Watson v. Ohio Ambulance Solutions, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

GINA L. WATSON, Case No. 1:20-cv-802

Plaintiff, Barrett, J.

Litkovitz, M.J.

vs.

OHIO AMBULANCE SOLUTIONS, LLC, et al., ORDER

Defendants.

Plaintiff Gina Watson brings this pro se action against defendants Ohio Ambulance

Solutions, LLC (“OAS”) and Chris Foster (“Foster”) alleging causes of action under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et seq., and state law. (Doc. 4). This matter is before the Court

on plaintiff’s second motion to compel discovery and for sanctions (Doc. 54), defendants’

response in opposition (Doc. 58), and plaintiff’s reply memorandum (Doc. 61).

I. Standard of Review

Rule 37 provides that “[a] party seeking discovery may move for an order compelling an

answer, designation, production, or inspection” if a party fails to provide discovery responses.

Fed. R. Civ. P. 37(a)(3). In a motion to compel, the movant “bears the initial burden of proving

that the information sought is relevant.” Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D.

298, 302 (S.D. Ohio 2010) (citation omitted). See also Hunter v. Shield, No. 2:18-cv-1097, 2020

WL 6484055, at *2 (S.D. Ohio Nov. 4, 2020) (same). The Court must balance the need of a

party to access the information necessary to establish its claim or defense and overly broad

requests that amount to a fishing expedition. In re Ohio Execution Protocol Litig., 845 F.3d 231,

236 (6th Cir. 2016); Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).

II. Plaintiff’s motion to compel discovery and for sanctions (Doc. 54)

On February 14, 2022, plaintiff filed a second motion to compel pursuant to Fed. R. Civ.

P. 37 and for sanctions. (Doc. 54).1 The undersigned held a telephone discovery conference in

this matter in an attempt to informally resolve the pending discovery dispute. (See 2/14/2022

docket entry; Doc. 55). At the request of the Court, the parties have briefed the discovery issues,

and plaintiff’s second motion to compel and for sanctions is ripe for resolution.

Plaintiff identifies four areas of the discovery process where defendants allegedly failed

to comply and produce relevant discoverable material. (Doc. 54 at PAGEID 534-35).

Specifically, and as best the Court can discern, plaintiff alleges that defendants failed to (1)

specifically identify which documents make up plaintiff’s personnel file (Id. at PAGEID 534,

545, 548); (2) produce, in the entirety, her deposition transcript (Id. at PAGEID 535, 549); (3)

provide a legitimate, nondiscriminatory reason why certain documents and company surveillance

videos do not exist (Id. at PAGEID 535, 540-43, 545-46, 548-49); and (4) generally abide by the

discovery rules concerning the ongoing duty to supplement (Id. at PAGEID 535, 546-47).

Defendants argue in opposition that plaintiff’s second motion to compel should be denied

because (1) all documents related to plaintiff’s employment, i.e., plaintiff’s personnel file, have

been produced; (2) defendants are under no obligation to provide to plaintiff, free of charge, a

copy of plaintiff’s deposition transcript; (3) defendants have fully answered all of plaintiff’s

discovery requests concerning why company surveillance no longer exists, and therefore, why it

cannot be produced; and (4) defendants are under an ongoing duty to supplement, and the Court

has not yet set a discovery cut off date. (Doc. 58). Defendants also argue that they are entitled

1 The Court notes that on January 31, 2022, defendants filed a motion to compel discovery and for sanctions (Doc.

53) which has since been withdrawn (Doc. 62). However, defendants explain that they are “not withdrawing their

request for sanctions made in their memorandum in opposition to Plaintiff’s second motion to compel.” (Id., citing

Doc. 58).

to expenses and attorney fees because plaintiff’s motion to compel is “highly frivolous,”

“untimely[,] and seeks information that Defendants have already provided or that Plaintiff never

sought in discovery.” (Id. at PAGEID 764).

A. Plaintiff’s personnel file

The Court previously ordered defendants to produce a copy of plaintiff’s personnel file.

(Doc. 49 at PAGEID 502). In plaintiff’s second motion to compel, however, plaintiff asserts that

defendants’ production of her personnel file remains deficient. (Doc. 54 at PAGEID 534, 545,

548). Plaintiff requests a “written and detailed response” from defendants identifying which of

the documents produced by defendants specifically encompass her personnel file. (Id.).

Defendants argue that plaintiff’s motion to compel should be denied because defendants

“have produced all documents related to Plaintiff’s employment (Ex. A).” (Doc. 58 at PAGEID

761, citing Doc. 58-1). Defendants assert that there is not a “single file constituting [plaintiff’s]

personnel file,” and defendants have “produced all documents in their possession

that would make up Plaintiff’s ‘personnel file.’” (Id., citing Doc. 58-2). Defendants also

contend that plaintiff’s motion to compel should be denied because plaintiff is “trying to force

Defendants to produce documents that do not exist.” (Id.).

To the extent that plaintiff asks the Court to compel defendants to produce a “specific

detailed description of the documents” encompassing her personnel file (Doc. 54 at PAGEID

548), plaintiff’s motion is DENIED. Defendants have fully complied with the Federal Rules of

Civil Procedure and the Court’s Order (Doc. 49) by producing all documents related to plaintiff’s

employment with OAS. Although plaintiff seeks “clarity” as to the specific documents making

up her personnel file, defendants represent to plaintiff and the Court that defendants have

“produced all documents in their possession that would make up Plaintiff’s ‘personnel file.’”

(Doc. 58 at PAGEID 761; see also Doc. 58-2 at PAGEID 934). Moreover, at the Court’s

February 14, 2022 telephone status conference with the parties, counsel for defendants

represented that all documentation related to plaintiff’s employment with OAS had been

produced, and there were no particular personnel file documents that could be identified. (See

2/14/2022 docket entry). The undersigned accepted the representation by counsel, as an officer

of the Court, that all relevant documents have been produced in response to plaintiff’s discovery

requests. The Court is therefore satisfied with defendants’ response that they do not have any

additional documents at this time concerning plaintiff’s personnel file. Accordingly, plaintiff’s

motion to compel on this basis is DENIED.

B. Deposition transcript

Plaintiff asks the Court to compel defendants to “produce in its entirety, and in a timely

fashion, her deposition transcript to the Court. . . .” (Doc. 54 at PAGEID 535). Plaintiff

specifically “request[s] the [C]ourt order the defendant[s] to comply with FRCP 32 and provide

her access to the deposition transcript she is entitled to by [that rule]. . . .” (Id. at PAGEID 549;

see also Doc. 61 at PAGEID 1183).

Defendants argue that they are under no obligation to provide plaintiff with a copy of her

deposition transcript for free. (Doc. 58 at PAGEID 761-62, citing Riddle v. Claiborne, No.

00CIV1374, 2001 WL 1464729, at *1 (S.D.N.Y. Nov. 16, 2001)). Defendants contend that

plaintiff can “readily purchase a copy of her transcript from the court reporter.” (Id. at PAGEID

761).2

To the extent plaintiff asserts that defendants are obligated to provide plaintiff with a

copy of her deposition transcript free of charge, plaintiff’s motion to compel is DENIED.

2 Defendants identify the Court reporter, with whom plaintiff can order a copy of her deposition transcript, as

Patricia A. Walterman from Advanced One Legal, (866) 715-7770. (Doc. 58 at PAGEID 762).

Plaintiff has not directed the Court to any authority that would require a party to provide a copy

of a deposition transcript, free of charge, to an opposing party. Rather, pursuant to Federal Rule

of Civil Procedure 30(f)(3), “[w]hen paid reasonable charges, the [court reporter before whom

the deposition was taken] must furnish a copy of the transcript or recording to any party or the

deponent.” Fed. R. Civ. P. 30(f)(3).

Courts have consistently held that a party is not required to provide an opposing party

with a free copy of a deposition transcript. See Johnson v. Elum, No. 4:20-cv-12422, 2022 WL

1205005, at *3 (E.D. Mich. Apr. 22, 2022) (denying the plaintiff’s motion to compel the

defendant to produce a copy of the plaintiff’s deposition transcript because the plaintiff “may

request a copy of his deposition transcript from the court reporter at a reasonable cost”). See also

Adams v. Dolgencorp, LLC, No. 11-784, 2012 WL 1918625, at *2 (M.D. La. May 25, 2012)

(“[T]he deposition transcript is the property of the court reporter, and without payment to the

court reporter, the deposition transcript may not be produced by defendant absent a court

order.”); Schroer v. United States, 250 F.R.D. 531, 537 (D. Colo. 2008) (“The general rule,

established expressly by the Federal Rules of Civil Procedure, is that a party must obtain copies

of deposition transcripts directly from the court reporter upon the payment of a reasonable

charge, and not from opposing counsel or the court.”); Whittenberg v. Roll, No. CIVS042313,

2006 WL 657381, at *5 (E.D. Cal. Mar. 15, 2006) (denying the plaintiff’s motion to compel the

defendant to provide the plaintiff with a copy of the deposition transcript free of charge).

Accordingly, plaintiff’s motion to compel on this basis is DENIED.

C. Spoliation

Previously, plaintiff filed a motion to compel and for an order of protection (Docs. 36,

37, 38) concerning, among other issues, defendants’ alleged failure to comply with their “lawful

duty to preserve documents on refusal of the plaintiff’s production requests,” i.e., “the issue of

spoilage.” (Doc. 37 at PAGEID 251, 254). There, plaintiff alleged issues relating to spoliation

of a surveillance video and other documents by defendants. Plaintiff argued that defendants’

response alleging that particular items do not exist “reasonably aroused” in her mind claims of

spoliation. (Id. at PAGEID 251). Defendants argued that they did not “spoliate evidence”

because plaintiff’s “discovery requests sought numerous documents that do not exist” and were

“simply never in existence.” (Doc. 41 at PAGEID 306-07). The undersigned denied plaintiff’s

motion to compel on this basis because plaintiff failed to provide a factual basis from which the

Court could reasonably conclude that defendants spoliated evidence. (Doc. 49 at PAGEID 511).

The undersigned found plaintiff’s allegations of spoliation to be conclusory and speculative, and

“[d]efendants cannot be compelled to produce documents or other evidence that does not exist.”

(Id., citing cases).

Plaintiff’s second motion to compel related to issues of spoliation of documentary

evidence is denied. Plaintiff’s allegations regarding these documents remain speculative and

wholly conclusory. As the Court previously concluded, defendants cannot be compelled to

produce documents or other evidence that does not exist. See Solly v. Mausser, No. 2:15-cv-956,

2017 WL 4280935, at *2 (S.D. Ohio Sept. 27, 2017) (“Defendants do not have a duty to create

documents that do not exist simply to comply with a discovery request. The Court, therefore,

cannot compel Defendants to produce documents that do not exist.”); Brown v. Warden Ross

Corr. Inst., No. 2:10-cv-822, 2011 WL 1877706, at *5 (S.D. Ohio May 16, 2011) (“Defendants

have represented that they do not have the information Plaintiff seeks. The Court cannot require

them to produce what they do not have.”); Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-cv-

904, 2008 WL 4951792, at * 2 (S.D. Ohio Nov. 17, 2008) (“A party cannot be compelled to

produce documents which do not exist or which it does not possess or control.”).

With respect to plaintiff’s request seeking an order compelling defendants to explain why

certain surveillance video evidence does not exist, plaintiff’s motion is denied. As best the Court

understands, the video evidence at issue concerns the recording of an alleged encounter between

plaintiff and another OAS employee on September 29, 2016. OAS management personnel

purportedly viewed the video recording of the incident, which did not include audio, and

interpreted it as showing plaintiff interacting angrily and aggressively towards the other

employee. (Doc. 61-1, Brenda Lancaster Aff., at PAGEID 1193). The written statements of

these management employees were included in OAS’s response to plaintiff’s charge of

discrimination filed with the Equal Employment Opportunity Commission (“EEOC”). (Id.).

Defendants admit that there was a surveillance video but advised plaintiff that the video

no longer exists. (Doc. 58 at PAGEID 763). In response to plaintiff’s specific interrogatory

request, defendants referred plaintiff “to the email sent to Plaintiff on February 6, 2021, by

Defendants’ counsel, which explains that surveillance footage commonly is overwritten after a

period of time.” (Doc. 58-3 at PAGEID 944). Defendants explained to plaintiff that the “video

was viewed but no longer exists”; “[s]urveillance video is overwritten after a period of time”;

and “[t]his is not unusual.” (Doc. 58-4 at PAGEID 952). Defendants have provided a full

explanation in response to plaintiff’s request. Plaintiff’s motion is denied in this respect.

Plaintiff also seeks unspecified sanctions for the alleged spoliation of this video evidence.

A party seeking a spoliation sanction must establish: “(1) that the party having control over the

evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were

destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the

party’s claim or defense such that a reasonable trier of fact could find that it would support that

claim or defense.” Bevean v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010). Plaintiff

bears the burden of proof on spoliation. See Yoe v. Crescent Sock Co., No. 1:15-cv-3, 2017 WL

5479932, at *9 (E.D. Tenn. Nov. 14, 2017) (citing Byrd v. Alpha Alliance Inc. Corp., 518 F.

App’x 380, 384 (6th Cir. 2013)).

Plaintiff has not met her burden in this case. Plaintiff has not explained how the video

evidence is relevant to her claims in this case. She alleges the unavailable evidence is crucial to

her case and without it she will suffer prejudice (Doc. 61 at PAGEID 1179), but she fails to

explain how the missing video evidence would support her claims in this case.

With respect to OAS’s defenses, plaintiff generally alleges that the surveillance video

“was critical to Defendant’s claims to the EEOC for the non-discriminatory reason for the

adverse actions taken.” (Doc. 54 at PAGEID 545). She also alleges the “[v]ideo evidence is

critical as it duly presents clarity on examination of ‘credibility’ – meaning, objective

observation in context, in real time, could have pinpointed what Plaintiff asserts as distortions

and fabrications in the details; in other words, Defendant[s’] malicious mendacity – aka, creation

of an intentional unlawful discriminatory pretext.” (Doc. 61 at PAGEID 1179). As best the

Court can discern, plaintiff appears to argue that the video is relevant because defendants relied,

in part, on OAS management’s description and interpretation of the video in responding to

plaintiff’s EEOC charge of discrimination. Again, plaintiff does not explain how the video

evidence would prove or disprove OAS’s defenses in this case.

In any event, it is clear the surveillance video no longer exists and cannot be produced as

evidence in this case. It is also clear that to the extent defendants may seek to admit the

testimony of individuals recounting what they observed on the video prior to its overwriting, this

is prohibited. An affiant’s interpretation of surveillance footage may not be considered on

summary judgment because it would constitute inadmissible hearsay and violate the best

evidence rule. See Hinson v. Bias, 927 F.3d 1103, 1108 n.1 (11th Cir. 2019). See also Slocum v.

Bear, No. 1:18-cv-423, 2021 WL 3683873, at *4 (S.D. Ohio Mar. 26, 2021), report and

recommendation adopted, 2021 WL 3683353 (S.D. Ohio Aug. 19, 2021). Therefore, the Court

declines to impose sanctions based on the alleged spoliation of the surveillance video. Plaintiff’s

motion to compel and for sanctions on this basis is DENIED.

D. Discovery obligations

Plaintiff “proclaim[s] the expiration of discovery as fact, such that Defendant[s’] ‘right to

supplement’ is no longer viable.” (Doc. 54 at PAGEID 535). Plaintiff expresses “concern[] that

the Defendant[s] will be allowed unabated opportunity to create, fabricate, and suddenly produce

and ‘supplement’ at leisure, at any convenient opportunity. . . .” (Id. at PAGEID 546-47). To

the extent that plaintiff seeks to prohibit defendants from their ongoing duty under the Federal

Rules of Civil Procedure to supplement their discovery responses (Id. at PAGEID 535; see Doc.

58 at PAGEID 763), plaintiff’s motion to compel is DENIED.

Federal Rule of Civil Procedure 26(e)(1) provides:

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)—or who has

responded to an interrogatory, request for production, or request for admission—

must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the

disclosure or response is incomplete or incorrect, and if the additional or corrective

information has not otherwise been made known to the other parties during the

discovery process or in writing; or

(B) as ordered by the court.

Fed. R. Civ. P. 26(e)(1). See Williams v. Baptist Healthcare Sys., Inc., No. 3:16-cv-236, 2018

WL 11399986, at *2 (W.D. Ky. July 24, 2018) (“The duty of a party to supplement its

disclosures pursuant to Rule 26(e) is so well established in this Circuit as to be beyond

meaningful dispute.”). Moreover, the “duty to supplement discovery does not cease upon the

close of the applicable discovery period.” Everlight Elecs. Co. v. Nichia Corp., No. 12-cv-

11758, 2015 WL 412184, at *1 (E.D. Mich. Jan. 30, 2015) (citing Gorzynski v. JetBlue Airways

Corp., 03CV774A, 2012 WL 712067, at *4, (W.D.N.Y. Mar. 5, 2012)). See also Hubbell v.

FedEx SmartPost, Inc., No. 14-13897, 2016 WL 3197492, at *8 (E.D. Mich. June 9, 2016)

(“This duty to supplement continues throughout the trial proceedings, and it does not terminate at

the end of the formal discovery period.”) (citing Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230

(10th Cir. 2001) and Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D.

350, 358 (W.D.N.Y. 2011)).

Plaintiff fails to explain why she is seeking to prohibit defendants from complying with

their ongoing duty to supplement discovery under Rule 26. Although the Court has no basis on

which to conclude that defendants are withholding responsive documents or information,

defendants nevertheless retain the duty to timely supplement their responses as appropriate

pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. Plaintiff’s motion to compel on

this basis is therefore DENIED.

III. Defendants’ request for expenses and attorney fees

Defendants seek an award of attorney fees in opposing plaintiff’s motion. See Fed. R.

Civ. P. 37(a)(5)(B). Under Rule 37, the Court may award a party its reasonable expenses

incurred in opposing a discovery motion unless the Court finds the motion was substantially

justified or other circumstances make an award of expenses unjust. Id.

Under the circumstances of this case, the Court finds that an award of expenses would be

unjust at this time. It is apparent to the Court that plaintiff’s pro se status and lack of legal

training have precipitated the filing of the motion in this case. The Court grants plaintiff some

latitude in this regard in dealing with some of the legal issues in this case and her

misunderstanding of defendants’ obligations under the Federal Rules. Nevertheless, plaintiff is

warned that the Court will not entertain any further motions to compel discovery or for sanctions

based on the specific issues raised in the instant motion. Plaintiff is now on notice that should

she file such a motion in the future, she will be subject to sanctions, including but not limited to

attorney’s fees. See, e.g., Grant v. Target Corp., 281 F.R.D. 299 (S.D. Ohio 2012).

IT IS THEREFORE ORDERED THAT:

1. Plaintiffs second motion to compel and for sanctions (Doc. 54) is DENIED.

2. Defendants’ request for expenses and attorney fees is DENIED.

IT IS SO ORDERED.

Date: 6/13/2022 Harm _K- Rethow2

Karen L. Litkovitz

Chief United States Magistrate Judge

1]