Lorren Chandler v. Bayhealth Medical Center

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LORREN CHANDLER, )
)
Plaintiff, ) C.A. No.: K22C-12-017 NEP
)
v. )
)
BAYHEALTH MEDICAL )
CENTER, INC., )
)
Defendant. )

Submitted: December 3, 2024
Decided: December 5, 2024

ORDER1

Upon Plaintiff’s Motion For Limited Extension Of Discovery
GRANTED IN PART AND DENIED IN PART

1. This matter involves an employment discrimination suit filed by
Plaintiff Lorren Chandler against Defendant Bayhealth Medical Center, Inc.
2. Plaintiff has filed a Motion for Limited Extension of Discovery
asserting that Defendant failed to produce a properly prepared and knowledgeable
Rule 30(b)(6) witness, specifically that the witness lacked knowledge of one of the
alleged grounds for Plaintiff’s termination, i.e., violation of a “sign-in” policy.2
Plaintiff seeks a limited re-deposition of the witness as well as sanctions. Defendant

1
Citations hereafter in the form of “(D.I. __)” refer to docket items.
2
Pl’s Mot. For Limited Extension Of Disc. Caused By Def.’s Failure To Properly Prepare And
Produce A Rule 30(b)(6) Witness (hereinafter “Plaintiff’s Motion”) (D.I. 136), 1.
responds that it did not fail to satisfy its Rule 30(b)(6) obligations, as it was not given
proper notice that the sign-in policy was a topic for the deposition—this in spite of
the fact that the deposition notice referenced “the investigation of the Plaintiff for
alleged wrongdoing and basis for her employment termination[.]”3—and that
Plaintiff failed to act diligently in pursuing the matter following the deposition.
3. On May 29, 2018, Defendant hired Plaintiff.4 Defendant first allegedly
discriminated against Plaintiff on the basis of race in January 2020, and Plaintiff first
allegedly suffered retaliation in March 2020, when she was transferred to another
role in Defendant’s employ.5 Plaintiff details various grievances thereafter,
culminating in a dispute over her organization of a going-away party for a colleague
on November 30, 2020, ostensibly in violation of Defendant’s Covid-19 protocols.6
According to Plaintiff, Defendant’s employees unjustifiably “interrogated” her
about this event on December 7, 2020.7 Defendant terminated Plaintiff’s
employment on December 22, 2020.8 On July 23, 2021, Plaintiff filed a Charge of
Discrimination with the Delaware Department of Labor and with the Equal
Employment Opportunity Commission.9 On December 14, 2022, Plaintiff filed her
Complaint with this Court, claiming racial discrimination and retaliation.10
4. On September 18, 2024, Plaintiff noticed a deposition of Defendant’s
Rule 30(b)(6) witness, scheduled for September 24, 2024.11 The notice specified

3
Def.’s Resp. In Opp’n To Pl.’s Mot. For Limited Extension Of Disc. (hereinafter “Defendant’s
Response”) (D.I. 163), 6; Plaintiff’s Motion, Ex. 1 (D.I. 137).
4
Compl. (D.I. 1) ¶ 6; Answer (D.I. 3) ¶ 6. Pl.’s Sur-Reply Memo. In Opp’n To Def’s Partial Mot.
For J. On The Pleadings (D.I. 75), Ex. 1 ¶ 3 (Aff. of Lorren Chandler).
5
Compl. (D.I. 1) ¶¶ 17–27.
6
Id. at ¶¶ 28–46.
7
Id. at ¶¶ 46–47.
8
Compl. (D.I. 1) ¶ 51; Answer (D.I. 3) ¶ 51.
9
Compl. (D.I. 1) ¶ 3–4.
10
See generally id.
11
Plaintiff’s Motion, Ex. 1 (D.I. 137).
2
four topics:
1. As to the nature of, qualifications for, job duties of, and location of
Ms. Chandler’s position as Shipping and Receiving Supervisor.

2. As to the nature of, qualifications for, job duties of, and location of
Ms. Chandler’s transfer to the position of Supply Operations Project
Coordinator, in March of 2020.

3. Reasons for the transfer of the Plaintiff in March of 2020, to the
position of Supply Operations Project Coordinator . . . including but
not limited to the descriptions of any reorganization that prompted
such a transfer.

4. Testimony regarding the investigation of the Plaintiff for alleged
wrongdoing and basis for her employment termination as described
in Defendant’s documents BH0019–00202.12

5. At the September 24 deposition, Defendant’s witness, Carla Mitchell-
Penny, was unable to answer several questions related to the fourth noticed topic.
She could not locate the “guideline” for employee parties held during the Covid-19
pandemic in the documents provided to Plaintiff, nor recall what the guideline
specifically required.13 Most relevant to Plaintiff’s Motion, she could not state
whether a policy explicitly required Bayhealth employees to sign in with the front
desk before attending parties in buildings other than those in which they worked.14
After Plaintiff’s counsel made a verbal request for documents evidencing the “sign
in” policy, Defendant’s counsel asked for a written request “so we can keep track of

12
Id.
13
Id. at Ex. 6, 28:1–15.
14
Id. at 40:22–23 (“I don’t see it, and I don’t know that it’s in a policy.”). Similarly, relevant to
the first and second noticed topics, the witness did not know how many people reported to
Plaintiff after she was transferred, or whether her new role required more manual labor. See id.
at 52:21, 107:13–23.
3
this.”15 Plaintiff’s counsel responded, “We have the transcript. I’ll forward it to
you.”16 Plaintiff’s counsel apparently did not re-raise this request when he deposed
the same witness on different topics on October 1, 2024, the date that fact discovery
closed.17
6. Counsel for both parties received the transcript of the September 24
deposition on October 7.18 Plaintiff made a written request for the documents on
October 27.19 Defendant produced “potentially responsive” documents on
November 4.20 The Court has reviewed these documents and has found no clear
evidence of a “sign in” policy.21
7. In Delaware, “[w]hen a party notices a 30(b)(6) deposition, ‘the
organization has an obligation to ensure, through the testimony of one witness or
multiple witnesses, that the party taking the deposition receives complete responses,
based on the organization’s full knowledge and any relevant information readily
available to it, to questions related to all the matters set forth with particularity for
examination in the notice.’”22 One goal of Rule 30(b)(6) is to “prevent the
‘sandbagging’ of an opponent by conducting a half-hearted inquiry before the
deposition but a thorough and vigorous one before the trial,” which “would totally
defeat the purpose of the discovery process.”23

15
Id. at 41:15–16, 21-23.
16
Id. at 41:24-42:1.
17
Defendant’s Response (D.I. 163), 2–3; Stipulation For Am. Order Governing Briefing Of
Def.’s Partial Mot. For J. On The Pleadings And Am. Scheduling Order (D.I. 39), 2–3.
18
Plaintiff’s Motion, Ex. 7 (D.I. 143).
19
Plaintiff’s Motion, Ex. 8 (D.I. 144).
20
Id.
21
Plaintiff’s Motion, Ex. 9 (D.I. 145).
22
Fortis Advisors, LLC v. Dematic Corp., 2020 WL 6784129, at *4 (Del. Super. Nov. 18, 2020)
(quoting Fitzgerald v. Cantor, 1999 WL 252748, at *2 (Del. Ch. Apr. 5, 1999)).
23
Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochemical Co., 2003 WL 22048238, at *4 (Del.
Super. Sept. 3, 2003) (quoting United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996)
(emphasis omitted)).
4
8. Plaintiff gave adequate notice that she would depose Defendant’s Rule
30(6)(b) witness about its Covid-19 policies, including the requirement that
individuals sign in before entering Defendant’s facility. Plaintiff noticed four topics,
including the “basis for her employment termination as described in Defendant’s
documents BH0019–00202.”24 These documents include a “corrective action
record” that terminated Plaintiff in part because “none of the four visiting individuals
. . . signed in at the front desk which would have been required and to also ensure
that they were screened for COVID-19.”25 Defendant’s Answer in the instant action
similarly asserts that “Plaintiff’s employment was terminated as a result of
misconduct regarding a retirement celebration for a coworker organized by
Plaintiff,”26 and that her employment was “terminated for nondiscriminatory
reasons.”27 Defendant can hardly claim unfair surprise that Plaintiff sought to
interrogate Defendant about those reasons. Clearly, a principal purpose of the
deposition was to determine why Defendant believed Plaintiff’s actions violated
policy and why that violation necessitated termination.
9. Despite Defendant’s claims, Defendant did not satisfy its Rule 30(b)(6)
obligations. The questions its witness failed to answer were not insignificant.
Pursuant to the United States Supreme Court’s decision in McDonnell Douglas
Corp. v. Green,28 Defendant’s ability to articulate nondiscriminatory reasons for
Plaintiff’s termination lies at the heart of this case.29 The basis for Plaintiff’s
termination was not outside the scope of the notice, and although Defendant is

24
Notice of Dep. (D.I. 85), Ex. A ¶ 4.
25
Plaintiff’s Motion, Ex. 2 (D.I. 138).
26
Answer (D.I. 3), ¶ 40.
27
Id. at ¶ 65.
28
411 U.S. 792 (1973).
29
See Ennis v. Del. Transit Corp., 2015 WL 1542151, at *5–7 (Del. Super. Mar. 9, 2015)
(explaining the burden-shifting framework for employment discrimination actions pursuant to
McDonnell Douglas).
5
correct that the notice did not specifically “make[] . . . reference to policy and
procedure documents,”30 any fair reading of the notice implicates the policies
Plaintiff allegedly violated, as the violation of those policies forms Defendant’s
asserted nondiscriminatory basis for terminating Plaintiff.
10. Modification of a scheduling order prior to the final pretrial conference
requires a showing of good cause.31 “‘Good cause’ is likely to be found when the
moving party has been generally diligent, the need for more time was neither
foreseeable nor its fault, and refusing to grant the [motion] would create a substantial
risk of unfairness to that party.”32 Plaintiff has made the requisite showing. Plaintiff
appropriately noticed Defendant prior to the 30(b)(6) deposition. It was neither
foreseeable nor Plaintiff’s fault that Defendant’s witness was unable to identify or
explain the application of the policies justifying Plaintiff’s termination. Further,
while Defendant has now produced some documents potentially (albeit not clearly)
bearing on those policies, Plaintiff would be unfairly prejudiced if she were not
permitted to examine Defendant’s 30(b)(6) witness about those documents and their
import prior to trial. Moreover, the lack of clarity of the documents themselves
regarding the policies at issue further highlights the need to re-depose the witness.
11. Plaintiff’s showing of good cause is not undermined by her failure to
make a written request for documents before the discovery period expired on

30
Plaintiff’s Response (D.I. 163), 6.
31
See In re Asbestos Litigation, 228 A.3d 676, 681 (Del. 2020) (en banc) (“Good cause is the
proper standard under Delaware law, and the General Scheduling Order expressly requires a
‘showing of good cause’ to modify the scheduling order.”); Coleman v. PricewaterhouseCoopers,
LLC, 902 A.2d 1102, 1107 (Del. 2006) (en banc) (finding that the lower court did not abuse its
discretion by declining to modify a scheduling order, citing an absence of good cause). See also
Kent v. Dover Ophthalmology ASC., LLC, 2018 WL 1940450, at *2 (Del. Super. Apr. 12, 2018)
(ORDER); Vick v. Khan, 2018 WL 656379, at *1 (Del. Super. Jan. 31, 2018) (ORDER); In re
Asbestos Litigation, 2012 WL 2389898, at *1 (Del. Super. June 22, 2012); Candlewood Timber
Grp. LLC v. Pan American Energy LLC, 2006 WL 258305, at *2 (Del. Super. Jan. 14, 2006).
32
Coleman, 902 A.2d at 1107 (quoting 3 James Wm. Moore, et al., Moore's Federal Practice §
16.14[1] [b] (3d ed. 2004)) (internal quotation and modification omitted).
6
October 1. When defense counsel asked for a written request for the documents at
the September 24 deposition, Plaintiff’s counsel responded, “We have the transcript.
I’ll send it to you.”33 Counsel for both parties did not receive the transcript, which
presumably would have been helpful to both parties in identifying the documents at
issue,34 until October 7, well after the discovery period had expired. 35 Moreover,
defense counsel certainly never indicated that if a written request were not received
by a date certain, further inquiry into the matter would not be permitted. While it
may well have been advisable for Plaintiff’s counsel to revisit the issue at the
October 1 deposition to clarify the understanding of the parties, the failure to do so
does not mean that Plaintiff has not been generally diligent or that the need to extend
discovery is her fault. The need primarily results from Defendant’s failure to
produce the policy at issue and prepare its witness to answer questions about it.
12. Defendant asserts that it will suffer prejudice if the deadline is extended
because it will be required to expend additional funds in association with another
deposition, will likely need to refile its pending motion for summary judgment in
light of any revelations therefrom, and will be forced to endure further delay.36
While the Court is mindful of these concerns, “any prejudice [is] largely of
[Defendant’s] own making.”37 In other words, the prejudice Defendant is likely to
suffer is not unfair. Perhaps as important, the substantial risk of unfair prejudice to
Plaintiff by denying Plaintiff’s Motion outweighs any prejudice to Defendant.
WHEREFORE, in light of the preceding considerations, Plaintiff’s Motion
For Limited Extension of Discovery is GRANTED IN PART and DENIED IN

33
Plaintiff’s Motion, Ex. 6 (D.I. 142), 41:24-42:1.
34
In his October 27 request, Plaintiff’s counsel cited the pages of the transcript where he had
questioned the deponent about the sign-in policy. Plaintiff’s Motion, Ex. 8 (D.I. 144).
35
Plaintiff’s Motion, Ex. 7 (D.I. 143).
36
Defendant’s Response (D.I. 163), 4.
37
Saudi Basic Indus., 2003 WL 22048238, at *5.
7
PART. Defendant will produce Ms. Mitchell-Penny for an expedited deposition to
last no more than two hours focusing on the alleged sign-in policy and the documents
produced by Defendant on November 4. However, Defendant will not be required
to pay any excess charges associated with production of an expedited transcript, nor
will the Court impose any other sanction, given the failure of Plaintiff’s counsel to
clarify the document production issue at the October 1 deposition. Should this ruling
result in the need for supplementation of briefing on the pending motion for
summary judgment, the parties should confer and, if possible, stipulate regarding
any supplemental briefing.
IT IS SO ORDERED.

NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record

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