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Whitney v. Franklin General Hospital

United States District Court, N.D. Iowa, Central Division

April 23, 2015



JON STUART SCOLES, Chief Magistrate Judge.


This matter comes before the Court on the Motion to Quash Subpoena Duces Tecum (docket number 96) filed by Defendants on March 25, 2015, the Resistance (docket number 99) filed by Plaintiff on April 8, and the Reply (docket number 106) filed by Defendants on April 21. Pursuant to Local Rule 7.c, the motion will be decided without oral argument.


A. Complaint

On August 29, 2013, Plaintiff Nicole Whitney filed a complaint alleging that she was sexually abused, assaulted, and exploited by Dr. Brian Hansen while she was an employee at Defendant Franklin General Hospital. Whitney seeks damages for sexual harassment, sex discrimination, and retaliation in violation of the Iowa Civil Rights Act ("ICRA") and Title VII of the 1964 Civil Rights Act ("Title VII"). Whitney also claims disability discrimination and retaliation in violation of the ICRA and the Americans with Disabilities Act ("ADA"). Finally, Whitney claims a violation of the Family Medical Leave Act ("FMLA") and common law sexual exploitation, assault, and battery. Defendants filed answers denying the material allegations.

B. Discovery

On January 9, 2014, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. See docket number 38. Among other things, the Court established an October 1, 2014 deadline for completion of discovery.[1] Judge Mark W. Bennett then set the matter for trial on June 1, 2015. At Plaintiff's request, the discovery deadline was extended to December 1, 2014. See docket number 54. At the parties' request, the discovery deadline was later extended to February 2, 2015. See docket number 62. The parties' request for a third extension, however, was denied. See docket number 72.

Notwithstanding my Order refusing to extend the deadline for completion of discovery a third time, the parties colluded to conduct extensive discovery following the February 2, 2015 deadline. On January 14, 2015, Plaintiff's attorney sent an email to Defendants' attorney, stating that "[g]iven the Court's recent ruling regarding the extension of deadlines, we plan to subpoena Brian Hansen for a deposition prior to the 2/2/15 discovery deadline."[2] In a response on January 16, Defendants' attorney suggested that the parties simply ignore the deadline for completion of discovery.

Emily, I looked at the order denying the motion to extend deadlines. All it says is the deadlines will not be changed. I do not see an express prohibition on completing depositions after the deadline. Throughout my career I have done depositions by agreement after deadlines necessitated by the exigencies of being a trial lawyer including the day before trial and even during the evening while in trial.

Email from Robert M. Slovek to Emily McCarty, dated January 16, 2015 (docket number 99-2 at 28). According to Whitney's resistance to the instant motion, the parties have taken 13 depositions by agreement after the deadline established by the Court for completion of discovery.

C. Subpoena Duces Tecum

Defendant Kim Price's deposition was taken by Whitney on December 16, 2014. Price, who is Franklin General's CEO, testified that he met with Whitney and "informed her that - under advice of counsel - that she was going to be put on a six-month probation."[3] Plaintiff's counsel followed up with additional questions, and Price confirmed that the decision to place Whitney on probation was done under the advice of attorney Gene La Suer. According to Price, "I'm not aware of any others that were involved at the time."[4] When asked later whether it was Mr. La Suer's "recommendation that all the women should be placed on probation, " Price responded "correct."[5]

The next day, December 17, 2014, Whitney took the deposition of Victoria Lynn Veldhuizen-Kruse, Franklin General's Human Resources Manager. Veldhuizen-Kruse also testified regarding Mr. La Suer's involvement in the decisions to discipline and eventually fire Whitney. In response to questioning by Plaintiff's attorney, Veldhuizen-Kruse disclosed that she had a phone call with Mr. La Suer, in which she described the various complaints being asserted against Whitney. Veldhuizen-Kruse was asked "what was said in response, " and Veldhuizen-Kruse testified that La Suer said "to go ahead and let Nicole go."[6]

On January 6, 2015, Defendants served supplemental RULE 26(a)(1) disclosures.[7] See docket number 96-3. The supplemental disclosures identify two additional persons whom "defendants believe may have discoverable information." Specifically, Defendants identified attorneys Tammy Gentry and Gene La Suer. Ms. Gentry represented Dr. Hansen in criminal proceedings, and Mr. La Suer has provided legal advice to Defendants on employment-related issues, including the subject of this lawsuit.

In her resistance, Whitney asserts that "[d]espite this disclosure, it was not until after the deposition of prosecutor Susan Krisko that it became clear how significant Gene LaSuer's advice was to Defendants' theory of the case."[8] On February 13, 2015, Defendants' counsel took the deposition of Krisko, an Iowa Assistant Attorney General who prosecuted Dr. Hansen for the crime of sexual exploitation. Defendants' counsel asked Krisko to "focus on Gene LaSuer's advice and he's been identified as a witness and he's going to come to trial."[9] Defendants' counsel then questioned Krisko on whether Mr. La Suer was "wrong" in advising Defendants that Whitney should be placed on probation.

Later that same day (February 13), Plaintiff's attorney sent an email to Defendants' attorney, stating that "[w]e also want to depose Gene LaSeur [ sic ] after Bob's questioning of Ms. Krisko this morning."[10] Defendants' attorney responded later that day, stating that "[w]e will contact Mr. LaSuer and see if March 3 works. If not, we will get other potential dates."[11] In the weeks that followed, the parties exchanged a number of emails attempting to schedule Mr. La Suer's deposition.

Apparently in anticipation of the deposition, Whitney prepared a subpoena duces tecum addressed to Mr. La Suer, dated March 6, 2015. The subpoena was hand-delivered to Mr. La Suer on March 10. In her resistance, Whitney states that she intended to email a copy of the subpoena to Defendants' counsel, and send a hard-copy on the same date. Apparently, however, the subpoena was not emailed and the hard-copy did not reach Defendants' counsel until March 12.

On March 19, 2015, Defendants' counsel wrote to Plaintiff's counsel, stating that "Defendants no longer intend to call Gene La Suer as a witness."[12] In their brief filed in support of the instant motion to quash, however, Defendants make it clear that they intend to offer testimony that they ...

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