Brewer v. BNSF Ry. Co.
Brewer v. BNSF Ry. Co.
2018 WL 1756432 (D. Mont. 2018)
January 11, 2018
Johnston, John, United States Magistrate Judge
Summary
The court denied Mr. Brewer's motion to compel discovery and compel production of non-custodial ESI, finding that the requests were overly broad and not proportional to the needs of the case. The court also found that Mr. Brewer's request for a description of BNSF's capabilities to search for, preserve, and produce information constituted impermissible discovery on discovery.
Additional Decisions
DAVID BREWER, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant
v.
BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant
CV 14-65-GF-BMM-JTJ
United States District Court, D. Montana
Filed January 11, 2018
Counsel
William G. Jungbauer, Christopher W. Bowman, Pro Hac Vice, John D. Magnuson, Yaeger & Jungbauer Barristers, PLC, St. Paul, MN, for Plaintiff.Benjamin O. Rechtfertig, Michelle T. Friend, Hedger Friend, Billings, MT, for Defendant.
Johnston, John, United States Magistrate Judge
FINDINGS AND RECOMMENDATION
I. BACKGROUND
*1 On November 2, 2016, the Court in its Order reserved ruling on Mr. Brewer’s Motion to Conduct a Deposition Pursuant to Federal Rule of Civil Procedure 30(b)(6) on BNSFs Non-Custodial Data Sources. (Doc. 196 at ¶ 11; see Doc. 178 at 23). Due to additional motion practice, the Court had not yet ruled upon Mr. Brewer’s motion. On October 11, 2017, the Court held a hearing regarding the discovery of certain elements of BNSF’s electronically-stored information (“ESI”), during which Mr. Brewer argued to the Court that the previous issue of Defendant BNSF’s alleged failure to produce the non-custodial sources had not been ruled upon. (Doc. 241). The Court instructed Mr. Brewer to amend and renew his original motion based on BNSF’s answers in the Deposition by Written Questions. (SeeDoc. 229).
On November 11, 2017, Mr. Brewer filed an Amended and Renewed Motion to Permit Discovery and Compel Production of Non-custodial Electronically Stored Information. (Doc. 247).[1] On December 1, 2017, BNSF filed its Response, and Mr. Brewer field his Reply on December 22, 2017. (Docs. 252, 259). The motion has been fully briefed and is ripe for adjudication.
II. LEGAL STANDARD
Courts have broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Generally, litigants in a civil action are entitled to discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In determining what is “relevant” and “proportional,” the court must consider “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.” Id. “The court must limit discovery that is not proportional to the needs of the case.” Hancock v. Aetna Life Ins. Co., 321 F.R.D. 383, 390 (W.D. Wash. 2017). Additionally, courts may limit unreasonably cumulative, overly broad, unduly burdensome, or irrelevant discovery. Fed. R. Civ. P. 26(b)(2)(c). In a motion to compel discovery pursuant to Fed. R. Civ. P. 37(a)(2)(A), the party seeking to compel discovery must show that the documents sought are relevant, and the party opposing discovery bears the burden to show that the discovery should not be allowed. Soto v. City of Concord, F.R.D. 603, 610 (N.D. Cal. 1995); see also DirectTV, Inc. v. Trone, 209 F.R.D. 445, 458 (C.D. Cal. 2002).
III. ANALYSIS
Mr. Brewer filed his motion indicating the types of information being sought through non-custodial sources. As counsel for Mr. Brewer stated, “[a]ll we are doing right now is identifying the sources of ESI and the enterprise custodians. . . . I want to know what they are and what their capabilities are . . . so we can decided issues of whether or not they have met their preservation obligation.” (Doc. 231 at 11:1-9). BNSF argues that the information requested in Mr. Brewer’s motion is not related to the original motion, but “has now morphed into [his] request for additional discovery of non-custodial data sources” which have either already been ruled upon or were never requested in the original time for discovery. (Doc. 252 at 3). “In fact, his latest requests are much broader than what was originally sought or even ordered by the Court.” (Id.)
*2 At the October 11, 2017 hearing, the Court stated that after BNSF answered Mr. Brewer’s questions in the Deposition by Written Questions, Mr. Brewer would be allowed “to amend [his] prior motion about the ten non-custodial sources[,]” and would not be allowed to ask for additional discovery that had not already been ordered. (Doc. 245 at 102-03).
[Mr. Jungbauer]: . . . [H]ow about this, Your Honor? When [BNSF] identifies them, can I, as part of my motion, say, “here are items from the ten non-custodial things that I would like to get,” and the Court can rule on it?
The Court: So this all relates to [the] motion outstanding about other non-custodial sources that has never been ruled upon?
Ms. Friend: But it’s been briefed, and I believe it’s been argued.
Mr. Jungbauer: It has not been fully argued because we stopped, dead-end, because we were going to do this 30(b)(6) thing.
. . .
The Court: This is what I’m going to do. Discovery is going to close on November 11, 2017, okay, when she produces her answers [to the Deposition by Written Questions.] . . . And then before that date comes up, you’re going to file a motion to amend your prior motion about the ten non-custodial sources. . . . And then I’ll rule on that and then that will be the end of it.
(Id.)
As stated in its previous Orders, the issue in this ESI dispute is one of proportionality. Fed. R. Civ. P. 26(b)(1) states “[p]arties 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.” Notably, the 2015 Amendments to Rule 26 deleted the provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence.”
The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “ ‘relevant’ means within the scope of discovery as defined in this subdivision ...” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments.
Fed. R. Civ. P. 26, Committee Note to the 2015 Amendment. Thus, the question of whether discovery of this ESI is “proportional” requires a balancing of the Court’s preference that relevant evidence be disclosed with the party’s need to be protected from far-reaching discovery. “[C]ourts are properly encouraged to weigh the expected benefits and burdens posed by particular discovery requests (electronic and otherwise) to ensure that the collateral discovery disputes do not displace trial on the merits as the primary focus of the parties’ attention.” Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th Cir. 2008) (citations omitted) (emphasis added).
A. Management compensation, policies, and metrics
Mr. Brewer seeks BNSF’s records, data, statistics and metrics regarding BNSF’s records of compensation and its metrics for determining compensation for managerial employees. More specifically, Mr. Brewer’s motion requests the records, data, statistics, and metrics for:
Incentive Compensation Program (ICP), Performance Management Process (PMP) Objectives, Goals, Ratings and Assessments, Leadership Model Objectives, Individual Business Objectives, Development Goals, Supervisor (and Individual Self) Ratings, Goals and Assessments, and Scorecard Policy relating to the following current or former BNSF Management-Level Employee’s Compensation, Promotion, Raises, or other Incentives between 2010 and the Present: Roger Galland, Jody Mills, Jason Maser, Ross Molyneaux, Joe Heenan, Conn Moler, Mark Williams, Rick Bartoskowitz, Lee Spilker, Rick Stauffer, and Chris Vaughn.
*3 (Doc. 248 at 6). In his brief, Mr. Brewer argued that this evidence would not be difficult for BNSF to obtain, and also noted that BNSF has often been cited for its “well-documented history of discovery abuse,” suggesting that the Court should order BNSF to produce the records on that basis. (Id. at 7).
In determining proportionality, the Court must consider “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 discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Mr. Brewer argues that this evidence “is within the broad scope of discovery allowed under Fed. R. Civ. P. 26[,]” and because it would not be burdensome for BNSF to produce, it is therefore proportional to the needs of the case. (Doc. 248 at 8). “[S]uch information is easily accessible and germane to claims and defenses in this litigation.” (Doc. 259 at 10). Furthermore, Mr. Brewer notes that this request is significantly narrower than his original discovery requests for the same information. (Id. at 6).
BNSF argues that Mr. Brewer’s request is still overly broad and “far-reaching,” specifically stating that it has produced such information pursuant to various other court orders on the same types of issues. For example, BNSF states that it produced the ICP on January 12, 2016 in compliance with the Court’s November 11, 2015 Order (Doc. 81). (Doc. 252 at 4). In the November 11, 2015 Order, the Court ruled that the ICP may be circumstantial evidence of a financial incentive to terminate Mr. Brewer because of his protected activity, but that the request was overly broad and in some parts irrelevant. (Id. at 4-5). “BNSF is ordered to produce the ICP bonus plan as it existed in 2012 when Mr. Brewer claims he engaged in protected activity and his employment was terminated. It is denied in all other respects.” (Id. at 5). Moreover, on November 2, 2016, the Court ordered that Mr. Brewer be allowed to take a Rule 30(b)(6) deposition on BNSF’s ICP, which was limited to the scope of how the ICP would relate to the bonus of a manager working in Shelby or Havre, Montana–only the places relevant to Mr. Brewer. (Doc. 196 at 2). BNSF argues essentially the same with respect to the request for the “terminal scorecard summaries.” (Doc. 252 at 7-8).
The Court finds that Mr. Brewer’s motion to compel with respect to the management compensation records, policies, and metrics is overly broad and is not proportional to the needs of the case. While Mr. Brewer dedicates much of his argument to how it would not be unduly burdensome for BNSF to produce said records and reports, that factor alone is not determinative of whether the request is proportional. The Court understands that the crux of his argument is that this evidence may show a financial incentive to wrongfully terminate Mr. Brewer. BNSF argues that it has previously complied with these requests, and that now Mr. Brewer is attempting to expand the scope of discovery. Notably, the Court has repeatedly narrowed Mr. Brewer’s requests for discovery, such as limiting the scope of inquiry to 2012 (the year Mr. Brewer was terminated) and limiting the people to those personally involved in the decision to terminate Mr. Brewer. (See Doc. 158). Here too, the Court finds that the discovery Mr. Brewer seeks beyond what has already been produced is overly broad. As such, Mr. Brewer’s request is not proportional to the needs of the case and the Court recommends his request be denied.
*4 As an additional matter, BNSF argues that counsel for Mr. Brewer misappropriated the information he already has regarding its management compensation policies. (Doc. 252 at 9). BNSF argues that those documents are privileged and confidential, and that the Court should sanction counsel for Mr. Brewer for disclosing those documents in a public filing. (Id., see e.g.Doc. 248-1 at 15-18 (now filed under seal)). That issue is being argued in another case, Wooten v. BNSF Railway Co., CV-16-139-DLC-JCL (D. Mont.), and there has been no determination as to whether those documents are in fact privileged and confidential. As such, this Court cannot determine whether the documents are privileged and confidential, and therefore is not in a position to decide whether or not sanctions are appropriate.
B. BNSF’s capability to search for, preserve, and produce relevant ESI
Next, Mr. Brewer requests a description of BNSF’s capabilities–and use of those capabilities–to search for, preserve, and produce information. (Doc. 248 at 9). BNSF argues that this constitutes impermissible discovery on discovery, citing to the general proposition that “meta-discovery,” or discovery about a party’s discovery process, is generally disfavored and not allowed. “A party should not be required to provide discovery about its e-discovery process without good cause.” The Sedona Conference Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, 42 (Sept. 2016) (hereinafter the “Sedona Conference”); (Doc. 223-1 at 48). Importantly, a court must guard against excessive probing into a party’s meta-discovery in order to prevent belabored discovery practices. “Requests for such meta-discovery should be closely scrutinized in light of the danger of extending the already costly and time-consuming process ad infinitum.” Catlin v. Walmart Stores, 2016 U.S. Dist. LEXIS 186756, *3 (D. Minn. Sept. 22, 2016) (citations omitted).
In its previous orders, the Court ruled on this issue by allowing Mr. Brewer to conduct a Deposition by Written Questions, in part to address BNSF’s search capabilities and preservation of ESI. According to Mr. Brewer, “BNSF identified [in its answers] for the first time the search mechanisms of noncustodial sources of ESI.” (Doc. 259 at 7). “Importantly, the details of the searches, including times and extent of searches and the actual search terms used were not provided to Brewer.” (Id. at 8). In its answers, BNSF testified that it “did not fail to preserve emails or other ESI relevant to the claims, defenses or issues in this lawsuit. BNSF’s processes prevented the loss of any relevant electronically stored information.” (Doc. 259-1 at 25:13-16). Additionally, BNSF testified that its non-custodial sources were searched by at least twelve named persons, identified the non-custodial sources it searched, and identified to the best of its ability the search terms and dates of these searches. (Id. at 29:1-32:23). It appears that Mr. Brewer is unsatisfied by BNSF answers to the Deposition by Written Questions. “The deposition indicates that for a number of searches ‘precise search terms are not known’ and presenting post facto assumptions of what searches were done, and provides no details about the programs and applications used for the search.” (Doc. 259 at 7). He further states that BNSF failed to identify “with any reasonable specificity any third party cloud based vendors BNSF uses to hold the migrated information[,]” and that the information BNSF did provide is “sketchy at best.” (Id. at 7-8).
This dissatisfaction by Mr. Brewer, however, highlights the need for courts to scrutinize meta-discovery requests. As noted in the Sedona Conference Report, “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for reserving and producing their own electronically stored information.” Sedona Conference at 118. In order to overcome this, the party seeking the meta-discovery must show a specific deficiency in the other party’s production. (Id.) Notably, Mr. Brewer has not identified precisely what he intends to uncover from the search terms, merely that he seeks to verify whether BNSF has complied with its discovery obligations, potentially for the purposes of a spoliation motion rather than to support his claims of wrongful discharge. Because Mr. Brewer has not shown a specific deficiency in BNSF’s production, the Court finds that his request is disproportional to the needs of the case. Therefore, the Court recommends that his request for a description of BNSF’s capabilities and use of those capabilities to search for, preserve, and produce information in this matter should be denied.
C. Files and databases on BNSF’s Labor Relations and Human Resources
*5 Mr. Brewer also requests files and databases related to BNSF’s Labor Relations and/or Human Resources, specifically concerning disciplinary action against Mr. Brewer or other similarly situated employees. (Doc. 248 at 12-13). Mr. Brewer states that he has “learned through research” that BNSF has so called “whistleblower training manuals,” and requests files and databases related to “other similarly situated employees considered for being charged with a rules violation.” (Id. at 13). Mr. Brewer cites to a decision from the District of Nebraska, which ordered BNSF to produce its whistleblower training manuals because “[g]eneral policy statement and instructional guides, the purpose of which is to notify employees of legal requirements is not specific legal advice” which would be protected by privilege. Logsdon v. BNSF Ry. Co., No. 8:15CV-232-JMG-CRZ, ECF No. 111 (D. Neb. Oct. 12, 2016) (see Doc. 248-1 at 86-90).
BNSF argues not that this information is protected or privileged, but that it is beyond the scope of the limited discovery and could have been previously discovered through reasonable diligence. With respect to its “Labor Relations,” BNSF argues that it has produced thousands of other entries for employees who violated the same rules as Mr. Brewer in its records from Labor Relations. (Doc. 252 at 13). “At no time since November 25, 2015, has [Mr. Brewer] raised the issue that BNSF has not provided him with any records from [BNSF’s Records Retention Policy for Labor Relations] until his list of topics dated November 7, 2016.” (Id.)
Moreover, BNSF argues that Mr. Brewer has impermissibly expanded this topic to include “Human Resources.” Here, BNSF attempts to distinguish the facts of this action from those in Logsdon. It argues that the Court in Logsdon allowed for discovery of the training materials because the supervisor testified to having reviewed them in preparing for his deposition. (Doc. 248-1 at 86-87). “This case is clearly distinguishable in that no supervisor was questioned during a deposition if he even received any such training nor did Brewer request any such training during the course of discovery.” (Doc. 252 at 13-14).
BNSF states in its brief that it has previously complied with Mr. Brewer’s request for Labor Relations data, including Mr. Brewer’s Personnel file, other entries for similar employees who violated the same rules, and its Records Retention Policy for Labor Relations, and that this sort of information has been previously the subject of Mr. Brewer’s Motions to Compel which have been previously ruled upon. (See e.g. Doc. 196). Mr. Brewer argues that this information was not provided by BNSF until recently, and therefore could not have requested it during the original course of discovery. (Doc. 259 at 13). At the same time, however, Mr. Brewer states that he had learned of this information through independent research. (Doc. 248 at 13). Therefore, the Court finds that the “whistleblower training manuals” are beyond the course of discovery pending in this motion. Moreover, Mr. Brewer apparently seeks information on other BNSF employees who are “considered for being charged with a rules violation,” and not necessarily the specific, relevant violation that Mr. Brewer was charged with. To that extent, the request is overly broad and seeks irrelevant information. As such, the Court recommends that Mr. Brewer’s request for files and databases on BNSF Labor Relations and/or Human Resources be denied.
D. Velocity and “Best Way” Metrics
Mr. Brewer’s last request is for BNSF’s “Velocity” data and other “Best Way” Metrics. (Doc. 248 at 14). “[BNSF] has at its disposal databases and files with information, data, statistics, rankings, and or goals–individually or for trains and operations–on a variety of different metrics . . . and other statistical measurements which affect BNSF management or official compensation.” (Id.) Mr. Brewer states that this information is relevant as it may be circumstantial evidence of a motive for BNSF to terminate Mr. Brewer for his performance of safety procedures. (Id. at 17). Again, Mr. Brewer argues that the information sought is readily accessible to BNSF and therefore would not be burdensome to produce. (Id. at 14-17).
*6 BNSF argues again that this request has already been denied by the Court. BNSF cites to the Court’s November 20, 2015 order, in which the Court ruled:
Brewer’s Request for Production No. 5 seeks “all documents regarding BNSF’s Velocity initiative and any instructions or initiatives that were particular to Mr. Brewer’s crew, terminal, and/or region on the day of the incident that took place at Shelby Yard as detailed in his Complaint.” The Court agrees with BNSF that this request for production is overly broad and not reasonably calculated to lead to the discovery of admissible evidence, and as such, Brewer’s motion to compel is denied.
(Doc. 252 at 14 (citing Doc. 81 at 9)). BNSF also argues that this “topic” was included in Mr. Brewer’s original request for ten topics of discovery, and the Court should not expand discovery any more than what has been previously ordered. (Id.)
The Court has not ruled on Mr. Brewer’s renewed and amended request for the Velocity data or “Best Way” metrics with respect to BNSF’s non-custodial sources. Mr. Brewer seeks:
[Information] relevant to the individuals named in Section I [of his brief] relevant to this case and any other management official whose job duties included Shelby, Havre, or other adjacent areas that Brewer worked or such person was given, could access, or could view from 2010 to the present. The information would include statistics, goals, measurements, comparisons, rankings whether individual, local terminal (Havre & Shelby, MT), Montana Division, Operating Department and System regarding Velocity criteria, measurements, comparisons, goals, ratings, rankings, “wins or losses” applicable to trains, cars or locomotives under control, direction or responsibility of BNSF Management officers working in Havre or Shelby, MT between 2010 and the present.
(Doc. 248 at 14). In its November 20, 2015 ruling, the Court held that Mr. Brewer’s request for BNSF’s custodial data was overly broad and denied it accordingly. (Doc. 81 at 9). Here too, the Court finds that this expansive request for non-custodial information is overly broad and not proportional to the needs of the case. As such, the Court recommends that Mr. Brewer’s request for Velocity data and other “Best Way” metrics be denied.
IV. FINDINGS AND RECOMMENDATION
The Court FINDS:
Mr. Brewer’s requests for (1) management compensation, policies, and metrics, (2) BNSF’s capability to search for, preserve, and produce relevant ESI, (3) files and databases on BNSF’s Labor Relations and Human Resources, and (4) Velocity data and “Best Way” Metrics, are not proportional to the needs of the case.
The Court RECOMMENDS:
Mr. Brewer’s Amended and Renewed Motion to Permit Discovery and Compel Production of Non-custodial Electronically Stored Information (Doc. 247) be denied.
DATED this 10th day of January, 2018.
Footnotes
Mr. Brewer filed a Notice of Filing a Corrected Caption to his original motion on December 20, 2017. (Doc. 257).