United States District Court, W.D. Kentucky, Louisville Division
JAMES W. LILLARD, Plaintiff,
UNIVERSITY OF LOUISVILLE, Defendant.
MEMORANDUM OPINION AND ORDER
COLIN H. LINDSAY, Magistrate Judge.
Before the Court is a "Motion to Modify Order" ("Motion to Modify") (DN 147) filed by defendant University of Louisville ("UofL") on April 17, 2015. Plaintiff Dr. James W. Lillard ("Dr. Lillard") filed a response on May 1, 2015. UofL filed a reply on May 8, 2015. Therefore, the Motion to Modify is ripe for review.
The parties in this matter have been embroiled in a discovery dispute regarding allegations of spoliation. ( See DN 120, 122, 125, 129, 131, 132, 133, 137, 138.) On January 15, 2015, this matter was referred to the undersigned Magistrate Judge ("the Court") for disposition of all pending and further discovery disputes and discovery motions. (DN 137.) To facilitate a thorough discussion of the discovery issues, the Court held a conference on February 2, 2015. The conference was attended by counsel for both parties and numerous UofL employees. During the conference, there was a discussion regarding the storage of electronically-stored information ("ESI") and paper documents at UofL.
As a result of the conference, on March 3, 2015, the Court ordered UofL to search various locations at UofL for ESI and paper documents and produce the non-privileged results of those searches by April 10, 2015. (DN 143 ["March 3 Order"].) On April 7, 2015, the Court extended UofL's deadline to comply with the March 3 Order to May 29, 2015 with the exception of the files and files servers that would be the subject of UofL's to-be filed Motion to Modify. ( See DN 151 [recounting history of Motion to Modify]). The UofL filed the Motion to Modify on April 17, 2015.
In the Motion to Modify, UofL asks the Court to modify the March 3 Order to exclude from search and production the following items: (1) file servers maintained by the James Graham Brown Cancer Center ("BCC"); (2) certain paper documents possessed by BCC; and (3) paper and electronically-stored documents possessed or controlled by the Office of Technology Transfer ("OTT"). The Court will address each category and the parties' arguments with respect to each below.
As an initial matter, the Court notes that its information is only as good as what the parties present to it. In its Motion to Modify and supporting memoranda, UofL does not substantiate its assertions about what the various categories of file servers and electronic and hard-copy documents contain with any affidavit or other testimony. Given the intensity of the discussions-including some comments by the Court-regarding UofL's previous shortcomings related to discovery in this case, the Court assumes that UofL and its counsel are especially sensitive to the need for candor and completeness. Furthermore, Rule 11 of the Federal Rules of Civil Procedure states that "[b]y presenting to the court a... written motion... an attorney... certifies that to the best of the person's knowledge, information, and belief... the factual contentions have evidentiary support...." Fed.R.Civ.P. 11(b)(3). In light of the aforementioned discussions regarding discovery, the Court assumes that Rule 11 has been followed.
Dr. Lillard's Response is likewise less illuminating than it could have been. Dr. Lillard failed to specifically state why any particular file server or category of electronic or hard copy documents is likely to contain relevant information. For example, UofL has identified BCC's file server BACKBLAZE as one that should be excluded from the March 3 Order, claiming that it was purchased after Dr. Lillard's employment at UofL and that it is used solely for research performed by Dr. John Trent. Rather than arguing that Dr. Trent or the file server he uses is likely to contain relevant information, Dr. Lillard attacks UofL's assertion that a search of the file servers is too cumbersome. Dr. Lillard misses the point - relevancy must first be established before the Court turns to whether a search would be too cumbersome. As a result, the Court is left guessing as to whether a potential file server contains relevant information. Certainly the Court should not have to guess or comb through the multiple filings in this matter to determine whether Dr. Trent or his file server may have potentially relevant information. Dr. Lillard appears to be arguing he is entitled to a search of everything, failing to concede that any category is not relevant. This is an unreasonable position in light of the identification of certain file servers and electronic and hard copy documents that clearly-in the Court's estimation-have no relevancy to Dr. Lillard's claims.
Although discovery is proceeding in an unusual manner in this case, it is nonetheless governed by the Federal Rules of Civil Procedure. Rule 26(b)(1) of the Federal Rules of Civil Procedure states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. (emphasis added). "On motion or on its own, the court must limit the frequency of extent of discovery... 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 burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).
The Court has broad discretion to determine the scope of discovery. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). Absent an abuse of discretion, the Court's decision will not be disturbed on review. Chemical & Industry Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962). Once the relevancy of requested information or documents is established, the Court must determine whether the reasons offered by the responding party for excluding these items from disclosure are justified. Invesco Institutional (N.A.), Inc. v. Paas, 244 F.R.D. 374, 380 (W.D. Ky. 2007). If the relevancy of a particular discovery request in dispute is not apparent on its face, however, the party seeking discovery has the burden of establishing relevancy. Transcor, Inc. v. Furnia Charters, Inc. 212 F.R.D. 588, 591 (D. Kan. 2003). The thought behind this common sense principle is that, while the relevancy standard may be a liberal one, it is not a license to go fishing with the hope that something might be discovered. See Southard v. State Farm Fire and Cas. Co., 2012 WL 2191651, at *2 (S.D. Ga. June 14, 2012) ("But the relevancy standard for discovery is not the same as for at-trial evidence. For discovery it is more liberal, though not a fishing license.").
To determine what may be relevant, the Court must necessarily examine the legal and factual bases of Dr. Lillard's lawsuit. Dr. Lillard's lawsuit is based on race discrimination and retaliation, both during and after his employment. Specifically, Dr. Lillard asserts claims for (1) Discrimination/Hostile Work Environment; (2) Retaliatory Constructive Discharge; (3) Retaliation; (4) Public Policy Retaliation; and (5) Ongoing Discrimination and Retaliation. (DN 1; DN 44 [amendment to complaint]; see also DN 45 [order dismissing some claims in the complaint and reciting the remaining claims in the action].) The basic facts underlying those claims are as follows. Dr. Lillard, an African-American male, was employed by UofL from March 1, 2006 to November 15, 2009 as an associate professor. (DN 1, p. 3.) Dr. Lillard alleges that he was constructively discharged from his employment at UofL. Dr. Lillard further alleges that he was treated differently from similarly-situated Caucasian or non-African American employees and subject to a hostile working environment while employed at UofL due to his race. ( Id. at 4.) Some examples of the alleged disparate treatment and hostile working environment include: denial of laboratory and office space; denial of reimbursement for moving expenses; lack of administrative support; reduction in the amount of an endowment that was used to entice Dr. Lillard to accept the position at UofL; failure to follow the agreed-upon terms and conditions associated with the endowment; refusal to allow Dr. Lillard to engage in certain types of investigative research opportunities; refusal to properly investigate Dr. Lillard's complaints and concerns about disparate treatment; racially-charged comments; and manipulation of development awards. ( Id. at 4.) Dr. Lillard also alleges retaliation due to engaging in protected activities and based on UofL filing a civil suit against him in state court for the return of two computers purchased by Dr. Lillard while at UofL. ( Id. at 18; DN 44, p. 2; see also DN 10-1 [complaint filed by UofL in Jefferson County Circuit Court].)
A. BCC File Servers
UofL has identified the file servers that are maintained by BCC and requests that they be excluded from the search mandated by the March 3 Order. Generally, UofL argues that the benefit of searching BCC's file servers is outweighed by the amount of manpower, time, and expense that it would take to conduct the searches. (DN 147-1, p. 9.) Furthermore, UofL argues that none of BCC file servers is likely to contain any information relevant to Dr. Lillard's claims or that will not be otherwise produced as part of a separate search. ( Id. )
Dr. Lillard does not take issue with the specific file servers identified by UofL. Instead, Dr. Lillard argues generally that UofL's reasons for requesting modification of the March 3 Order are not supported by any expert evidence or any evidence at all. (DN 150, pp. 3-4.) Dr. Lillard further argues that UofL has provided no information with respect to the predecessors of the file servers that are identified in the Motion to Modify. ( Id. at 4.) Dr. Lillard is also concerned about the tracking of information on the servers, specifically whether predecessor servers or former uses of a current server were used to store data and information relevant to Dr. Lillard's claims. ( Id. ) Finally, Dr. Lillard appears to be arguing that conducting some of the searches would not be as burdensome as UofL claims. ( See id. at 4-5.) The Court will address each file server below.
1. BCC-WINDEPLOY. UofL asserts that this file server is used to set up all new computers at BCC and was purchased on April 16, 2013, that it pushes operating systems onto new computers and deploys third-party applications to new computers, and that it holds approximately 280 GB of data. The Court finds that, given the factual allegations in this case, it is highly unlikely that BCC-WINDEPLOY contains any relevant information. Dr. Lillard has made no specific argument otherwise. Therefore, BCC-WINDEPLOY is excluded from the search mandated by the March 3 Order.
2. BCCAPERIO. UofL maintains that this file server was originally purchased by BCC on June 13, 2008 at the request of Dr. Lillard and was used to store research images created by an Aperio Scanscope. Upon the end of Dr. Lillard's employment with UofL, UofL claims that BCCAPERIO was used as a backup for data folders on the C:drives of lab computers. UofL further claims that BCCAPERIO was used for this purpose until UofL purchased two other file servers (BCCNAS and BCCNAS1) for that purpose. Currently, BCCAPERIO is said to contain two drive arrays: (1) one that contains more than 6 TB of scanned slide images and the automated backup data of BCC lab computers created after Dr. Lillard's departure from UofL and until BCC purchased the two new file servers; and (2) one which stores data created by Dr. Albert Cunningham after Dr. Lillard's departure from UofL.
The Court finds that, given the allegations in this case, it is unlikely that any relevant information will be found on BCCAPERIO. Even though Dr. Lillard utilized this file server during his employment, it was apparently only to store images related to his cancer research. Dr. Lillard has made no argument that this specific file server may contain relevant information, or that the C:drives of BCC lab computers should be included in the search. See Transcor, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003) ("[W]hen relevancy is not apparent on the face of the request, the party seeking the discovery has the burden to show the relevancy of the request."). Furthermore, array (1) contains 9.7 TB of data and array (2) contains 6.8 TB of data. Because there is a small chance that BCCAPERIO contains relevant information and the amount of data is so large, the Court finds that the cost of searching BCCAPERIO outweighs the benefit of doing so. See Fed.R.Civ.P. 26(b)(2)(C)(iii); In re Great Lakes Factors, Inc., 331 B.R. 347, 352 (Bankr.N.D.Ohio 2005) ("[T]he Court finds that, while not necessarily irrelevant, the Plaintiffs' discovery requests regarding the Business Manager Program are both overbroad and burdensome, and therefore should be restricted."). Therefore, BCCCAPERIO is excluded from the search mandated by the March 3 Order.
3. BCCWAT. UofL asserts that this file server is used by BCC's web application developer as a test box for new web applications at BCC. According to UofL, BCCWAT was purchased on August 26, 2013, after Dr. Lillard left UofL, and holds approximately 68 GB of data. The Court finds that, given the factual allegations in this case, it is highly unlikely BCCWAT contains any relevant information. Dr. Lillard has made no specific argument otherwise. Therefore, BCCWAT is excluded from the search mandated by the March 3 Order.
4. BCCWEBAPPS. UofL maintains that this file server is used by BCC's web application developer as a production box for fully tested web applications. According to UofL, BCCWEBAPPS was purchased on February 18, 2014, after Dr. Lillard left UofL, and holds approximately 56 GB of data. The Court finds that, given the factual allegations in this case, it is highly unlikely that BCCWEBAPPS contains any relevant information. Dr. Lillard has made no specific argument otherwise. Therefore, BCCWEBAPPS is excluded from the search mandated by the March 3 Order.
5. BCCTECH. Per UofL, this file server is used by BCC researchers to send secure documents to each other as part of BCC's secure file transfer protocol. UofL asserts that BCC purchased BCCTECH on October 1, 2013, after Dr. Lillard left UofL's employment, and that BCCTECH contains about 91 GB of data. Although this particular server was purchased after Dr. Lillard left UofL, it is unclear whether the secure documents might include relevant information or communications created during Dr. Lillard's employment at UofL, or whether it includes information or communications relevant to the Dr. Lillard's claims that were created after he left UofL's employment. Therefore, UofL is directed to include BCCTECH in the search mandated by the March 3 Order.
6. BCC-MSOTSERVER. UofL claims that this file server is used by BCC researchers to store scanned animal images and contains about 2 TB of data. UofL maintains that BCC-MSOTSERVER was purchased on January 2, 2013, after Dr. Lillard left UofL's employment. The Court finds that, given the factual allegations in this case, it is highly unlikely that BCC-MSOTSERVER contains any relevant information. Dr. Lillard has made no specific ...