IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kelley Craig-Wood, :

Plaintiff, :

v. : Case No. 2:10-cv-906

Time Warner NY Cable LLC, : JUDGE JAMES L. GRAHAM

Magistrate Judge Kemp

Defendant. :

ORDER

This employment discrimination case is before the Court to

consider a second motion to compel filed by plaintiff Kelley

Craig-Wood. The motion is fully briefed. For the following

reasons, the motion (#53) will be granted in part and denied in

part.

I. Background

The factual background of this case is set out in some

detail in the Court’s April 16, 2012 order which ruled on Ms.

Craig-Wood’s first motion to compel discovery, and that

background will not be repeated here. However, it is helpful to

describe the events leading up to the issuance of that order,

because, as Ms. Craig-Wood states, the issue raised by her

current motion is “whether the Defendant must provide to

Plaintiff the discovery as ordered by the Court in Document #42

[the April 16, 2012 order].” See Plaintiff’s Reply to

Defendant’s Response to Plaintiff’s Motion to Compel Discovery

and For a Status Conference for Continued Discovery, Doc. 60, at

1.

Ms. Craig-Wood’s prior motion to compel dealt with her

request for production of documents. That motion sought,

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generally, to compel responses to “a vast majority” of those

requests, which were served on December 27, 2011. Production of

documents was delayed while the parties haggled over the need for

a protective order; when documents were finally produced, other

than 40 pages of documents relating to Ms. Craig-Wood’s

supervisor, Bianca Beckley, and about 100 pages relating to the

“Colley investigation,” all of the documents which Ms. Craig-Wood

received related to her - such as portions of her personnel file

and her medical records. Her primary complaint, in the motion to

compel, was the lack of production of any documents relating to

similarly-situated employees who, Ms. Craig-Wood contended, were

treated differently than she was.

The motion to compel was fairly specific about what

documents Ms. Craig-Wood wanted the Court to order Time Warner to

produce, although it did not refer to the document requests by

number. The documents described in the motion as relevant but

not yet produced included Tenesia Tyus’ personnel file, job

descriptions, job assignments, area assignments, and commissions

paid; information from Ms. Beckley’s file about her contact with

Ms. Craig-Wood and her follow-up contact with the human resources

department; documents showing the production of her coworkers,

including but not limited to Princess Powe; information from the

file of Ty Harris, the department manager, about the production

of both Ms. Craig-Wood and her coworkers; commission sheets

showing commissions paid to Ms. Craig-Wood and her co-workers;

and documents provided by Time Warner to the Ohio Department of

Job and Family Services explaining the reasons why the employment

of Ms. Craig-Wood, Ms. Beckley, Ms. Tyus, and Mr. Harris was

terminated. See Plaintiff’s Motion to Compel Discovery, Doc. 35. 

In her reply memorandum, Ms. Craig-Wood reiterated that the issue

raised by her motion was “whether Plaintiff is permitted to

conduct discovery on comparable coworkers and her departmental

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supervisors,” see Plaintiff’s Reply, Doc. 39, at 1, and she

reiterated her request for documents which would show that all of

her coworkers also engaged in fraudulent sales practices and that

this conduct was overlooked except in Ms. Craig-Wood’s case,

where it led to her termination. 

In the order granting that motion in part, the Court

directed Time Warner to produce a number of additional documents. 

Concluding that, as in most cases which involve claims of

employment discrimination, Ms. Craig-Wood was entitled to see

evidence about how similarly-situated coworkers were treated, the

Court directed Time Warner to respond to some of the document

requests at issue. The requests which the Court discussed in its

order were Nos. 6-9 and 11-26 and No. 28. Requests 6-9 all deal

with documents related to Bianca Beckley, and requests 11-26 are

identically-worded sets of requests for the “personnel file,”

“job descriptions,” “job assignments and area assignments,” and

“commissions paid” for Ms. Tyus, Carmela Weiser, Princess Powe,

and Ty Harris. Request No. 28 was for the documents provided to

ODJFS explaining the various terminations. The Court held that

documents from the various personnel files might be relevant to

the extent that they showed that other employees engaged in

similar fraudulent activity but received no discipline or

complained to human resources and had their complaints taken

seriously; that documents showing the number of addresses

assigned to these various employees might also be relevant; that

commission documents might be relevant; and that documents

relating to the unemployment claims made by these persons (other

than Mr. Harris) to ODJFS might also be relevant. That is the

universe of documents Time Warner was ordered to produce.

II. The Current Motion

Among other arguments contained in its opposing memorandum,

Time Warner asserts that the current motion does not limit itself

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to documents which are covered by the April 16, 2012 order, but

goes far beyond that order and is a belated attempt to obtain

information which was either requested in the past but never

before the subject of a motion to compel, or never requested at

all. To the extent that the motion asks for documents which were

not the subject of Ms. Craig-Wood’s prior motion, Time Warner

notes that the time for filing discovery-related motions has

passed, and asks the Court to hold that the motion simply cannot

be entertained, whatever its merit (or lack of merit). Because,

as quoted above, Ms. Craig-Wood has described the key issue as

whether Time Warner has produced all of the documents which the

April 16, 2012 order directed it to produce, the Court will

compare in detail the documents which Ms. Craig-Wood discussed in

her second motion to compel with those which the Court ordered

Time Warner to produce, and will not devote any substantial

discussion to documents which were not the subject of the prior

order.

Ms. Craig-Wood’s motion asks for these documents: (1) a memo

from Bianca Beckley’s personnel file concerning her alleged

misconduct in the Athens area; (2) records of an investigation

which Time Warner allegedly conducted into Ms. Beckley’s

activities; (3) all of the commission reports for Ms. Beckley;

(4) the ODJFS documents; (5) a CD containing documents referred

to in the Colley investigation report; (6) documents responsive

to Requests Nos. 27 and 37 of her December, 2011 document

request, particularly records compiled by Marlo Richardson as

part of her investigation; and (7) either additional documents

from Ms. Craig-Wood’s personnel file, or an explanation for why

they are missing. 

It is apparent from this description that, indeed, Ms.

Craig-Wood’s current motion goes well beyond the scope of both

her prior motion and the Court’s prior order. She did not ask

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the Court to compel production of, and the Court did not order

production of, any investigative reports, any documents on a CD

associated with the Colley investigation, or anything having to

do with Ms. Richardson’s investigation, including her notes. Her

prior motion also did not address alleged deficiencies in her own

personnel file. Thus, documents in categories (2), (5), (6) and

(7) are not appropriate subjects for the current motion to

compel. Further, whether any of these documents were the subject

of her December, 2011 document request - a separate argument made

by Ms. Craig-Wood - is irrelevant at this point. The only issue

which the Court may now deal with is any noncompliance with the

April 16, 2012 order concerning the documents in categories (1),

(3), and (4).

III. Discussion

The Court did order production of commission reports for,

among other employees, Bianca Beckley. Time Warner asserts that

all of them have been produced. The dispute appears to center

around some dates in 2008 and 2009 when, according to Ms. CraigWood, Ms. Beckley should have received commissions. At this

point, the Court can only reiterate that if these documents

exist, they have to be produced, but it can go no further as to

these or any other documents which may have existed at one time. 

If Time Warner has represented (and it has) that it has produced

all of the documents on this subject in its possession, that is

sufficient at this point. Notably, Ms. Craig-Wood appears never

to have requested, by way of discovery, any explanation for any

missing documents, and she took depositions after the claimed

deficiency in this production became apparent. Discovery is

closed, so the only order the Court can make is to direct Time

Warner to confirm, again, that it has produced everything in its

possession concerning Ms. Beckley that the Court ordered it to

produce.

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The same holds true for documents that are supposedly

missing from Ms. Beckley’s personnel file. Although there may be

some evidence that they were there at one time, Time Warner says

it has produced everything from that file which the Court’s order

directed it to turn over. If there is an issue about spoliation

of evidence, a motion for sanctions, if properly supported, might

be appropriate, but the Court is unable to compel a party to

produce documents that, for whatever reason, no longer exist.

The only issue which causes the Court some significant

concern is the ODJFS documents. Time Warner apparently

acknowledges that it has produced only a handful of such

documents, but explains the lack of documentation about those

proceedings by stating that such claims were handled through a

third-party administrator and that Time Warner “has produced all

of the documents it received from the administrator for Plaintiff

and Tyus.” Defendant’s Memorandum in Opposition, Doc. 59, at 12.

As Fed.R.Civ.P. 34 makes clear, a party responding to a

document request is required to produce not only documents which

it actually possesses, but also documents within its control. 

Even if Time Warner has outsourced the handling of unemployment

claims to a third-party administrator, it presumably retains

control over the documents used by the administrator when it

represents Time Warner’s interests before the ODJFS. It is not

clear from Time Warner’s response whether the documents it

“received” from its administrator are documents it received in

the ordinary course of business, or documents it received after

being served with the document request and after being ordered by

the Court to produce such documents. If the latter is the case,

again, the Court cannot order production of any documents that no

longer exist. If the former is the case, however, and if Time

Warner has never asked its administrator to provide it with

responsive documents even though it has the right to do so, it

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must pursue that course of action in order to be in compliance

with the Court’s prior order. The Court will direct Time Warner

to address this issue and to produce additional responsive

documents if it indeed has the legal right to obtain them from

the administrator.

 IV. Conclusion and Order

For these reasons, Ms. Craig-Wood’s second motion to compel

(Doc. #53) is granted in part and denied in part. Time Warner is

ordered to (1) confirm that it has produced all responsive

commission reports and personnel records for Bianca Beckley; and

(2) obtain any ODJFS documents that are responsive to the Court’s

April 16, 2012 order from its unemployment claims administrator

that it has not already obtained, and produce those documents to

Ms. Craig-Wood, or, alternatively, confirm that it has done so

and that there are no additional documents in its control which

are responsive. Given the current case schedule, it shall comply

with this order by July 13, 2012. Ms. Craig-Wood is granted an

additional one-week extension of time, to July 26, 2012, to

respond to the pending summary judgment motion.

 V. Procedure on Objections

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A);

Fed.R.Civ.P. 72(a); Eastern Division Order No. 91-3, pt. I., F.,

5. The motion must specifically designate the order or part in

question and the basis for any objection. Responses to objections

are due fourteen days after objections are filed and replies by

the objecting party are due seven days thereafter. The District

Judge, upon consideration of the motion, shall set aside any part

of this Order found to be clearly erroneous or contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

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or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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