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Santana v. MKA2 Enterprises, Inc.

United States District Court, D. Kansas

January 8, 2019

URIEL EDWARD SANTANA, Plaintiff,
v.
MKA2 ENTERPRISES, INC., D/B/A LEGENDS HONDA, Defendant.

          MEMORANDUM AND ORDER

          TERESA J. JAMES, U.S. MAGISTRATE JUDGE

         This is an employment discrimination case. Plaintiff alleges he was discriminated against, retaliated against, and terminated because of his race, in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1981. Defendant has filed a Motion to Compel Discovery Requests (ECF No. 26). Plaintiff opposes the motion (ECF No. 33). For the reasons set forth below, the Court denies the motion.

         On June 26, 2018, Defendant served its First Request for Production of Documents on Plaintiff. On August 8, 2018, Plaintiff served his responses and objections on Defendant. After conferring, the parties were unable to resolve their disputes as to Request for Production No. 21.

         That request states:

Produce all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.[1]

         Plaintiffs response states:

Plaintiff objects because this request seeks irrelevant information and is not proportional to the needs of this case. The request is unduly burdensome and invasive in light of the nature of the case-Defendant has shown no need for the production of Plaintiff's cell phone. Further, the majority, if not all, of the information contained on said device is entirely irrelevant to the present cause of action and any request for relevant nonprivileged information can be made through less invasive means.[2]

         Although not the subject of the motion to compel, Defendant also requested that Plaintiff “produce a full and complete copy of all text messages between (Plaintiff) and Defendant and between (Plaintiff) and current or former employees of Defendant.”[3] Plaintiff's response stated “Plaintiff objects to the extent this request seeks irrelevant information and is not proportional to the needs of this case. Subject to and without waiving said objections, see SANTANA 000007-000010.”[4]

         The parties agree that the relevancy of a discovery request is governed by Fed.R.Civ.P. 26(b). That rule states “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case …”[5] The rule goes on to say that the Court must limit discovery if it determines that the discovery sought is unreasonably cumulative or duplicative; can be obtained from a more convenient, less burdensome, or less expensive source; or is outside the scope permitted by Fed.R.Civ.P. 26(b)(1).[6]

         Defendant argues its request is relevant on its face because Plaintiff's cell phone contains information relevant to his claims and Defendant's defenses, specifically in the form of “texts, other messages, and phone calls to co-workers, former co-workers, and current employees of Defendant.”[7] Plaintiff argues that even if the request is relevant, Defendant's motion to compel should be denied pursuant to Fed.R.Civ.P. 26(b)(2) because the request is unduly burdensome and invasive and is not proportional to the needs of this case. The Court agrees.

         Defendant's RFP No. 21 is broad in scope, requesting production of all Plaintiff's cell phones for inspection and copying, without any limitation on the data ultimately to be produced from the copy or image of the phone(s). Defendant in its briefing attempts to limit the request to “texts, other messages, and phone calls to co-workers, former co-workers, and current employees of Defendant.” But, on its face the request is not so limited and Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any unresponsive and/or privileged data removed or protected.

         In any event, Plaintiff's cell phone likely contains a tremendous volume of information, including possibly text messages, email messages, phone logs, and photographs that are not at all relevant to the claims or defenses in this case. Even many or most of those texts and messages between Plaintiff and his co-workers or former co-workers may have no relevance to the claims and defenses in this case. Further, Defendant does not define what it means by “other messages, ” or explain how phone calls are relevant. It is not readily apparent how the mere fact that a phone call to a co-worker, former co-worker, or current employee of Defendant was made could be relevant to this employment discrimination case. Even if Plaintiff did call a co-worker, there would be no way to tell what was discussed, or whether the phone call had anything to do with Plaintiff's allegations. Any relevant information concerning phone calls Plaintiff made to or received from co-workers and former co-workers could be more easily and less invasively obtained by asking Plaintiff about the calls during his deposition.

         As noted in the Advisory Committee Notes to Fed.R.Civ.P. 34(a):[8]

Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some ...

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