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United States v. New Mexico State University

United States District Court, D. New Mexico

September 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NEW MEXICO STATE UNIVERSITY and NEW MEXICO STATE UNIVERSITY BOARD OF REGENTS, Defendants.

          ORDER DENYING MOTION FOR PROTECTIVE ORDER

          Laura Fashing, United States Magistrate Judge

         THIS 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.

         I. Background and Procedural Posture

         This 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.

         During 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 that:

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.

         On July 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. 106.

         II. Motions for Protective Order

         Pursuant 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. 26(c)(2).

         III. Discussion

         In its 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.[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, and 24.

         This 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 the ...


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