United States District Court, D. Kansas
RANDALL H. RUSSELL, Plaintiff,
v.
KIEWIT CORPORATION, et al., Defendants.
ORDER
JAMES
P. O'HARA, U.S. MAGISTRATE JUDGE
The
plaintiff, Randall H. Russell, has filed a motion (ECF No.
42) seeking to compel supplemental discovery responses by the
seven defendants in this age discrimination case. The primary
defendant is Kiewit Energy Group, Inc. (“Kiewit
Energy”), by which plaintiff was employed in a
human-resources capacity during 2015 and 2016. Also named as
defendants in this case are three corporate affiliates of
Kiewit Energy (i.e., Kiewit Corporation, Kiewit Power
Constructors Co., and Kiewit Engineering Group, Inc.), and
three high-ranking employees of Kiewit Energy (i.e., David
Flickinger (president), John Jennings (district manager), and
Jason Hefley (human resources director)). Defendants oppose
plaintiff's motion, arguing they have adequately produced
responsive discovery and the additional requests are
irrelevant, overbroad, and not proportional. For the reasons
discussed below, plaintiff's motion is respectfully
denied.
Background
Plaintiff
alleges he was fired in retaliation for opposing age
discrimination, disability discrimination, and FMLA
violations in the workplace through his role in Kiewit
Energy's human resources department.[1] Plaintiff's
alleged protected activity occurred between January and April
2016, when he was fired.[2] Throughout the course of discovery, the
parties have disputed the scope of electronically stored
information (“ESI”) related to documents and
communications. As set forth in the court's original
scheduling order, the parties were to confer regarding the
storage and preservation of any electronic
discovery.[3]Defendants proposed that the scope of
electronic discovery would run from May 27, 2015 through
April 22, 2016 and focus on specifically identified
custodians using agreed and limited search terms. Plaintiff
did not agree with these proposed limitations.[4]
The
scheduling order set a deadline of September 21, 2018 for the
parties to file a stipulated ESI protocol or a joint motion
for the court to resolve any disputed issues, [5] but that did not
happen, as the parties were involved in settlement
negotiations during that time period. On February 7, 2019,
the parties presented a summary of their unresolved ESI
issues via e-mail to the chambers of the undersigned U.S.
Magistrate Judge, James P. O'Hara. At the request of
plaintiff's counsel, the court held an informal
telephonic status and allowed the parties to modify the
deadlines in the scheduling order in light of ongoing
discovery issues.[6] Since then, the parties have worked to
narrow the discovery issues but have been unable to resolve
all of them. The court requested that they brief the scope of
their remaining discovery disputes, resulting in
plaintiff's motion to compel before the court now.
Analysis
The
Federal Rules of Civil Procedure provide the general limits
on the scope of discovery. Although there's a presumption
in favor of disclosure of information, discovery is limited
to information that is “relevant to any party's
claims or defense and proportional to the needs of the
case.”[7] The proportionality standard moved to the
forefront of Fed.R.Civ.P. 26(b) when the rule was amended in
2015, which reinforced the need for parties to focus on the
avoidance of undue expense to the parties.[8]
The
proportionality standard takes into account “the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.”[9] One central purpose of its inclusion is to
“encourage judges to be more aggressive in identifying
and discouraging discovery overuse.”[10] In cases
where ESI discovery is necessary, proportionality becomes
particularly significant.[11]
Plaintiff's
“PST” Files (Document Request No.
29)
Plaintiff
moves to compel defendants to produce the e-mail file from
his entire employment with defendants, specifically through
his personal storage folders (.pst files), which plaintiff
asserts would allow for a “more efficient search and
evaluation of the alleged performance deficiencies in context
with other communications.”[12] Files in .pst format
contain e-mails and other Microsoft Outlook data stored on a
user's computer, including drafts, sent messages,
contacts, appointments, tasks, notes, and journal
entries.[13]Plaintiff further requests defendants
produce all prior versions of this file (allegedly nine in
total) to ascertain whether the files were altered or
overwritten at any time during or after plaintiff's
employment.[14]
The
instant motion asserts: “The contents of
plaintiff's .pst file [are] reasonably calculated to
lead to the discovery of admissible evidence to counter
defendant's ‘poor performer'
defense.”[15] This assertion reflects plaintiff's
fundamental misunderstanding of how Rule 26(b) was amended in
2015. Because of concerns the “reasonably
calculated” language in older versions of Rule 26(b)
“might swallow any other limitation on the scope of
discovery, ” it has been abandoned.[16]
Opening
plaintiff's arguments on this point, he obliquely implies
that defendants' stated confidentiality and privilege
concerns should be discounted by the court because an agreed
protective order is on file (ECF No. 23). But plaintiff has
the cart before the horse. Defendants shouldn't have to
conduct a privilege review for any documents, let alone
voluminous documents, unless plaintiff first makes some
credible showing that the documents being reviewed are
relevant to the parties' pleaded claims and defenses.
Plaintiff has made no such showing here.
Plaintiff
argues defendants have an unfair advantage by having access
to e-mails that plaintiff cannot access. He argues it's
proportional to allow him to “see all emails in context
maintained in his own email folders”[17] because it
“equalizes access.”[18] Further, he argues that,
under Fed.R.Civ.P. 26(b)(3)(c), these e-mails constitute his
own statements and therefore production of those statements
should be required.[19] Defendants oppose the request on the
basis that it is overly broad and not
proportional.[20] Defendants assert they have searched for
all terms requested by plaintiff, as well as many additional
search terms not requested by plaintiff, and produced all
responsive e-mails.[21]
The
court agrees with defendants. Rule 26(b)(3)(c) relates to a
party's “own previous statement about the action or
its subject matter.” To the extent plaintiff seeks his
own e-mails related to this action, those were captured in
the e-mails defendants produced in response to
plaintiff's search terms, plus the additional terms
defendants searched.[22]Conspicuously, plaintiff has not cited
any authority for the proposition that Rule 26(b)(3)(C)
requires the production of all statements plaintiff
has ever made in an e-mail about any subject, such
that his entire e-mail file during his tenure with Kiewit
Energy must be produced.
Although
plaintiff is entitled to request the production of files in
.pst format, which are “generally associated with the
Microsoft Outlook email program, ”[23] Document
Request No. 29 seeks the entire file for the “email
account assigned to plaintiff during his employment with
defendants.”[24] Plaintiff purports to address the
“proportionality standpoint” by arguing the .pst
file would allow him to more efficiently review the file.But
producing the entire PST is “simply requesting
discovery regardless of relevancy, ”[25]which most
definitely is not the standard under the 2015 amendments to
Rule 26(b). The language in Document Request No. 29 is not
tied to plaintiff's protected activity or his employment
with the company; rather, plaintiff requests the entire
e-mail account during the entire length of his employment.
That request is facially overly broad and not proportional.
Plaintiff has not shown how every e-mail he has sent and
received is relevant to this action, particularly in light of
defendants' production of 775 documents from e-mail
searches.[26] The court sustains defendants'
objection to Document Request No. 29.
Plaintiff's
Company-Issued iPhone (Document Request No. 28)
The
court understands the parties have resolved their dispute
over production of the data from plaintiff's
company-issued iPhone.[27]
Scope
of Discovery Searches
Plaintiff
takes issue with the search methodology defendants have used
and proposes a search method that elicits all data
referencing plaintiff's name in any capacity. Then,
plaintiff proposes “if there is a large of
number of false hits, the parties [are] to confer on how to
narrow the responsive information.”[28] Plaintiff
asserts that the search methods were “inefficient and
incomplete attempts to comply with discovery, ” and
that defendants “impermissibly withheld”
responsive documents.[29] But plaintiff does not identify which
documents remain withheld. Defendants assert they
“reviewed and produced all non-privileged emails it
yielded that were responsive to any other request or that
were pertinent to the issues in the
case.”[30]
The
court finds defendants have adequately responded to
plaintiff's discovery requests. As one court has
explained, “the Federal Rules of Civil Procedure
require only a reasonable search for responsive information
pursuant to a ‘reasonably comprehensive search
strategy.'”[31] The federal rules do not impose an
obligation on a party “to examine every scrap of paper
in its potentially voluminous files, ” particularly in
an era “where vast amounts of electronic information is
available for review.”[32] Defendants have produced
information with plaintiff's requested search terms, and
defendants' search encompassed devices that were captured
on the Mimecast system, which provides cloud-based e-mail
management for security, archiving, and
continuity.[33]
Plaintiff
suggests throughout his motion that there are additional
relevant e-mails that he “knows he wrote and received
but which have not been produced.”[34] Defendants
represent they'll produce specific, relevant e-mails if
plaintiff identifies them, [35] and the court expects that
defendants will honor that representation. But at this stage,
there is no evidence that there is any additional relevant
information defendants are withholding. Without such
evidence, the court “cannot compel the production of
documents have not been uncovered after a reasonable
search.”[36] If, at a later stage, it is revealed
responsive documents exist but were intentionally not found
or produced by defendants, plaintiff may pursue sanctions.
Based on the record, that is not the case now. The court
therefore denies plaintiff's request.
Discovery
Requests to Additional Entities (Document Request Nos. 4, 23,
and 24; Interrogatory No. 8)
Beyond
just his employer, Kiewit Energy, plaintiff seeks additional
discovery related to the affiliated defendants' stock
plans (Document Request Nos. 23 and 24), other
individuals' personnel files (Document Request No. 4),
and other written complaints against all defendants regarding
alleged discrimination (Interrogatory No. 8). Defendants, as
the objecting parties, have the burden of showing how these
discovery requests are objectionable.[37] Defendants
object that the requests are overly broad and not
proportional because they require searching through documents
regarding issues and people unrelated to ...