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Ferrell v. Speer

United States District Court, W.D. Washington, Tacoma

July 5, 2018

JENNIFER L. FERRELL, Plaintiff,
v.
ROBERT M. SPEER, Acting Secretary of the Army, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL AND DENYING PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff Jennifer Ferrell's motion to compel (Dkt. 20) and motion for a protective order (Dkt. 18). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby (1) grants in part and denies in part the motion to compel, and (2) denies the motion for a protective order.

         I. BACKGROUND

         On April 12, 2017, Plaintiff filed her complaint against Defendant Robert Speer in his capacity as Acting Secretary of the Army (“Army”). Dkt. 1. Plaintiff previously worked as a Records and Licensing Official (a civilian employee position) at the Logistics Readiness Center at Joint Base Lewis McCord (“JBLM”) until she resigned on June 21, 2016. Id. Plaintiff alleges that she was subject to sexual harassment rising to a hostile work environment and that she was constructively terminated as a result of continued hostility and retaliation after she reported the harassment. Id. Accordingly, Plaintiff brings claims for violations of Title VII. Id. On July 27, 2017, the Army filed an answer to the complaint. Dkt. 8.

         In support of her claim of constructive discharge, Plaintiff specifically alleges as follows:

Plaintiff sought medical treatment from her primary care physician and a mental health provider due to the stress and anxiety of the retaliation and ostracism she suffered. Both care providers highly recommended plaintiff resign due to the hostile conditions of her current job and find work in a healthier environment.

Dkt. 1 at 4. As part of her claim, Plaintiff seeks noneconomic damages for “mental and emotional distress, pain and suffering, and loss of enjoyment of life resulting from the Army's unlawful employment practices in an amount to be established at trial.” Id. at 6.

         On January 19, 2018, the Court entered a scheduling order setting a trial date for October 23, 2018. Dkt. 15. The Court also set a deadline of May 29, 2018 for discovery related motions and June 25, 2018 as the cutoff for discovery. Id.

         A. Discovery Propounded by the Army Related to Plaintiff's Medical and Mental Health Providers

         August 18, 2017, the Army propounded written discovery requests on Ms. Ferrell, including Interrogatory No. 6 and Request for Production No. 5. Interrogatory No. 6 sought the identity of:

“all [Ms. Ferrell's] medical care providers, clergy, social service organizations, or others from whom [she has] sought or received treatment, examination, consultation, referral, care, or counseling for any injury, condition or ailment, whether mental or physical, whatever the alleged cause(s), from 2007 through the present…”

Dkt. 19 at 2.[1] Additionally, Request for Production No. 5 sought: “all documents including medical, pharmaceutical or hospital bills or records, concerning the treatment, condition or ailment you identify in your answers to Interrogatory No. 6.” Id.

         Ms. Ferrell objected to these requests as overly broad, unduly burdensome, seeking patient privileged information, and outside the scope of permissible discovery. Dkt. 19 at 2. After conferring on the matter, the parties agreed to narrow the scope of the discovery requests and Plaintiff produced (1) five years of medical records from her primary care provider, (2) the complete medical records from her mental health provider, and (3) and medical records from one occasion on which she saw a mental health professional on a referral from her primary care provider. Id.

         Subsequently, the Army propounded additional discovery requests, wherein the Army requested as follows:

At paragraph 3.11 of the Complaint, you allege that: “Plaintiff sought medical treatment from her primary care physician and a mental health provider due to stress and anxiety of the retaliation and ostracism she suffered. Both care providers highly recommended plaintiff resign due to the hostile conditions of her current job and find work in a healthier environment.” As to these allegations: 1) please identify the “care providers” you reference; 20 please describe in detail each occasion in which each care provider made these statements, including date, what exactly was said, whether statements were oral and/ [sic] written, if oral, who was present during the exchange, and, if written, describe the document (if produced in the litigation, it is sufficient to identify by bate stamp number.)

Dkt. 24-2 at 4. In response, Plaintiff answered:

In approximately April 2016, I met with William Binion (PA-C) . . . . During the visit I reported severe stomach pains and feeling distraught due to the hostile environment I was experiencing at work. . . . Mr. Binion explained to me how stress could affect the body, he then commented that I should look for a job elsewhere because my work environment was having an adverse effect on my health, and that for the benefit of my health, I needed to quit since it was apparent that the retaliation and ostracism was not going to stop. Mr. Binion referred me to see the mental health doctor on staff, Dr. Alexander Patterson, whom I visited sometime in May 2016.
During my visit with Dr. Patterson, I described the harassment and retaliation that I had experienced at work and how I was having issues sleeping and feelings of despair and dread about work. Dr. Patterson told me that no job was worth the physical and mental strain that I was enduring and that I needed to quit. I explained that it was not that easy because I have a family to support; we then discuss [sic] tightening my household budget, before he commented that it was in my best interest to quit. He said that there was nothing more he could do for me and that he would refer me to another provider.
In June or July 2016, I began visiting Dr. Sharon Young, Ph.D., LMFT . . . for stress-related issues stemming from the hostile work environment I experienced at work.

Id. at 4-5. In her production of medical records and responses to interrogatories, Plaintiff stated: “This letter and its attendant production of documents are not intended to waive, and do not include the waiver of, any of Plaintiff's objections, privileges or rights.” Dkt. 19-1 at 2.

         On April 13, 2018, during the telephone conference between the parties, counsel for Plaintiff offered to enter a stipulation, amend the complaint, or do both in order to limit the scope of relief sought in the lawsuit and establish that Plaintiff “seeks only garden-variety emotional distress damages.” Dkt. 19-4 at 2.

         On May 3, 2018, the Army's counsel informed Plaintiff's counsel that the Army would be scheduling depositions for P.A. William Benion, Dr. Alexander Patterson, and Doctor Sharon Young. Dkt. 19-3 at 3. On May 4, 2018, Plaintiff's counsel responded by stating the following:

As for Ms. Ferrell's treating medical professionals, I do not see the purpose of their depositions given our position, as outlined in my April 10 letter and our phone conference on April 13, that Ms. Ferrell will seek only garden-variety emotional distress damages at trial, and as such, will not allege or offer testimony about a specific psychological or medical condition caused or exacerbated by Defendant's conduct. Under these circumstances, deposing these witnesses is an unnecessary invasion of privacy that is not warranted by any claims or defenses in this case. Please let me know if you intend to move forward with these depositions, so we can gauge whether and when to seek relief from the Court.

Id. at 3. Counsel for the Army replied by stating that it would require the deposition of the three medical providers unless “Ms. Ferrell withdraws and agrees to dismiss her constructive discharge claim and confirms in a stipulation that testimony or other evidence relating to the providers will not be offered.” Id. at 2.

         B. Discovery Propounded by Plaintiff

         On September 12, 2017, Plaintiff served the Army with her first set of interrogatories and requests for production. Dkt. 21 at 1; Dkt. 21-1. Among those discovery requests were the following:

INTERROGATORY NO. 3: Please describe in detail all complaints, formal or informal, whether written or verbal, concerning sexual harassment or other sexual misconduct made by employees, soldiers, or officers within the Logistics Readiness Center at JBLM from 2008 to present. Your answer should include:
a. The name, last known address, and phone number of the complainant;
b. The name, last known address, and phone number of the accused or person subject to the complaint;
c. The nature of the complaint;
d. The date of the complaint;
e. Whether any documents were generated regarding the incident, including, but not limited to letters, emails, memoranda, or reports;
f. The person(s) who responded to the complaint;
g. Whether a complaint was filed in court, and if so, the jurisdiction and case number;
h. The resolution of the complaint, including whether compensation was paid, or disciplinary action taken. . . .
REQUEST FOR PRODUCTION K: Please produce TSgt. Mario Blanks's complete personnel file, however denominated. Your response should include, but not be limited to supervisors' files, any performance reviews, awards, disciplinary notices, warnings, complaints, audits, ...

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