Kutz v. NGI Capital, Inc.

Background

Allison Kutz brought claims against NGI Capital, Inc., doing business as Apex IT, and Eric Christopher Rapp under Title VII of the Civil Rights Act, the Minnesota Human Rights Act, and Minnesota and Illinois common law. She alleged that Rapp sexually harassed her during two periods of employment at Apex, that she resigned in May 2019, returned in November 2019 after receiving assurances about workplace changes, and was terminated in September 2021 after refusing further advances. She sought economic damages, emotional-distress damages, punitive damages, attorney fees and costs, and other relief.

The defendants moved to compel Kutz to amend or supplement her discovery responses. After a hearing and additional discussions, Kutz agreed to produce 16 privilege-log entries with limitations, so the court addressed the remaining disputes.

Legal standard

Under Rule 26 of the Federal Rules of Civil Procedure, discovery may cover nonprivileged information relevant to a claim or defense and proportional to the needs of the case. Rule 26 also requires a party claiming damages to provide a computation of each category of damages and the supporting documents or evidence, subject to required supplementation. Rule 37 allows a party to ask the court to compel discovery.

Rulings on damages disclosures

Economic damages. The court found Kutz’s initial disclosures and responses to Interrogatory No. 7 and Request for Production No. 12 insufficient because they did not provide specific computations, the basis for the claimed damages, or the methodology used to calculate them. Referring to an expert report or identifying categories such as back pay, front pay, and lost benefits did not satisfy those obligations. The court ordered Kutz to supplement her disclosures and responses regarding economic damages within two weeks of the order. If she intended to limit her economic damages and supporting documents to those in her expert report, she had to say so in response to the identified discovery requests.

Emotional-distress damages. The court rejected the argument that Kutz only needed to disclose a calculation if she intended to give the jury a specific figure. Within two weeks, she had to provide any amount or range she intended to present to the jury, along with its basis, calculation methods, and supporting documents. If she did not intend to suggest a specific amount or range, the order did not require a computation of emotional-distress damages, but it still required disclosure of responsive evidence she intended to use.

Punitive damages. To the extent Kutz intended to present a specific punitive-damages figure to the jury, the court ordered her to provide the figure, supporting calculation, documents relied on, and basis within two weeks. The court stated that the order did not prevent later timely supplementation under Rule 26(e).

Attorney fees as claimed damages. The defendants sought the total amount of Kutz’s attorney fees incurred to date, not her fee agreement or counsel’s billing records. The court held that the amount of fees was relevant to her claimed damages and was not protected by attorney-client privilege. It ordered Kutz to supplement her discovery responses to state the total amount incurred to date within two weeks. The order did not decide whether that amount would be admissible at trial.

Other damages. If Kutz intended to present “other damages” to the jury, the court ordered her to amend her discovery responses to identify them. The order allowed later timely supplementation under Rule 26(e).

Salesforce personnel records

The court addressed the defendants’ request for Kutz’s personnel records from Salesforce from her employment there in 2019. The request for information about alleged sexual harassment at Salesforce was denied as moot because the defendants stated that Kutz had offered to produce information about her reports of harassment to the extent she could obtain it from Salesforce.

The court granted the request for records concerning Kutz’s qualifications for employment, promotion, transfer, additional compensation, discharge, or disciplinary action, to the extent she could obtain those records by requesting her Salesforce personnel file under the Illinois Personnel Record Review Act. Kutz had to request the file within two weeks and produce responsive documents within 30 days after receiving it.

The court denied the request to compel information about Apex’s alleged failure to confirm Kutz’s employment, because the defendants had not identified a discovery request covering that issue. The court stated that the defendants could serve discovery directed to that issue.

Medical records

The court held that records concerning physical manifestations of emotional distress that Kutz attributed to the defendants were relevant and discoverable. It declined to require the parties to resolve the issue through a stipulation. Instead, within two weeks, the defendants had to serve appropriate discovery or identify the existing discovery they believed sought identification of those physical manifestations. Kutz then had to fully identify the physical manifestations within 30 days after service or identification of the discovery and produce related medical records within the applicable 30-day period, unless she sought a protective order for specific records.

The court limited the required production to records from 2014 to the present, one year before the alleged harassment began. It did not order production of all medical records without regard to their connection to the physical manifestations at issue.

Texts, emails, photographs, and social media

The court denied the request for responsive social-media documents from 2010 to 2015 as disproportionate, particularly in light of its medical-records ruling.

The court granted the request for text messages and emails by limiting it to the two weeks before and after the major events identified in the defendants’ supplemental brief: events in December 2018, April 2019, May 2019, November 2019, August 2020, and September 2021. Kutz’s counsel had to review those materials in good faith and produce documents responsive to Requests Nos. 13 and 14 within 30 days.

The court denied the request for responsive photographs from Kutz’s camera roll for the periods surrounding those events because reviewing the photographs would be disproportionate to the likely benefit. The ruling did not excuse production of responsive photographs that were sent with emails, posted on social media, or sent in a text chain within the stated 2015-to-present timeframe.

Attorney fees for the discovery motion

The court denied the defendants’ request for attorney fees under Rule 37(a)(5). Because the motion was granted in part and denied in part and the parties reached compromises after the hearing, the court found that awarding fees would be unjust.

Disposition

The court ordered that the defendants’ Motion to Compel Discovery was granted in part and denied in part as set out in the order. The order did not decide the merits of Kutz’s underlying employment discrimination, retaliation, or assault claims.