Guyton v. Exact Software N. Am.

• Decision Date: 21 December 2015
• Docket Number: Case No. 2:14-cv-502
• Court: U.S. District Court — Southern District of Ohio
• Parties: Carrie Guyton, Plaintiff, v. Exact Software North America, Defendant.

Carrie Guyton, Plaintiff, v. Exact Software North America, Defendant.

Case No. 2:14-cv-502

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

December 21, 2015

JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

OPINION AND ORDER

This matter is before the Court on a motion to compel discovery filed by Plaintiff Carrie Guyton. (Doc. 32). Defendant Exact Software North America filed an opposition to the motion to compel (Doc. 33), and Ms. Guyton filed a reply brief (Doc. 37). Exact Software North America filed a motion for leave to file a sur-reply instanter. (Doc. 40). For the reasons set forth below, the motion for leave to file a sur-reply instanter will be granted, and the motion to compel will be granted in part and denied in part.

I. Background

On May 27, 2014, Plaintiff Carrie Guyton filed this lawsuit against her former employer, Exact Software North America ("Exact"), alleging that Exact unlawfully terminated her employment based upon her age and gender. In the complaint, Ms. Guyton alleges that she is a female who "was born on August 6, 1958, and was employed by Defendant or its predecessor entities for approximately twenty five (25) years beginning in 1985." (Doc. 1 at ¶8). Ms. Guyton alleges that she received successive promotions and consistently favorable performance evaluations throughout her employment with Exact and its predecessors, up to and including her last performance review which took place on February 12, 2010. Ms. Guyton adds that "Exact never wrote her up for any performance issues." Id. at ¶10.

Ms. Guyton alleges that, on April 22, 2010, Exact informed her that it was terminating her employment for performance-related reasons, effective June 7, 2010. Ms. Guyton alleges that she "pressed for information" regarding the performance-related reasons in light of her positive performance evaluation on February 12, 2010. Id. at ¶12. Ms. Guyton asserts that "[i]n a conference call with her supervisor, Norah McDonald[,] and the Human Resources Manager, Leslie Pannkuk, Plaintiff was told that she was being terminated for performance issues such as typos and electronic mail issues." Id. Ms. Guyton asserts that electronic mail issues were not part of her job description, and she was not presented with any document containing a typo despite requesting one. Ms. Guyton also asserts that Exact did not follow its policy for progressive discipline as set forth in its "Corrective Action Policy." Id. at ¶14.

Ms. Guyton alleges that she spoke to Mitch Alcon, who was then the Chief Executive Officer of Exact North America, regarding the termination of her employment. More specifically, Ms. Guyton asserts that on May 11, 2010, during a visit to Exact's Columbus office, Mr. Alcon informed her that her employment was not terminated for performance-related issues, and he remarked that "sometimes change is good." Id. at ¶15. Ms. Guyton alleges that, during the same visit, Mr. Alcon made statements to other employees in which "he implied that some employees had been around for too long, and he would continue to replace current employees with younger ones." Id. at ¶16. Ms. Guyton alleges that Ms. Pannkuk expressed similar thoughts in a global human resources meeting on May 18 and May 19, 2010, when she commented that "'the workforce in the Americas is older andthey [sic] are causing the health insurance premiums to rise' and that 'there is a paradigm shift and the older workers have been there too long.'" Id. at ¶17. Finally, Ms. Guyton asserts that, after unlawfully terminating her employment, Exact hired a much younger woman named Danielle Bourke to fill her position.

Based upon these allegations, Ms. Guyton sets forth a claim of age discrimination in Count I of the complaint and seeks "a sum equal to her back-wages to the time of reinstatement, plus interest, damages for lost retirement benefits, insurance, and other fringe benefits, lost future earnings and front-pay, liquidated damages, and costs, including reasonable attorney's fees." Id. at ¶20. In Count II of the complaint, Ms. Guyton sets forth a claim of gender discrimination, but her reply memorandum indicates that she has abandoned that claim.

Prior to filing this lawsuit, Ms. Guyton filed a charge of unlawful age and gender discrimination with the Equal Employment Opportunity Commission ("EEOC"), and the EEOC issued her a right to sue letter. In her motion to compel, Ms. Guyton generally alleges that Exact made false statements to the EEOC during its investigation of her unlawful discrimination charge. Ms. Guyton also asserts that Exact has improperly failed to disclose the identity of the individual responsible for making the decision to terminate her employment. Ms. Guyton explains that the motion to compel "does not involve only a discrete set of documents that can be reviewed in camera and produced in discovery." (Doc. 32 at 27). Rather, the motion is "much broader," in that Ms. Guyton seeks the following relief:

a. An Order requiring Exact to identify and produce all emails, instant messaging and any other communications internally at Exact (including searching for emails to, from and/or copied to Harry Merkin, Mitch Alcon, Norah McDonald; Leslie Pannkuk and in-house attorney Jim Workman) as well as communication to, from and/or copied to any lawyer at Ulmer & Berne that relate in any way tothe termination of Carrie Guyton. In an effort to narrow this part of the Order, only those documents from the date of Ms. Guyton's EEOC filing (July 29, 2010) and earlier need to be subject to this search and production. For any documents that Exact claims in good faith are protected by the attorney client privilege, a privilege log should be produced to the Court and opposing counsel, and all such documents should be produced to the Court for an in camera inspection; and

b. An Order requiring Exact to identify and produce all emails, instant messaging and any other communications internally at Exact (including searching for emails to, from and/or copied to Harry Merkin, Mitch Alcon, Norah McDonald; Leslie Pannkuk and in-house attorney Jim Workman) as well as communication to, from and/or copied to any lawyer at Ulmer & Berne that relate in any way to the identity of the person who made the decision to terminate Carrie Guyton. Plaintiff respectfully suggests this section of the Order should not contain a time limitation because the subject is narrowly tailored to focus specifically on who the decision-maker was and the false statements made to the EEOC on this issue. For documents in which Exact claims in good faith to be protected by the attorney client privilege, a privilege log should be produced to the Court and opposing counsel, and all documents produced to the Court for an in camera inspection; and

c. An Order requiring Exact to identify and produce all email, instant messaging and any other communications internally at Exact (including searching for emails to, from and/or copied to Harry Merkin, Mitch Alcon, Norah McDonald; Leslie Pannkuk and in-house attorney Jim Workman) as well as communications to, from and/or copied to any lawyer at Ulmer & Berne that relate in any way to any affidavits prepared for or in response to Carrie Guyton's EEOC claim. Plaintiff respectfully suggests this section of the Order should not contain a time limitation because subject is narrowly tailored to focus specifically on the EEOC affidavits. For documents in which Exact claims in good faith to be protected by the attorney client privilege, a privilege log be produced to the Court and opposing counsel and all documents be produced to the Court for an in camera inspection; and

d. An Order requiring Exact and Ulmer & Berne to produce, in native format with all metadata available, as well asall electronic or hardcopy drafts of any affidavits in the possession or control of Exact or Ulmer & Berne relating to Carrie Guyton's EEOC claim (including affidavits prepared for Norah McDonald, Leslie Pannkuk, Mitch Alcon and any affidavits that were not submitted to the EEOC); and

e. For documents that are responsive to this Court's Order but Exact claims no longer exist, a log should be produced to the Court and opposing counsel identifying all such documents and indicating when such documents were deleted, destroyed or lost; and

f. An Order stating that the crime-fraud doctrine applies to communications between Exact's lawyers and Leslie Pannkuk regarding 1) who made the decision to terminate Carrie Guyton; 2) any statements made to the EEOC in the affidavits from Ms. McDonald or Ms. Pannkuk; and 3) any statements made to the EEOC regarding the person who made the decision to terminate Ms. Guyton; and

g. An Order requiring Exact to produce Leslie Pannkuk at the Federal Courthouse in Columbus, Ohio within 30 days of the Order for a continued deposition on the subject matter of: 1) who made the decision to terminate Carrie Guyton; 2) statements made to the EEOC in affidavits from Ms. McDonald and Ms. Pannkuk; 3) any other false statements Exact made to the EEOC; and 4) the general subject matters addressed in Ms. Pannkuk's first deposition where she was instructed not to answer the question and the Court has determined the subject of the question was not protected by the attorney client privilege or the privilege did not apply based upon the crime-fraud doctrine; and/or

h. If Exact is unable or unwilling to produce Ms. Pannkuk for a deposition in Columbus, Ohio, an Order that Exact is prohibited from: 1) submitting any testimony from Ms. Pannkuk at the summary judgment phase or at trial; 2) submitting any evidence that attempts to explain or justify why the false statements were made to the EEOC; and

i. If this Court determines plaintiff is not permitted to obtain additional discovery consistent with this motion, Order that Exact is prohibited from submitting any evidence or argument at summary judgment, trial or any other time, that addresses, explains or justifies

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