IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff ) CIVIL ACTION NO: 

) 2:06-0664-MHT

v. )

)

SANDERS LEAD COMPANY, INC. )

)

Defendant. )

PLAINTIFF’S MOTION TO COMPEL

COMES NOW, the Plaintiff, Maxie McNabb, and respectfully moves this Honorable Court

to compel the Defendant, Sanders Lead Company, Inc., to produce documents requested by the

Plaintiff in Plaintiff’s First Request for Production of Documents. Plaintiff is seeking such relief

from the Court because despite numerous phone conversations and written correspondence, the

Defendant has not responded adequately to Plaintiff's Request for Production No.8 seeking basic

comparator information from employee personnel files . As grounds for this Motion to Compel, the

Plaintiff states as follows:

I. PROCEDURAL HISTORY

1. Plaintiff McNabb, fifty-four years old at the time of the decisions at issue, filed the

above styled employment discrimination lawsuit alleging that the Defendant failed to recall and/or

rehire him because of his age and that it retaliated against him on for opposing and reporting age

discrimination. McNabb, a former employee, sought to be re-hired after a reduction in force. 

2. On January 17, 2007, McNabb served Plaintiff's First Interrogatories and Request for

Production of Documents on the Defendant. (Ex. 1). Defendant responded on February 16, 2007.

(Ex. 2).

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3. Pursuant to Rule 37 of the Federal Rules of Civil Procedure, McNabb requested by

letter dated June 8, 2007, that the Defendant supplement its discovery responses by June 15, 2007.

(Ex. 3).

4. Defendant agreed to supplement its responses to each issue outlined in McNabb’s

letter of June 8, 2007, except Request for Production No. 8. 

5. Request for Production No. 8 reads as follows: 

8. All documents reflecting personnel information of all

defendant's employees, wherever kept, who have been hired,

transferred or promoted to vacant positions within 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.

6. The Defendant produced the applications of individuals who were hired into the

department where McNabb was qualified to work from October 5, 2006 to the present, however, it

has refused to provide any other personnel information for such persons- such as disciplines and

attendance records.

 7. By email dated June 13, 2007, Plaintiff McNabb offered to narrow his request to

seek only information related to discipline, attendance, and tardiness received by individuals hired,

transferred or promoted to vacant positions within the division or section where he worked from

October 2005 to the present. (Ex. 4). 

8. The information about comparators is important because Sanders Lead Company

Inc. argued in its Brief In Support of Its Motion for Summary Judgment that: “Sanders Lead

discharged Mr. McNabb as part of a work force reduction for the following reasons: (1) discipline

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1Likewise, in its statement of facts, the Defendant cites to numerous instances of

absenteeism and misconduct on the part of McNabb. (See Doc.#10, Def. Br. pp. 2-7). 

2

 McNabb is unsure what employees privacy act the defendant refers to. The redacted

portion of this exhibit concerns confidential settlement negotiations.

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problems (2) poor work ethic and (3) unsatisfactory production.”1

 Thus, McNabb’s work

performance as compared to other employees is directly relevant to issues in the case. 

9. Plaintiff McNabb explained that he could forego receiving any information regarding

 pay, medical records, health benefits, or any thing to do with salary, but that he needed, the

aforementioned information because of the comparator issue. 

10. Moreover, from the application documents the Defendant has produced, it appears

that approximately forty individuals outside of McNabb’s protected category were hired into his

department after his being laid off. (Ex. 5). Approximately twenty-eight of those persons were

under the age of thirty when hired. (Id.). Some of these individuals were former employees who

had been terminated by the Defendant in the past for offenses such as falling asleep at work and

tardiness. 

11. By email dated June 14, 2007, the Defendant expressed skepticism with regard to

producing the information sought by McNabb as it believed the request was not narrowly tailored

and violative of, inter alia, HIPPA and other unspecified employee privacy acts.

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 (Ex. 6). 

Defendant further stated that it would let the Plaintiff know by June 15, 2007, whether it would

produce the requested information. Defendant has refused to produce the requested documents. 

12. By its actions the Defendant has unilaterally and unreasonably limited the Plaintiff's

access to documents and information that are critically relevant to the prosecution of Plaintiff's case.

These tactics are improper and fly in the face of established case law and the liberal discovery rules.

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Unless the requested information is compelled by this Court, the Defendant's unilateral discovery

limitation will result in prejudice to the Plaintiff. 

13. Additionally, although the Defendant recently provided signed responses to

McNabb’s First Interrogatories Production of Documents, the interrogatories were not sworn to by

the Defendant under oath as required by Federal Rule Civil Procedure 33(b)(1). 

II. THE STANDARD FOR DISCOVERY

As this Court is well aware, the Federal Rules of Civil Procedure allow for liberal discovery.

Pursuant to Federal Rule of Civil Procedure 26(b)(1), parties may discover: 

“any matter, not privileged, which is relevant to the subject

matter involved in the pending action, whether it relates to the

claim or defense of the party seeking discovery or to the claim or

defense of any other party, including the existence, description,

nature, custody, condition, and location of any books, documents

or other tangible things and the identity and location of persons

having knowledge of any discoverable matter. The information

sought need not be admissible at the trial if the information

sought appears reasonably calculated to lead to discovery of

admissible evidence.” (emphasis added).

On June 12, 2007, the Eleventh Circuit restated this bedrock principle of federal litigation,

in Adkins v. Christie, 2007 WL 1673510 (11th Cir. 2007).

In Adkins, an African-American physician appealed a decision by the district court

recognizing a privilege for certain medical documents and improperly limiting the scope of

discovery. During discovery, Adkins requested documents relating to the peer review of all

physicians at the hospital during the seven years he was a member of the hospital staff. The

defendants filed a motion for protective order, arguing that the information sought was protected by

the Georgia medical review privilege. (Id. at p. 2). This so called “medical peer review privilege”

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sought to protect from discovery and disclosure records containing performance reviews and

assessments of physicians by their peers, primarily in connection with their practices at hospitals.

(Id. at p. 1). 

 The district court held that the privilege applied to federal civil rights actions and ordered

the defendants to provide Adkins with descriptions of the incidents giving rise to peer review,

without disclosing the documents themselves. Moreover, the district court limited production to peer

review documents covering physicians it deemed similarly situated to Adkins, i.e. those that worked

in his department for the previous five years, rather than to all physicians with staff privileges at the

hospital during the seven years that Adkins worked there. (Id. at p. 2). At the close of discovery,

with these limitations in place, the district court then granted defendant’s motion for summary

judgment. (Id.).

On appeal, the Court stated that the: “documents that HMC (the defendants) seek to protect

are critical to Adkins’ discrimination claims. The only way that Adkins can demonstrate the

existence of disparate treatment in his case against the hospital is to compare his peer review with

the peer review files of other physicians at HMC.” (Id. at p. 4). After balancing the interest of the

defendants in keeping such information out of the public domain and the competing interest of

rooting out invidious discrimination, the Court sided with the plaintiff and declined to recognize the

medical peer review privilege. As to scope of the discovery issue, the Court held that the limitations

placed on the plaintiff were improper and that he should be able to place his case within the context

of the larger disciplinary processes of the hospital and any thing less placed an excessive burden on

his ability to pursue his claim. The district court’s decision was vacated and remanded.

In the case at bar, McNabb is not seeking any information regarding any issue that could

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remotely be described as privileged or confidential. McNabb is not seeking confidential medical

information. McNabb stated as much through his attorney of record in the June 13, 2007 email

mentioned above. 

Defendant cannot realistically state that the discovery of disciplinary records, absentee

records, and tardiness records are deserving of some type of protection when they themselves assert

these issues as a basis for the actions they took regarding McNabb. Denying McNabb these

documents excessively narrows the scope of the discovery needed for him to pursue his claims. This

was deemed improper in Adkins and is equally improper here. 

Furthermore, as this Court is well aware, the scope of discovery is not limited to issues raised

in the pleadings, "for discovery itself is designed to help define and clarify the issues." Lyoch v.

Anheuser-Busch Co., 164 F.R.D. 62 (E.D.Mo. 1995) (quoting Flanagan v. Travelers Ins.Co., 111

F.R.D. 42, 45 (W.D.N.Y. 1986). Moreover, the liberal standards governing discovery in

discrimination cases are well established. See, Lyoch v. Anheuser-Busch Co., 164 F.R.D. 62

(E.D.Mo. 1995). In fact, in Wards Cove Packing Company v. Atonio, 490 U.S. 642, 657 (1989), the

Supreme Court held that a Plaintiff in a Title VII lawsuit may employ "liberal civil discovery rules"

to obtain "broad access to employer's records." By its actions the Defendant in this case is

attempting to unilaterally limit the Plaintiff's discovery to only issues it deems are relevant which

is highly improper. 

A plaintiff bringing an individual claim of discrimination must be given a full and fair

opportunity to demonstrate by competent evidence that the presumptively valid reasons for his

rejection were in fact a coverup for a discriminatory decision. The information and documents

requested by the Plaintiff, in the instant action, are necessary to assist the Plaintiff in establishing his

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claims of age discrimination and retaliation. 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 Defendant's organization.

Sanders Lead Company Inc.’s refusal to provide the work records of other employees while

citing McNabb’s work record as the reason he was not re-hired goes against the case law

concerning proof of discrimination. Sander’s Lead injected work performance into this re-hiring

and/or recall case and put the employee work records at issue. As the Circuit stated in Adkins*5

and Federal Rules of Civil Procedure 26(b)(1) provide, “Relevant information need not be

admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of

admissible evidence.” 

IV. CONCLUSION

The Defendant's refusal to fully respond to the Requests For Production No. 8 has prejudiced

the Plaintiff's ability to prepare a response to summary judgment and proceed with discovery.

Wherefore, the Plaintiff respectfully moves this Honorable Court to Order the Defendant, Sanders

Lead Company, Inc., to produce the discovery specified in this motion at the Plaintiff's attorney’s

offices in Birmingham, Alabama, within seven days of entry of an Order compelling the Defendant

to produce the overdue discovery. Further, Sanders Lead Company should be required to provide

sworn interrogatory responses as provided by Federal Rule of Civil Procedure 33(b)(1). 

Respectfully submitted,

/s/Roderick T. Cooks

Attorney for the Plaintiff

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OF COUNSEL:

WINSTON COOKS, LLC

The Penick Building

319-17th Street North

Birmingham, AL 35203

Tel: (205)502-0970

Fax: (205)251-0231

email: rcooks@winstoncooks.com

CERTIFICATE OF SERVICE

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

below by CMF/Electronic Mail and/or U. S. Mail, postage prepaid and addressed to them as follows:

Matthew M. Baker, Esq.

Cervera, Ralph & Reeves, LLC

P.O. Box 325

914 South Brundidge Street

Troy, Alabama 36081

(334) 566-0116

(334) 566-4703 fax

Done this the 18th day of June, 2007.

s/Roderick T. Cooks

Of Counsel 

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