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McNabb v. City of Overland Park

United States District Court, D. Kansas

April 16, 2014

EBONY McNABB, Plaintiff,
v.
CITY OF OVERLAND PARK, Defendant.

MEMORANDUM AND ORDER

TERESA J. JAMES, Magistrate Judge.

Pending before the Court is Plaintiff's Motion to Compel Discovery (ECF No. 65). Plaintiff requests an order compelling Defendant to produce 10, 189 emails responsive to Plaintiff's requests for production. For the reasons set forth below, the Motion is denied.

I. Facts

Plaintiff, Ebony McNabb, a police officer employed by Defendant, City of Overland Park, filed this suit alleging sexual discrimination, harassment, a hostile work environment, and retaliation stemming from alleged misconduct by a fellow officer. At issue here are 10, 189 emails responsive to Plaintiff's requests for production, which Plaintiff asks the Court to compel Defendant to produce.

Defendant served Plaintiff with its answers and objections to Plaintiff's First Request for Production on May 31, 2013, [1] its supplemental answers and objections on June 7, 2013, [2] and its supplemental responses and objections on August 14, 2013.[3] Following service of Defendant's answers and objections, Defendant states that counsel held a meet and confer conference to discuss Plaintiff's requests, and Defendant "explained that many of the requests were overly broad and would encompass potentially millions of documents."[4] The parties specifically agreed that the search term list would limit the documents responsive to Plaintiff's interrogatories 7-9, and requests for production 2-5, 8 and 17.

After additional emails and discussions among counsel, Defendant 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."[5] Defendant states that it has produced over 36, 000 of these "McNabb/Bever" emails.[6]

Plaintiff notes that the parties have been engaged in a dispute over the production of emails retained by the Defendant since mid-summer 2013. Plaintiff summarizes:

The City has produced thousands of discoverable internal emails in "waves, " but the final "wave" has not yet been produced. In an email dated August 14, 2013, counsel for the City acknowledged that there were 10, 189 emails in the "second wave, " but asked for a more specific search term list.[7]

The parties requested and participated in a telephone conference with Magistrate Judge Waxse on October 21, 2013, in an attempt to resolve the dispute over this second wave of emails. The parties have produced numerous emails sent both before and after the telephone conference, in which they continued to deliberate over the manner in which the emails were stored, the size of the documents, the overall amount of data to be searched, and potential search terms or methods of searching the data.

No resolution was reached. Ultimately, on January 3, 2014, Plaintiff filed the instant Motion to compel Defendant to produce the identified 10, 189 emails.

Plaintiff argues in her Motion that the Defendant's principal, or perhaps only, argument is proportionality. Plaintiff's response to the proportionality argument is that she "made a very reasonable proposal to involve a third-party ESI vendor to act as an independent monitor in the [discovery] process" and the ESI experts could streamline the process.[8] Plaintiff has not attached copies or quoted the substantive language of the requests for production that are the subject of the Motion, and has not cited any legal authority in support of the Motion.

Defendant counters that Plaintiff's Motion should be denied, because: (1) the disputed emails were never requested by Plaintiff and, even if so, they are not relevant to Plaintiff's claims against Defendant; (2) Plaintiff failed to comply with D. Kan. Rule 37.1; and (3) there is a lack of proportionality.

II. Timeliness of the Motion

Under D. Kan. Rule 37.1(b), any motion to compel discovery "must be filed and served 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." If ...


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