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Kennicott v. Sandia Corp.

United States District Court, D. New Mexico

May 14, 2018

LISA A. KENNICOTT, LISA A. GARCIA, and SUE C. PHELPS, on behalf of themselves and a class of those similarly situated, Plaintiffs,



         This matter is before the Court upon Plaintiffs' Motion to Compel (“Motion”) [ECF No. 93], filed on March 5, 2018. Defendant responded on March 19, 2018 [ECF No. 99], and Plaintiffs replied on April 2, 2018 [ECF No. 107]. The Motion concerned Plaintiffs' Request for Production (“RFP”) No. 21. Following the parties' meeting and conferral about that discovery request, Plaintiffs narrowed the scope of the RFP to only those complaints made by Defendant's female employees regarding gender discrimination, pregnancy discrimination, sexual harassment, gender-based hostile work environment, and/or retaliation for making any of the foregoing complaints. Plaintiffs also seek through the RFP the complete investigative files for any complaints within the specified categories.

         At the conclusion of a lengthy telephonic hearing on May 2, 2018, the Court granted the Motion.[1] The Court herein incorporates by reference the reasons it set forth during the hearing, along with the additional reasons that follow below.


         Plaintiffs' primary argument is that the discovery they seek is relevant under Federal Rule of Civil Procedure 26(b)(1) because “gender discrimination” includes not only classic or traditional gender discrimination, but also includes pregnancy discrimination, sexual harassment, gender-based hostile work environment, and retaliation. Plaintiffs emphasize that their complaint alleges in broad strokes that Sandia implemented or tolerated a broad pattern and practice of gender discrimination that manifested itself most visibly in lower pay, fewer opportunities for promotion, and less positive performance evaluations for female employees. Plaintiffs insist that the disputed discovery is necessary to support their future request that the Court certify a class in this case.

         For its part, Defendant responds that Plaintiffs' complaint does not allege pregnancy discrimination, sexual harassment, or gender-based hostile work environment, nor does it allege retaliation on a class basis. Therefore, Defendant contends, none of the discovery that Plaintiffs seek through RFP No. 21 is relevant even under the less-stringent standard of relevance contemplated in Rule 26(b)(1). Defendant maintains that Plaintiffs' lawsuit principally revolves around whether Defendant's performance evaluation, pay, and promotion systems either intentionally or in effect discriminate against female employees, a structural attack that in no way relates to unpled claims of pregnancy discrimination, sexual harassment, gender-based hostile work environment, or retaliation.

         B. THE LAW

         Federal Rule of Civil Procedure 26(b) defines the scope of discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Relevant evidence is that which has “any tendency to make a fact more or less probable than it would be without the evidence, ” where “the fact is of consequence in determining the action.” Fed.R.Evid. 401. The Court “must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).

         The scope of discovery under Rule 26 is broad, but a district court is not “required to permit [a] plaintiff to engage in a ‘fishing expedition' in the hope of supporting his claim.” Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 375 (D.N.M. 2018) (Browning, J.) (quoting McGee v. Hayes, 43 Fed.Appx. 214, 217 (10th Cir. 2002) (unpublished)). Instead of a fishing expedition, discovery “is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.” Id. at 376 (quoting Rivera v. DJO, LLC, No. 11-1119, 2012 WL 3860744, at *1 (D.N.M. August 27, 2012) (Browning, J.). “The burden of demonstrating relevance remains on the party seeking discovery, and the newly revised rule ‘does not place on the party seeking discovery the burden of addressing all proportionality considerations.'” Benavidez v. Sandia Nat'l Laboratories, 319 F.R.D. 696, 719 (D.N.M. 2017) (Browning, J.).

         “In employment discrimination cases, ‘courts have generously construed the term ‘relevant' and have afforded [EEOC] access to virtually any material that might cast light on the allegations against the employer.'” E.E.O.C. v. Outback Steakhouse of Fla., Inc., 251 F.R.D. 603, 612 (D. Colo. 2008) (quoting E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 68-69 (1984)). See also Chen-Oster v. Goldman, Sachs & Co, 293 F.R.D. 557, 562 (S.D.N.Y. 2013) (“[C]ourts typically apply more liberal civil discovery rules in employment discrimination cases, giving plaintiffs broad access to employers' records in an effort to document their claims.”) (internal citations and quotation marks omitted).

         The Tenth Circuit has concluded that information that is “relevant in an EEOC inquiry is equally relevant in a private action.” Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975). It has also emphasized that it does not “narrowly circumscribe discovery in EEOC cases.” Id. “The scope of discovery ‘is limited only by relevance and burdensomeness, and in an EEOC case the discovery scope is extensive.'” Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980) (quoting Rich, 522 F.2d at 343). Or, as one district court explained:

As Title VII cases are particularly hard to prove in the absence of a proverbial smoking gun, such as a discriminatory comment made by a hiring official, discovery in these cases is necessarily broad. Broader discovery is warranted when a plaintiff's claims are premised on a pattern or practice of discrimination at the organization-wide level, as ...

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