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Barrett v. Seneca Foods

United States District Court, W.D. Wisconsin

April 18, 2018

SENECA FOODS, Defendant.

          OPINION and ORDER

          STEPHEN L. CROCKER Magistrate Judge

          Pro se plaintiff Patrick Wayne Barrett, Sr. is proceeding in this lawsuit on claims against defendant Seneca Foods under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964. Barrett claims that: (1) Seneca discriminated against him due to his disability when he worked for Seneca as a seasonal forklift driver and Seneca refused to promote him to a permanent position because he could not pass a math test: and, (2) coworkers sexually harassed him due to his perceived sexual orientation and Seneca retaliated against him by refusing to let him retake the math test he failed. Before the court are several discovery-related motions:

         I. Defendants' motion to compel (dkt. 55)

         Defendant seeks an order precluding Barrett from relying on documents or information he has not produced relating to three of defendant's discovery requests: (1) Interrogatory No. 3 and Document Request No. 3, seeking plaintiff's evidence that supports his claim that Seneca discriminated against him; (2) Interrogatory No. 5 and Document Request No. 2, relating to plaintiff's financial losses associated with the discrimination; and (3) Interrogatory No. 9 and Document Request No. 1, relating to plaintiff's disorders or disabilities plaintiff suffers from, and any documents reflecting treatment or diagnoses. Defendant also seeks reasonable attorney fees.

         Defendant explains that despite Barrett's assurances that he was attempting to collect responsive materials, Barrett still has not fully responded. Barrett has provided defendant with his 2003 federal Presentence Investigation Report (“PSR”), which contains information about Barrett's past and current mental health issues, and has provided treatment documentation from 2016.

         Barrett indicates that he does not believe that a document reflecting either his financial losses or his learning disability exists, and that his daughter is currently working on obtaining more documents related to his medical history and will provide them to defendants as soon as possible. However, defendant indicates that Barrett still has not produced the responses he has repeatedly assured defendant he would provide. Accordingly, defendant requests that Barrett be precluded from introducing or relying on any documents or evidence not produced on or before March 5, 2018, for purposes of dispositive motions.

         Defendant's request is reasonable in these circumstances. Despite my previous order giving Barrett information about how he can obtain his own medical information, Barrett still has not complied with defendant's requests even though the dispositive motion deadline has passed. Therefore, in responding to defendant's motion for summary judgment, Barrett may not rely on any documents or information that he has not produced to defendant by March 5, 2018. Notwithstanding Rule 37(a)(5)'s no-fault stance on cost-shifting, pursuant to Rule 37(a)(5)(A)(iii), this court does not ordinarily shift costs against pro se litigants when they lose discovery disputes, absent sufficiently aggravating factors. Therefore, I am denying defendant's request for fees and costs at this time.

         II. Barrett's motions

          A. Motions to compel (dkt. 58, 66)

         In Barrett's first motion to compel, he requested a copy of his deposition transcript. This motion will be denied as moot because defendant filed Barrett's deposition transcript along with its motion for summary judgment.

         In his second motion to compel, Barrett claims that defendant violated the court's prior order granting his request that defendant include the label “legal mail” on the envelope of correspondence sent to him at FCI-Terre Haute. Yet Barrett's complaint is that defendant's counsel did not write her name and state bar number on the outside of the envelope. That omission was not the subject of Barrett's motion to compel, and even if Barrett had made such a request, I would not have granted it. The purpose of the “legal mail” label was to alert personnel at Terre Haute that Barrett should receive all correspondence related to this lawsuit. Barrett has not identified a reason to include a requirement that counsel include her name and bar number. I surmise that such information is required for prisoners who receive correspondence from their own lawyers that they wish to keep confidential. Here, however, the communications between Barrett and defendant's lawyer are not confidential. Therefore, there is no reason to require defendant's counsel to include her personal identification information on the outside of the envelopes she sends to Barrett. I am denying Barrett's request.

         B. Motion for reconsideration (dkt. 62)

         Barrett seeks reconsideration of my order denying his motion to compel. Barrett specifically wants an order compelling defendants to provide the following: (1) employee files and contact information of other individuals that worked for Seneca, (2) the identity of the individual with whom Barrett discussed his complaint on November 4, 2015, (3) the last names and employee files and contact information for other forklift drivers, named “Steve” and “Will”; and (4) the number of employees at the Janesville Seneca plant, by race, categorized by season and permanent position.

         While Barrett provides a more detailed justification about why he is seeking the personnel files of other Seneca employees, his requested information does not relate to the claims upon which he is proceeding. First he claims that he needs the contact information of Christopher Jensen, a Seneca employee who allegedly complained that Barrett threatened him. Barrett does not explain how Jensen's complaint is related to his claims, so defendant's position that Jensen's personnel files are irrelevant was proper. Barrett further claims that the files of employees Cotey McCluskey and Jessica Dominguez have information related to his retaliation claim because both of these individuals also were terminated after this lawsuit was filed. While Barrett may ...

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