Wingo v. 3M Company

Background

The order addresses six related employment cases brought by John Wingo, Robert Rieger, Titus Kargbo, Desiree Holler, Vaughn Wingo, and Nevely Randle against 3M Company. The plaintiffs allege discrimination, retaliation, harassment, or punishment for supporting or associating with John Wingo in connection with events at a 3M manufacturing plant in South Dakota.

Discovery was conducted jointly across the six cases. After discovery closed, 3M requested supplemental responses in ten areas. The plaintiffs’ former counsel agreed that the requests were relevant and proportional, but the supplemental productions were not completed. Later productions from John Wingo’s and Nevely Randle’s phones included hundreds of pages of messages, images, and videos. 3M argued that the productions revealed previously undisclosed communications, incomplete privilege information, communications with third parties, and apparent conflicts with deposition testimony. 3M also sought to reopen depositions, conduct discovery from third parties, and recover the costs of bringing its motion.

The plaintiffs did not respond to the motion to compel or appear at the November 14, 2023 hearing. The court treated the motion as unopposed and granted it from the bench, except for a request concerning communications with Amanda Thompson. The court later denied a motion by several plaintiffs seeking reconsideration of that ruling.

Legal standards

Under Federal Rule of Civil Procedure 26, parties may obtain nonprivileged information relevant to a claim or defense and proportional to the needs of the case. Under Rule 37, a party may ask the court to order discovery when the opposing party has not provided requested information. When a motion to compel is granted, the court generally must award the successful party’s reasonable expenses unless an exception applies. When the motion is granted in part and denied in part, the court may divide the expenses.

Rulings on discovery

The court granted 3M’s motion to compel in part and denied it in part. It overruled the former counsel’s work-product objections to most of the requested materials. The plaintiffs were ordered to produce or address, among other things:

- documents withheld as work product, including certain witness statements and related communications; - communications with third parties concerning the cases, the plaintiffs’ claims, and 3M Aberdeen, including communications with media outlets, the National Association for the Advancement of Colored People, websites, social-media accounts, and the email address identified in the order; - specified text messages and videos; - updated employment and mitigation information; - specified tax documents, including Vaughn Wingo’s 2022 tax return and Robert Rieger’s tax transcripts; - recordings listed on the “Evidence” page of the 3M Discrimination website; - images of all plaintiffs’ phones from January 2021 to the present and responsive messages, audio, and video files; - information about video footage of John Wingo’s home and searches for other responsive footage; and - the birth certificate of Desiree Holler’s youngest child.

The order set January 5, 2024, as the deadline for these productions and related actions. After complete production, 3M could re-depose or depose for the first time the individuals identified in the order. Those non-expert depositions had to be completed by February 15, 2024.

Amanda Thompson communications

The court denied without prejudice 3M’s request to compel communications between the plaintiffs and Amanda Thompson concerning the lawsuit, her claims, and 3M Aberdeen. 3M sought the communications in connection with its concern that Thompson’s sworn declaration contained a timeline inconsistency and that someone might have induced her to give false testimony.

The court reasoned that producing the communications could itself acknowledge that such communications existed. Because the existence of the communications was not a foregone conclusion and disclosure could expose the plaintiffs or Thompson to potential criminal prosecution for perjury-related conduct, the court held that the Fifth Amendment privilege protected against compelled production. The court acknowledged that no binding precedent extended this production doctrine to a private civil lawsuit but found no basis to limit the doctrine to government requests.

Expenses, scheduling, and warning

The court granted 3M’s request for sanctions under Rule 37(a)(5). It directed 3M to submit an application for fees and expenses by January 31, 2024, and required each plaintiff to file a letter by February 16, 2024, explaining why the plaintiff should not be required to compensate 3M for the costs of bringing the motion. The order did not state a dollar amount for any award.

The court also granted as modified 3M’s motion to amend the scheduling order. It stated that fact discovery had closed but established deadlines for supplemental production, related nondispositive motions, depositions, and possible dispositive motions. The cases were scheduled to be ready for a seven-day jury trial on July 29, 2024.

The court warned that failure to comply with the order could result in sanctions, specifically a recommendation that the cases be dismissed with prejudice. The order itself did not dismiss the cases.