Warner v. Gilbarco, Inc., No. 2:24-cv-12333 (2025)

Case details
Country
United States
Jurisdiction
Federal
Decided
2025
Warner v. Gilbarco, Inc., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3047881Only the Westlaw citation is currently available.United States District Court, E.D.Michigan, Southern Division.Sohyon WARNER, Plaintiff,v.GILBARCO, INC., Gilbarco, Inc. (d/b/a GilbarcoVeeder-Root) and Vontier Corporation, Defendants.Case No. 2:24-cv-12333|Signed October 30, 2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsChanning E. Robinson-Holmes, Robert W. Palmer, PittMcGehee Palmer & Rivers, P.C., Royal Oak, MI, for Plaintiff.Sohyon Lamplighter Warner, Bloomfield Hills, MI, Pro Se.Lauren Harrington, Richard W. Warren, Ogletree DeakinsNash Smoak & Stewart, PLLC, Birmingham, MI, forDefendants.ORDER (1) GRANTING IN PART & DENYINGIN PART PLAINTIFF'S AMENDED MOTION TOCOMPEL DISCOVERY (ECF No. 48), (2) GRANTINGIN PART & DENYING IN PART PLAINTIFF'SMOTION FOR PROTECTIVE ORDER REGARDINGDEFENDANTS' NOTICE OF DEPOSITION (ECFNo. 49), (3) MODIFYING THE COURT'S MARCH18, 2025 PROTECTIVE ORDER (see ECF No. 21);(4) DIRECTING THE PARTIES TO READ Lee v.EUSA Pharma US LLC, No. 2:22-CV-11145, 2024 WL250064 (E.D. Mich. Jan. 23, 2024); (5) DIRECTINGPLAINTIFF TO READ Ali v. IT People Corp., Inc., No.2:25-CV-10815, 2025 WL 2682622 (E.D. Mich. Sept.19, 2025), (6) STRIKING PLAINTIFF'S STATEMENTOF RESOLVED AND UNRESOLVED ISSUES(ECF No. 63), and (7) RECORDING THE PARTES'AGREEMENT TO ENGAGE IN MEDIATIONAnthony P. Patti, UNITED STATES MAGISTRATE JUDGEA. Pending Matters*1 Currently pending before the Court are: (1) Plaintiff'samended motion to compel discovery (ECF No. 48), as towhich a response (ECF No. 59) and a reply (ECF No. 61)have been filed; and, (2) Plaintiff's motion for protective orderregarding Defendants' notice of deposition (ECF No. 49), asto which a response (ECF No. 60) and a reply (ECF No. 62)have been filed.1 Additionally, the parties have filed separatestatements of resolved and unresolved issues. (See ECF Nos.63, 64.)Judge Drain has referred each of these motions to me forhearing and determination (ECF No. 50).B. The September 26, 2025 Status ConferencePursuant to the Court's September 26, 2025 order (ECF No.56), the parties – Plaintiff Sohyon Warner appeared in proper, and Attorneys Richard Warren and Lauren Harringtonappeared on behalf of Defendants – appeared remotely onOctober 28, 2025 for a video motion hearing.Preliminarily, the Court confirmed that Defendants produceda privilege log on October 1, 2025 (see ECF No. 59,PageID.411-412; ECF No. 64, PageID.584; ECF No. 64-5)and that the parties met by video conference no later thanOctober 24, 2025, as required by the Court's September 26,2025 order.2C. OrderUpon consideration of the motion papers and the parties'arguments and representations at the hearing, and for all thereasons stated on the record by the Court, which are herebyincorporated by reference as though fully restated herein,Plaintiff's amended motion to compel discovery (ECF No.48) is GRANTED IN PART AND DENIED IN PART asfollows:1. Plaintiff's request for an order compelling “Defendantsto produce full responses to Plaintiff's March 3,2025 discovery requests, as outlined in ExhibitA [i.e., ECF No. 48-1], including comparatorpersonnel files, HR investigation files, trainingmanuals, termination memos, internal communications,
Warner v. Gilbarco, Inc., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2and related materials[,]” is GRANTED IN PART.Defendants' reluctance to produce certain records – e.g.,those related to Shawn McClellan (in response to RFPNo. 4) or to Paul Blaser (in response to RTP No. 5), or tothe three people involved in her termination (in responseto Int. No. 7 & RFP No. 3) – relates to concerns that theinformation will be uploaded to an AI platform. For thereasons set forth on the record, the Court's March 18,2025 Fed. R. Civ. P. 26(c) protective order (ECF No. 21)is hereby modified to reflect that any documents markedconfidential shall not be uploaded onto any AI platform.No later than Friday, November 7, 2025, DefendantsSHALL produce these records.3*2 2. Further, although not addressed from the bench,the Court agrees with Plaintiff that Defendants may notwait to produce documents or other requested evidencethey already know they “intend to rely upon in supportof [their] defense in this case[,]” as requested in RTPNo. 20. (ECF No. 48-3, PageID.330.) Defendants mustproduce any such items of which they are presentlyaware, and must do so by November 21, 2025,supplementing as required by Fed. R. Civ. P. 26(e), ifand when they became aware of additional responsivedocuments. The Court will hold Defendants to theirrepresentation that they “will not rely on any documentat trial that will not be produced during the discoveryperiod” (ECF No. 59, PageID.408); however, the Courtalso recognizes that Defendants may not know of theneed to introduce documents or other evidence forimpeachment purposes until the need arises, and, thus,excludes such documents from this requirement.3. Plaintiff's request for an order compelling “Defendantsto produce a proper privilege log pursuant to Fed.R. Civ. P. 26(b)(5)(A) and deem privilege objectionswaived if not produced[,]” is GRANTED IN PART.The Court notes defense counsel's representation that hisclient was concerned about litigation at least as early asOctober 10, 2022, as well as Plaintiff's concerns withthe October 1, 2025 privilege log (see ECF No. 64-5;ECF No. 61-2, PageID.441-444), and also notes thatit is Defendants' burden to demonstrate its assertionof attorney client privilege and work product doctrine.Because Defendants are withholding two investigationreports (23-005, 22-119) on the basis of attorney-clientprivilege and/or work product doctrine (see ECF No.64-5, PageID.611-612), no later than Friday, November7, 2025, the parties are DIRECTED to read Lee v.EUSA Pharma US LLC, No. 2:22-CV-11145, 2024 WL250064 (E.D. Mich. Jan. 23, 2024) (Patti, M.J.) (orderafter in camera review) and then confer in an effort tocome to an agreement based on the law, as applied tothe facts of this case. Plaintiff's request for a findingthat Defendants waived their privileges is DENIED,as the Court dealt with this issue in the September26, 2025 status conference by setting an October 1,2025 deadline for a privilege log (see ECF No. 56,PageID.382), and Defendants not only timely respondedon March 3, 2025 to the discovery requests at issue(see ECF No. 59, PageID.411 n.2) but also timelycomplied with the Court's directive to serve a privilegelog (see id., PageID.412). Defendants are correct thatthere is no mandatory rule requiring waiver for failureto provide a privilege log by the deadline for respondingto discovery requests, the Court having discretionon this issue, as acknowledged by Plaintiff's owncitation to In re Columbia/HCA Healthcare Corp. BillingPractices Litig., 293 F.3d 289, 303–04 (6th Cir. 2002)for the idea that “blanket privilege assertions withoutlog are defective and may constitute waiver[.]” (ECFNo. 48, PageID.316 (emphasis added); see also id.,PageID.318.)4. Plaintiff's request for an order requiring “Defendantsto comply with Fed. R. Civ. P. 34(b)(2)(E) byre-producing documents in an organized manner,eliminating duplicative Bates ranges, and labelingmaterials to correspond to Plaintiff's RFPs[,]” isGRANTED IN PART. Where “Defendants producedBates Nos. 000162–000462 as a single, unorganized‘binder’ of documents, much of which duplicatesearlier Bates ranges ([ECF No. 48-2])[,]” DefendantsSHALL, no later than Friday, November 7, 2025,provide descriptions, labeling materials to correspond toPlaintiff's RFPs.(ECF No. 48, PageID.318-319; see also id., PageID.315-317.)*3 Moreover, Plaintiff's motion for a protective orderregarding Defendants' notice of deposition (ECF No. 49) isGRANTED IN PART AND DENIED IN PART as follows:1. Plaintiff's request for entry of “a Protective Orderpursuant to Fed. R. Civ. P. 26(c), postponing Plaintiff'sdeposition until after Defendants substantially complywith discovery, and ordering that HR and decisionmakerdepositions proceed first, consistent with Fed. R. Civ.P. 26(d)(3)[,]” is DENIED. Defendants have beenseeking Plaintiff's deposition since January 23, 2025
Warner v. Gilbarco, Inc., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3(see ECF No. 60, PageID.421), i.e., nine months ago.Defendants may take Plaintiff's deposition in November2025 (before Plaintiff takes any depositions, althoughnot before Friday, November 7, 2025. As negotiatedby the parties during the motion hearing, Plaintiff'sdeposition WILL TAKE PLACE on November 25,2025, beginning in the morning to allow for the upto 7 hours permitted by Fed. R. Civ. P. 30(d)(1)(“Duration.”).2. Plaintiff's request to “strike the ‘bring originals’ demandfrom Defendants' Notice of Deposition” (see ECF No.49-2, PageID.348) is DENIED, because originals allowfor comparison between what was produced and theoriginal source, and originals also help address anyconcerns about authenticity.43. Plaintiff's request for an order requiring that “anydeposition of Plaintiff be conducted via Zoom orequivalent platform, in full compliance with theCourt's ADA Accommodation Order ([ECF No.] 39)[,]” is DENIED. Plaintiff's portrayal of that order wasinaccurate. Plaintiff's forthcoming deposition will takeplace in person, because there is good reason to doso, for the various reasons placed on the record (e.g.,Defendants' right to see whether Plaintiff is looking ata computer or documents as she testifies, verificationthat Plaintiff is alone, ability to better observe bodylanguage, etc.); however, it shall take place at a neutralsite (e.g., a court reporter's office or conference room),not at defense counsel's office.5(ECF No. 49, PageID.340.) Plaintiff's deposition will not beheld up by any of Plaintiff's outstanding discovery issues, andshe is cautioned that failure to attend her deposition subjectsher to sanctions consistent with Fed. R. Civ. P. 37(d).Additionally, Plaintiff twice cited to Smith v. Dow Chem.Co., 166 F.R.D. 1, 2 (E.D. Mich. 1996) for the notion that“depositions should not proceed until relevant documentsare produced ....” (ECF No. 48, PageID.316; ECF No.49, PageID.338-339); however, this is a “phantom” or“hallucinated” citation to an FTCA case of a differentname that does not mention depositions. See Hamm v.Nasatka Barriers Inc., 166 F.R.D. 1 (D.D.C. 1996). Whilethe Court cannot say with certainty how this occurred inPlaintiff's brief, it can say that such citations are occurringin court filings with greater frequency now, presumably asthe use of generative AI programs increases. Accordingly,Plaintiff is hereby DIRECTED to thoroughly read Ali v. ITPeople Corp., Inc., No. 2:25-CV-10815, 2025 WL 2682622(E.D. Mich. Sept. 19, 2025) (Patti, M.J.) (sanctioningPlaintiff $200 for each admitted misrepresentation). Althoughthe Court will not sanction Plaintiff at this time, she isHEREBY WARNED that future noncompliance with Fed.R. Civ. P. 11 or misrepresentations to the Court – includingmischaracterizations of prior court orders – may well resultin related sanctions.*4 Also, as explained in detail on the record, Plaintiff'sOctober 24, 2025 separate statement of resolved andunresolved issues (ECF No. 63) is STRICKEN from therecord for her admitted failure to cooperate with Defendantin fulfilling my prior directive to file a joint statement andfor using that opportunity to essentially file a (29-page)supplemental brief.Finally, Plaintiff's respective requests for reasonable expensesunder Fed. R. Civ. P. 37(a)(5) (see ECF No. 48, PageID.319 4; ECF No. 49, PageID.340 4) are DENIED, becausePlaintiff did not fully prevail on either motion, see Fed. R. Civ.P. 37(a)(5)(C), and her motion to compel did not fully complywith E.D. Mich. LR 7.1(a) (“Seeking Concurrence in Motionsand Requests.”). See also Fed. R. Civ. P. 37(a)(5)(A)(i) (“themovant filed the motion before attempting in good faith toobtain the disclosure or discovery without court action[.]”).IT IS SO ORDERED.6All CitationsSlip Copy, 2025 WL 3047881Footnotes
Warner v. Gilbarco, Inc., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.41The Court reiterates the warning given to Plaintiff orally at the hearing: E.D. Mich. LR 5.1(a)(3) (“Type Size.”)requires that footnotes be 14-point font, just like the text in the body of the briefing. Plaintiff's ongoing failureto comply with this may result in her future filings being stricken.2To the extent the Court's September 26, 2025 order required the parties to be prepared to discuss mediationand other ADR possibilities (see ECF No. 56, PageID.382), the parties reported their plan to conductmediation sometime in January 2026, and, of the mediators whose names were mentioned during the videomotion hearing, Plaintiff's first choice was Chris M. Kwok, Esq. of JAMS (see https://www.jamsadr.com/kwok/). Defendants having no objection to Mr. Kwok, the Court directed the parties to proceed to mediationwith that mediator.3During the video motion hearing, Plaintiff mentioned organizational charts in her possession that had notbeen produced by Defendant. Perhaps these are the organizational charts for Rossanna Hurst (see ECFNo. 63-1) and Martina Schoultz (see ECF No. 63-2), which are attached to Plaintiff's now-stricken statement(see ECF No. 63). The Court suggests Plaintiff show Defendants which charts she has, so that Defendantsmay refine their search terms.4Here, Plaintiff is not being asked to produce these items for the first time, in which case Fed. R. Civ. P.34's timeframes would apply; instead, she is being asked to bring originals of documents already produced:“The deponent shall bring with her to the deposition the original documents requested in Plaintiff's discovery,notwithstanding the production of copies earlier produced.” (ECF No. 49-2, PageID.348.) These documentsshould have already been assembled for the original production. The request is not unreasonable.5Plaintiff's October 13, 2025 renewed motion (ECF No. 57) to modify disability accommodations, as to whichDefendant Gilbarco, Inc. has filed a response (ECF No. 65), is not before the Undersigned.6The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of fourteen (14) daysafter being served with a copy of this order within which to file objections for consideration by the districtjudge under 28 U.S.C. § 636(b)(1).End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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