United States District Court, D. Maryland
Ms. Gross and Counsel:
matter has been referred to me for discovery disputes and
related scheduling matters. [ECF No. 49]. Plaintiff Valedia
Gross, who proceeds pro se, filed this lawsuit
against Defendants Morgan State University and Joyce Brown
(“Defendants”), alleging employment
discrimination based on race, age, and disability, in
violation of various federal laws. [ECF No. 1]. Presently
pending is Ms. Gross's Motion to Compel Documents
(“Motion”), filed on December 7, 2017. [ECF No.
66]. I have considered Ms. Gross's Motion, and
Defendants' Opposition (“Opposition”), [ECF
No. 69]. No. hearing is necessary. See Loc. R. 105.6
(D. Md. 2016). For the following reasons, Ms. Gross's
Motion is DENIED IN PART and GRANTED IN PART.
August 31, 2017, Ms. Gross mailed a request for production of
documents to counsel for Defendants. Defs.' Opp'n,
Ex. A ¶ 2. Counsel for Defendants subsequently emailed
Defendants' Response, and mailed the requested
non-confidential documents to Ms. Gross on October 4, 2017.
Id. ¶ 3; see also Pl.'s Mot., Ex.
3. Counsel for Defendants intended to provide Ms. Gross with
the responsive confidential documents after the parties
signed the Stipulated Order Regarding Confidentiality of
Discovery Motions (“Stipulated Confidentiality
Order”) at Ms. Gross's deposition, initially
scheduled for October 4, 2017. Defs.' Opp'n, Ex. A
¶ 3. Ms. Gross, however, failed to attend her scheduled
deposition. See id.; see also Valedia Gross v.
Morgan State Univ., Civil No. JKB-17-448, slip op. at
1-2 (D. Md. Nov. 6, 2017). On October 18, 2017, Ms. Gross
filed a Motion for an Order Compelling Disclosure or
Discovery, [ECF No. 46], which this Court denied on November
8, 2017, [ECF No. 55]. Pursuant to the Amended Scheduling
Order, discovery closed on October 31, 2017. [ECF No. 45].
November 14, 2017, Ms. Gross signed the Stipulated
Confidentiality Order and received the confidential
documents. Pl.'s Mot. 5; see also Defs.'
Opp'n, Ex. A ¶ 4. Ms. Gross subsequently contacted
counsel for Defendants, challenging the Defendants'
response for the following reasons: (1) that Defendants
improperly designated 272 pages as confidential, despite that
the documents “c[ould] be found on the internet, or
[were] a matter of public record, or [were Ms. Gross's]
personal emails, with the exception of 12 pages, ”
Pl.'s Mot., Ex. 5; (2) that Defendants failed to provide
documents relating to Morgan State University's
(“MSU”) employment of Michon Arrington as a
temporary secretary, Defs.' Opp'n, Ex. A ¶ 5;
(3) that Defendants failed to provide “complete
personnel files for all employees in [MSU's] Office of
Alumni Affairs, [and] . . . records relating to students who
helped in the Office, ” id.; (4) that
Defendants failed to provide “documents relating to the
type of sealant the contractors used to install the carpet .
. . outside the Alumni House, ” id.; (5) that
Defendants failed to provide “all communications
relating to an alleged fire in the engine room located in
Alumni House, ” id.; and (6) that the
Defendants failed to identify which produced documents were
responsive to which requests, id.
response, counsel for Defendants withdrew the
“confidential” designation for all but 103 pages,
which included: (1) documents relating to an anonymous
telephone call made by Ms. Gross to a fraud hotline; and (2)
performance evaluations for two employees in the Office of
Alumni Affairs. See Defs.' Opp'n 4-5;
see also Id. at Ex. A ¶ 12, Ex. 2. In addition,
counsel for Defendants produced documents relating to the
employment of Ms. Arrington, id. at Ex. 3; declined
to produce additional personnel records or records relating
to the sealant used by the contractors to install the carpet
outside the Alumni House, id. at Ex. A ¶ 8; and
informed Ms. Gross that Defendants did not have any documents
relating to an alleged fire in Alumni House, id.
Finally, counsel for Defendants produced a reference chart
identifying which documents were responsive to which document
request. Id. at Ex. 5. Ms. Gross later requested a
privilege log, which counsel for Defendants declined to
produce on the basis that Defendants have not withheld any
documents due to the attorney-client privilege or
work-product doctrine. Id. at Ex. 6. In response to
Ms. Gross's demand that Defendants mark the produced
documents in accordance with her requests, counsel for
Defendant offered to re-copy the requested documents at Ms.
Gross's expense. Id. Ms. Gross responded that
requiring her to use the provided reference chart would be
“prejudicial and burdensome.” Id. On
December 7, 2017, Ms. Gross again challenged Defendants'
production of documents, stating, “The 2008 documents
Defendants produced were not sent pursuant to the
Instructions 1 - 19.” Id. She then filed the
instant motion. [ECF No. 66].
Rule 104.7 and Federal Rule of Civil Procedure 37 require
that counsel confer regarding discovery disputes and make a
good faith effort to settle disputes without court
intervention. Loc. R. 104.7 (D. Md. 2016); Fed.R.Civ.P.
37(a)(1). This Court will not contemplate discovery motions
unless the moving party files a certificate either: (1)
reciting the date, time, and place of the discovery
conference between the parties, and the names of the
participants therein, or (2) certifying that the parties
attempted to hold a conference but were unsuccessful. Loc. R.
104.7. Additionally, Local Rule 104.8 provides, in relevant
If a party who has propounded . . . requests for production
is dissatisfied with the response to them and has been unable
to resolve informally . . . any disputes with the responding
party, that party shall serve a motion to compel within
thirty (30) days of the party's receipt of the
response. . . . The parties shall serve motions and
memoranda under L.R. 104.8 in accordance with Fed.R.Civ.P.
5(a) and shall not serve them through the
Court's electronic filing system nor file with the
Court notices of service of the motion or memoranda.
Loc. R. 104.8(a) (D. Md. 2016) (emphasis added). Local Rule
104.8 also requires that the parties “hold [a]
conference required by L.R. 104.7 after serving upon one
another all of the documents relating to the motion to
compel.” Loc. R. 104.8(b).
preliminary matter, Ms. Gross did not file a Certification of
Compliance, as required by Local Rule 104.7. Although both
parties have provided emails detailing some discussion
regarding Ms. Gross's objections, there is no indication
that Ms. Gross held, or attempted to hold, a conference prior
to filing the Motion. Additionally, Ms. Gross made no effort
to follow the required procedure for motions to compel, set
forth in Local Rule 104.8. Rather than exchanging the motion,
opposition, and reply with Defendants, Ms. Gross immediately
filed the Motion with this Court. Indeed, Ms. Gross filed her
motion on the very same day that she informed counsel for
Defendants of her remaining objection that the produced
documents “were not sent pursuant to the Instructions 1
- 19.” See Defs.' Opp'n, Ex. 6
(containing a December 7, 2017 email exchange between
parties, in which Ms. Gross asserted, “The 2008
documents Defendants produced were not sent pursuant to the
Instructions 1 - 19.”). In light of the evidence on the
record, Ms. Gross did not make a sincere effort to resolve
the discovery dispute in accordance with the Local Rules.
See Loc. R. 104.
with the possible exception of Ms. Gross's objection to
the “confidentiality” designation of 103 pages,
Ms. Gross's Motion is untimely. See Loc. R.
104.8 (requiring that the moving party “serve a motion
to compel within thirty (30) days of the [moving] party's
receipt of the response”). Defendants responded, with
objections, to Ms. Gross's document production requests
on October 4, 2017. See Pl.'s Mot., Ex. 2;
see also Defs.' Opp'n, Ex. A ¶ 3. The
Motion, however, was not filed until December 7, 2017-well
beyond the thirty-day deadline, and thirty-six days after the
close of discovery. See Webb v. Green Tree Servicing
LLC, Civil No. ELH-11-2105, 2012 WL 3139551, at *1 (D.
Md. 2012); see also In re Sulfuric Acid Antitrust
Litig., 231 F.R.D. 331, 332-33 (N.D. Ill. 2005) (noting
that, while the timeliness for filing a motion to compel
depends on the circumstances of each case, “motions to
compel filed after the close of discovery are almost always
deemed untimely.”); Blind Indus. & Servs. v.
Route 40 Paintball Park, No. WMN-11-3562, 2012 WL
4470273, at *2 (D. Md. 2012) (denying an untimely motion to
compel while noting that Scheduling Order “deadlines
allow parties to estimate the costs that will be incurred as
they move towards trial, and to make informed decisions on
strategic motions and settlement negotiations”). For
these reasons alone, Ms.Gross's Motion should be denied.
Nevertheless, to expedite this case, this Court has chosen to
address the Motion on its merits. See Madison v. Harford
Cty., 268 F.R.D. 563, 564-65 (D. Md. 2010).
Confidentiality Designation of 103 Documents
Gross contends that Defendants improperly marked 496
documents as confidential and, therefore, “challenges
Defendant[s'] designation of confidentiality pursuant to
Fed.R.Civ.P. 37(a)(5)[.]” Pl.'s Mot. 5.
Specifically, Ms. Gross argues these documents “do
not contain sensitive personal information, trade secrets or
other confidential research, development, or commercial
information.” Id. As an initial matter, this
Court notes that, in response to Ms. Gross's initial
objections, Defendants withdrew their confidentiality
designation for all but 103 pages of the produced documents.
See Defs.' Opp'n, Ex. 2. The remaining
confidential documents include: (1) documents relating to an
“anonymous telephone call made by [Ms. Gross] in
February[, ] 2016 to the fraud hotline run by the Office of
Legislative Audits in the Maryland General Assembly's
Department of Legislative Service, ” id. at 4;
and (2) the “performance evaluations from the personnel
files of two employees in the Office of Alumni Affairs,
Alison Hillen and Dewayne Davis, ” id. at 5.
party challenges the designation of certain documents as
confidential, “the party claiming confidentiality bears
the burden of proving that the purportedly confidential
documents are, indeed, confidential, as defined in the
governing confidentiality order.” Flo Pac, LLC v.
NuTech, LLC, No. WDQ-09-510, 2011 WL 13214114, at *2 (D.
Md. Apr. 12, 2011) (citing Minter v. Wells Fargo Bank,
N.A., Nos. WMN-07-3442, WMN-08-1642, 2010 WL 5418910, at
*8 (D. Md. Dec. 23, 2010)). The Stipulated Confidentiality
Order governing the instant case provides that “[o]ne
who provides material may designate it as
‘CONFIDENTIAL' only when such person in good faith
believes it contains sensitive personal information, trade
secrets or other confidential research, development, or
commercial information which is in fact confidential.”
[ECF No. 57 ¶ 1(a)]. Although the Fourth Circuit has not
yet “explicitly defined the parameters of ...