IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRACY ABERNATHY, et al.,

Plaintiffs,

vs. Civil Action 2:10-CV-131

Judge Watson

Magistrate Judge King

CORINTHIAN COLLEGES, INC.,

Defendant.

OPINION AND ORDER

This matter is before the Court on plaintiffs’ motion to compel.1

Plaintiffs’ Motion to Compel Discovery Responses, Doc. No. 17 (“Motion

to Compel”). For the reasons that follow, the Motion to Compel is

GRANTED in part and DENIED in part. 

This is an employment action in which plaintiffs assert claims of

sexual harassment and retaliation under Title VII, 42 U.S.C. §2000e-5.2

After the Court established a discovery deadline, Preliminary Pretrial

Order, Doc. No. 8,3 plaintiffs served discovery requests on February

23, 2011. Exhibit A, attached to Motion to Compel. Plaintiffs

represent that they filed the Motion to Compel after defendant failed

to respond to these requests. Motion to Compel, p. 2. After

plaintiffs’ motion was fully briefed, see Doc. Nos. 19 and 23,

1There are three plaintiffs: Tracy Abernathy, Jennifer Brown and Lawana

Shipley. Amended Complaint, Doc. No. 11. On August 4, 2011, the Court

granted plaintiffs’ counsel leave to withdraw as counsel for plaintiff Lawana

Shipley. Order, Doc. No. 32. 

2There is a related case pending in state court. See Preliminary

Pretrial Order, Doc. No. 8.

3The discovery deadline was later extended to July 1, 2011. Order, Doc.

No. 16.

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defendant filed a notice representing that it had fully complied with

plaintiffs’ discovery requests. Doc. No. 27. The Court then ordered

the parties to report on the status of the Motion to Compel. Order,

Doc. No. 28.

On July 29, 2011, the parties jointly reported that they had

communicated about the discovery at issue in the Motion to Compel, but

that they needed additional time to resolve remaining issues. Doc.

No. 30. The Court ordered that the parties report again on the status

of the dispute by August 12, 2011. Order, Doc. No. 31. On that date,

plaintiffs asked for yet more time to submit another status report. 

Doc. No. 33. On September 6, 2011, the parties submitted their status

reports. Doc. Nos. 38, 39. They disagree on whether defendant has

fully complied with certain discovery requests. Id.

Determining the proper scope of discovery falls within the broad

discretion of the trial court. Lewis v. ACB Business Servs., Inc.,

135 F.3d 389, 402 (6th Cir. 1998). Rule 26(b) of the Federal Rules of

Civil Procedure provides that “[p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party's

claim or defense[.]” Fed. R. Civ. P. 26(b)(1). Accordingly, “[t]he

scope of examination permitted under Rule 26(b) is broader than that

permitted at trial. The test is whether the line of interrogation is

reasonably calculated to lead to the discovery of admissible

evidence.” Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th

Cir. 1970).

Rule 37 of the Federal Rules of Civil Procedure authorizes a

motion to compel discovery when a party fails to provide proper

response to requests for production of documents under Rule 34. Rule

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37(a) expressly provides that “an evasive or incomplete disclosure,

answer, or response must be treated as a failure to disclose, answer,

or respond.” Fed. R. Civ. P. 37(a)(4). In addition, the party moving

to compel discovery must certify that that party “has in good faith

conferred or attempted to confer with the person or party failing to

make disclosure or discovery in an effort to obtain it without court

action.” Fed. R. Civ. P. 37(a)(1). See also S.D. Ohio Civ. R. 37.2. 

Although plaintiffs have not complied with this prerequisite, the

Court, based on the circumstances in this particular case, will

nevertheless consider the merits of the Motion to Compel. 

In its most recent Order, Doc. No. 37, the Court required the

parties to specify the discovery requests, if any, that remained in

dispute. The Court will therefore limit its discussion to those

requests explicitly identified by the parties.

Plaintiffs first complain that defendant “has not provided or

identified documents responsive to Request No. 8." Doc. No. 39, p. 1. 

Document Request No. 8 seeks production of “all records of coaching

meetings involving [plaintiff] Jennifer Brown.” Exhibit A, p. 4. In

its status report, defendant references certain emails that it

believes are responsive to this request and advises that, “[i]f

plaintiffs have misplaced the emails used as evidence [that plaintiffs

were never promised a promotion], they can access the exhibit online.”

Doc. No. 38, p. 2. Plaintiffs respond that numerous emails have been

produced and that defendant has not identified which particular emails

are responsive to this request. Doc. No. 39, p. 2.

Based on the present record, it is not immediately clear which

documents are responsive to Document Request No. 8. Accordingly, as

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to Document Request No. 8, the Motion to Compel is GRANTED. 

Defendants are ORDERED to identify the specific documents by page (by

Bates number, if applicable) that are responsive to this request.

Plaintiffs next complain that defendant has not fully responded

to Document Request No. 12, which they characterize as seeking “the

performance records of all similarly situated employees being

supervised by the Manager (Renee Fall) involved in Plaintiff Brown’s

termination.” Doc. No. 39, pp. 2-3. However, as presently

formulated, this request actually seeks the production of “any and

all Admissions Representative flash reports for Admissions

Representatives who worked under Renee Fall” from January 1, 2004

through the present. Exhibit A, pp. 2, 4. Based on the present

record, the Court cannot say that “flash reports” are the same as

“performance records” or that “similarly situated employees being

supervised by” Renee Fall reaches the same scope of individuals as

“Admissions Representatives who worked under Renee Fall.” 

Notwithstanding this apparent ambiguity, the parties’ dispute as

to this request instead focuses on whether or not defendant must

produce documents regarding those employees who were supervised by Ms.

Fall, who worked for defendant before plaintiffs were hired and who

were employed after plaintiffs were fired. See Doc. No. 38, p. 3

(stating that defendant has previously produced documents “regarding

every employee who was supervised in any capacity by Renee Fall during

the time period when any of the Plaintiffs were employed” and that

there is no basis to produce information regarding individuals

employed before or after any of the plaintiffs were employed)

(emphasis in original); Doc. No. 39, pp. 2-3 (insisting that records

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related to all employees supervised by Renee Fall should be produced). 

In order to qualify as “similarly-situated,” an alleged

comparator “must have dealt with the same supervisor, have been

subject to the same standards and have engaged in the same conduct

without such differentiating or mitigating circumstances that would

distinguish their conduct or the employer’s treatment of them for it.” 

Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659 (6th Cir. 1999)

(quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). 

However, a plaintiff need not establish an “exact correlation;” the

party must, however, establish “relevant similarity[.]” Perry v.

McGinnis, 209 F. 3d 597, 601 (6th Cir. 2000). Under this authority,

and considering the breadth of permissible discovery under Fed. R.

Civ. P. 26(b), the Court cannot say at this time that a discovery

request seeking production of performance records of employees who

were employed before or after plaintiffs’ employment is not reasonably

calculated to lead to the discovery of admissible evidence. However,

it is unclear whether the scope of plaintiffs’ request, which seeks

documents from January 1, 2004 through the present, is overly broad. 

The briefing and status reports related to the Motion to Compel and

the Amended Complaint, Doc. No. 11, do not identify when plaintiffs

were hired or when their employment ended. Therefore, as it relates

to Document Request No. 12, the Motion to Compel is GRANTED in part.

Defendant must produce documents responsive to Document Request No. 12

from one year prior to plaintiffs’ hire date to the present. To the

extent that plaintiffs seek documents outside this time period, the

motion is DENIED. 

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Finally, defendant seeks an award of fees incurred in opposing

the Motion to Compel. Doc. No. 38, p. 4. Where, as in this case, a

court has granted a discovery motion only in part, “the court may . .

.apportion the reasonable expenses for the motion.” Fed. R. Civ. P.

37(a)(5)(C). This decision is left to the sound discretion of the

court. Cf. Interactive Prods. Corp. v. a2z Mobile Office Solutions,

Inc., 326 F.3d 687, 701 (6th Cir. 2003). 

Although plaintiffs’ Motion to Compel was not granted in its

entirety, the Court cannot fairly conclude that defendant has

prevailed in significant part in opposing the motion. Under these

circumstances, the Court also concludes that the award of fees

requested by defendant would not serve the values contemplated by Rule

37. Defendant’s request for reasonable attorney’s fees is therefore

denied. 

Plaintiffs’ Motion to Compel Discovery Responses, Doc. No. 17,

is GRANTED in part and DENIED in part consistent with the foregoing. 

Defendant is ORDERED to respond to the discovery requests identified

above within fourteen (14) days of the date of this Opinion and Order. 

September 12, 2011 s/Norah McCann King 

 Norah McCann King

United States Magistrate Judge

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