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Jones v. Forrest City Grocery Inc.

September 25, 2007

WASHINGTON LAMONT JONES, ET AL. PLAINTIFFS
v.
FORREST CITY GROCERY INC., ET AL. DEFENDANTS



ORDER

This employment discrimination lawsuit is set for trial before the Honorable William R. Wilson, Jr., on October 15, 2007. Judge Wilson has referred three discovery motions to this Court for resolution: Defendants' Motion for Clarification or Reconsideration of the Court's September 10, 2007 Order (docket entry # 97); Plaintiffs' Motion to Compel (# 94); and Defendants' Motion to Compel (# 91).

I. Defendants' Motion for Clarification

In their motion to clarify or reconsider, Defendants raise three concerns. First, they seek to postpone depositions currently set for September 25 - 28, 2007 until after the Court has ruled on their pending motion to compel (# 91) and Plaintiffs have produced information requested in discovery. Second, Defendants seek to exclude Plaintiff Tommy Howard's deposition from the one-hour limit set in the September 10, 2007 Order (the "Order") for supplemental depositions of the first seven Plaintiffs. They also ask to exclude from the one-hour limit their examination of Plaintiffs about information Plaintiffs produced after the initial depositions. Third, Defendants contend that the Court's three-hour limit on depositions of witnesses should not include depositions of Plaintiffs who are, of course, also witnesses.

A. Postponing Depositions

Defendants' motion is granted as to the rescheduling of depositions. Depositions will be conducted in Courtroom 1-A of the Richard Sheppard Arnold United States Courthouse in Little Rock, Arkansas, beginning Tuesday, October 2, 2007, and continuing through Friday, October 5, 2007, 8:30 a.m. to 5:00 p.m. each day.

B. Deposition of Tommy Howard and Subsequently Produced Information

Tommy Howard's deposition was suspended by the Court after approximately one hour. His upcoming deposition is not supplemental, but rather is a continuation of the original deposition. Mr. Howard's deposition is not subject to the one-hour limit. It will be limited, of course, by Rule 30(b)(2) of the Federal Rules of Civil Procedure. Defendants will be permitted an additional period of up to two hours to depose each Plaintiff regarding information produced after the initial deposition.

C. Three Hour Limit for Witnesses

The Court set a three hour limit for depositions of witnesses. This limit does not apply to depositions of parties. Fed. R. Civ. P. 30(b)(2) controls party depositions.

II. Plaintiffs' Motion to Compel

Plaintiffs have moved to compel disclosure of: (1) the financial net worth of Defendant Forrest City Grocery Inc.; (2) the identity of each current employee (in the position of secretary, salesperson, truck driver, helper, supervisor, and lumper) by name; date of hire; title (position); race; and salary; and (3) the identity of all forklift drivers, with information for each regarding: race; date of hire; hourly rate; and date each received a commercial drivers license ("CDL").

A. Financial Net Worth of Forrest City Grocery Inc. (Request for Production #1)

Defendants object to producing information regarding the financial net worth of Forrest City Grocery until such time as Plaintiffs have established a prima facie case that they are entitled to punitive damages, or until the punitive damages phase of the trial in the event Judge Wilson bifurcates the trial.

Plaintiffs have moved to bifurcate the trial (# 103). If Judge Wilson grants the motion to phase the trial, Defendants must produce a certified financial statement of net worth for Forrest City Grocery Inc. immediately after any finding of liability against Forrest City Grocery as to one or more of the Plaintiffs. If Judge Wilson does not grant the motion to phase the trial, Defendants should be prepared to turn over a certified financial statement of net worth at the point, if there is one, that the Judge finds that Plaintiffs have made a prima facie case that they are entitled to punitive damages.

B. Information Regarding Current Employees (Request for Production #2)

Defendants object to producing the requested list of current employees on several grounds. First, Defendants contend that they are not required to "create" a document in response to a request for production, and that no such list currently exists. Second, Defendants contend that the request is overly broad, unduly burdensome, and not reasonably designed to lead to the discovery of relevant information. Third, Defendants contend that the request seeks personal and confidential information about their employees. Defendants also complain that they "have no clue" what position Plaintiffs refer to as "lumper."

Defendants' objections are not well taken. This is an employment discrimination lawsuit based on race. It is difficult to conjure more relevant information than the race, salaries, and dates of hire of current employees. Perhaps Plaintiffs' counsel could have framed this request more appropriately as an interrogatory rather than as a request for production. However, in the light of Judge Wilson's order to the parties to ...


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