Virginia Lawyers Weekly VA Lawyers Weekly
Where a woman alleged a temporary employment agency and her actual employer were joint employers liable for alleged sexual harassment, she was entitled to information and documents that might reveal a joint relationship, but only for the period of her employment. The employer’s “request” for her social media and phone records was denied as the request was not proportional and the employer failed to comply with court rules.
Background
Plaintiff alleged claims of sexual harassment and retaliation against defendants Chase Professionals and ServiceMaster of Shenandoah Valley Inc. Plaintiff claims that she was the subject of sexual harassment from the supervisor of her work crew when Chase, a temporary employment agency, placed her with ServiceMaster. Plaintiff worked with ServiceMaster from Jan. 10, 2017, until her termination March 8, 2017. She seeks to hold both defendants liable under a joint employer theory.
Presently before the court is plaintiff’s motion to compel discovery or, in the alternative, in limine. Additionally, ServiceMaster makes a “request” in its opposition brief that the court compel plaintiff to produce certain electronically stored information from her wireless devices or social media accounts.
Plaintiff’s motion to compel/motion in limine
The court finds it both relevant and proportional to the issues in the case to compel defendants to produce the time records of those employees assigned by Chase to work for ServiceMaster from Jan. 1, 2017, through March 15, 2017, who were either working in the same crew(s) as plaintiff or doing similar work. Such time records are relevant and discoverable as to the joint employer issue during the time Chase assigned plaintiff to work for ServiceMaster. The court, however, denies the request for time records outside the period during which plaintiff worked for ServiceMaster.
The court grants the motion to compel and requires defendants to produce any canceled checks, bank records and other records of moneys paid by ServiceMaster to Chase and all emails and other correspondence by and between employees and agents of ServiceMaster and Chase, but limited only to the work crews to which plaintiff was assigned or other work similar to that which plaintiff performed, for the period of Jan. 1, 2017, to March 15, 2017. The court, however, denies the request for records outside this timeframe or for workers assigned to other types of work as such requests are not relevant to any claim or defense or proportional to the case.
Plaintiff has requested copies of all documents, including but not limited to contracts, agreements, correspondence and emails concerning the business arrangement between Chase and ServiceMaster from Jan. 31, 2016, to the present. The court finds such documents are relevant to whether defendants are joint employers, but only during the time plaintiff worked for ServiceMaster.
Plaintiff seeks the hard drives of any ServiceMaster computer used to communicate with Chase to search for emails and other discoverable evidence because ServiceMaster did not produce any emails with Chase responsive to plaintiff’s discovery requests. Plaintiff has the burden to establish that ServiceMaster failed to respond to a discovery request or to produce documents sought. Plaintiff simply does not to accept that ServiceMaster has no responsive documents. Thus, the motion to compel for the hard drives of the ServiceMaster computers is denied without further evidence that ServiceMaster failed to produce documents in its possession or otherwise shirked its discovery responsibilities. Plaintiff’s alternative motion in limine is denied.
ServiceMaster’s request
ServiceMaster seeks from plaintiff access to her phone or other wireless devices on a hunch based upon the testimony of one witness that perhaps while plaintiff worked for ServiceMaster she devoted too much time to these devices instead of her work.
ServiceMaster cites to no evidence that these requests are indeed relevant or proportional to this case, has not filed a motion to compel, has not indicated that it has attempted to resolve this matter informally as required by the district court’s pretrial order and has not had a meaningful meet-and-confer under Rule 26. The court does not find these requests, at this time, proportional to the nature of the case, and thus, declines to compel the production of the social media account information ServiceMaster seeks.
Plaintiff’s motion to compel granted in part, denied in part; ServiceMaster’s discovery request denied.
Coffey v. Tyler Staffing Services Inc. d/b/a Chase Professionals, Case No. 19-cv-00015, Jan. 23, 2020. WDVA at Roanoke (Ballou). VLW 020-3-037. 6 pp.
