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Cotton v. Costco Wholesale Corp.

United States District Court, Tenth Circuit

July 24, 2013

WAYNE A. COTTON, Plaintiff,


K. Gary Sebelius U.S. Magistrate Judge

This matter comes before the court upon Plaintiff Wayne A. Cotton’s Motion to Compel Defendant to Search for and Produce Electronically Stored Information and Other Documents and Answer Interrogatories (ECF No. 22). For the reasons stated below, the motion is granted in part and denied in part.

Mr. Cotton brings this case against his employer, Costco, alleging that he was subjected to illegal discrimination on the basis of race, a racially hostile work environment, and was disciplined and removed from his position as loss control associate based on his race and in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission. He asserts claims under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 24 U.S.C. § 2000e, et seq.; and the Kansas Act Against Discrimination, K.S.A. § 44-1001, et seq. Mr. Cotton has served on Costco requests for the production of documents and electronically stored information (ESI) with metadata intact. He has also served Costco with interrogatories. The court addresses the discovery requests and objections below.

I. Timeliness

As an initial matter, Costco urges the court to deny Mr. Cotton’s motion on the ground that it is untimely. D. Kan. Rule 37.1(b) provides that motions to compel discovery must be filed “within 30 days of the default or service of the response, answer, or objection that is the subject of the motion unless the court extends the time for filing such motion for good cause.” Failure to file a motion to compel within 30 days means “the objection to the default, response, answer, or objection is waived.”[1] D. Kan. Rule 37.1(b) generally “reflects that the triggering event is service of the response that is the subject of the motion.”[2] On April 1, 2013, Costco filed a certificate of service stating that on April 1, defense counsel had placed in the U.S. mail Costco’s discovery responses and objections.[3] Costco argues that Mr. Cotton’s motion is untimely because he did not file it within 30 days of April 1. But on April 1, Mr. Cotton had not been served with Costco’s discovery responses and objections—only notice that Costco had placed the discovery responses in the mail. For the purpose of computing time, Fed.R.Civ.P. 6(d) provides an additional three days when service is made by mail. Therefore, Mr. Cotton’s motion to compel was timely filed on May 3, 2013.

II. Search Terms for Employee E-mails

Request No. 1 asks that Costco produce, from the time period of January 1, 2009, to the present, any ESI sent, received or created by Costco employees Tom Sadler, Linda Schwarz, Megan Pace, and/or Dean Eastham that contain any of a list of sixty-four terms that Mr. Cotton has provided.[4] The list contains racially derogatory words and terms but also contains others race-neutral words such as “brother, ” “cocoa, ” “cornbread, ” “gun, ” “harassment, ” “jail, ” “prison, ” and “retaliate.”[5] Request No. 2 seeks the same information as Request No. 1 as it pertains to any member of human resources or Overland Park, Kansas warehouse management.

Among other objections, Costco asserts that the requests are overly broad. Both requests are overly broad on their face in that they could conceivably encompass some information that may arguably be relevant to this litigation but would also likely encompass much information having nothing to do with issues in this case.[6] Because the court finds that Mr. Cotton’s requests are facially objectionable, he bears the burden of convincing the court that his discovery requests are proper.[7]

Mr. Cotton explains that Mr. Sadler, Ms. Schwartz, Ms. Pace, and Mr. Eastham are individuals who harassed Mr. Cotton. He argues that a search of their e-mail accounts may unearth e-mails containing evidence of prejudice toward African-Americans because the list of search terms are words that are not normally used in non-racial ways. The court disagrees with this assessment. Moreover, a significant number of the sixty-four search terms are not themselves racially charged. And a number of entries are duplicative. For example, Mr. Cotton asks Costco to search for the terms “monkey boy, ” “porch monkey, ” and “welfare monkey” separately, but these results would presumably be encompassed in the search results for the word “monkey, ” which he also lists. But for two search terms, “monkey” and “nigger, ” Mr. Cotton has not alleged that any of Costco’s employees ever used any of the other words appearing on the list of search terms. Further, Costco has agreed to search ESI for these two terms as to Mr. Sadler, Mr. Schwartz, Ms. Pace, and Mr. Eastman, [8] all of whom Mr. Cotton claims were managers in the warehouse where he was employed.[9]

In addition to the problems with Mr. Cotton’s list of search terms, Request No. 2 is also facially overly broad in that it encompasses the e-mail of “any member of human resources.” As Costco explains, this request would require it to search the e-mail of employees nationwide, most of whom have never had any contact with Mr. Cotton. Generally, in a non-class action employment discrimination case, discovery is limited to the plaintiff’s employing unit.[10] The court sustains Costco’s overbreadth objections and denies Mr. Cotton’s motion to compel as to Request Nos. 1 and 2 beyond the two search terms for ESI of the four warehouse employees identified above.

III. Documents Mentioning Plaintiff and/or his Claims

Request No. 3 seeks documents reflecting statements taken or received by Costco that mention plaintiff or his claims or allegations made in this suit. Request No. 4 seeks each document mentioning Mr. Cotton or his allegations of discrimination, harassment, and/or retaliation that were created or received by any current or former employee, manager or supervisor of Mr. Cotton. Costco has agreed to produce some responsive documents but continues to rely on its objections. Among other objections, Costco continues to assert that these requests are overly broad because they potentially encompass any document that mentions Mr. Cotton’s name regardless of whether it has anything to do with this suit. The court agrees. Mr. Cotton’s document requests are overly broad on their face because, again, while some responsive documents may be relevant to issues in this case, the requests also likely encompass a significant amount of information pertaining to unrelated issues. Request No. 4 specifically states it applies to human resources employees regardless of their location. Conceivably, a staff directory prepared by an HR employee containing Mr. Cotton’s name would be responsive to this request. For these reasons, the court sustains Costco’s overbreadth objections. Costco shall produce the responsive documents it has agreed to produce. It need not respond further.

IV. Costco’s Supplemental Production

Costco states that it has already provided or agreed to provide information sought by Request Nos. 5, 6, 21, 22. In his reply brief, Mr. Cotton does not deny this is the case; rather, he merely states that Costco has not yet produced the documents. To the extent Costco has not supplemented its production, it is ordered to do so. The ...

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