United States District Court, D. Colorado
ORDER
Scott
T. Varholak Magistrate Judge
This
matter is before the Court on the Notice and Order Regarding
Appointment of Master. [#220] As required by Federal Rule of
Civil Procedure 53(b)(1), the Court has given the parties
notice, and an opportunity to respond. [Id.]
Plaintiff filed an objection to the appointment of a special
master [#221], and Defendant filed a response to the
objection in which it indicated its support for a special
master [#224]. On May 15, 2019, the Court held argument on
the notice and Plaintiff's objection. [#225] Consistent
with Federal Rule of Civil Procedure 53(a)(3), the Court has
considered the fairness of imposing the likely expenses on
the parties and has protected against unreasonable expense or
delay, as described below.
I.
BACKGROUND
The
Equal Employment Opportunity Commission (“EEOC”)
initiated the instant matter against Defendant Western
Distributing Company (“Western”) in July 2016,
alleging disability discrimination in violation of the
Americans with Disabilities Act (“ADA”) and Title
I of the Civil Rights Act of 1991. [See generally
#1] EEOC brings the action on behalf of 58 aggrieved
individuals. [See generally ##63, 103; see
also #224 at 3]
Throughout
the course of this litigation, the relationship between
counsel has been contentious. The Scheduling Order was
initially entered on September 14, 2016. [#26] Over the
course of the next five months, the Court held four hearings
to resolve disputes related to discovery. [##41, 45, 70, 79]
On
March 24, 2017, discovery was stayed in this matter so that
the parties could pursue mediation. [##81, 83] Mediation was
unsuccessful and, on September 26, 2017, the Court lifted the
stay and allowed discovery to recommence. [#94] On April 4,
2018, this Court held another discovery dispute hearing to
resolve both a motion to quash a third-party subpoena and a
motion for protective order. [#134] At the conclusion of that
hearing, the EEOC raised another discovery dispute concern,
and the Court set the matter for further hearing on May 7.
[#135 at 57-61] The parties represented that they were having
extensive discovery disputes, and this Court gave them
permission to exceed the Court's page limits for
discovery dispute statements. [Id. at 62]
On May
4, upon receiving the parties' joint discovery statement,
this Court vacated the May 7 hearing. [#142] As detailed in
the Court's Minute Order, the parties had
“submitted approximately 90 pages of briefing raising
over 30 separate disputes.” [Id. at 1]
Moreover, “the parties ha[d] not complied with this
Court's Civil Practice Standards, which require the
parties to fully complete their meet and confer process on
disputes prior to contacting the Court to set a
hearing.” [Id.] The Court explained that
“[t]he discovery dispute statements submitted to the
Court reflect[ed] numerous instances in which supplemental
responses ha[d] been promised but not yet delivered and where
the parties ha[d] a clear misunderstanding between them about
exactly what information is being sought.”
[Id.] Finally, the Court noted that “a cursory
review of the dispute statements ma[de] clear that the
parties ha[d] not complied with this Court's directive
that the parties make a reasonable, good faith effort to
resolve the discovery dispute[s] without the need for
judicial intervention.” [Id. at 2 (quotation
omitted)]. Thus, the Court ordered the parties to meet and
confer in person in an attempt to resolve the disputes.
[Id. at 2-3]
Despite
the Court's Order, the parties were unable to resolve
their disputes and further judicial intervention was
necessary. The Court thus set an August 27, 2018, discovery
dispute hearing. [##161, 173] In advance of the hearing, the
parties submitted two joint statements. The first involved
eight disputes that the parties had concerning EEOC's
discovery responses. The joint statement was 45 pages long.
The second involved seven disputes that the parties had
concerning Western's discovery responses. It was 38 pages
long. During a hearing held on August 27, 2018, the Court
meticulously went through each of the parties' disputes,
and issued a ruling on each. [#174] That hearing lasted 1
hour and 44 minutes. The Court spent hours preparing for the
hearing.
Undeterred,
25 days later, the parties once again notified the Court that
they had a discovery dispute that needed the Court's
attention. [#184] Thus, the Court set the matter for another
discovery hearing on September 25, 2018. [Id.] This
discovery dispute involved a request by the EEOC to quash
sixteen subpoenas issued to aggrieved individuals. The Court
had previously resolved a similar dispute amongst the
parties. At the September hearing, the Court denied the
request to quash the subpoenas. [#185] The Minute Order from
the hearing reflects that “[a]fter reviewing the joint
statement of the parties and as indicated at the last
hearing that the information sought by Western is
relevant and that the relevance overcomes any privacy
interests . . . the court . . . will DENY any request to
quash the subpoenas.” [Id. at 1-2 (emphasis
added)] Thus, as reflected in the Minute Order, the Court was
obligated to rule on an issue that it had already decided.
Slightly
over a month later, the parties again notified chambers that
they had a discovery dispute that needed judicial
intervention. [#188] In advance of the hearing, the parties
once again submitted two joint statements. The first
purportedly involved four issues raised by the EEOC, but
subsumed within the first issue was the EEOC's argument
that Western had submitted deficient responses to 16 requests
for production. The joint statement was 24 pages long. The
second involved two issues raised by Western. That joint
statement was 12 pages long. On November 20, 2018, the Court
held a hearing on the disputes. [#190] The hearing lasted
just under one hour, but the Court spent hours preparing for
the hearing.
A month
later, on December 21, 2018, the parties again notified the
Court that they had a discovery dispute that required the
Court's attention. [#199] The Court set a hearing for
January 8, 2019. [Id.] Due to the government
shutdown, however, the hearing was vacated and the case was
stayed. [#202] On February 25, 2019, following the conclusion
of the government shutdown, the Court lifted the stay and
entered a new discovery deadline of August 2, 2019. [#211]
On
March 15, 2019, the parties again contacted the Court in need
of judicial resolution of a discovery dispute. [#212] The
Court set a hearing for April 4, 2019. [##212, 213] Once
again, the parties submitted two joint statements in advance
of the hearing. The first was an issue raised by the EEOC as
to whether Western should be permitted to take the deposition
of the lead investigator who had interviewed numerous
aggrieved individuals. The EEOC objected on relevance and
burden grounds, even though the investigator clearly had
relevant information and, indeed, her notes conflicted with
the sworn testimony of some of the aggrieved individuals. The
joint statement on this first issue was 13 pages long.
The
second statement involved several issues raised by Western.
Western objected to the deposition of its CEO under the apex
doctrine. It did so even though the CEO was identified in
Western's Rule 26 disclosures as a witness Western
expects to rely upon to establish its defenses, the CEO
provided the verification for many of Western's
responses, and the CEO had already attended 28 depositions in
this case.
Another
issue raised by Western's statement of issues involved
the sufficiency of the EEOC's responses to 17 standard
requests for admission and one non-standard requests for
admission. The standard requests for admission were directed
at each of the 58 aggrieved individuals, thus Western
apparently challenged the responses to 986 requests for
admission (17*58). The second statement was 46 pages long. At
the April 4 hearing, the Court resolved some of the
parties' disputes. [#215] The Court also raised the
possibility of appointing a special master, especially given
the apparent challenge to 986 requests for admission.
[Id.]
On
April 16, 2019, this Court issued its Notice and Order
Regarding Special Master, providing notice of the Court's
intent to appoint Jane G. Ebisch, Esq. as a master to handle
discovery disputes in this case. [#220] The Court gave the
parties the opportunity to object to this appointment.
[Id. at 2] EEOC objected to the appointment of a
master, arguing that: (1) a master was not warranted, (2)
appointment of a master may cause the EEOC to run afoul of
federal procurement laws, (3) the Court had not sufficiently
laid out the procedure ...