 531, 531 n.1; DN 40, at PageID # 654.)

         Durbin maintained that Timewell’s production is insufficient to enable him to assess its true audited net ordinary income in order to substantiate his claim that Timewell actually met its income goals under the 2014 contract and, as a result, wrongfully withheld his commissions. (DN 28-1, at PageID # 259-60.) He asserted that he has retained an expert to calculate Timewell’s net ordinary income and that his expert needs the financial documents requested in Request for Production Nos. 3-7, 9, and 11 to make that determination. (Id. at 260; DN 28-19; DN 28-20.) He attached a letter from his expert explaining the need for each particular category of documents requested. (DN 28-20.) Durbin also argued as to each Request that Timewell’s objections were general and failed to specifically state the grounds for its objection in violation of Fed.R.Civ.P. 34(b)(2).[1] (DN 28-1, at PageID # 260-65.)

         In response, Timewell maintained that Durbin was on a fishing expedition into its sensitive financial documents and had neither made allegations nor provided evidence that the income No. provided by Timewell were inaccurate. (DN 35, at PageID # 537.) Timewell relied on McArthur v. Rock Woodfired Pizza & Spirits, in support of its argument that Durbin’s requests were not proportional to the needs of the case. In McArthur, the United States District Court for the Western District of Washington granted a protective order as to a No. of requests for production and 30(b)(6) deposition topics that the court found were not proportional to the needs of the case. McArthur v. Rock Woodfired Pizza & Spirits, 318 F.R.D. 136, 139-141 (W.D. Wash. 2016). The court held that plaintiff’s requests for stock ledgers, stock certificates, shareholder agreements, balance sheets, profit and loss statements, cash flow statements, tax reports, and bank statements, among other documents requested, were not proportional to the needs of the case given that plaintiff alleged that “she was not provided adequate space or breaks for breast pumping after she had a baby, and that she was forced to work off the clock in order for her manager to keep labor costs low to earn certain bonuses.” Id. at 141-42. The court found that “the extensive financial information sought by [p]laintiff [wa]s not proportional to the needs of her case, particularly in light of her allegations about her personal work environment and managers, and that they pertain to one business location.” Id. at 142.

         McArthur is distinguishable and non-dispositive of the instant case. Unlike the plaintiff in McArthur, Durbin’s wage and hour claims stem from a contract that determined what commissions Durbin would receive by reference to Timewell’s “audited net ordinary income” yet failed to define the same. (DN 28-6.) Accordingly, Timewell’s audited net ordinary income is at the heart of Durbin’s claims and this litigation. Any documents that bear on establishing Timewell’s audited net ordinary income are, therefore, relevant and discoverable under Fed.R.Civ.P. 26.

         The Court likewise finds that Durbin’s requests are proportional to the needs of this case. In assessing proportionality, the Court is directed by Fed.R.Civ.P. 26 to consider “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 the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). These factors weigh in favor of a finding that Durbin’s requests are proportional. Timewell’s audited net ordinary income is undefined in the 2014 contract and the amount of the same and its calculation are central to Durbin’s claims. Though Timewell argued Durbin had not shown the No. it provided were inaccurate, Timewell’s financial documents appear to be solely in the possession of Timewell and it is unclear how Timewell expects Durbin to be able to make such a showing without access to the underlying documents on which Timewell’s income calculation was based.[2] Additionally, Timewell has not demonstrated that the documents requested themselves are so numerous or that cost of producing the requested documents is so great as to outweigh their likely benefit in this matter.[3] Instead, Timewell’s objections seem to be primarily based on the “sensitive and confidential” nature of the data itself. (DN 35, at PageID # 537.) While the Court acknowledges Timewell’s concerns, information is not automatically exempt from discovery because a party deems it to be sensitive or confidential. There is no motion for protective order currently pending before the Court as to the requested financial documents, and the Parties’ filings indicate that they have entered into a confidentiality agreement regarding documents produced in discovery. (DN 40, at PageID # 653 n.2; DN 46-1, at PageID # 757.) Therefore, the Court finds Timewell’s concerns regarding confidentiality unavailing.

         Further, the Court agrees with Durbin that Timewell’s objections to Request for Production Nos. 3-7, 9, and 11 were too general and finds that Timewell’s responses include impermissible “boilerplate” objections. As this Court has discussed at length in prior opinions, boilerplate objections are forbidden by the Federal Rules of Civil Procedure. Fed.R.Civ.P. 33(b)(3) (requiring objections to interrogatories to be made with specificity); Fed.R.Civ.P. 34(b)(2)(B) (requiring objections to requests for production to “state with specificity” the grounds for objecting to the request). See also Mitchell v Universal Music Group, Inc., No. 3:15-cv-174-JHM, 2018 WL 1573233, at *4-7 (W.D. Ky. Mar. 30, 2018), rev’d in part on other grounds, 2018 WL 2011934 (W.D. Ky. Apr. 30, 2018) (sustaining parties’ objections in part regarding award of costs but affirming conclusion regarding waiver of objections); Janko Enterprises, Inc. v. Long John Silver’s, Inc., No. 3:12-CV-345-S, 2013 WL 5308802, at *7 (W.D. Ky. Aug. 19, 2013) (“Unexplained and unsupported “boilerplate” objections clearly are improper.”) Boilerplate is defined as “[r]eady-made or all purpose language that will fit in a variety of documents.” Boilerplate, Black’s Law Dictionary (11th ed. 2019). Timewell’s objections to Request for Production Nos. 3-7, 9, and 11 satisfy this definition. Indeed, because the Parties attached Timewell’s discovery responses in their entirety (DN 28-18), the Court can observe that Timewell asserted an identical objection regarding proportionality and undue burden to twenty-six of Durbin’s total thirty seven discovery requests, including Request for Production Nos. 3-7, 9, and 11. (Id.) Likewise, Timewell asserted an identical objection regarding relevancy to twenty-seven of thirty-seven total discovery requests, including Request for Production Nos. 3-7, 9, and 11. (Id.) Asserting a general, identical objection to so many discovery requests violates Rule 33(b)(4) and Rule 34(b)(2)(B)’s requirement that objections be stated with specificity. Timewell’s responses demonstrate that Timewell understands how to assert a specific objection to either proportionality, undue burden, or relevance as certain other objections regarding those topics include details to satisfy the specificity requirement. For example, Timewell’s objection to Interrogatory No. 9 on grounds of undue burden and proportionality included a description of what action would be necessary on Timewell’s part to provide the information in support of its objection, and Timewell’s objection to Request for Production No. 14 on grounds of relevance included an argument that documents pertaining to sales in other territories was not pertinent to Durbin’s claims. (Id. at PageID # 361-62, 381-82.) These objections are not boilerplate.

         Additionally, the Court finds Timewell’s repeated objections that terms within the text of the discovery requests were vague, ambiguous, imprecise, or “subject to multiple interpretations” to likewise be boilerplate despite each objection’s reference to different terms within individual requests. Timewell asserted thirty-two such objections to Durbin’s thirty-seven discovery requests, again, including objections to Request for Production Nos. 3-7, 9, and 11. In examining the terms to which Timewell objected as vague, the Court finds some of the objections disingenuous. For example, Request No. 3 asked Timewell to “[p]roduce complete copies, as filed, of all your subsidiaries’ Federal income tax returns for the years from 2014 through 2017.” (DN 28-17, at PageID # 337.) Timewell objected that the phrase “as filed” was “vague, ambiguous, imprecise, or utilizes terms that are subject to multiple interpretations that are not properly defined or explained.” (DN 28-18, at PageID # 369.) Timewell went on to state that “[w]ithout further clarification of these terms, it is unknown at this time whether documents responsive to this request are being withheld on the basis of this objection.” (Id.) The Court disagrees that the term “as filed” is vague when used in a request for federal income tax returns or that Timewell could not determine whether responsive documents were being withheld. The Court observes that Timewell’s “vagueness” objections appear to require greater specificity than is truly necessary for Timewell to provide responsive documents.

         “When objections lack specificity, they lack effect: an objection that does not explain its grounds (and the harm that would result from responding) is forfeited.” Wesley Corp. v. Zoom T.V. Products, LLC, No. 17-10021, 2018 WL 372700, at *4 (E.D. Mich. Jan. 11, 2018). Given their boilerplate nature, the Court finds Timewell’s objections based on relevance, vagueness, undue burden, and proportionality to be waived as to Request for Production Nos. 3-7, 9, and 11. Accordingly, Timewell’s objections do not provide grounds for refusal to provide documents that the Court has found are otherwise within the scope of discovery. Durbin’s Motion to Compel (DN 28) will be GRANTED as to Request for Production Nos. 3-7, 9, and 11.

         2. Interrogatory No. 5

INTERROGATORY NO. 5: Please identify every employee that has been terminated and every employee and ex-employee that has filed a civil proceeding (including but not limited to agency and judicial complaints). For every civil proceeding identified please provide the case style, forum, and outcome.

(DN 28-17, at PageID # 333.) Timewell did not respond to this Interrogatory and instead asserted four objections as follows:

OBJECTION: Defendant objects to this Interrogatory on the grounds that it seeks information that would be unduly burdensome to obtain and not proportional to the needs of the case.
OBJECTION: Defendant objects to this Interrogatory to the extent it seeks the release of confidential or proprietary information, the release of which would be injurious to Defendant and/or third parties in the absence of an adequate confidentiality agreement or protective order.
OBJECTION: Defendant objects to this Interrogatory on the grounds and to the extent the undefined phrases “every employee that has been terminated and every employee and ex-employee that has filed a civil proceeding” and “including but not limited to agency and judicial complaints” are vague, ambiguous, imprecise, or utilizes terms that are subject to multiple interpretations that are not properly defined or explained.
OBJECTION: Defendant objects to this Interrogatory on the grounds that the interrogatory does not seek information that is relevant to claims or defenses asserted in this action, nor is it reasonably calculated to lead to the discovery of admissible evidence.

(DN 28-18, at PageID # 358.) Durbin argued that Interrogatory No. 5 properly sought information related to the identification of possible comparators. (DN 28-1, at PageID # 268.) He argued that Timewell should not be permitted “to control the designation of comparators by simply refusing to provide requested comparator evidence except as to those persons it selects.” (Id. (quoting Bobo v. United Parcel Service, Inc., 665 F.3d 741, 753 (6th Cir. 2012).) In response, Timewell argued that the Interrogatory improperly requested information as to every terminated employee as opposed to attempting to narrow the scope to individuals who were proper comparators. (DN 35, at PageID # 544.) Timewell stated that, as written, Interrogatory No. 5 would require it to produce information related to Title VII discrimination charges filed with the EEOC, unemployment compensation records, workers’ compensation claims, and other types of claims that are not specifically related to Durbin’s claim that his commissions were wrongfully withheld and that Timewell retaliated against him for complaining. (Id. at 544-45.)

         For the reasons set forth in Section II(A)(1) above, the Court finds Timewell’s boilerplate objections as to undue burden, proportionality, and relevance to have been waived. The Court likewise finds that the terms Timewell deemed to be “vague” are intelligible within the context of the Interrogatory such that Timewell’s vagueness objection is boilerplate and waived. As set forth above, the Parties’ entry of a confidentiality agreement moots Timewell’s remaining objection.

         However, the lack of valid objection by Timewell does not obviate the Court’s independent obligation under Fed.R.Civ.P. 26(b)(2)(C)(iii) to “limit the frequency or extent of discovery if it determines . . . that the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C)(iii). Despite Timewell’s impermissible boilerplate objections, the Court agrees with Timewell’s argument in its response that, as written, Interrogatory No. 5 is substantially overbroad. Given Durbin’s claim for wrongful termination in violation of public policy and Timewell’s defense regarding the reason for his termination, some evidence regarding other employees terminated under similar circumstances is relevant and discoverable in this action. Instead of targeting this relevant information, Interrogatory No. 5 asks for every employee ever terminated by Timewell with no limit as to duration. Therefore, Durbin’s request as to Interrogatory No. 5 will be GRANTED IN PART and DENIED IN PART in that the Court will require Timewell to identify those individuals who made ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.