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McNabb v. City of Overland Park

United States District Court, D. Kansas

March 21, 2014

EBONY MCNABB, Plaintiff,


TERESA J. JAMES, Magistrate Judge.

This matter is before the Court on Plaintiff's Motion to Compel Discovery (ECF No. 57). Plaintiff requests an order compelling Defendant either to produce unredacted versions of emails from which Defendant previously redacted information, or alternatively, to produce a redaction log. Defendant objects because it claims the redacted information is confidential and/or irrelevant. Plaintiff also seeks an order compelling Defendant to produce documents that it has withheld as protected under the attorney-client privilege and/or work product doctrine, claiming that Defendant's privilege log is insufficient. Plaintiff alternatively requests that the Court conduct an in camera review of the documents withheld. For the reasons set forth below, the Court grants the motion in part and denies it in part.

I. Background Facts

Plaintiff filed this action on May 29, 2012, alleging sexual discrimination, harassment, hostile work environment, and retaliation stemming from alleged misconduct by a fellow officer, Justin Bever. On October 3, 2012, the Court entered the parties' Agreed Protective Order (ECF No. 17), which limits the parties' disclosure and use of confidential, non-public information designated as "Confidential Information."

On April 9, 2013, Plaintiff served her First Interrogatories and First Request for Production of Documents to Defendant.[1] Following service of Defendant's answers and objections, Defendant states that counsel held a meet and confer conference to discuss Plaintiff's requests, at which Defendant objected that many of the requests were overly broad and would encompass a significant number of documents. Plaintiff's counsel suggested a list of search terms to help narrow the requests. The initial search term list provided by Plaintiff asked Defendant to search the email records of 51 employees using several common words, such as "incident, " "illegal, " "text, " and "warning." After Defendant ran the search and found over 800, 000 hits, the parties worked to create a list of search terms that would limit the number of emails retrieved. Defendant states that it then agreed to produce five categories of emails: (1) all emails sent or received by Plaintiff; (2) all emails sent or received by Officer Bever; (3) all emails mentioning Plaintiff; (4) all emails mentioning Officer Bever; and (5) any emails containing both "McNabb" and "Bever." This search retrieved approximately 200, 000 emails. At the request of Plaintiff, Defendant then "de-duplicated" the emails to weed out redundant material, leaving approximately 55, 000 emails remaining.

On August 14, 2013, Defendant produced approximately 20, 000 emails. Before producing the emails, Defendant reviewed the emails and eliminated those pertaining to another person with the same last name as Plaintiff and other false-positive emails. Defendant further reviewed the emails for privilege and withheld those emails it concluded contained attorney-client privileged information or constituted attorney work product. Defendant also redacted from the emails information that it determined to be confidential, third-party information and/or not relevant.

On August 15, 2013, Defendant served its privilege log for the first wave of production. This privilege log identified the documents Defendant withheld on the basis of attorney-client privilege and/or work product.

Plaintiff then asked Defendant to provide a log of the relevance and confidentiality-based redactions. On September 9, 2013, Defendant's counsel advised Plaintiff that the cost of producing a log for these redactions was prohibitive. Counsel further advised that the email redactions were generally focused on protecting irrelevant and third-party confidential information contained in the emails.

Defendant thereafter supplemented its privilege log with respect to the documents it withheld as attorney-client privileged and work product. The final version of Defendant's privilege log has 215 entries, [2] however, the number of entries is not indicative of the number of documents actually withheld. For example, privilege log entries 20 and 21 pertain to the same document. Log entry 20 reflects Defendant's assertion of the attorney-client privilege for the document and contains information such as the date, sender, recipient, and subject. Log entry 21 reflects Defendant's assertion of work product protection for the same document, using the same information provided in the preceding entry (Entry 20).

II. Defendant's Production of Redacted Emails

Plaintiff objects to Defendant's unilateral redaction of information that Defendant claims is confidential or irrelevant, from the approximately 20, 000 emails it produced on August 14, 2013. Plaintiff argues that Defendant has not asserted any legal basis for the redactions, nor has it produced a log providing information about the redactions. Plaintiff also contends that the redactions are not necessary to protect confidential third-party information because, if that were truly the case, Defendant could have simply designated the materials as "confidential" under the parties' existing protective order. Plaintiff points out that it did not seek to increase the cost of litigation by forcing Defendant to review and redact thousands of pages of documents. Plaintiff maintains that if Defendant does not wish to produce a redaction log, it can simply produce the documents in their unredacted form. Because these redactions are not described in any privilege or redaction log, Plaintiff contends that Defendant should be compelled to produce the emails in their unredacted form, provide a log with information about the redactions, or produce the documents for an in camera review by the Court.

In the few cases in this district where the court has addressed the propriety of unilateral redactions of either irrelevant, non-responsive, or confidential information, unilateral redactions have been found to be inappropriate. In Williams v. Sprint/United Management Co., [3] the court addressed the defendants' redactions of information it claimed was irrelevant. The court overruled the redacting defendants' relevancy objections, finding that they had waived any right to assert a relevancy objection by failing to object prior to producing the documents in a redacted format, to move for a protective order, or to obtain the agreement of the opposing party for the redactions.[4] It held that the party redacting sections of an otherwise discoverable document on the basis of irrelevancy had the burden to show why these redactions were proper and that any relevancy objections must be made before or at the time the redacted documents were produced.[5]

In HR Technology, Inc. v. Imura International U.S.A., Inc., [6] the court considered redactions of non-responsive information from otherwise discoverable documents. It ordered the redacting party to produce in their entirety all previously redacted documents, finding that the arguments advanced in support of the redactions were contradicted by Fed.R.Civ.P. 34 and good policy.[7] The court agreed with the reasoning of courts that had rejected such redactions by parties. It quoted at length the rationale set forth by the Western District of Pennsylvania in Orion Power Midwest, L.P. v. American Coal Sales Co. :[8]

Defendants' novel interpretation of their discovery obligations is not supported by the text of Fed.R.Civ.P. 34 and would open a fertile new field for discovery battles. Rule 34 talks about production of "documents, " as opposed to the relevant information contained in those documents. It is at least implicit that the duty to "produce documents as they are kept in the usual course of business" includes the substantive contents of those documents. See also Fed.R.Civ.P. 34(b)(2)(E)(ii) (party must produce information "in a form or forms in which it is ordinarily maintained"). Certainly, a party that seeks to "inspect" a document would anticipate being able to inspect the entire document. This interpretation of Rule 34 is consistent with the guidance in Fed.R.Civ.P. 1 that the Rules be construed to advance the just, speedy and inexpensive determination of cases. There is no express or implied support for the insertion of another step in the process (with its attendant expense and delay) in which a party would scrub responsive documents of non-responsive information. In sum, the Court cannot countenance Defendants' "redaction campaign."[9]

The HR Technology court further quoted the summary of the redaction decisions set out by the Southern District of Ohio in Beverage Distributors, Inc. v. Miller Brewing Co. :[10]

These [redaction] decisions are not necessarily irreconcilable. The themes which pervade each of them are (1) that redaction of otherwise discoverable documents is the exception rather than the rule; (2) that ordinarily, the fact that the producing party is not harmed by producing irrelevant information or by producing sensitive information which is subject to a protective order restricting its dissemination and use renders redaction both unnecessary and potentially disruptive to the orderly resolution of the case; and (3) that the Court should not be burdened with an in camera inspection of redacted documents merely to ...

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