United States District Court, D. New Mexico
ORDER DENYING MOTION FOR PROTECTIVE ORDER
Fashing, United States Magistrate Judge
MATTER comes before the Court on defendants New Mexico State
University and New Mexico State University Board of
Regents' (“NMSU”) motion for protective order
filed on August 24, 2017 (Doc. 106), and fully briefed on
September 22, 2017. Docs. 113, 117, 127, 128. NMSU requested
a hearing on the motion on September 22, 2017, which is
opposed by plaintiff, United States of America
(“USA”). Docs. 129, 130. Having reviewed the
submissions of the parties and being fully advised in the
premises, the Court finds that a hearing is unnecessary and
will DENY NMSU's request for a hearing. The Court further
finds that NMSU's motion is not well taken and,
therefore, DENIES the motion.
Background and Procedural Posture
case arises from the allegations of pay discrimination by
NMSU based on gender in violation of Title VII. The USA
alleges that NMSU discriminated against Meaghan Harkins,
f/k/a Meaghan Gregory, by paying her less than her male
counterparts although they were performing similar
responsibilities for NMSU's track and field program.
See Doc. 1.
the course of discovery, disputes arose over NMSU's
responses to the USA's discovery requests. Having failed
to resolve their differences, the USA filed its First Motion
to Compel in February of 2017. Doc. 44. The Court held a
hearing on the USA's motion and granted the majority of
the relief sought by the USA. Doc. 78. In the Court's
order granting the USA's motion in part the Court ordered
3. With regard to requests for production, NMSU shall provide
to the United States a description of what reasonable
searches for documents have been performed, including, but
not limited to, specifying which email accounts have been
searched and what search terms, if any, were used;
4. If the United States objects to the adequacy of such
searches, NMSU shall meet and confer with the United States
in an attempt to reach agreement regarding what, if any,
additional searches should be conducted.
Id. at ¶ 3-4.
28, 2017, NMSU submitted a letter to the USA that described
the scope of the searches conducted by NMSU “to locate
documents and information responsive to the United
States' Discovery Requests.” Doc. 106-1 at 2. On
August 14, 2017, the USA responded to NMSU's letter
describing what the USA believed to be inadequacies in
NMSU's searches and deficiencies in their supplemental
responses to discovery requests. Doc. 106-2. After attempts
to resolve their disputes, the parties once again contacted
the Court for assistance. At a telephonic hearing on August
23, 2017, the parties raised the issue of the adequacy of
NMSU's searches and the Court requested additional
information in order to make an informed decision on the
matter. Doc. 104. Although the parties submitted their
respective correspondence as requested by the Court (Doc.
105), before the Court had an opportunity to follow up with
the parties, NMSU filed its motion for protective order. Doc.
Motions for Protective Order
to Federal Rule of Civil Procedure 26(c), a “court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense.” The decision to enter a protective order is
within the court's discretion. Thomas v. Int'l
Bus. Machs., 48 F.3d 478, 482 (10th Cir. 1995). The
Supreme Court recognizes that “[t]he trial court is in
the best position to weigh fairly the competing needs and
interests of parties affected by discovery. The unique
character of the discovery process requires that the trial
court have substantial latitude to fashion protective
orders.” Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984) (internal citation omitted). The party
seeking a protective order bears the burden of establishing
good cause. Velasquez v. Frontier Med. Inc., 229
F.R.D. 197, 200 (D.N.M. 2005). To demonstrate good cause, the
movant must make “a particular and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.” Id. (quoting Gulf
Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)).
“If a motion for protective order is wholly or partly
denied, the court may, on just terms, order that any party or
person provide or permit discovery.” Fed.R.Civ.P.
motion, NMSU argues that the discovery sought by the USA,
particularly with regard to the additional requested
searches, is not proportional to the needs of the case. Doc.
106. NMSU complains that it has produced more than 14, 000
pages of documents and performed more than 20 searches.
Id. at 3, 4; Doc. 127 at 3, 7. The government
responds by explaining that the searches conducted by NMSU
are inadequate to produce responsive documents. Doc.
117-1. “There are presently only three
discovery disputes remaining between the parties.” Doc.
117-1 at 1. The disputes involve the adequacy of NMSU's
key word searches for documents responsive to the USA's
requests for production (“RFP”) numbers 8, 10,
case presents the question of how parties should search and
produce electronically stored information (“ESI”)
in response to discovery requests. “[T]he best solution
in the entire area of electronic discovery is cooperation
among counsel.” William A. Gross Const.
Assocs.,Inc. v. Am. Mfrs. Mut. Ins. Co., 256
F.R.D. 134, 135 (S.D.N.Y. 2009). Cooperation prevents lawyers
designing keyword searches “in the dark, by the seat of