The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_________________________________________________________________
LAST MINUTE CUTS, LLC )
and QUANNAH HARRIS, )
)
)
Plaintiffs, )
) No. 18-2631-MSN-tmp
v.
)
JERRY BIDDLE; JOHN McCLAIN; )
and ROXANNA GUMUCIO, )
)
Defendants. )
)
________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL
_________________________________________________________________
Before the court is Quannah Harris’s motion to compel. (ECF
No. 36.) For the reasons outlined below, the motion is GRANTED in
part and DENIED in part.
I. BACKGROUND
This is a federal civil rights lawsuit. Quannah Harris alleges
that Jerry Biddle, an investigator with the Tennessee Department of
Commerce and Insurance, attempted to extort money and sexual favors
from her and retaliated against her when she did not comply by
submitting false unfavorable inspection reports. (ECF No. 21.)
Biddle denies these allegations. (ECF No. 26.) Harris further
alleges that John McClain, another investigator with the Department
of Commerce and Insurance, forged and notarized Harris’s signature
on these inspection reports, and that Roxanna Gumucio, Executive
Director of the State Board of Cosmetology and Barber Examiners,
submitted these false documents to the Board in a disciplinary
action despite knowing they were false. (ECF No. 21.) McClain and
Gumucio deny these allegations. (ECF No. 26.)
On August 23, 2019, Harris served various requests for
production and interrogatories to Biddle, McClain, and Gumucio.
(ECF Nos. 36, 39.) The parties dispute whether four interrogatories
and two requests for production have been adequately answered.
The discovery requests directed at Biddle under dispute are:
•
Interrogatory No. 7: Have you ever had any allegations of
domestic violence resulting in the police being called? Please
submit the name and contact information of the alleged victim
and give a brief description of the incident.
•
Document Request No. 3: By way of request for production of
documents, please furnish statements referred to in your
answer to Interrogatory No. 6 above.
Harris has not disputed Biddle’s response to Interrogatory No. 6,
which asked Biddle to describe all allegations of sexual harassment
made against him during his employment. Biddle denied that any
allegations of harassment had been made against him. Biddle
responded to Interrogatory No. 7 by objecting on the grounds that
the request sought irrelevant information. Biddle responded to
Document Request No. 3 by stating that no responsive documents
exist because Biddle did not refer to any statements in his
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response to Interrogatory No. 6.
The discovery requests directed at McClain under dispute are:
•
Interrogatory No. 13: Identify each of the notaries public’s
acts, attestations, protections, and other instruments of
publication whereas an electronic signature was used. For the
last five years, submit a copy of your notary record book or
books in their entirety. Submit a list of each electronic
signature in which you notarized.
•
Document Request No. 5: By way of request for production of
documents, please furnish a copy of your notary book and a
list of all previously notarized electronic signatures
requested in Interrogatory No. 13 above.
McClain objected to both of these discovery requests on the grounds
that they sought irrelevant information, were overly broad and
unduly burdensome, and that producing the requested documents would
require disclosing the personal information of third parties.
The discovery requests directed at Gumucio under dispute are:
•
Interrogatory No. 6: Identify each individual who submitted a
formal complaint or informal complaint, written complaint, or
verbal complaint against Jerry Biddle for sexual harassment to
you or the State of Tennessee State Board of Cosmetology and
Barber Examiners. Please state their name, their contact
information, and the nature of the complaint.
•
Interrogatory No. 8: State the facts in detail for each formal
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complaint, written complaint, or verbal complaint against
Jerry Biddle for sexual harassment to you or the State of
Tennessee State Board of Cosmetology and Barber Examiners.
Gumucio responded to both requests by stating that: “No responsive
information exists. No formal, informal, written, or verbal
complaint against Mr. Biddle for sexual harassment has been filed
with me or with the Tennessee Board of Cosmetology and Barber
Examiners.”
On October 17, 2019, Harris filed this motion. However, Harris
did not file an accompanying brief in support of her motion or
explain why she believes the motion should be granted in the body
of her motion. On October 31, 2019, Biddle, McClain, and Gumucio
filed a response in opposition outlining their arguments as to why
the motion should not be granted.
II. ANALYSIS
A. Scope of Discovery
The scope of discovery is governed by Federal Rule of Civil
Procedure 26(b)(1), which provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the
case[.]” Fed. R. Civ. P. 26(b)(1). The party seeking discovery is
obliged to demonstrate relevance. Beijing Fito Med. Co., Ltd. v.
Wright Med. Tech., Inc., No. 2:15-CV-2258-JPM-egb, 2017 WL 5177643,
at *2 (W.D. Tenn. Apr. 20, 2017). Upon a showing of relevance, the
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burden shifts to the party opposing discovery to show, with
specificity, why the requested discovery is not proportional to the
needs of the case. William Powell Co. v. Nat'l Indem. Co., No.
1:14-CV-00807, 2017 WL 1326504, at *5 (S.D. Ohio Apr. 11, 2017),
aff'd sub nom. 2017 WL 3927525 (S.D. Ohio June 21, 2017), and
modified on reconsideration, 2017 WL 4315059 (S.D. Ohio Sept. 26,
2017). Six factors are relevant to proportionality: (1) “the
importance of the issues at stake in the action;” (2) “the amount
in controversy;” (3) “the parties' relative access to relevant
information;” (4) “the parties' resources;” (5) “the importance of
the discovery in resolving the issues;” and (6) “whether the burden
or expense of the proposed discovery outweighs its likely benefit.”
Fed. R. Civ. P. 26(b)(1).
B. Requests Directed at Jerry Biddle
Biddle argues that the motion to compel Interrogatory No. 7
should be denied because it seeks irrelevant information. Domestic
violence, Biddle argues, is not similar enough to anything alleged
in the complaint to satisfy even the relatively low standard for
relevance in discovery. Biddle does not address Document Request
No. 3 in his briefing.
Harris has not shown why the information sought by
Interrogatory No. 7 is relevant. Though both domestic violence and
sexual extortion by a government health inspector are reprehensible
acts, the court agrees with Biddle that any evidence of domestic
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violence would not be relevant in proving Harris’s extortion
claims. Harris has not suggested some alternative rationale as to
why this discovery is relevant, and has thus not met her burden to
show relevance.
It is unclear why Harris believes that Biddle’s response to
Document Request No. 3 is insufficient. The Request asks Biddle to
provide copies of all statements referred to in Interrogatory No.
6. Biddle said there were no such statements. Harris has not
challenged Biddle’s response to Interrogatory No. 6, which did not
refer to any statements. Biddle cannot be compelled to produce
statements that do not exist. The portion of the motion to compel
regarding the discovery requests directed at Biddle is DENIED.
C. Requests Directed at John McClain
McClain argues that the discovery requests directed at him are
irrelevant, overly broad and unduly burdensome, and would require
the disclosure of the personal information of third parties.
The court does not agree with McClain’s argument on relevance.
If McClain helped Biddle engage in a pattern of extortion from
Memphis barbershops by forging signatures on notarized forms,
McClain’s notary book would contain the names and contact
information of potential witnesses. Documents that have a
reasonable potential to lead to the identification of witnesses at
trial are relevant. See Act for Health v. United Energy Workers
Heathcare Corp., No. 5:15-CV-00195-TBR-llk, 2018 WL 3454902, at *6
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(W.D. Ky. Feb. 27, 2018); see also Lewis Envtl., Inc. v. Emergency
Response & Training Sols., Inc., No. 1:17-CV-674, 2019 WL 285641,
at *2 (S.D. Ohio Jan. 22, 2019) (“Relevance for discovery purposes
is extremely broad.”). Harris has thus shown the relevance of this
discovery request. McClain’s argument that this discovery request
is overly broad and unduly burdensome because Harris’s allegations
are not about McClain failing to appropriately maintain his notary
book fails for the same reason.
This leaves McClain’s argument that this discovery would
intrude on the privacy interests of the third parties whose
personal information is listed in his notary book. The privacy
interests of those third parties are diminished by the fact that
much of the information in McClain’s notary book is already
publicly available. “A notary is a public official of the state of
Tennessee[.]” In re Marsh, 12 S.W.3d 449, 453 (Tenn. 2000). “The
record kept of a notary public’s official acts is therefore a
public record” within the meaning of Tennessee’s public records
statute.1 Tenn. Op. Att'y Gen. No. 14-89 (Sept. 29, 2014).
1Since the Tennessee Attorney General’s opinion quoted here, the
notary statute has been amended. Previously, notaries in Tennessee
were required to maintain notary books regardless of whether they
charged a fee for their service. 2014 Pub. Acts, c. 805, § 5, eff.
Oct. 1, 2014 (repealed April 15, 2015). After the amendment, only
notaries who charge a fee are required to maintain notary books.
Tenn. Code Ann. § 8-21-1201. In his brief, McClain notes he did not
charge a fee and was thus not required to keep a notary book. (ECF
No. 39.) This does not appear to change whether his notary book is
a public record under Tennessee law, however, because McClain’s
notary book was still prepared “in connection with the transaction
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Tennessee’s public records statute requires that “‘all state,
county and municipal records . . . shall at all times, during
business hours, be open for personal inspection by any citizen
of Tennessee, and those in charge of such records shall not refuse
such right of inspection to any citizen, unless otherwise provided
by state law.” T.C.A. § 10-7-503(a)(2)(A). Though state law
prohibits the disclosure of “[o]fficial state or government issued
driver licenses or identification numbers,” it does not appear to
limit the public’s right of access to appropriately redacted notary
books. T.C.A. § 10-7-504(a)(29)(C)(ii). That a notary book is a
public record does not in and of itself make it discoverable – this
is not a state law public records request – but it does mean that
those third parties whose information is contained within McClain’s
notary book have diminished privacy expectations in what is already
a publicly available document.
Given the importance McClain’s notary book may have in aiding
Harris in identifying potential witnesses, the court grants this
portion of the motion to compel in part. McClain shall produce a
copy of those portions of his notary book or books created since
January 1, 2014 to the date of the filing of the complaint with
driver’s license numbers or other state identification numbers
redacted. This portion of the motion to compel is otherwise DENIED.
D. Requests Directed at Roxanna Gumucio
of official business by [a] governmental entity[.]” T.C.A. § 10-7-
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The dispute about Gumucio’s answers to Interrogatories Nos. 6
and 8 appears to be based on whether the word “filed” in Gumucio’s
response means the same thing as “submitted.” In briefing, Gumucio
represents that she intended the use of the word “filed” to mean
the same thing as “submitted.” Given her clarification, the court
sees no harm in ordering Gumucio to supplement her discovery
response to clarify that “filed” means “submitted.” The motion to
compel with regard to Gumucio’s responses is GRANTED.
III. CONCLUSION
For the reasons above, the motion to compel is GRANTED in part
and DENIED in part. To the extent the motion is granted, McClain
and Gumucio shall respond within fourteen days of the entry of this
order.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
November 15, 2019
Date
503(a)(1)(A)(i).
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