United States District Court, D. Kansas
ANTHONY M. SMITH, Plaintiff,
HILLSHIRE BRANDS, Defendant.
JAMES P. O'HARA, Magistrate Judge.
The plaintiff, Anthony M. Smith, proceeding pro se, has sued his former employer, Hillshire Brands,  for alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Family and Medical Leave Act ("FMLA"). Defendant has filed a motion to compel plaintiff to respond to discovery requests seeking information relating to (1) his electronic communications with others about the allegations raised in his complaint, (2) prior litigation or administrative proceedings to which he was a party, (3) his social networking activity, and (4) his employment history since January 1, 2009, including the identity of entities with whom he has sought employment (ECF doc. 33). For the reasons discussed below, the motion is granted in part and denied in part.
Plaintiff began working for defendant in January 2011 as a production technician. He states that in January 2013, he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). He alleges that in the months after this administrative filing, his supervisors subjected him to instances of discriminatory conduct. During at least a portion of his employment, plaintiff was entitled to intermittent absences under the FMLA. Plaintiff alleges that he received time off under the FMLA because of stress caused by defendant. In a letter dated August 30, 2013, a company called Reed Group (presumably a benefits-processing company utilized by defendant) informed plaintiff, with a copy to defendant, that his intermittent FMLA leave was approved through February 16, 2014. On September 3, 2013, defendant discharged plaintiff.
Plaintiff filed this action on November 26, 2013, alleging that his discharge violated Title VII and the FMLA. Plaintiff seeks $1, 000, 000 in damages for medical expenses, lost wages, and emotional distress. Defendant served its first interrogatories and first requests for production of documents to plaintiff on February 24, 2014. Plaintiff responded and later supplemented his responses, but defendant remains unsatisfied with some of plaintiff's answers. Defendant asks the court to compel plaintiff to fully respond to Interrogatory Nos. 7 and 11, and Request for Production Nos. 3, 9, 15, and 18.
II. Legal Standards
Under Fed.R.Civ.P. 26(b)(1), discovery may be obtained "regarding any nonprivileged matter that is relevant to any party's claim or defense." "Relevancy is broadly construed during the discovery phase, and a request for discovery should be considered relevant if there is any possibility' that the information sought may be relevant to the claim or defense of any party." At least as a general proposition, then, "[a] request for discovery should be allowed unless it is clear that the information sought can have no possible bearing on the claim or defense of a party." "When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish that the requested discovery does not come within the scope of relevance." The party making the discovery request has the burden if relevance is not readily apparent.
III. Discovery Sought
A. Plaintiff's Electronic Communication Regarding Conduct Alleged
Defendant's Request No. 3 sought plaintiff's communications regarding the allegations raised in plaintiff's complaint:
Request No. 3: All documents constituting or relating to communications by and between you and any third party, person, entity or organization regarding alleged retaliation at Hillshire and/or any other allegations raised in your complaint.
Defendant's motion asks the court to compel plaintiff to produce e-mails that are responsive to this request. Defendant notes that plaintiff has referred to responsive e-mails in other documents, but has not produced any such e-mails. Plaintiff has informed defense counsel that he did not save the e-mails. In his response to the motion, plaintiff states simply, "I have submitted everything I have."
There is no dispute that Request No. 3 sought relevant discovery. Defendant correctly asserts that plaintiff had an obligation to preserve e-mails related to his claims once litigation was reasonably foreseeable. "Such preservation may not be selective, ' saving only the evidence supporting a theory of liability and impeding the examination of another theory." Failing to preserve evidence-including electronic material-that another party might use in pending or reasonably foreseeable litigation is deemed "spoliation." If it is found that plaintiff engaged in spoliation, there are a variety of sanctions that the court may impose against plaintiff, including, if the spoliation is found to be particularly egregious, dismissal of this case.
At this juncture, defendant is not requesting sanctions. Rather, defendant asks that plaintiff attempt to recover relevant e-mails-perhaps by contacting his e-mail service provider. The court finds this request reasonable and grants defendant's motion regarding this discovery. Plaintiff is therefore ordered to immediately take steps to recover deleted e-mails that mention or relate to the allegations he raises in this case, including contacting his e-mail service provider for assistance. By July 3, 2014, plaintiff shall inform defendant of the specific steps that he has taken to recover ...