HARRIS v. MOORMAN'S INC., (S.D.Ind. 2001)

David F. Hamilton, Judge.

Plaintiff Nikki Harris has moved to compel defendants MoorMan's, Inc. and Archer Daniels Midland Company to produce documents showing sales targets and actual tonnages sold for members of the Equine Team of which Harris was also a member.

The documents in question are likely to be highly relevant. Defendants have offered a legitimate, non-discriminatory reason for firing Harris — her failure to meet sales targets. To defeat defendants' motion for summary judgment, Harris needs to raise a genuine issue of fact as to the honesty of that proffered reason, i.e., she must come forward with evidence that the proffered reason was a false pretext. One way to show pretext is to show that an employer has not been reasonably consistent in treating similarly situated employees in similar ways. Harris has also offered an affidavit from another former member of the Equine Team, Linda Porter, who stated that she and other team members had also missed their sales targets but were not fired for their failures.

Defendants do not seriously question the relevance of the documents Harris seeks in her motion. They argue instead that plaintiff never properly asked for those documents. When plaintiff requested a copy of her own personnel file, defendants produced it. Included in that file were documents showing her own sales targets and actual tonnages sold. Plaintiff then asked for the personnel files of other team members. The request stated: "Provide the complete and total personnel files of all members of the Equine Team from 1996 to present. Don't limit this request to graphs or grids that demonstrate the targets and tonnage sold by each team member."

Defendants contend that they produced the "personnel files" of those other team members, but that the graphs and grids that plaintiff "hoped" would be in those files were not in them. Defendants apparently maintain those critical documents somewhere other than in the files they label "personnel files," at least for other Equine Team members, although those documents relating to plaintiff Harris were in her personnel file.

Defendants' approach to this motion is a telling symptom of the sorts of discovery problems that can plague modern civil litigation. The documents are highly relevant, and defendants know that plaintiff wants them, yet defendants refuse to produce them on the specious theory that plaintiffs did not ask for them with sufficient precision. (Even if plaintiff's request had not been sufficiently specific, the court would still have treated the motion to compel as a motion to extend the time for discovery and would order production, so that the summary judgment motion could be decided based on relevant evidence rather than the vagaries of the discovery process. See Fed.R.Civ.P. 1.)

Plaintiffs' motion to compel is granted. Defendants shall produce all documents in their possession, custody, or control showing sales targets and/or tonnages sold for any Equine Team member, or referring to or analyzing such matters, for any portion of the time January 1, 1996, through January 2001. This order includes so-called "grids" and "graphs" but is not limited to them. Defendants shall make all responsive documents available for inspection and copying by plaintiff's counsel in Indianapolis no later than noon on January 12, 2001, meaning that the documents shall be physically in plaintiff's counsel's hands no later than noon on January 12, 2001.

When a court grants a motion to compel discovery, an award of reasonable expenses, including attorney's fees, should be made under Fed.R.Civ.P. 37(a)(4)(A) unless the position of the party opposing the motion was "substantially justified, or . . . other circumstances make an award of expenses unjust." Defendants' position was not substantially justified, and no other circumstances make such an award unjust in this case.

Defendants are entitled to an opportunity to be heard on the amount of such an award. The court will hold a hearing on the matter in Room 344, U.S. Courthouse, Indianapolis, Indiana, at 8:30 a.m. on Friday, January 26, 2001. In an effort to avoid turning the amount of such an award into a separate and expensive battle, however, the court estimates on a preliminary basis that plaintiff incurred fees and expenses of approximately $1,500 as a result of defendants' refusal to comply with this highly relevant, and sufficiently clear, discovery request. If defendants pay plaintiff and her counsel jointly the sum of $1,500 (or if the parties agree on a different amount) no later than Monday, January 22, 2001, the hearing will not be necessary.

Plaintiff has also filed a motion to extend her time to respond to the motion for summary judgment until this discovery matter is resolved. Plaintiff's motion is granted, and plaintiff shall file her response to the motion for summary judgment no later than January 30, 2001.

So ordered.