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Didier v. Abbott Laboratories

United States District Court, Tenth Circuit

January 21, 2014

JEREMY DIDIER, Plaintiff,
v.
ABBOTT LABORATORIES, et al., Defendants.

ORDER

JAMES P. O'HARA, Magistrate Judge.

The plaintiff, Jeremy Didier, brings this employment discrimination suit against her former employers, alleging defendants[1] discriminated against her on the basis of gender and religion, interfered with her rights under the Family Medical Leave Act ("FMLA"), and retaliated against her.[2] Plaintiff seeks recovery of lost wages and benefits and other monetary damages, attorneys' fees, and equitable relief, including reinstatement. The matter is currently before the undersigned U.S. Magistrate Judge, James P. O'Hara, on plaintiff's motion to compel discovery and for sanctions (ECF doc. 64). Plaintiff seeks to compel defendants to conduct a "sufficient search" and produce all documents and information previously requested in certain discovery requests.[3] Plaintiff also seeks sanctions for defendants' alleged "failure to timely disclose relevant and responsive information within Defendants possession and control."[4] Defendants assert that they have conducted a reasonable search, produced all responsive documents, and supplemented their discovery responses in good faith. Therefore, defendants assert plaintiff's motion must be denied. For the reasons discussed below, plaintiff's motion is granted in part and denied in part.

I. Procedural Requirements to Confer

First, defendants argue plaintiff's motion should be denied because plaintiff failed to meet and confer with defendants regarding the specific issues she raises in this motion to compel. The Federal Rules of Civil Procedure and this district's local rules require a moving party to confer with opposing counsel about the discovery dispute before filing a motion to compel. Fed.R.Civ.P. 37(a)(1) requires that a motion to compel include "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." This district's local rules expand on the movant's duty to confer, stating that "a reasonable effort' to confer means more than mailing or faxing a letter to the opposing party."[5] It requires the parties in good faith to "converse, confer, compare views, consult and deliberate, or in good faith attempt to do so."[6]

In this case, the parties have exchanged detailed correspondence aimed at resolving the instant discovery dispute without judicial intervention. Plaintiff has made a reasonable effort to confer with defendants regarding the completeness and adequacy of defendants' discovery responses. Therefore, the court finds plaintiff has satisfied Fed.R.Civ.P. 37(a)(1) and D. Kan. R. 37.2.

II. Background

On June 5, 2012, plaintiff's counsel sent a preservation letter to defendants' in-house counsel, instructing defendants to preserve all evidence regarding plaintiff's employment.[7] Seven months later, plaintiff filed this lawsuit.[8] As earlier indicated, the present dispute stems from defendants' responses to plaintiff's first set of discovery requests, which were served on July 11, 2013.[9] Defendants filed their responses to plaintiff's discovery requests on August 12, 2013.[10] The parties met and conferred regarding defendants' responses in early September 2013 and defendants agreed, despite their previously served objections, to supplement their previous discovery responses and production.[11] Plaintiff asserts defendants "repeatedly supplemented their disclosures, producing additional documents on August 13, September 20, October 14, October 22, October 23, October 24, and October 30, 2013."[12]

On October 28, 2013, plaintiff deposed her former supervisor, Byron Rex. Mr. Rex testified that text messaging is one of the ways he communicates with his employees. Mr. Rex also testified that he received a new company phone in early 2013. As a result, the text messages on his previous company phone are no longer available.

On November 7, 2013, defendants served an amended answer to plaintiff's first set of interrogatories. Plaintiff claims that defendants identified two key decision-makers with respect to plaintiff's termination for the first time in this amended response to Interrogatory Nos. 1 and 2. In addition, defendants produced documents relating to an investigation of plaintiff's supervisor. This supplemental production was made only one day in advance of a deposition.

On November 8, 2013, plaintiff deposed defendants' corporate representative, CeCe LaFleur. Plaintiff asserts that defendants produced additional documents on November 11, 15, and 20, 2013, many of which were relevant to issues on which Ms. LaFleur had been designated as a corporate representative.

Finally, on November 26, 2013, defendants produced two informal records of warning to Mr. Rex, for failure to follow company policy and for abuse of a company credit card. Plaintiff argues these documents were relevant to the depositions of Mr. Rex and two corporate representatives but were not produced until after their depositions.

Defendants respond that the circumstances giving rise to this motion result largely from plaintiff's failure to comply with this court's scheduling order to promptly propose electronic discovery custodians and search terms relating to ESI production.[13] In the court's April 16, 2013 scheduling order, the undersigned confirmed that "[p]laintiff will provide defendants with a list of custodians, search terms, and time restrictions as soon as possible. Counsel will confer and agree upon the list of custodians, search terms and time restrictions, which will be used in conducting searches of defendants ESI. Defendants will produce responsive emails to plaintiff..."[14] Three months later and without proposing a custodian list or search terms, plaintiff served her first set of discovery requests. The parties did not meet and confer to agree upon the list until September 9, 2013. As a result of this delay, the parties agreed to extend discovery from August 30, 2013 to October 31, 2013. Thereafter, defendants engaged in ESI collection and review and started producing responsive e-mails on October 17, 2013. Subsequently, discovery was extended until December 6, 2013.

III. Motion to Compel

Fed. R. Civ. P. 26(b)(1) provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." However, "[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(C)."[15] When a party fails to make disclosure of discovery, the ...


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