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Ortega v. Management and Training Corp.

United States District Court, D. New Mexico

January 6, 2017

ALEJANDRO ORTEGA, Plaintiff,
v.
MANAGEMENT AND TRAINING CORPORATION, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DISCOVERY

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before the Court on Plaintiff's Motion to Compel Discovery [Doc. 17], filed October 3, 2016. Defendant responded on October 20, 2016. [Doc. 18]. Plaintiff replied on November 7, 2016. [Doc. 19]. The Court heard argument from the parties at a hearing on the motion on January 5, 2017. Having considered the briefing, the parties' argument at the hearing, the relevant law, and being otherwise fully advised in the premises, the Court will GRANT IN PART and DENY IN PART Plaintiff's Motion to Compel.

         In his motion, Plaintiff asks the Court to compel Defendant to (1) produce electronically stored information in its native format (that is, electronically), in addition to the hard copy format in which Defendant has already produced the requested documents; and (2) produce copies of the personnel files of those employees who had authority over Plaintiff's discharge, including evidence of any disciplinary actions taken against such employees. [Doc. 17] at 4-8.[1] These issues are addressed in turn.

         Production of Electronically Stored Documents in Electronic Format

         Plaintiff requests that the Court compel Defendant to produce requested documents in the manner in which they are ordinarily kept; that is, Plaintiff requests that information kept electronically in “the usual course of business” be produced electronically. [Doc. 17] at 4-7. Plaintiff contends that Defendant has produced only in hard copy documents that Defendant kept electronically. Id. at 6-7.

         During oral argument at the hearing on January 5, 2017, counsel for Plaintiff acknowledged that Defendant need not produce documents both electronically and via hard copy; Plaintiff maintains, however, that Defendant should be compelled to produce electronically any document kept electronically in the normal course of business, even where Defendant has already produced such documents in hard copy format. At oral argument, counsel for Defendant stated that Defendant has produced in hard copy all requested documents that are ordinarily kept in hard copy and has produced electronically all requested documents that are ordinarily kept electronically. Defendant further stated that, with respect to documents ordinarily kept by Defendant both electronically and in hard copy, Defendant produced such documents in hard copy format only. This last category of documents is the heart of the parties' dispute.

         Rule 34 does not require the producing party to produce documents in multiple formats. Fed.R.Civ.P. 34(b)(2)(E)(iii). Nor does Rule 34 require the producing party to produce electronically stored documents in the form in which they are ordinarily maintained. Fed.R.Civ.P. 34(b) advisory committee's note to 2006 amendment. Rather, the producing party is required only to produce such documents in a “reasonably usable form”; it cannot convert electronically stored information “to a different form that makes it more difficult or burdensome for the requesting party” to use the documents. Id. Defendant's production of hard copy versions of documents kept both electronically and in hard copy does not run afoul of Rule 34.

         Plaintiff's motion is DENIED as to Plaintiff's request for electronic versions of documents maintained by Defendant in both electronic and hard copy formats, where Defendant has already produced such documents in hard copy format.[2]

         Production of Personnel Files of Those Employees who had Authority over Plaintiff's Discharge

         Plaintiff also requests that the Court compel Defendant to produce the personnel files of those employees who had authority over Plaintiff's discharge, including documentation of any disciplinary actions against such employees. [Doc. 17] at 7-8. Plaintiff acknowledges Defendant's representation that the files of the pertinent employees-Warden Terry, Stephanie Hall, Jared Christensen, and Neil Adler-contain no disciplinary actions or similar write-ups regarding the discharge of Plaintiff. However, citing case law outside the Tenth Circuit, Plaintiff maintains that the personnel files are still relevant because prior disciplinary actions, though not in relation to Plaintiff's discharge, could show an employee's state of mind or habit of engaging in discriminatory practices. Defendant argues that these documents are not relevant because they do not pertain to the termination of Plaintiff in this case. [Doc. 18] at 5. Defendant further asserts the privacy interests of the employees, noting that Plaintiffs request encompasses medical, financial, and other highly personal information. Id. Finally, Defendant notes the significant cost and burden of production. Id.

         Neither party cites Tenth Circuit case law on this issue. While Plaintiff cites two non-binding cases that address the issue, they point in opposite directions, and neither sets out a firm rationale for the conclusion reached. See [Doc. 17] at 7-8. Compare Hill v. Motel 6, 205 F.R.D. 490, 495 (S.D. Ohio 2001) (holding, in a disparate treatment case, that the plaintiff was entitled to discovery of the personnel files of those employees who participated in the decision to terminate the plaintiff), with Vann v. Mattress Firm, 2014 WL 1365943, at *4 (S.D. Tex. Apr. 7, 2014) (unpublished) (holding, also in a disparate treatment case, that the plaintiff was not entitled the discovery of the personnel files of those employees involved in the decision to terminate the plaintiff because such documents would not “assist plaintiff in her effort to show that she was treated less favorably than similarly situated employees outside of her protected class”).

         The Court finds that another case deciding this issue, Abrego v. Waste Management of Texas, Inc., 2012 WL 2402890, at *1 (N.D. Tex. June 26, 2012) (unpublished), is more instructive, and the Court adopts its reasoning. In Abrego, as in Vann, the court denied the plaintiffs motion to compel discovery of the personnel files of those involved in the plaintiffs termination. Id. It clarified that its decision was based on the representation of the defendant in that case that the requested records did not contain:

(1) the reasons for plaintiff's termination; (2) any complaints of harassment or retaliation by plaintiff or any other [employee of defendant]; (3) any discipline received by the supervisor in response to complaints of discrimination or retaliation; or (4) any discipline received by the supervisor for failure to properly investigate or respond to complaints of discrimination or retaliation.

Id. The court's decision in Abrego strikes an appropriate balance between a plaintiff's need for discovery and the privacy interests of the employees whose records are sought, and the Court will ...


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