EEOC v Tepro, Inc.
EEOC v Tepro, Inc.
2014 WL 12562856 (E.D. Tenn. 2014)
August 29, 2014

Lee, Susan K.,  United States Magistrate Judge

Clawback
30(b)(6) corporate designee
Possession Custody Control
Failure to Preserve
Privilege Log
Failure to Produce
Sanctions
Proportionality
Privacy
Protective Order
Initial Disclosures
Download PDF
To Cite List
Summary
The Court emphasized the importance of ESI in the discovery process, requiring parties to comply with Fed. R. Civ. P. 26(b)(5)(B) regarding any claim that information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material. This rule requires that parties include a verbatim recitation of each interrogatory, request, answer, response, and objection which is the subject of the motion or a copy of the actual discovery document which is the subject of the motion.
Equal Employment Opportunity Commission, Plaintiff,
v.
Tepro, Inc., Defendant
4:12-cv-75-HSM-SKL
Filed August 29, 2014

Counsel

Anica C. Jones, Equal Employment Opportunity Commission, Nashville, TN, Faye A. Williams, Gerald L. Thornton, Kelley R. Thomas, Markeisha Katera Savage, United States of America, Equal Employment Opportunity Commission, Memphis, TN, Pamela B. Dixon, Equal Employment Opportunity Commission, Little Rock, AR, for Plaintiff.
Kimberly F. Seten, Constangy, Brooks, Smith & Prophete, LLP, Kansas City, MO, Marcia Dawn McShane, Mary Dohner Smith, William A. Blue, Jr., Constangy, Brooks & Smith, Nashville, TN, Tamula R. Yelling, Constangy, Brooks & Smith, LLP, Birmingham, AL, Timothy R. Newton, Constangy, Brooks & Smith, Atlanta, GA, for Defendant.
Lee, Susan K., United States Magistrate Judge

ORDER

*1 Before the Court are the following discovery-related motions filed by the parties in the final week of an expanded, year-long discovery period: (1) a motion to compel documents [Doc. 53] filed by Defendant Tepro, Inc. (“Defendant”); (2) a motion to compel documents [Doc. 59] filed by Plaintiff Equal Employment Opportunity Commission (“Plaintiff” or “the Commission” or “EEOC”); (3) an “emergency” motion to stay a 30(b)(6) deposition and motion for protective order [Doc. 61] filed by Defendant; (4) a motion for protective order [Doc. 65] filed by Defendant; and (5) a motion for conditional relief from the scheduling order [Doc. 66] filed by Defendant.
I. BACKGROUND
This case involves allegations of age discrimination against Defendant by Plaintiff on behalf of a class of Defendant's former employees. Specifically, on November 15, 2012, Plaintiff filed a complaint alleging that Defendant terminated certain employees because of their age [Doc. 1]. The Court's scheduling orders entered some six months later on June 21, 2013 [Doc. 11], as amended on June 24, 2013 [Doc. 13], gave the parties an additional 13 months, until July 31, 2014, to complete all discovery, and certain discovery limitations were expanded by agreement of the parties. Per its usual practice, the Court's scheduling orders also put the parties on notice that it would not intervene in any discovery disputes after the close of discovery and that all discovery must be completed by July 31, 2014 [Doc. 13 at Page ID # 57].
The parties experienced difficulty with cooperative discovery from the start, with each side submitting its own report of the parties' discovery planning meeting under Rule 26(f) of the Federal Rules of Civil Procedure because the parties were unable to reach agreement on a discovery plan [Docs. 7 & 8]. As a result, the Court held an in-person scheduling conference on June 20, 2013 [Doc. 9 & 10].
The first discovery motion was not filed until February 4, 2014, when Plaintiff moved to compel Defendant to respond to its interrogatories and requests for production (“RFPs”) and for sanctions [Doc. 19]. Once the parties' briefing was completed, a hearing on this motion to compel was held on February 21, 2014. During this hearing, the parties were reminded of the approaching discovery deadline. Although they required some Court intervention and assistance, and the parties' arguments were replete with accusations of misrepresentations, commendably the parties were eventually able to submit a proposed agreed order to resolve Plaintiff's motion to compel, and the agreed order was entered by the Court on March 17, 2014 [Doc. 28].
Unfortunately, the parties' ability to cooperatively resolve their discovery differences soon waned. The next discovery motion was filed by Plaintiff on June 9, 2014, when Plaintiff sought to enforce the agreed order and compel production of electronically stored information (“ESI”) from Defendant [Doc. 35]. After the parties' briefing on this motion was completed, a hearing on the motion was held on June 23, 2014. By that time, Defendant had produced thousands of electronically stored documents and emails to Plaintiff, but disputes remained, including a disagreement about certain search terms that had not been utilized during the computer-assisted search of the ESI. Both sides asked for sanctions against the other. Defendant also reported that after the motion was filed, in an effort to get the overdue discovery to Plaintiff, it produced the requested documents to Plaintiff without first being able to review the produced documents for potential claims of privilege. During the June 23 hearing, the Court specifically instructed the parties to discuss a “claw back” provision regarding ESI produced by Defendant that was later asserted to be privileged, and the Court again warned the parties of the quickly approaching discovery deadline and their need to timely complete discovery.
*2 In order to allow the parties time to consider certain information made available during the initial hearing, and to give them an opportunity to gather or discuss additional information regarding the remaining pending discovery issues, a second hearing was held on the motion, via telephone, on June 27, 2014. The Court then issued an order [Doc. 42], in which Defendant was ordered to run an additional search of ESI for documents containing one additional search term and to produce a privilege log as soon as possible and no later than July 11, 2014. The Court also ordered the parties to confer and agree upon a protective order including a claw back provision and to submit the proposed order to the Court no later than July 11, 2014. The order noted that all deadlines in the Court's final scheduling order remained in effect.
Defendant filed the next discovery motion, a motion to compel depositions [Doc. 49], on July 24, 2014, just one week before the close of the discovery period. Defendant sought expedited briefing on the issue of whether Defendant could depose two EEOC employees. The Court granted expedited briefing, so the matter was fully briefed and therefore ripe prior to the close of discovery. A hearing on the expedited motion was held on August 1, 2014 [Doc. 71], and an order allowing one of the two depositions to proceed was entered by the Court on August 14, 2014 [Doc. 84].
The first of the instant motions was filed on July 25, 2014, less than a week before the discovery completion deadline, when Defendant moved to compel Plaintiff to produce documents [Doc. 53] and filed a memorandum in support of its motion [Doc. 54]. In this motion to compel, Defendant seeks Plaintiff's investigative files, other documents that allegedly have been wrongly redacted or withheld, damages information, documents the claimants gave to Plaintiff, Plaintiff's employee training records, ESI, and a sufficient privilege log. Three days later, a mere three days before the close of discovery, Plaintiff filed its own motion to compel documents [Doc. 59] and a memorandum in support [Doc. 60]. In that motion, Plaintiff seeks to compel Defendant to produce Daily Production Reports (“DPRs”), a handwritten seniority list, and Joann Wiley's personnel file.
On July 30, 2014, just one day before the close of discovery, Defendant filed an “emergency” motion to stay the Fed. R. Civ. P. 30(b)(6) deposition noticed by Plaintiff for July 31, 2014, the final day of the discovery period [Doc. 61]. Plaintiff had issued its notice for taking the Rule 30(b)(6) deposition on July 18, 2014, requiring Defendant to produce the “most knowledgeable person” to testify about 26 enumerated topics, not including subparts [Doc. 62 at Page ID # 759-60].
On July 31, 2014, the last day permitted for completing discovery, Defendant filed a motion for protective order [Doc. 65] representing that Plaintiff would not agree to a protective order with a claw back provision as previously ordered. Also on July 31, 2014, Defendant filed a motion seeking conditional relief from the scheduling order [Doc. 66]. In this motion, Defendant asks that it be allowed to file discovery motions after the discovery deadline because Plaintiff had produced 936 pages of documents to Defendant in support of claimant damages after all of the claimant depositions had been taken and because Defendant would not have enough time to review the 936 pages of documents prior to close of discovery. Defendant also requested that it be allowed to file discovery motions after the discovery deadline regarding any documents that the EEOC is ordered to produce based upon currently pending discovery motions.
II. ANALYSIS
A. Standard
Under the Federal Rules of Civil Procedure, the court “must issue a scheduling order,” which “must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(1), 16(b)(3)(A). The scheduling order may only be modified “for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). A determination of good cause shown includes consideration of “(1) when the moving party learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to ... discovery requests.” Bentkowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2013) (alteration in original) (quoting Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010)) (internal quotation marks omitted). “ ‘The primary measure of Rule 16's “good cause” standard is the moving party's diligence in attempting to meet the case management order's requirements.’ ” Moore v. Indus. Maint. Serv. of Tenn., Inc., No. 13-5888, 2014 WL 2959281, at *6 (6th Cir. July 1, 2014) (quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)). The court must also consider the potential prejudice to the nonmovant. Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (citing Inge, 281 F.3d at 625). The court enjoys broad discretion in managing discovery, including motions to compel discovery. See Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993).[1]
B. Timeliness of the Pending Discovery Motions
*3 Despite the elementary notion that discovery rules are to “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, the discovery in this case was concluded with an unusually high level of acrimony. If the conflicting and competing accusations made by the attorneys are accepted at anywhere near face value, then neither side has engaged in discovery according to either the letter or spirit of the Federal Rules of Civil Procedure. Such rancor is unacceptable. It appears the parties (or their attorneys) have lost the ability to amicably work together in good faith to address routine discovery issues. Rather than engage in a timely exchange of relevant information, the parties instead squandered opportunities to work cooperatively and became mired in obstructionism and one-upmanship tactics. Perhaps with enough time and patience, the Court could form an opinion regarding whether one party has been even more demanding or unreasonable than the other; but, it is not necessary to do so because it is obvious there is plenty of blame to go around for the parties' current discovery woes.
Perhaps somewhat understandably, the parties have had more than their fair share of discovery disputes in part because of the large volume of ESI sought and (eventually) produced. The parties' escalating inability to cooperatively work together to conduct discovery, however, hit a crescendo with the filing of “emergency” and “expedited” requests for court intervention during the final week of the year-long discovery period. In the final week of discovery alone, the parties filed over 400 pages worth of briefs and exhibits seeking court intervention on various discovery disputes. In the week after the close of discovery, the parties filed an additional 750 pages of briefing and exhibits concerning their ongoing discovery disputes.
Even given the vagaries of adversarial litigation, this eleventh-hour meltdown is surprising because the inundation of last-minute filings is not due to a multiplicity of novel, complex, or unforeseen discovery issues; rather, it is due, in large part, to the parties' failure to more cooperatively and timely conduct discovery. For example, the parties apparently did not begin to take the depositions of the 21 claimants until very late in June, even though discovery was set to close on July 31. Many of the pending disputes involve last-minute attempts to conduct or obtain discovery. Such a lack of planning or diligence, however, does not warrant the parties' filing of “emergency” or “expedited” motions. There is no true emergency here. To the contrary, these so-called emergency or expedited situations came about largely as a result of the parties' own dilatory conduct or imprudence in conducting discovery. Such circumstances do not equate to a valid reason for seeking immediate application of scarce judicial resources to the detriment of all other matters pending before the Court.[2]
In order for discovery to be confined to the expanded discovery period set by the Court, with the parties' agreement during the scheduling conference, the parties must complete any discovery, including any discovery-related motion practice, before the end of the discovery period. Instead of doing so, they waited until the eleventh-hour to initiate multiple motions that would have the effect of extending the discovery period if the requested relief were to be granted. Yet, there has been no “good cause” shown for any such extension of the discovery period under the scheduling order. Fed. R. Civ. P. 16. Absent a showing of exceptional circumstances or good cause, motions filed during the last few days of a discovery period are not timely as they cannot be briefed and considered without, in effect, extending the discovery period. Doing so would disrupt the parties' and the Court's ability to address any dispositive motions and the trial.
*4 The parties were repeatedly forewarned that the Court would not intervene in any discovery dispute after July 31, 2014. Therefore, and given the lack of good cause shown, the Court will rely on the limitations set forth in its scheduling orders. Thus, the time for Court intervention in all remaining last-minute discovery disputes has passed—and it passed long before any of the remaining disputes were fully briefed and ripe for resolution. On this basis alone, all of the motions [Docs. 53, 59, 61, 65 & 66] will be DENIED.[3] As stated in the scheduling orders, the parties may conduct discovery by agreement, but the Court will not involve itself in any disputes that may arise.
C. Merits of the Pending Discovery Motions
Alternately, even considering the merits of the untimely discovery disputes, the outcome is the same, as discussed in detail below.
1. Defendant's Motion to Compel Documents
In its motion to compel the production of documents from Plaintiff [Doc. 53], Defendant seeks to compel Plaintiff to produce (1) investigative files, (2) documents that were wrongly redacted or withheld from disclosure, (3) damages information, (4) documents the claimants gave to the EEOC, (5) EEOC employee training records, (6) ESI that has not been disclosed, and (7) a sufficient privilege log.
Plaintiff has filed a response to Defendant's motion [Doc. 69] with a memorandum [Doc. 70],[4] in which Plaintiff argues that Defendant's motion should be denied because (1) Defendant's motion fails to comply with E.D. Tenn. L.R. 37.2; (2) Defendant seeks complaints and investigation information regarding individuals who are not claimants in this action, which is not relevant or discoverable; (3) Plaintiff has produced supplemental financial documents to Defendant, which Plaintiff had informed Defendant it would be producing prior to Defendant filing its motion to compel; (4) Defendant's request for Plaintiff's employee training records is overly broad, unduly burdensome, and is not reasonably calculated to lead to the discovery of admissible evidence; (5) Plaintiff has already produced all non-privileged documents regarding conciliation; and (6) Plaintiff has properly asserted the deliberative process privilege.
Defendant's reply [Doc. 78] argues that Plaintiff has failed to establish grounds as to why Defendant's motion to compel should not be granted, and further argues that Plaintiff's “blatant disregard for the facts” merits an award of sanctions to Defendant for the time spent drafting the reply brief [Doc. 78 at Page ID # 1441]. Defendant argues that it complied with E.D. Tenn. L.R. 37.2, because Defendant had attached the actual discovery requests, including objections and responses, and therefore met the requirements of E.D. Tenn. L.R. 37.2 by submitting “a copy of the actual discovery document which is the subject of the motion.” [Id. at Page ID # 1441-42]. Defendant accuses Plaintiff of lack of candor for arguing that Defendant had not complied with the local rules. Defendant also argues that Plaintiff's investigative files are relevant to this matter because Defendant is not “the public” and EEOC Investigator Robert Trail testified in his deposition that he investigated the charges as a whole. Defendant argues that Plaintiff's employee training files are relevant because Defendant is entitled to determine whether Plaintiff's actions are inconsistent with the training it provides to its investigators and other personnel. Defendant also argues that Plaintiff did not properly invoke the deliberative process privilege, because Plaintiff admits it has still not obtained a declaration from the Chair of the EEOC to assert the privilege. Defendant argues that because Plaintiff did not assert the privilege in a timely manner, it should not be permitted to shield documents from production under the privilege now.
*5 Preliminarily, Plaintiff's contention that Defendant's motion fails to comply with Local Rule 37.2[5] is not well taken because Defendant attached Plaintiff's response to Defendant's first request for the production of documents [Doc. 54-1] and Plaintiff's response to Defendant's second request for the production of documents [Doc. 54-2] to its memorandum in support of its motion to compel [Doc. 54]. As these are the discovery documents at issue in Defendant's motion, the Court FINDS Defendant complied with Local Rule 37.2 when making its motion. Having resolved this initial matter, the Court will now address each of the items Defendant seeks to compel in its motion.
a. Investigative Files
Regarding Defendant's request for investigative files not produced by Plaintiff, Defendant states that Plaintiff used at least one of these files, the investigative file of Ples Castle, during the deposition of Mr. Trail. Defendant cites to a portion of the transcript of Mr. Trail's deposition, in which Plaintiff's counsel asks Mr. Trail about the charge form for Ples Castle. The charge form and the portion of Mr. Trail's deposition are attached as an exhibit to Defendant's reply brief [Doc. 78-4]. During Mr. Trail's deposition, Plaintiff's counsel hands the charge form for Ples Castle to Mr. Trail, and Mr. Trail identified the charge form. Mr. Trail stated that he must have investigated the charge, but he did not remember a lot about it. Mr. Trail then read Ples Castle's allegations from the charge form into the record.
Rule 612 of the Federal Rules of Evidence states, “when a witness uses a writing to refresh memory ... while testifying,” “an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.” Here, there is no question that Mr. Trail used the charge form for Ples Castle during his deposition, as he identified the form and read aloud from it during the hearing. However, the charge form appears to have been produced to Defendant by Plaintiff, as Defendant included the charge form as an exhibit to its motion. While Defendant states that Plaintiff used the investigative file for Ples Castle during the hearing, it appears that Plaintiff used only the charge form. As Defendant has not shown that Plaintiff used any other documents during the deposition without producing such documents, the Court will not order Plaintiff to produce the remainder of Ples Castle's investigative file on those grounds.
Defendant has also not shown that Plaintiff has used documents from the other investigative files. Defendant states, in its reply brief, that “the Investigative Memorandum prepared by EEOC Investigator Robert Trail presumably includes information from these other investigative files, particularly where Mr. Trail testified that he investigated the charges as a whole.” [Doc. 78 at Page ID # 1442-43]. The Court cannot order the production of these files on the basis that Defendant presumes a disclosed document must have included information from other non-disclosed documents. After reviewing the investigative memorandum prepared by Mr. Trail, it appears to the Court that no individuals were referenced in the memorandum by name, but rather that the memorandum discussed the claims against Defendant generally. There is nothing in the investigative memorandum that shows it was based on information from the non-disclosed investigative files of individuals who did not elect to become members in the suit against Defendant. Accordingly, the Court will not order Plaintiff to produce these files based merely on Defendant's presumption.
*6 In response to Defendant's assertions that these investigative files are relevant and must be produced, Plaintiff argues that the investigative files of individuals who are not claimants in this action are not relevant or discoverable. Plaintiff states that the individuals have not been listed as witnesses by either party, and their files will not lead to the discovery of admissible evidence. Plaintiff further states that disclosure of their files will implicate privacy concerns.
Under Rule 26 of the Federal Rules of Civil Procedure, the test of discoverability is a relevance standard, allowing discovery “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). However, a court must limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii). The Sixth Circuit has recognized privacy interests in discovery disputes, particularly with respect to the privacy interests of nonparties. See Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 365. “ ‘If ... confidential information is being sought, the burden is on the party seeking discovery to establish that the information is sufficiently relevant and necessary to his case to outweigh the harm disclosure would cause to the person from whom he is seeking information.’ ” Id. (alteration in original) (quoting 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2403, at 559 (2d ed. 1995)). Other courts have recognized that privacy concerns are relevant when “discovery requests seek confidential information,” and “the party requesting such information must show that the individual value of the information sought would outweigh the privacy interests of the affected individuals.” Equal Emp't Opportunity Comm'n v. Univ. of Phx., Inc., No. CIV-05-1048 JB/WPL, 2007 WL 1302578, at *4 (D.N.M. Apr. 10, 2007) (citations and internal quotation marks omitted) (collecting cases). The Court FINDS that the non-claimants do have a privacy interest in their charge files and further FINDS that Defendant has not shown that its need for these files outweighs the individual privacy interests.
Defendant argues that Plaintiff should have disclosed these files to Defendant, because Plaintiff's own compliance manual states that “providing information to parties from their files is not ‘making public,’ ” and “neither ADEA or EPA prevents disclosures of information from charge files to parties.” [Doc. 54 at Page ID # 525, quoting Doc. 54-8 at Page ID # 613]. Section 83 of the EEOC's compliance manual, however, requires that disclosure of charge files be made to respondents and their attorneys upon request “only if [the requester] is a named defendant in a pending private lawsuit based on the charge.” [Doc. 54-8 at Page ID # 614 (emphasis added) ]. Thus, it appears the EEOC manual would not permit disclosure to Defendant of the investigative files for the individuals who are not claimants in this action, because the lawsuit against Defendant is not based upon any of the charge forms in the files for the individuals.
For all of these reasons, Defendant's motion to compel is also DENIED on the merits with respect to its request for the investigative files of the individuals who are not claimants in this action, including the investigative file for Ples Castle.
b. Redacted and Withheld Documents
Defendant argues that Plaintiff has improperly redacted and withheld documents from production. Specifically, Defendant contends that Plaintiff has withheld documents responsive to Defendant's requests for production by improperly claiming the deliberative process privilege. Defendant also contends that Plaintiff improperly redacted portions, including full pages, of responsive documents under the deliberative process privilege. Defendant notes that Plaintiff redacted paragraphs from the investigative memorandum prepared by Mr. Trail [Doc. 54-3], including the evidence portion of the memorandum. Defendant also notes that Plaintiff failed to produce all of the exhibits Mr. Trail prepared with his memorandum, referenced as “Tabs” in the memorandum. Defendant includes a sample of documents that have been redacted in their entirety [Doc. 54-5]. Defendant argues that the deliberative process privilege and 42 U.S.C. § 2000e-5(b) do not provide a valid reason for Plaintiff to withhold and redact these documents.
*7 The party asserting a privilege to bar discovery bears the burden of establishing the privilege applies. United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999) (attorney-client and work product privileges); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002) (same); Redland Soccer Club, Inc. v. Dep't of the Army of the United States, 55 F.3d 827, 855 (3rd Cir. 1995) (deliberative process privilege). Once the government has made “a sufficient showing of entitlement to the privilege, the district court should balance the competing interests of the parties.” Redland Soccer Club, Inc., 55 F.3d at 854. “The party seeking discovery bears the burden of showing that its need for the documents outweighs the government's interest.” Id.
“To be protected by the deliberative process privilege a government document must be both predecisional and deliberative.” Shafizadeh v. Bureau of Alcohol, Tobacco and Firearms, No. 99-5727, 2000 WL 1175586, at *2 (6th Cir. Aug. 10, 2000) (quoting Schell v. United States Dep't of Health & Human Servs., 843 F.2d 933, 939 (6th Cir. 1988)) (internal quotation marks omitted); accord Norwood v. Fed. Aviation Admin., 993 F.2d 570, 577 (6th Cir. 1993). A document is “predecisional” when it is “received by the decisionmaker on the subject of the decision prior to the time the decision is made” and “deliberative” if it is “the result of a consultative process.” Rugiero v. United States Dep't of Justice, 257 F.3d 534, 550 (6th Cir. 2001) (quoting Schell, 843 F.2d at 940). “Although this privilege covers recommendations, draft documents, proposals, suggestions, and other subjective documents that reflect the opinions of the writer rather than the policy of the agency, the key issue in applying this exception is whether disclosure of the materials would expose an agency's decisionmaking process in such a way as to discourage discussion within the agency and thereby undermine the agency's ability to perform its functions.” Id. (citations and internal quotation marks omitted).
“The primary purpose served by the deliberative process privilege is to encourage candid communications between subordinates and superiors.” Schell, 843 F.2d at 939 (quoting Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)). The deliberative process privilege's “ultimate goal” is “to prevent the quality of agency decisionmaking from deteriorating as a result of public exposure.” Schell, 843 F.2d at 939; see also Redland Soccer Club, Inc., 55 F.3d at 854 (quoting Sears, Roebuck & Co., 421 U.S. at 151) (“The ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions.”).
The Sixth Circuit has recognized that the privilege protects “advisory materials which truly reflected the deliberative or policymaking processes of an agency, but would not protect ‘purely factual, investigative’ material.” Schell, 843 F.2d at 940 (quoting EPA v. Mink, 410 U.S. 73, 89 (1973)). The Sixth Circuit also noted that while “[t]his fact-opinion distinction [is] often useful in determining what is exempt,” it “should not serve as a talismanic incantation in every case.” Id. (citations omitted). Factual material may sometimes be covered by the deliberative process privilege, and advisory documents may not be. Id. Where non-privileged information is contained within an otherwise privileged document, the non-privileged information must be disclosed if severable. Norwood v. Fed. Aviation Admin., 993 F.2d 570, 577 (6th Cir. 1993); Redland Soccer Club, Inc., 55 F.3d at 854.
*8 As previously stated by this Court:
[a]ccording to several courts, if an agency is to receive the protections of the deliberative process privilege, that privilege must first be invoked by a high official, preferably the head of the agency. The official then must demonstrate, preferably by affidavit, precise and certain reasons why the documents should be kept confidential, and the agency must provide fairly extensive identification and description for each document, to facilitate the court's application of the balancing test.
Equal Emp't Opportunity Comm'n v. Texas Hydraulics, Inc., 246 F.R.D. 548, 552 (E.D. Tenn. 2007) (quoting In reConsol. Litig. Concerning Int'l Harvester's Disposition of Wis. Steel, Nos. 81 C 7076, 82 C 6895, 85 C 3521, 1987 WL 20408, at *7 (N.D. Ill. Nov. 20, 1987)).
In its response, Plaintiff stated that while it had properly asserted the deliberative process privilege, it had not yet obtained a declaration from the Chair of the Commission, Jacqueline A. Berrien, supporting the assertion of that privilege, but was in the process of doing so [Doc. 70 at Page ID # 904]. Plaintiff has since filed an untimely “supplement” to its response with a declaration under penalty of perjury by Chair Berrien [Doc. 85 & 85-1]. Inexplicably, while the declaration was signed by Chair Berrien on August 7, it was not filed by the EEOC until two weeks later on August 21, 2014.
In her late-filed declaration, Chair Berrien asserts that the deliberative process privilege applies to certain specified documents that she has personally reviewed because the documents contain “predecisional analyses, recommendations, and conclusions of Commission investigatory personnel regarding the investigation” of the charges in this case [Doc. 85-1 at Page ID # 1685-86]. Chair Berrien further declares that she “conclude[s] that disclosure to individuals outside the Commission of the information described in [the documents at issue] would inhibit the free expression of opinions by Commission employees, thereby impairing the Commission's ability to enforce the statutes within its authority.”
Defendant's reply brief was due and filed before the declaration was late-filed. The reply brief states that Defendant “believes that, contrary to the EEOC's assertion that all withheld materials include recommendations, suggestions, or other information relating to the EEOC's internal decision-making process, these documents include factual information that formed the basis for Mr. Trail's Investigative Memorandum, information from after the decision was made, as well as documents that potentially could be used as exhibits for trial.” [Doc. 78 at Page ID # 1444-45]. Defendant also argued in its memorandum to its motion that the redactions of Mr. Trail's memorandum and the exhibits to the memorandum made “it impossible to know what factual information Mr. Trail gained through his investigation.” [Doc. 54 at Page ID # 518].
As the Sixth Circuit has recognized, “ ‘the disclosure of even purely factual material may so expose the deliberative process within an agency’ ” that it falls under the privilege. Schell, 843 F.2d at 940 (quoting Mead Data Central, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)). Chair Berrien's affidavit specifically states that the redacted portions of Mr. Trail's memorandum “discuss and analyze the evidence obtained during the investigation of the charges, evaluate the credibility of some of the witnesses interviewed, and contain the Investigator's conclusions regarding the merits of the charges and his recommendations on the Commission's determination on the charges.” [Doc. 85-1 at Page ID # 1687]. Contrary to the purely conclusory nature of Defendant's pre-declaration concerns that the information withheld does not actually fall under the deliberative process privilege, it appears the declaration satisfies the requirement that the redacted information would have exposed the deliberative process within the EEOC. There is nothing in the record, beyond Defendant's conclusory allegations, to indicate that the documents Plaintiff has withheld and redacted on the basis of deliberative process privilege are not, in fact, privileged. I therefore FIND that Plaintiff has shown that it is entitled to claim the deliberative process privilege with respect to these documents.
*9 While Defendant argues in its reply brief that Plaintiff should not be permitted to make a “late attempt” to provide a declaration to support the assertion of the privilege, the Court declines to order the disclosure of privileged documents merely because the declaration was filed late and after the close of discovery. While the EEOC's conduct in doing so is indefensible, it appears to be in keeping with the parties' recent antics and Defendant was on notice that Plaintiff was asserting the deliberative process privilege with respect to these documents. Thus, it came as no surprise to Defendant that Plaintiff obtained the declaration of Chair Berrien to support the EEOC's claim of privilege. The Court FINDS Defendant has not met its burden to show that its need for the documents outweighs the Commission's interest and privilege.
As the documents are protected from disclosure under the deliberative process privilege, it is not necessary to address Defendant's argument that the documents are not protected from disclosure under 42 U.S.C. § 2000e-5(b).
Accordingly, Defendant's motion to compel is DENIED on the merits with respect to its request for the production of documents redacted and withheld under the deliberative process privilege.
c. Claimant Damages Documentation
As to Defendant's request that Plaintiff provide financial documentation regarding claimant damages, it appears to the Court that these documents have now been produced to Defendant. Plaintiff states, in its response, that it has produced these documents, and that it had informed Defendant it would be producing them prior to Defendant's filing of the motion to compel. Defendant has also represented, in its motion for conditional relief from the scheduling order, that Plaintiff has turned over 936 pages of documents related to claimant damages [Doc. 66]. Accordingly, Defendant's motion to compel is DENIED AS MOOT with respect to its request for claimant damages information, as the information has been produced.
d. Documents Given to Plaintiff by Claimants
Defendant also argues that Plaintiff has failed to produce documents given to Plaintiff by the claimants. Defendant's first set of requests for production included a request for documents produced by individual claimants to the EEOC related to their employment with Defendant or related to the facts alleged in Plaintiff's complaint [Doc. 54-1 at Page ID # 535]. Plaintiff's response to Defendant's request states that Plaintiff had already produced “any and all documents in the Commission's possession [that were] responsive to this request” when Plaintiff produced the investigative files to Defendant on July 17, 2013 as part of Plaintiff's initial disclosures [Id.]. When Defendant subpoenaed the individual claimants for depositions, the subpoena included a command to produce “any and all records related to your employment with Tepro and related to the claim that you have been discriminated against because of your age.” [Doc. 54-7 at Page ID # 610]. Defendant claims that during the depositions of some of the claimants, including Joann Wiley and Kojena Cole, testimony revealed that the claimants had in fact provided the EEOC with documents related to their employment with Defendant and documents related to potential damages. Defendant states that Plaintiff has not produced these documents to Defendant, and the claimants failed to produce the documents at their depositions in compliance with the subpoenas.
In Plaintiff's response, it represents that it has already produced all responsive documents related to the claimants' finances and employment with Defendant. Plaintiff states that it provided a “supplementation” to Defendant of nearly 1,000 pages of documents related to the claimants' financials and employment with Defendant, and thus Defendant should voluntarily withdraw its motion as to this issue.
*10 Defendant's reply brief does not address this issue. Thus, it appears to the Court that the parties have resolved this issue. Accordingly, Defendant's motion to compel is DENIED AS MOOT with respect to Defendant's request for documents provided to the EEOC by the claimants.
e. EEOC Employee Training Records
Defendant's motion includes a request that Plaintiff be compelled to produce its employee training records. In Defendant's second set of RFPs, Defendant included requests for documents related to the training of EEOC employees, particularly their training on how to conduct fair and impartial investigations and how to conduct the conciliation process [Doc. 54-2 at Page ID # 558-59, 560-61]. As discussed in the Court's prior order [Doc. 84], discovery into the EEOC's conciliation and investigation process is prohibited under Equal Employment Opportunity Commission v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984). Furthermore, courts have refused to compel EEOC employee personnel files, including training records, where a defendant asserts they are necessary to attack the sufficiency of the EEOC's investigation and conciliation processes by attacking the credentials and qualifications of the EEOC employees who worked on the case. See Equal Emp't Opportunity Comm'n v. Con-Way Freight, Inc., No. 4:07-CV-1638 CEJ, 2008 WL 4066424, at *5 (E.D. Mo. Aug. 27, 2008). Accordingly, because Defendant seeks Plaintiff's employee training records regarding the investigation and conciliation processes, and because discovery into the EEOC's investigative and conciliation processes is prohibited, Defendant's motion to compel is DENIED on the merits with respect to Defendant's request for training records of Plaintiff's employees.
f. ESI
Defendant argues that Plaintiff has failed to produce all responsive ESI as required. Specifically, Defendant contends that Plaintiff has failed to produce ESI regarding conciliation. As the Court has already discussed at length in its prior order [Doc. 84] and above, discovery regarding the EEOC's investigation or conciliation is largely prohibited under Keco Industries, Inc., 748 F.2d 1097. See also Store Opening Solutions, No. 3:10-0237, 2012 WL 1020042, at *4 (M.D. Tenn. Mar. 26, 2012). It is not necessary for the Court to discuss again in detail the Sixth Circuit's holding in Keco. Because discovery into conciliation is prohibited, Defendant's motion to compel is DENIED on the merits with respect to Defendant's request for production of ESI regarding conciliation.
g. Privilege Log
Defendant's motion includes a request that Plaintiff be compelled to produce a sufficient privilege log. Defendant argues that Plaintiff's privilege log is insufficient because it claims protection under the deliberative process privilege for many redacted documents, but does not provide the dates for the documents. Defendant contends that the lack of dates prevents Defendant from determining whether these documents fall under the privilege. Defendant argues that the privilege log also fails to sufficiently identify responsive documents as required.
As discussed above, Plaintiff has filed a supplemental declaration [Doc. 85], which includes an updated log of the documents Plaintiff is claiming fall under the deliberative process privilege. In the updated log, Plaintiff specifies the dates of documents or notes that they are undated. Plaintiff further provides an extensive explanation of the contents of the documents redacted or withheld, demonstrating why the deliberative process privilege applies. As Plaintiff has now submitted an updated privilege log that provides dates and a “fairly extensive identification and description for each document,” Defendant's motion to compel is DENIED AS MOOT with respect to its request for an updated privilege log. See In re Consol. Litig. Concerning Int'l Harvester's Disposition of Wis. Steel, 1987 WL 20408, at *7 (citing United States v. Bd. of Educ. of City of Chi., 610 F. Supp. 695, 698 (N.D. Ill. 1985); Mobil Oil Corp. v. Dep't of Energy, 102 F.R.D. 1, 5 (N.D.N.Y. 1983)).
*11 For the reasons explained above, Defendant's motion to compel documents [Doc. 53], is also DENIED on its merits.
2. Plaintiff's Motion to Compel Documents
Plaintiff argues in its motion to compel [Doc. 59] and memorandum in support [Doc. 60], that Defendant should be required to produce electronically-stored DPRs, a handwritten seniority list allegedly used to determine which employees would be laid off, and a personnel file for Joann Wiley, who is one of the class members in the action. Plaintiff also requests that the Court award it costs and fees related to bringing the motion.
In its response to Plaintiff's motion [Doc. 72], Defendant states that Plaintiff's motion should be denied because Defendant has already produced the documents in its possession. Defendant states that it has produced the DPRs sought by Plaintiff, within the permitted time to respond to Plaintiff's second and third requests for production. Defendant cannot locate the other two requested documents, the handwritten list and the personnel file requested by Plaintiff. Defendant argues that it cannot produce what it does not have. Defendant represents that it has agreed to continue searching for these documents and to produce them to Plaintiff if they are located.
In Plaintiff's reply brief, it argues that Defendant's inability to produce the list or the personnel file for Joann Wiley “puts the Commission in an impossible situation.” [Doc. 81 at Page ID # 1632]. Plaintiff argues that Defendant had a duty to preserve these items, which it failed to do. Plaintiff states that Defendant's failure to preserve these documents prevents Plaintiff from obtaining information to support its claims. Plaintiff therefore requests that the Court issue “sanctions” against Defendant if it fails to locate and produce these documents. Defendant has not been provided an opportunity to respond to Plaintiff's contention that Defendant's failure to preserve these documents warrants sanctions, because Plaintiff raised the issue of sanctions for the first time in connection with the instant motion in its reply brief. This is sufficient reason alone to deny the request for sanctions, but the issue will be briefly addressed further infra.
A party cannot be compelled to produce documents not in its possession. See, e.g., Morway v. MSD Consumer Care, Inc., No. 11-cv-13529, 2013 WL 4417530, at *5 (E.D. Mich. Aug. 14, 2013); In re Porsche Cars North America, Inc., No. 2:11-md-2233, 2012 WL 4361430, at *11 (S.D. Ohio Sept. 25, 2012) (“If Defendants cannot locate responsive documents after a reasonable inquiry, then their Rule 34 obligations are complete.”). Here, Defendant has stated that it has produced everything responsive in its possession. Defendant cannot locate the handwritten list or the personnel file. Thus, the Court cannot compel Defendant to produce these items. Thus, Plaintiff's motion to compel will be DENIED with respect to its request to compel Defendant to produce these documents.
Turning to Plaintiff's request for sanctions against Defendant for failing to preserve evidence, Plaintiff argues in its reply that Defendant had a duty to preserve both the handwritten seniority list and the personnel file of Joann Wiley under the Age Discrimination in Employment Act, which requires that an employer who makes or uses any employment or personnel records related to the “promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee” must keep the records for one year after the date of the personnel action to which any of the records relate. 29 C.F.R. § 1627.3(b)(1). Assuming there was a duty to preserve the evidence at issue, a court must determine whether the party responsible for the spoliation of evidence had a culpable state of mind. Beaven v. United States Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010). “[T]he ‘culpable state of mind’ factor is satisfied by a showing that the evidence was destroyed ‘knowingly, even if without intent to [breach a duty to preserve it], or negligently.’ ” Id. at 554 (alteration in original) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002)). Gross negligence is defined as “a conscious neglect of duty or a callous indifference to consequences” or “such entire want of care as would raise a presumption of a conscious indifference to consequences.” Thrasher v. Riverbend Stables, LLC, No. M200802698COARMCV, 2009 WL 275767, at *4 (Tenn. Ct. App. Feb. 5, 2009) (quoting Jones v. Tenn. Riders Instruction Program, Inc., No. M2006–01087–COA–R3CV, 2007 WL 393630, at * 2 (Tenn. Ct. App. Feb. 5, 2007)); see also Wilson v. GMAC Fin. Servs. Corp., No. 2:06–CV–77, 2009 WL 467583, at * 5 (E.D. Tenn. Feb. 24, 2009) (citing Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990)) (articulating same standard).
*12 According to the deposition of Ms. Faulkner, Defendant's employee who created the list, she believed she had “tossed” the list in 2009, prior to receiving the EEOC charges of discrimination. Ms. Faulkner testified that she did not think she had any reason to keep the list, and that she had not seen it while searching through the documents for this case. Defendant represents that Ms. Faulkner has continued to search for the list since her deposition, but has been unable to locate it. As to the personnel file of Joann Wiley, Defendant represents that it “is at a loss as to why it cannot be located” despite having searched for the file. Defendant agrees to continue to search for both the handwritten list and the missing personnel file, and Defendant states it will produce these documents if they are located. Defendant has produced the personnel files for the other claimants. On these facts, the Court does not find that discovery sanctions are just.
In a prior hearing regarding one of the parties' discovery disputes, the Court warned Plaintiff of its need to develop the record with respect to any claim of spoliation or a failure to preserve evidence. The Court also issued an order holding:
The Court declines to address the issue of possible spoliation or a lack of preservation of evidence based on the current record. As the Fed. R. Civ. P. 30(b)(6) deposition of Defendant has not yet been taken, however, Plaintiff may choose to include a topic concerning this issue in said deposition at the time the notice is issued, but nothing about this order impacts the Federal Rules of Civil Procedure governing the conduct or length of said deposition.
[Doc. 24, Page ID # 425]. Spoliation and preservation efforts were proposed topics in the Rule 30(b)(6) deposition notice. As addressed further below, however, the Rule 30(b)(6) deposition did not take place and, even if it had gone forward on the final day of the discovery period, such evidence would not have been available when this motion was filed, which was before the deposition was even scheduled to take place. Accordingly, the Court declines to award sanctions requested in a reply brief against Defendant in connection with this motion to compel.
Plaintiff's motion to compel is DENIED on the merits, but the parties are reminded of their duty to supplement disclosures and discovery responses pursuant to Fed. R. Civ. P. 26(e).
3. Defendant's Motion to Stay the Rule 30(b)(6) Deposition and Plaintiff's “Motion” to Compel the Rule 30(b)(6) Deposition
In Defendant's motion to stay the Rule 30(b)(6) deposition [Doc. 61], it argues that the deposition should be quashed because Plaintiff unilaterally noticed the deposition for the last day of the discovery period less than two weeks before that date. Defendant also argues that the Rule 30(b)(6) deposition should be quashed because the 26 enumerated topics are overly broad and burdensome. Defendant further contends the subpoena's requirement that Defendant produce the “most knowledgeable” person on each topic is impermissible and argues that Plaintiff has already deposed the people Defendant would need to produce to testify on the Rule 30(b)(6) noticed topics. Notably, Defendant's memorandum in support of this motion [Doc. 62] exceeds the 25 page limitation for such briefs, E.D. Tenn. L.R. 7.1(b), and the motion is therefore subject to denial on this ground alone.
Plaintiff argues, in its response [Doc. 67] and memorandum [Doc. 68],[6] that Defendant's motion should be denied because it is unsupported by case law, because Defendant has failed to establish good cause for a protective order, and because the deposition of a fact witness does not preclude the deposition of a Rule 30(b)(6) witness. Plaintiff includes a “motion” to compel the Rule 30(b)(6) deposition within its responsive brief.
*13 Defendant has submitted a reply brief [Doc. 79], in which it argues that the 30(b)(6) deposition should not be permitted to proceed. Defendant states that Plaintiff's response did not address the majority of Defendant's arguments as to why the Court should grant Defendant protection from the 30(b)(6) deposition notice. Defendant reiterates that the 30(b)(6) notice would result in great injury to Defendant. Defendant argues that Plaintiff had already deposed all of Defendant's available current and former employees prior to issuing its 30(b)(6) notice with topics, which Defendant contends shows Plaintiff is trying “to re-plow the same ground it has already covered.” [Doc. 79 at Page ID # 1530]. Defendant argues that requiring witnesses to be re-deposed on topics about which they have already testified will serve no valid purpose. Defendant further argues again that the 26 noticed topics are unreasonable and overly burdensome. Additionally, Defendant states that Plaintiff made several misstatements in its memorandum, which Defendant contends warrants sanctions, and states that “in addition to all of the other reasons identified for quashing the Rule 30(b)(6) Notice, the EEOC's conduct provides further impetus for such action.” [Id. at Page ID # 1533]. Finally, Defendant argues that the discovery sought by Plaintiff's Rule 30(b)(6) notice could have been acquired by alternative, less burdensome, discovery devices, such as through interrogatories or through Defendant designating portions of the previously taken depositions.
Under Fed. R. Civ. P. 26(b)(2)(C), the court must limit the frequency or extent of discovery where “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.” Even though the Court had previously warned Plaintiff not to wait until the last minute to notice and take its Rule 30(b)(6) deposition, Plaintiff did not notice the Rule 30(b)(6) deposition until July 18, 2014, less than two weeks prior to the close of discovery. The Rule 30(b)(6) deposition was noticed for the last day of discovery and the notice includes 26 broad topics for the deposition. The notice also purports to require that Defendant produce the “most knowledgeable” person to testify.
Given the other depositions the parties had scheduled for almost every day for the last days of the discovery period, the Court agrees with Defendant that it would have been burdensome to prepare a Rule 30(b)(6) witness to testify regarding the extensive and broad topics included in the notice. The Court FINDS that the Rule 30(b)(6) notice is overly broad and burdensome as well as unreasonably duplicative of prior discovery taken by Plaintiff to some degree. As the discovery period has now closed, Plaintiff unfortunately has no opportunity to modify its Rule 30(b)(6) notice, and such timing also deprives the Court of any opportunity to fairly fashion appropriate relief under Fed. R. Civ. P. 26(c).
As to Plaintiff's improperly filed “motion” to compel the Rule 30(b)(6) deposition, Plaintiff argues that the Court should compel Defendant to produce a 30(b)(6) deponent in addition to denying Defendant's motion to stay and/or quash the deposition. As grounds for moving to compel the Rule 30(b)(6) deposition, Plaintiff correctly asserts that under the Federal Rules of Civil Procedure, it is entitled to conduct a Rule 30(b)(6) deposition despite having already taken the depositions of fact witnesses who may be designated by Defendant as the Rule 30(b)(6) witness. Plaintiff also argues that the Rule 30(b)(6) deposition as noticed is not duplicative or cumulative, because Defendant's managers and supervisors have provided conflicting testimony during their depositions. Plaintiff seeks the knowledge of the corporation in the 30(b)(6) deposition, not the knowledge of the individuals who have already been deposed. Plaintiff, however, filed its motion, improperly within its response, on August 1, 2014, the day after the close of the discovery period. It is well established that such a motion to compel filed after the conclusion of discovery is untimely. See, e.g., Ginett v. Federal Express Corp., No. 97-5481, 1998 WL 777998, at *5 (6th Cir. Oct. 21, 1998) (affirming the district court's denial of a motion to compel as untimely when the plaintiff was aware of the discovery issue prior to the discovery deadline, but did not file his motion to compel until after the discovery deadline had passed); Icare-EMS, Inc. v. Rural/Metro Corp., No. 1:11-cv-45 (E.D. Tenn. May 31, 2012) (unpublished) (order denying motion to compel as untimely because it was filed after the close of the discovery period).
*14 In addition, Plaintiff's motion to compel the Rule 30(b)(6) deposition is not properly before the Court, as noted above. See Fed. R. Civ. P. 7(b)(1) (“A request for a court order must be made by motion.”); E.D. Tenn. L.R. 7.1(a) (requiring that all motions proceed pursuant to the briefing schedule, beginning with the filing of the motion and opening brief, along with any accompanying materials in support); Trs. of Mich. Reg'l Council of Carpenters' Emp. Benefits Fund v. H.B. Stubbs Co., No. 2:14-cv-11393, 2014 WL 3543290, at *12 (E.D. Mich. July 17, 2014) (finding that a request in a responsive brief is procedurally improper); Bytwerk v. Mary Jane Elliott, P.C., No. X, 2013 WL X, at *5 (W.D. Mich. Jan. 14, 2013) (finding a request by plaintiff was “not properly before this Court” because it was not made in a motion); Wright v. Memphis Light, Gas & Water Div., No. 11-3071-STA-tmp, 2012 WL 3683484, at *3 (W.D. Tenn. Aug. 24, 2012) (directing defendant to file its request for sanctions in a separate motion rather than in a response in opposition); Sullivan v. Farm Bureau Mut. Ins. Co. of Mich., No. 1:10-cv-909, 2011 WL 1231264, at *4 (W.D. Mich. Apr. 1, 2011) (“a response is not the proper place for a request to the Court”).
Ironically, in its opposition to Defendant's motion to extend the time for filing motions to compel discovery, Plaintiff repeatedly notes Defendant “had ample opportunity to conduct discovery” [Doc. 83, Page ID # 1644 & 1645], and asserts there is no good cause to extend the discovery period for purposes of filing discovery motions. Surely, if Defendant had ample time to complete discovery, including the filing of motions, so too did the Plaintiff. Defendant also asserts that “[a]llowing additional discovery motions during this period would unfairly prejudice the Commission by forcing it to divert time and resources away from dispositive motions and/or Daubert motions to address discovery matters that Defendant has already had ample opportunity to pursue.” [Id. at Page ID # 1645]. This acknowledgment by the Commission surely works both ways as well and the Commission cannot seriously contend it should be allowed to compel the discovery deposition of the Rule 30(b)(6) designee(s) by requesting the deposition be compelled after the close of discovery, as it did here. Thus, Plaintiff's “motion” to compel the Rule 30(b)(6) deposition is DENIED.
As discovery has closed, Defendant's motion to quash [Doc. 61] is DENIED as MOOT and as failing to comply with local rules regarding the page limitations for briefs.
4. Defendant's Motion for Protective Order
In Defendant's motion for a protective order [Doc. 65], Defendant moves the Court to enter a protective order that confirms the parties' informal agreement regarding the production of ESI from Defendant to Plaintiff which may have inadvertently contained privileged information or legal work product. Defendant states that the parties were unable to agree upon a written protective order prior to the Court's deadline of July 11, 2014, because Plaintiff sought to expand the scope of the protective order beyond what was contemplated by the Court's order or the parties' informal agreement.
Plaintiff has not submitted any response within the time permitted under the Local Rules. E.D. Tenn. L.R. 7.1(a). Because Plaintiff has failed to submit a response, the Court would usually deem Plaintiff's failure to respond as a waiver of any opposition to the relief sought by Defendant. E.D. Tenn. L.R. 7.2. However, both parties failed to comply with the Court's order [Doc. 42], which required the parties to submit an agreed protective order, including a claw back provision, by July 11, 2014. If Defendant sought the entry of a proposed protective order, it should have filed a motion prior to the expiration of the July 11, 2014 deadline ordered by the Court for the submission of such an order. Because the parties have failed to comply with the express provisions of the Court's order, Defendant's belated motion for a protective order [Doc. 65] is not well taken.
*15 While Defendant's motion for a protective order is denied, and in spite of the parties' complete failure to submit a proposed protective order by the July 11, 2014 deadline, or to timely seek an extension of time for doing so, the Court will hold Plaintiff to the representations it made to the Court. The parties are also reminded that the dictates of Fed. R. Civ. P. 26(b)(5)(B) apply. Thus, all parties SHALL be bound by the representations counsel made to the Court about the ability of Defendant to “claw back” privileged or trial-preparation ESI produced in discovery. In addition, all parties SHALL comply with the provisions of Fed. R. Civ. P. 26(b)(5)(B) regarding any claim that information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material.
5. Defendant's Motion for Conditional Relief from the Scheduling Order
In its motion for conditional relief from the scheduling order [Doc. 66], Defendant requests that the Court permit it to file discovery motions after the discovery deadline. Defendant filed its motion late on July 31, 2014, the last day of the discovery period. As grounds for its request, Defendant states that it received 936 pages of documents related to claimant damages from Plaintiff on the last day of the discovery period, after Defendant had already taken the depositions of all claimants. Defendant represented that it would not have sufficient time to review the documents until after the close of discovery (and thus until after the deadline for filing discovery motions), but without review of the documents, Defendant represents that it “cannot be sure no additional discovery motions will be needed, and does not want to waive its right to request assistance from the Court should the need arise.” [Doc. 66 at Page ID # 877]. Defendant therefore seeks an extension of the time period to file discovery motions for any issue brought to Defendant's attention in the 936 pages of documents sent by Plaintiff on July 29, 2014 and received by Defendant on July 31, 2014, documents produced by Plaintiff in any subsequent supplementation, and documents directed to be produced by Plaintiff in response to Defendant's pending motion to compel [Doc. 53].
Plaintiff, in its response [Doc. 83], argues that Defendant's motion for conditional relief from the scheduling order should be denied because Defendant has failed to meet the good cause standard under Rule 16 of the Federal Rules of Civil Procedure. Specifically, Plaintiff argues that Defendant has failed to show diligence in attempting to meet the deadlines of the amended scheduling order, Defendant has already had ample opportunity to conduct discovery on this matter, and any modification of the deadlines in the amended scheduling order would be prejudicial to Plaintiff. Defendant did not file a reply brief.
Defendant is seeking to modify the scheduling order, which may only occur for good cause shown and with the judge's consent. Fed. R. Civ. P. 16(b)(4). Here, Defendant's reason for seeking the modification is that it has received disclosures from Plaintiff at the end of the discovery period, and Defendant will not be able to review the documents prior to the close of discovery. Under all of the circumstances addressed above, the Court FINDS good cause has not been shown. Dilatory discovery practices do not merit an extension of the deadline for the completion of discovery or the submission of discovery motions. See Audi AG v. D'Amato, 469 F.3d 534, 541-42 (6th Cir. 2006); Ruleford v. Tulsa World Pub. Co., 266 Fed.Appx. 778, 786 (10th Cir. 2008). Accordingly, Defendant's motion for conditional relief from the scheduling order [Doc. 66] is DENIED on the merits.
III. CONCLUSION
For the reasons above, the pending discovery motions [Docs. 53, 59, 61, 65 & 66] are DENIED as untimely and, alternatively, on the merits. As noted in the Court's final scheduling order, the parties may conduct discovery by agreement after July 31, 2014, but the Court will not involve itself in any disputes that may arise.
*16 SO ORDERED.

Footnotes

In addition, the Judicial Preferences governing this case, available at http://www.tned.uscourts.gov/preferences mattice.php, specify:
Once a scheduling order has been entered, any changes to the deadlines set therein may be made only by the Court upon motion of a party. Pursuant to Fed. R. Civ. P. 16(b)(4), a scheduling order may be modified only for good cause and with Judge Mattice's consent. Judge Mattice will modify the scheduling order only if a deadline cannot reasonably be met despite the diligence of the party seeking the extension.
...
Motions for extensions of time to file all other motions or responses must be made well in advance of the deadline the moving party seeks to extend. The moving party must demonstrate why the requested extension is necessary and will bear the burden of specifically defining the bases for and extent of its request. The fact and length of an extension is in the Court's sole discretion. Motions filed on or past the deadline the party seeks to extend are subject to summary denial.
...
Failure to comply with page limitations may result in the Court disregarding the noncompliant brief or summarily denying the underlying motion.
Initially not realizing the full depth of the discovery disarray, the Court did order expedited briefing on the first motion to compel depositions and entered a separate order resolving that dispute after holding an expedited hearing.
Nevertheless, as the discovery period has now closed, Defendant will not be compelled to give a Rule 30(b)(6) deposition for the reasons addressed infra.
Confusingly, and no doubt the result of the flurry of filings, Plaintiff did not enter proper docket text when filing its response [Doc. 69] or memorandum [Doc. 70] regarding this motion to compel, as the docket text states that it is a response in opposition to a different motion filed by Defendant—the motion to stay the Rule 30(b)(6) deposition—and the memorandum's docket text states that it is a memorandum in support of Defendant's motion to stay the Rule 30(b)(6) hearing.
This rule requires that discovery motions include “in the motion itself or in an attached memorandum, a verbatim recitation of each interrogatory, request, answer, response, and objection which is the subject of the motion or a copy of the actual discovery document which is the subject of the motion.” E.D. Tenn. L.R. 37.2.
Again creating confusion, Plaintiff again did not enter correct docket text when filing its memorandum to accompany its response [Doc. 68], as the memorandum's docket text states that it is a memorandum in support of Defendant's motion to stay the Rule 30(b)(6) hearing. Adding to the confusion, Defendant did not enter correct docket text when filing its reply brief [Doc. 79], as the reply's docket text states that it is a response to Defendant's own motion.