United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL DISCOVERY
STEPHAN M. VIDMAR United States Magistrate Judge.
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.
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. These issues are addressed in turn.
of Electronically Stored Documents in Electronic
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
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.
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.
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.
of Personnel Files of Those Employees who had Authority over
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.
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”).
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 ...