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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv664-MHT

)

SANDERS LEAD COMPANY, INC., )

)

Defendant. )

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL

COMES NOW, Defendant Sanders Lead Company, Inc., by and through the

undersigned counsel of record, and does hereby respond to Plaintiff’s Motion To Compel.

In response thereto, Defendant states the following:

STATEMENT OF FACTS

1. On or about January 18, 2007 Defendant was served with “Plaintiff’s First

Set of Interrogatories and Requests for Production of Documents.”

2. Included in the Requests for Production was Request number 8 which stated

the following:

“All documents reflecting personnel information of all defendant’s

employees wherever kept, who have been hired, transferred or

promoted to vacant positions withing the division or section where the

plaintiff worked from October 2005 to the present. This should

include, but not be limited to, file jacket(s), medical records, payroll

records, time cards, absentee and tardiness records, discipline

records, etc., and any other documents relating to the terms and

conditions of employment.”

3. On or about the 17th day of February, Defendant responded to said

interrogatories and requests. In said responses Defendant initially objected

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to Plaintiff’s request number 8, although a list of employees who were hired

during the time frame was produced.

4. Counsel for the Plaintiff has acknowledged receiving said responses and

documents in a timely manner. See Plaintiff’s Motion to Compel, p. 1,

paragraph 2.

5. On the afternoon of June 8, 2007, nearly four months after receiving the

initial responses, counsel for the Plaintiff first raised any issue he had with

the responses when he e-mailed a communication and attached a letter that

was also mailed. In said communication and letter he then asked Defendant

to supplement said responses to include all the documents he requested in

request number 8.

6. In said letter he gave his own imposed deadline of seven (7) days within

which to respond.

7. Several communications were made and stated positions were given over

the next several days. 

8. Counsel for the Plaintiff at one time did state that he could “agree to not seek

pay, medical records, health benefit information, or any thing to do with

salary.” However, neither the Defendant nor the Defendant’s counsel ever

received a formal amendment or formal request different than that of request

number 8 quoted above.

9. In Plaintiff’s Motion to Compel, Plaintiff’s counsel stated that “Request for

Production No. 8, in its pared down state, is reasonably calculated to secure

or lead to relevant information regarding employment practices at the

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Defendant’s organization.” See p. 7 of Plaintiff’s Motion to Compel.

However, prior to June 15, 2007, the deadline given by Plaintiff to respond

to his request for supplemental responses and even as of the date of this

filing, there has been no formal request made and certainly no pared down

version of Plaintiff’s request number 8.

10. Accordingly, as requested by the Plaintiff’s counsel, on June 15, 2007, the

Defendant supplemented its’ responses to the only version of Plaintiff’s

Interrogatories and Requests for Production the Defendant ever received.

11. As part of its’ supplemented responses, the Defendant responded to

Plaintiff’s request number 8 as follows: 

“Defendant objects to this request to the extent that it is overly broad

and unduly burdensome and not reasonably designed or calculated

to lead to relevant and admissible discovery. The documents sought

are not subject to discovery or otherwise are impermissible subjects

of discovery under the rules of civil procedure. Defendant objects to

this request to the extent that it seeks documents or things which

constitute confidential, proprietary information, or to which Defendant

has a duty or obligation of confidentiality with respect to persons or

entities not parties to this litigation. This objection is made

specifically, but without limitation, with respect to this request which

entails disclosure of the identities or other confidential information of

persons not parties to this litigation, whose privacy rights would be

violated by such disclosure. Further, the information sought is

privileged and protected and may be a violation of employees’ privacy

acts and/or HIPAA standards. 

Notwithstanding said objection, employee hirings were

included in the original attached documents.”

12. Plaintiff then filed his motion to compel on Monday, June 18, 2007.

ARGUMENT

13. Essentially, Plaintiff is seeking the personnel files of every employee of

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Defendant’s casting and alloy department who has been hired, transferred

or promoted since October of 2005.

14. First and foremost, producing all of the information requested would impose

an unfair burden on the Defendant by imposing an extremely costly and time

consuming task of sorting and copying all of the personnel files requested.

15. Also, the files requested contain confidential and privileged medical

information and personal information of employees not subject to discovery

that the Defendant has a duty to protect. 

16. Further, in Plaintiff’s Motion to Compel, he mistakenly argues that Mr.

McNabb’s work record was “the reason he was not re-hired.” See Plaintiff’s

Motion to Compel, p. 7

17. As stated in Defendant’s Motion for Summary Judgment, Mr. McNabb was

not rehired because at the time he applied, there were no openings in the

casting and alloy department. The only mention of his previous work history

in regards to the re-hiring of the Plaintiff was that “due to Mr. McNabb’s

previous work history, he would not likely have been hired even if Sanders

Lead was hiring.” See Defendant’s Motion for Summary Judgment, p. 6 and

also affidavits of Edgar Fannin and Sam Kitchens attached as exhibits 1 and

33 respectively to Defendant’s Motion for Summary Judgment.

18. In Camara v. Brinker Intern., the Plaintiff, a female manager, sued her

former employer for discrimination as she claimed she was treated differently

than other similarly situated male managers. As part of her appeal, she

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challenged the District Court’s ruling that the personnel files of three male

managers were not discoverable. 11th Circuit Court of Appeals held that the

personnel files of the three similarly situated male managers were not

discoverable because a significant amount of discovery had already been

obtained, further discovery would not aid the Plaintiff in resolving the issues,

and “even if the requested files would have been helpful to [the Plaintiff] in

establishing her prima facie case, they would not have rebutted the

legitimate, non-discriminatory reason for her termination offered by [the

Defendant]. Camara v. Brinker Intern., 161 Fed Appx. 893, C.A. 11 (Fla.

2006). 

19. The Defendant’s legitimate non-discriminatory reason for not re-hiring the

Plaintiff was that no openings were available at the time he applied. Even

if the requested documents would be helpful in establishing a prima facie

case of age discrimination, which they wouldn’t, they would be irrelevant to

rebutting the Defendant’s proffered legitimate, non-discriminatory reason for

not rehiring the Plaintiff.

20. Therefore, Plaintiff’s request is not reasonably designed to lead to relevant

discovery as the information sought in no way helps the Plaintiff rebut the

Defendant’s legitimate, non-discriminatory reason for not rehiring the

Plaintiff.

21. Additionally, Defendant has provided the Plaintiff with an abundance of

records and documents including the names of all people hired in the time

period requested. See Exhibit 3 of Plaintiff’s Motion to Compel.

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22. Nothing has prevented the Plaintiff from contacting the employees hired and

discussing matters with them.

23. Further, Plaintiff’s counsel has had at least two opportunities to depose

Sanders Lead management to ask questions and gather information

regarding all of the issues, yet has failed to make appropriate arrangements

to do so.

CONCLUSION

24. Plaintiff’s Request for Production Number 8 would impose an unfair burden

on the Defendant by imposing an extremely costly and time consuming task

of sorting and copying all of the personnel files requested. Additionally, the

files requested contain confidential and privileged medical information and

personal information of employees not subject to discovery that the

Defendant has a duty to protect. Further, a significant amount of discovery

has already been produced and the Plaintiff has had an opportunity to obtain

even more through depositions. Additional discovery would not aid the

Plaintiff’s case and is not reasonably designed to lead to relevant discovery

as the information sought in no way helps the Plaintiff rebut the Defendant’s

legitimate, non-discriminatory reason for not rehiring the Plaintiff.

WHEREFORE, for the above stated reasons, the Defendant respectfully requests

that this Court deny Plaintiff’s Motion to Compel.

Respectfully submitted this the 26th day of June, 2007.

s/ N.J. Cervera 

N.J. Cervera (CER001)

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s/ Frank P. Ralph 

Frank P. Ralph (RAL002)

s/ Grady A. Reeves 

Grady A. Reeves (REE042)

s/ Matthew M. Baker 

Matthew M. Baker (BAK017)

OF COUNSEL:

CERVERA, RALPH, & REEVES, LLC

914 South Brundidge Street

P.O. Box 325

Troy, Alabama 36081

phone (334) 566-0116

fax (334) 566-4073

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document to all persons

listed below by CMF/Electronic Mail:

Roderick T. Cooks, Esq.

WINSTON COOKS, LLC

The Penick Building

319 17th Street North

Birmingham, Alabama 35203

this the 26th day of June, 2007.

s/ N.J. Cervera 

OF COUNSEL

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