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Gross v. Morgan State University

United States District Court, D. Maryland

February 9, 2018

Valedia Gross
v.
Morgan State University, et al.

         Dear Ms. Gross and Counsel:

         This 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.

         I. BACKGROUND

         On 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].

         On 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.

         In 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].

         II.PROCEDURAL MATTERS

         Local 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 part:

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).

         As a 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.

         Moreover, 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).

         III. DISCOVERY DISPUTES

         a. Confidentiality Designation of 103 Documents

         Ms. 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.

         When a 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 ...


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