Benne v. Quick Med Claims, LLC

8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 1 of 14 - Page ID # 139 Moving Party: Defendant, Quick Med Claims, LLC Pamela Benne v. Quick Med Claims, LLC – Case No. 8:21-cv-00235 To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and conferred. The fully completed chart shall be e-mailed to chambers of the assigned magistrate judge. The moving party is: Quick Med Claims, LLC The responding party is: Pamela Benne Note: If discovery from both parties is at issue, provide a separate sheet for each moving party. Moving Party’s Responding Discovery Request Relevant to prove... Moving Party’s Initial Responding Court’s Ruling Last Offered Party’s Last at Issue Position Party’s Initial Compromise Offered Position Compromise Identities of Defendant seeks this This information is not Many federal courts N/A None. witnesses contacted information in order to protected from disclosure. across the country Plaintiff shall or interviewed by prepare its defenses and Nebraska federal courts have expressly identify the names Plaintiff in further investigate have held that the recognized that the of witnesses connection with this Plaintiff’s claims. identities of people identities of potential interviewed, the matter. interviewed by a party or witnesses who are its representatives does interviewed in name of the not constitute privileged contemplation of interviewer, and information, nor does it litigation is protected the dates the constitute work product. work product. interviews took Plaintiff is willing place. to—and has— disclosed the identities of potential witnesses and what knowledge they are believed to have. — 1 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 2 of 14 - Page ID # 140 Moving Party: Defendant, Quick Med Claims, LLC Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise Recorded Defendant seeks this Plaintiff must produce This dispute is not N/A None. statements from information for purposes recorded statements she ripe for resolution. Plaintiff is not in witnesses that of evaluating the received from witnesses Plaintiff has possession of any Plaintiff interviewed substance of witness that she or her affirmatively stated responsive in connection with testimony and for representatives contacted in her discovery documents. her case. potential impeachment. or interviewed. Like the responses, including identities of these her privilege log, that individuals, the recorded she is not in statements are not possession of any protected by work recorded witness product. Defendant does statements. not seek notes or summaries of witness interviews prepared by Plaintiff’s counsel – only recorded statements obtained by Plaintiff from third party witnesses. Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise Documents that Defendant seeks these Plaintiff must produce Although case law N/A None. Plaintiff is not in Plaintiff obtained documents in order to documents provided by exists to support possession of from witnesses in evaluate the substance third party witnesses, and Plaintiff’s privilege any responsive connection with their of the witness testimony her invocation of the work objection in this documents, but interviews. and whether the product doctrine to resist instance, Plaintiff shall supplement documents contain production is misplaced. concedes that the responses in the information that supports The documents sought overwhelming event documents Defendant’s defenses. come from third party authority supports are obtained. witnesses – they were not Defendant’s — 2 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 3 of 14 - Page ID # 141 Moving Party: Defendant, Quick Med Claims, LLC prepared by Plaintiff or position. However, her counsel in anticipation Plaintiff has already of litigation, nor do they stated that she has reflect the mental no documents impressions, conclusions, responsive to this or legal theories of request in her counsel. possession. She will supplement her response in the event documents are obtained. Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise The identities of Defendant seeks the Plaintiff put her medical Credibility, in and of N/A None. Plaintiff’s medical identifies of Plaintiff’s records at issue by itself, is not Plaintiff shall providers January 1, medical providers in alleging she suffered justification for identify medical 2016 to present. order to subpoena emotional distress as a sweeping discovery providers from medical records. This result of Defendant’s requests, as any whom she information is probative alleged conduct. Plaintiff information or consulted with or of the existence and/or has represented in her document anywhere, received care for degree of Plaintiff’s discovery responses that could reflect on a emotional or emotional distress, she consulted with at party or witness’s mental health Plaintiff’s credibility, and least one treating credibility. the veracity of the physician about her Additionally, with issues from representations Plaintiff alleged emotional specific regard to August 1, 2016, made to the NEOC and distress. By pursuing this Plaintiff’s abandoned to the present. EEOC. category of damages and disability acknowledging that she discrimination sought treatment related claims, there can be to her mental state, any number of Plaintiff has put her legitimate reasons medical history at issue. why a party abandons a claim originally raised in a — 3 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 4 of 14 - Page ID # 142 Moving Party: Defendant, Quick Med Claims, LLC Plaintiff’s medical records charge of are also relevant to her discrimination. credibility. Plaintiff represented in her NEOC Further, at least one and EEOC charges that court in Nebraska she was disabled and was has expressly found discriminated against on that a plaintiff does that basis. Defendant had not put her no knowledge of any such psychological disability during her condition at issue by employment, and Plaintiff asserting garden has not pursued her variety claims of disability discrimination emotional distress. claim through this action. Defendant seeks the records, in part, to evaluate whether Plaintiff’s sworn representations regarding her disability status were truthful. Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise Documents and Defendant seeks this Under the federal rules, Defendant has Defendant Plaintiff has not information information in order to Defendant is entitled to offered no agreed to opposed For the last 10concerning Plaintiff’s evaluate Plaintiff’s information regarding any explanation why— narrow the description of years, Plaintiff shall litigation history credibility and possible felony convictions or for example— temporal scope criminal or disclose any felony motivation for bringing convictions for crimes personal injury of its requests bankruptcy convictions or her claims against involving dishonesty for a lawsuits are at all to the past ten proceedings convictions for Defendant. period of at least ten relevant, or why— years, and it subject to the crimes involving years. again, for example— also agreed to limitations as dishonesty; cases in which excluded described by bankruptcy or Plaintiff was a information Defendant. — 4 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 5 of 14 - Page ID # 143 Moving Party: Defendant, Quick Med Claims, LLC Plaintiff’s civil litigation defendant are regarding minor Plaintiff has also history is also within the relevant for any traffic offenses offered to disclose administrative scope of discovery. For other purpose than other litigation in proceedings instance, information to unfairly discredit which Plaintiff has involving deception regarding claims asserted Plaintiff. In contrast, asserted the or veracity; and by Plaintiff against other Plaintiff recognizes claims at issue in civil claims against former employers is that claims for the this case. former employers probative of her credibility, same or regarding especially considering substantially similar employment Plaintiff has asserted, and conduct as alleged discrimination, withdrawn, certain claims against Defendant harassment, or against Defendant. may arguably be retaliation. Moreover, Plaintiff’s probative of her involvement in bankruptcy credibility. proceedings and debt collection actions is also relevant and may bear on her motives for pursuing her this action. Plaintiff’s offer to provide only information regarding other instances wherein she asserted the same causes of action as those asserted in this case is not sufficient. Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise Plaintiff’s tax returns Defendant seeks these Plaintiff’s tax returns are Plaintiff’s tax returns N/A Plaintiff has from January 1, documents to evaluate discoverable under the are not reflective of agreed to provide 2016 to present. Plaintiff’s mitigation two-part test adopted by Plaintiff’s emotional documents efforts with respect to her this court. state, and none of reflecting income claims for wage the cases Plaintiff’s received for work — 5 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 6 of 14 - Page ID # 144 Moving Party: Defendant, Quick Med Claims, LLC damages, as well as the The first prong of the test counsel has performed beyond degree of Plaintiff’s asks whether the tax reviewed with regard “typical wages Plaintiff shall alleged emotional returns are relevant to the to the two-prong test reflected in W-2s”, produce tax distress. claims or defenses. Here, described by such as returns for the the information goes to Defendant address documentation last 5-years whether Plaintiff has the analysis reflecting income (2018-2022), mitigated her damages proposed by from selfbut may through means other than Defendant. This is employment (i.e. redact typical wages reflected in especially true 1099s). personal W-2s. In addition, her when, as previously information financial circumstances noted, Plaintiff is prior to and following her claiming “garden as necessary. resignation may be variety” emotional informative as to the damages, such that degree of Plaintiff’s Plaintiff’s wealth or alleged emotional financial distress. circumstances are not relevant because After a showing of the focus is simply relevancy, the burden on the loss of the job shifts to Plaintiff to show itself. that the information is readily obtainable elsewhere. Plaintiff cannot make that showing. While Plaintiff has produced her W-2s, the information contained therein is not sufficient to allow Defendant to investigate Plaintiff’s mitigation efforts and the degree of her alleged emotional distress. — 6 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 7 of 14 - Page ID # 145 Moving Party: Defendant, Quick Med Claims, LLC Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise Other documents Defendant seeks the Plaintiff takes the position Defendant has N/A None. and information information for purposes that the only relevant provided no As agreed by the reflecting Plaintiff’s of evaluating the degree source of income in this authority supporting parties, Plaintiff's sources of income of Plaintiff’s alleged case is the traditional its argument that tax returns for the from January 1, damages, as well as her wages reflected in her W- Plaintiff has put her last 5-years 2018 to present. credibility. 2s. This narrow view is financial encompass this inconsistent with the circumstances—in request. broad scope of discovery their entirety—at under the federal rules. issue. Rather, Plaintiff has put the It appears from Plaintiff’s wages she has lost, discovery responses that and the emotional she has virtually no recent harm from losing income from employment. those wages, at Defendant is entitled to issue. know whether Plaintiff is subsisting on other Plaintiff does not sources of income, as dispute that such information bears Defendant is entitled directly on the degree of to evidence of her alleged emotional Plaintiffs ability or distress. For instance, failure to mitigate Plaintiff’s receipt of public her damages. assistance benefits – However, to attempt particularly unemployment to use what many payments or disability courts, including the benefits – are relevant to 8th Circuit, have Plaintiff’s claims and deemed collateral alleged damages. source evidence, Plaintiff’s W-2s are not namely sufficient to provide unemployment Defendant an accurate benefits, to reduce — 7 — 8:21-cv-00235-RFR-MDN Doc # 20 Filed: 04/22/22 Page 8 of 14 - Page ID # 146 Moving Party: Defendant, Quick Med Claims, LLC and complete emotional damages understanding of is to attempt an endPlaintiff’s financial around on the circumstances, which she collateral source rule has placed at issue. itself. Discovery Request Relevant to prove... Moving Party’s Initial Responding Moving Party’s Responding Court’s Ruling at Issue Position Party’s Initial Last Offered Party’s Last Position Compromise Offered Compromise Plaintiff’s social Defendant seeks Defendant seeks Almost any social In response to None. medica activity Plaintiff’s social media Plaintiff’s social media media post can be Plaintiff’s Plaintiff shall related to her claims publications related to publications concerning interpreted as some overbreadth produce her allegations and her emotional state and statement of objection, social media damages, as such events in her life that emotional state, but Defendant posts from information bears on her could reasonably be whether that agreed to March 2, credibility and the expected to impact her emotional state is narrow the 2020, to the sincerity of her claims. emotional state, which are actually reflective of temporal scope clearly within the scope of the nature of of its initial present. discovery. Plaintiff’s emotional request to damages is purely social media speculative, post created especially in light of after the end of Plaintiff’s limitations Plaintiff’s of her claim to employment. “garden variety” emotional damages. — 8 — for Plaintiff, Pamela Benne /s/ Joshua Wunderlich Joshua Wunderlich, #24769 for Defendant, Quick Med LLC /s/ Nicholas B. McGrath Sarah J. Millsap, #23840 Nicholas B. McGrath, #26830 April 21, 2022. v. 1 DATED: April 22, 2022 BY THE “Poe OG United States Magistrate Judge IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA PAMELA BENNE, ) ) Case No. 8:21-cv-00235 Plaintiff, ) ) vs. ) SUMMARY OF DEFENDANT’S ) POSITION ON DISCOVERY DISPUTE QUICK MED CLAIMS, LLC, ) ) Defendant. ) ) Defendant Quick Med Claims, LLC (“Defendant” or “QMC”), pursuant to the Court’s April 18, 2022 Order, submits this summary of Defendant’s position with respect to certain discovery disputes in this matter. SUMMARY OF DEFENDANT’S POSITION Plaintiff Pamela Benne (“Plaintiff”) asserts claims of unlawful retaliation and discrimination on the bases of age and sex under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. Plaintiff has impeded QMC’s ability to develop its defenses to these claims by refusing to provide several key categories of information and documents in response to QMC’s discovery requests. Specifically, Plaintiff objected to providing the following: (A) The identities of witness interviewed in connection with Plaintiff’s claims, any recorded statements provided by those individuals, and any other documents produced in conjunction with witness interviews; (B) The identities of Plaintiff’s medical providers since January 1, 2016; (C) Plaintiff’s litigation history; (D) Plaintiff’s tax returns since January 1, 2016 and other documents or information reflecting any income she received, including her receipt of public assistance benefits since January 1, 2018; and (E) Plaintiff’s social media posts related to her claims and alleged damages since March 3, 2020. The number and scope of Plaintiff’s objections to QMC’s routine discovery requests is unusual and obstructive. The information QMC seeks is certainly within the broad scope of discovery contemplated by the Federal Rules of Civil Procedure. Each category bears on the questions of liability and the degree of Plaintiff’s alleged damages, including her claim for emotional distress damages that she allegedly sustained as a result of QMC’s action. The requests at issue are standard in most employment law cases. The parties have attempted to resolve these discovery disputes without resort to judicial intervention. QMC sent Plaintiff a Rule 37 letter on January 18, 2022 after receiving her initial responses and objections to its written discovery requests. Plaintiff responded on February 10, 2022 and largely reiterated the objections set out in her initial discovery responses. On February 22, 2022, QMC sent Plaintiff another Rule 37 letter regarding the unresolved deficiencies in her discovery responses. Plaintiff responded and indicated that the parties were likely at impasse. On March 21, 2022, the parties met telephonically for a personal consultation in an effort to resolve the discovery disputes, but they were unable to reach an accord. Accordingly, QMC requests that the Court require Plaintiff to produce complete responses to its discovery requests. Specifically, Interrogatory Nos. 1, 3, 6, 8, 9, and 15, as well as Requests for Production Nos. 10, 13, 17, 28, 29, and 33 (subparts 5 and 6). Dated: April 21, 2022. 4882-3790-4925, v. 1 JKQUUKNERS TONE Joshua P. Wunderlich Direct Line: 816-581-4043 E-mail: j.wunderlich@cornerstonefirm.com April 21, 2022 VIA EMAIL ONLY TO _ nelson@ned.uscourts.gov Hon. Michael D. Nelson United States Magistrate Judge Roman L. Hruska Federal Courthouse 111 South 18th Plaza, Suite 2210 Omaha, NE 68102 Re:Benne v. Quick Med Claims, Case No. 8:21-cv-00235-RFR-MDN Defendant’s Request for Discovery Conference Dear Judge Nelson: Pursuant to the Court’s Order of April 18, 2022 (Doc. #17), Plaintiff Pamela Benne submits the following statement containing her position on the various discovery disputes at issue. Plaintiff addresses the major themes throughout the dispute herein and relies on the arguments contained in the joint discovery dispute chart for the remaining issues. As can be noted throughout the brief filed by Defendant (Doc. #14) in support of its premature motion to compel as well as the parties’ joint discovery dispute chart, Defendant’s express purpose for much of the disputed discovery is to impeach Plaintiff’s credibility. In support of this purpose, Defendant cites Davis v. Ak-Sar-Ben Vill., No. 8:18CV101, 2020 WL 1332288 , at *3 (D. Neb. Mar. 23, 2020) in its brief. (“It is axiomatic that a litigant may discover facts related to a witness’ credibility.”) (Doc. #14 at 9.) However, in raising this ubiquitous justification, Defendant disregards the remainder of the paragraph from which that assertion is taken: But the court cannot afford the parties the unfettered ability to probe into all aspects of a witness’ veracity. If unchecked, “the areas to be probed to test a witness’ credibility are virtually limitless.” In order to fairly limit the scope of discovery, in the spirit of the federal rules, the court should consider several factors in evaluating whether credibility discovery is permissible. Those factors include: “(1) whether the prior acts in question demonstrate a propensity for deception; (2) the extent to which the prior act occurred in a context where there is a premium on veracity; (3) the lapse of time between the prior act and the trial testimony; (4) the relationship between the subject matter of the prior deceptive act and that of the instant 5821 Northwest 72" Street ¢ Kansas City, MO 64151 Telephone: (816) 581-4040 « Facsimile: (816) 741-8889 www.cornerstonefirm.com Plaintiff's Discovery Dispute Position Statement April 21, 2022 Page 2 of 3 litigation and (5) whether the party seeking disclosure has a foundation for its inquiry.” 2020 WL 1332288 , at *3 (D. Neb. Mar. 23, 2020) (quoting Barrett v. Reynolds, No. 8:12CV328, 2014 WL 1223330 , at *4 (D. Neb. Mar. 24, 2014)). In other words, Defendant cannot simply say that a particular document may call into question Plaintiff’s credibility and expect to be entitled to obtain that document in discovery. Plaintiff contends this justification should be disregarded throughout Defendant’s requests. Additionally, many of the disputed requests specifically—or tangentially—seek the identities of those individuals from whom Plaintiff or her counsel have sought witness statements. Plaintiff has not objected to disclosing, and has in fact disclosed, those individuals whom she believes have discoverable information and what knowledge she believes they have. However, Plaintiff asserts that whether a particular witness’s knowledge is worthy of additional inquiry is a mental impression formed in anticipation of litigation and is therefore work product. A number of courts around the country support this conclusion. Com. of Mass. v. First Nat. Supermarkets, Inc., 112 F.R.D. 149, 152 (D. Mass. 1986) (quoting 4 Moore's Federal Practice, § 26.57[2], pp. 26-167 n.2 (1984 ed.)); Laxalt v. McClatchy, 116 F.R.D. 438, 443 (D. Nev. 1987) (citing Admiral Heating and Ventilating, Inc., 104 F.R.D. at 32); United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 270 F. Supp. 3d 220, 225 (D.D.C. 2017) (recognizing split of authority and determining “the better-reasoned cases” find the identities of interviewed witnesses should be protected); United States v. Urb. Health Network, Inc., No. CIV. 91-5976, 1993 WL 12811 , at *3 (E.D. Pa. Jan. 19, 1993); McIntyre v. Main St. & Main Inc., No. C-99-5328 MJJ (EDL), 2000 WL 33117274 , at *2 (N.D. Cal. Sept. 29, 2000); Ferruza v. MTI Tech., No. SACV 00-0745 DOC, 2002 WL 32344347 , at *3 (C.D. Cal. June 13, 2002); Francisco v. U.S. Seafood, No. CV06-885RSL, 2007 WL 2713031 , at *2-3 (W.D. Wash. Sept. 14, 2007); Plumbers & Pipefitters Nat'l Pension Fund v. Burns, No. 3:05CV7393, 2011 WL 6415528 , at *2 (N.D. Ohio Dec. 21, 2011); Smalls v. New York Hosp. Med. Ctr. of Queens, No. 13 CV 1257 (RRM), 2013 WL 12333083 , at *2 (E.D.N.Y. Oct. 15, 2013). Finally, Defendant seeks to dig through various private aspects of Plaintiff’s life, including her medical care, her tax returns (and financial circumstances generally), and Facebook posts for the purpose of attacking her claim for emotional damages. However, in light of her restriction of her emotional damages to those of a “garden variety,” the scope of Defendant’s inquiry should be proportionally limited. For example, with regard to Plaintiff's medical treatment, the court in Flores v. Tyson Foods, Inc., expressly states that “... a plaintiff does not place her physical or psychological condition at issue by asserting ‘garden variety’ claims for emotional distress damages ...” No. 4:12CV3089, 2013 WL 1091044 , at *4 (D. Neb. Mar. 15, 2013). Likewise, neither E.E.O.C. v. Ceridian Corp., the case most cited for the two-part test for whether a party’s tax returns are discoverable, nor its progeny seem to consider the person’s emotional damage claim as part of the analysis. 610 F.Supp.2d 995, 997 (D. Minn. 2008). Plaintiff appreciates the Court’s consideration of these issues. Again, although additional disputes exist between the parties regarding Plaintiff's discovery responses, in light of the Court’s limitation on the length of this statement, Plaintiff will reserve her remaining arguments to those raised in the joint chart submitted by the parties. JINCORN ERSTONE 8350 North St. Clair Avenue Suite 225 « Kansas City, MO 64151 | AW FIRM Talanhnna: (2164)\ G21_ANAN e Farcimila: (2164) 7F7A1_2220 eo rvananar carnarctnnafirm cam Plaintiff's Discovery Dispute Position Statement April 21, 2022 Page 3 of 3 ery Respectfull J P. Wunderlich JINCORNERSTONE 8350 North St. Clair Avenue ® Suite 225 « Kansas City, MO 64151 | AW FIRM Talanhnna: (2164)\ G21_ANAN e Farcimila: (2164) 7F7A1_2220 eo rvananar carnarctnnafirm cam