Wiggins v. McHugh
Wiggins v. McHugh
2011 WL 13279152 (S.D. Ga. 2011)
July 26, 2011
Barfield, W. Leon, United States Magistrate Judge
Summary
The court granted the defendant's motion for a protective order and denied the plaintiff's request for production of images of the hard drives. The court found that the request was overly broad and intrusive, and that the plaintiff's unwillingness to allow for procedures needed to prevent the disclosure of privileged information ran contrary to cases in which courts have required the type of production requested. The court allowed the plaintiff to conduct discovery relating to the material referenced in her January 8, 2011 discovery request.
Ayanna WIGGINS, Plaintiff,
v.
John M. MCHUGH, Secretary of the Army, Defendant
v.
John M. MCHUGH, Secretary of the Army, Defendant
CV 109-142
United States District Court, S.D. Georgia, Augusta Division
Signed July 26, 2011
Counsel
John M. Brown, Augusta, GA, for Plaintiff.Shannon Heath Statkus, U.S. Attorney's Office, Augusta, GA, for Defendant.
Barfield, W. Leon, United States Magistrate Judge
ORDER
*1 The above-captioned employment discrimination case is presently before the Court on Defendant's “Motion for a Protective Order.” (Doc. no. 35.) Plaintiff has filed a response in opposition to that motion. (Doc. no. 37.) In addition, with the Court's permission, Plaintiff filed a transcript of the deposition of William D. Bailey, and both parties have addressed the import of Mr. Bailey's deposition testimony on the instant motion. (See doc. nos. 42, 43, 44, 45.) For the reasons set forth below, the motion is GRANTED.
I. BACKGROUND
Plaintiff's claims concern the termination of her employment with the United States Department of the Army, where she worked as a Public Relations Coordinator in the Directorate of Morale, Welfare, and Recreation at the Fort Gordon Military Installation in Augusta, Georgia. (See generally doc. no. 18; see also doc. no. 19, p. 3.) Plaintiff alleges in her second amended complaint that she was subjected to a hostile work environment and eventually discharged because of her race and in retaliation for making a previous race discrimination complaint. (Doc. no. 18, pp. 6-8.) Defendant maintains that Plaintiff's employment was terminated because of her unsatisfactory job performance. (Doc. no. 35.)
At issue in the instant motion are a pair of email exchanges between Plaintiff and her supervisor, Kim Lyons, concerning one of Plaintiff's work assignments. (See doc. no. 35, Exs. B, C.) Plaintiff maintains that someone within the Department of the Army improperly altered the electronic records of one of the emails in question, and further asserts that such data “was supposed to have been secured within six months after the events leading to Plaintiff's termination.” (Doc. no. 37.)
Defendant's counsel was apprised of the concern as to the authenticity of these emails when Plaintiff raised the issue in the expert witness report she filed on July 8, 2010. (See doc. no. 35, p. 3; see also doc. no. 23 (expert witness report of Lynn Ann Roth filed by Plaintiff).) Defendant then agreed to hire an independent forensic examiner to determine whether the data had been altered. This examination was conducted by Ronnie D. Jewell, a digital forensics analyst, who made digital “images,” i.e. copies, of the appropriate computers, hard drives, and back-up disks. (Doc. no. 35, pp. 4-5.) Mr. Jewell made a report of his findings, which were inconclusive; though he was able to locate a fragment of the email exchanges, he could not find the particular email in question. (Id.) Defendant served Plaintiff with a copy of Mr. Jewell's report.[1] (Doc. no. 29.)
*2 On January 8, 2011, Plaintiff served Defendant with her “Third Requests for Production of Documents,” in which she sought production of the images of the hard drives made by Mr. Jewell during his evaluation. (Doc. no. 35, Ex. A.) On January 12, 2011, Plaintiff filed the expert report of Donna Eno. (Doc. no. 34.) Plaintiff indicated in that report that Ms. Eno had read Mr. Jewell's report and had concluded that Mr. Jewell's “methods of analyzing this information were not consistent with proper technique and fall below the standards for such matters....” (Id. at 2.) Plaintiff further reported Ms. Eno's opinion that the material analyzed by Mr. Jewell “could be surveyed with much more penetrating techniques that should reveal more and relevant information,” including “when and from which computer the [fragment of the email chain] identified by Mr. Jewell was sent.” (Id. at 2-3.) The report reiterated Plaintiff's discovery request that Defendant produce the material that Mr. Jewell had examined during his evaluation—specifically, “the hard drives that were imaged by Mr. Jewell on October 5, 2010.” (Id. at 3.)
In the instant motion, Defendant seeks a protective order regarding the production of the hard drive images requested by Plaintiff in her January 8th discovery request. Defendant points out that the images Plaintiff requests to be produced are in fact “complete copies of all the computers in question, [which] contain all documents and information systems that any Department of Defense computer may have on it.” (Doc. no. 35, p. 6.) In other words, argues Defendant, “Plaintiff's request treats the images of the subject computers as a single document, when, in reality, they hold hundreds or thousands of individual documents each of which may be protected by one or more objections.” (Id. at 10.) Defendant argues that the request is overly burdensome because of the large quantity of information sought, the majority of which is irrelevant to the this case. (Id. at 10-11.) Defendant further “objects to the release of these forensic images to Plaintiff or her expert witness on the basis that the unfettered access that she seeks to Government property violates privacy and security interests entrusted to the Army.” (Id. at 6.) More specifically, Defendant asserts that, because Plaintiff's request seeks unlimited access to the computers of individual employees of the Department of the Army, it would require Defendant to disclose documents and information protected by the attorney-client privilege, the work product doctrine, the Privacy Act,[2] and the Health Insurance Portability and Accountability Act of 1996.[3]
Defendant raised these objections in her response to Plaintiff's discovery request, which is dated February 1, 2011. (Id., Ex. G.) In addition, Defendant's counsel reports having discussed these objections with Plaintiff's counsel, and having offered alternative arrangements for Plaintiff's expert to analyze the relevant material. These alternatives include: (1) having Plaintiff's expert conduct her examination of the requested material at Mr. Jewell's laboratories in Arlington, Virginia, under the condition that Mr. Jewell be present and that Defendant's counsel be permitted to review the results of any searches for information that is privileged or otherwise objectionable prior to disclosure; (2) having Plaintiff's expert work directly with Mr. Jewell, who would perform any searches as directed by Plaintiff's expert, again subject to the condition that Defendant be permitted to review the information produced prior to its disclosure; and (3) “having Plaintiff's expert attend the forensic search by remote access.” (Doc. no. 35, p. 7 & Exs. F, G.)
In her response, Plaintiff does not dispute the breadth of her discovery request; rather, she asserts that, “[u]nder the circumstances, [she] wants to have the same access to the data that Defendant's expert had.” (Doc. no. 37, p. 2.) Plaintiff emphasizes the purported shortcomings of Mr. Jewell's evaluation and the alleged tampering with the email communications in question by someone within the Department of the Army. (See id. at 1-2.) Plaintiff takes issue with the alternative arrangements proposed by Defendant, complaining that the first option is too expensive because of the cost of sending her expert to Arlington, Virginia, and characterizing the other options as overly “laborious.” (Id. at 2.) Plaintiff also contends that the data in question, which involves computers from a civilian workforce, is unlikely to have information that might pose a national security risk. (Id. at 1.) Furthermore, Plaintiff contends that the “Protective Order and Confidentiality Agreement” stipulated to by the parties and approved by Judge Bowen adequately protects any privacy concerns. (Id. at 2; doc. no. 33.)
*3 Additionally, as noted above, Plaintiff has produced a transcript of the deposition of William D. Bailey in support of her contention that Defendant should be required to honor the January 8th discovery request. (Doc. no. 45.) Mr. Bailey is an independent contractor in the technology field who was hired by the Department of the Army to investigate the emails in question when Plaintiff first raised the issue of their authenticity in May of 2008. (Doc. no. 45, pp. 10-11; doc. no. 43, p. 2.) In his deposition, Mr. Bailey testified as to the steps that he took during his investigation. He explained that he was unable to find the email that had allegedly been altered. (Doc. no. 45, pp. 19, 21.) He also testified that he could not determine exactly what happened with the missing data; however, in his report he had outlined four possible scenarios explaining what may have happened to cause the data to go missing, each of which appears to involve someone deleting the data, though not necessarily with an improper intent. (Id. at 25-35 & Ex. A.)
Plaintiff cites Mr. Bailey's deposition testimony as a further indication that someone within the Department of the Army “accessed and tampered with the evidence in this case.” (Doc. no. 42, p. 2.) Plaintiff argues that Defendant therefore should not be entrusted with the evidence. (Id.) In response, Defendant argues that Mr. Bailey's testimony does not justify denying the motion for a protective order. (Doc. no. 43.) Defendant points out that Mr. Bailey “was unable to conclusively reach a determination on what happened with the emails,” and that his scenarios were based on various assumptions, as he made clear in his deposition. (Id. at 2-3; doc. no. 45, pp. 33-34.) Defendant also emphasizes that the instant motion focuses not on the computers themselves, which remain safeguarded at Fort Gordon, but rather concerns only the images of the hard drives from those computers made and kept by Mr. Jewell. (Doc. no. 43, p. 3.)
II. DISCUSSION
Although the Federal Rules of Civil Procedure allow broad discovery of “any matter, not privileged, that is relevant to a claim or defense of any party,” Fed. R. Civ. P. 26(b)(1), discovery is not unlimited. Fed. R. Civ. P. 26(b)(2). Discovery cannot be used to obtain information that is “unreasonably cumulative or duplicative,” or which is more easily obtained from a different source. Id. Likewise, a party cannot obtain discovery which is unduly burdensome because the expense of its production would outweigh its utility. Id. Neither is discovery a tool to harass opposing parties, delay the proceedings, or increase the cost of litigation. Fed. R. Civ. P. 26(g)(2)(B).
Federal Rule of Civil Procedure 34, which covers requests for production in discovery, expressly applies to electronically stored information. SeeGenworth Fin. Wealth Mgmt. v. McMullan, 267 F.R.D. 443, 446 (D. Conn. 2010) (“With regard to the discovery of electronically stored information, the Federal Rules of Civil Procedure require a party to ‘produce and permit the party making the request ... to inspect, copy, test, or sample any ... electronically stored information.’ ” (quoting Fed. R. Civ. P. 34(a) ) ). “This right to information however, is counterbalanced by a responding party's confidentiality or privacy interests.” Id. “Rule 34(a) does not grant unrestricted, direct access to a respondent's database compilations.” In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir. 2003). As Defendant observes, the Advisory Committee's notes on the amendments that added the language covering electronically stored information include the following clarification:
Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.
*4 Fed. R. Civ. P. 34, Notes of Advisory Committee on 2006 Amendments.
Furthermore, courts facing similar discovery requests have reasoned that the determination of whether to permit the production of images of entire hard drives should account for the breadth of the discovery request as well as the relationship between the material requested and the claims in the lawsuit. See, e.g., Genworth, 267 F.R.D. at 446 (noting that courts should “consider the relationship between the plaintiff's claims and the defendants' computers and, in some cases, whether the defendant has fully complied with discovery requests, in determining how the requested electronic discovery should proceed” (quoting Calyon v. Mizuho Sec. USA, Inc., No. 07 Civ. 02241, 2007 WL 1468889, at *3, 2007 U.S. Dist. LEXIS 36961, at *10 (S.D.N.Y. May 18, 2007) ) ); Balboa Threadworks, Inc. v. Stucky, No. 05-1157, 2006 WL 763668, at *3, 2006 U.S. Dist. LEXIS 29265, at *8-9 (D. Kan. Mar. 24, 2006) (“Courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.”). Similarly, courts have shown reluctance to require the production of mirror images of complete hard drives when less intrusive methods of producing the information are available. E.g., Lorentz v. Sunshine Health Prods., 2010 WL 1856265, at *1, 2010 U.S. Dist. LEXIS 53582, at *2-3 (S.D. Fla. May 10, 2010) (granting protective order as to request to inspect electronic information and noting that a narrower request for production would be “less intrusive than a full-fledged general rummaging through another party's computer systems”). Moreover, “[e]ven in cases where courts have found computer imaging and inspection to be warranted, the courts have nonetheless adopted procedures to protect privilege and privacy concerns.” Calyon, 2007 WL 1468889, at *3–4, 2007 U.S. Dist. LEXIS 36961, at *10 (collecting cases); see also Genworth, 267 F.R.D. at 449 (allowing production of images of hard drives pursuant to procedure in which neutral expert chosen by parties provided material to defendant, who was then required to produce responsive material after conducting privilege review); Ameriwood Indus. v. Liberman, No. 4:06CV524, 2006 WL 3825291, at *, 2006 U.S. Dist. LEXIS 93380, at *16-21 (E.D. Mo. Dec. 27, 2006) (providing for similar procedure).
Here, the Court finds that Plaintiff is not entitled to production of the images of the hard drives as requested in her January 8, 2011 discovery request. To require Defendant to produce this information as requested would grant Plaintiff unlimited access to all of the information stored on several of the Department of the Army's computers. Such broad and intrusive disclosure is not warranted in this case. Because the parties' dispute focuses on the email exchanges discussed above—only one email of which is really at issue—the vast majority of the information on the computers has no relevance to the instant action. Therefore, the utility of the requested material is relatively low in comparison to the burden of its production. SeeFed. R. Civ. P. 26(b)(2). Moreover, the irrelevance of the majority of the information on the computers makes the connection between the requested material and the issues in this lawsuit tenuous, which further counsels against requiring the requested disclosure. See Genworth, 267 F.R.D. at 446. The fact that Plaintiff seeks such broad access to the information on the Department of the Army's computers likewise weighs against requiring Defendant to respond fully to the request for production. Balboa Threadworks, Inc., 2006 WL 763668, at *3, 2006 U.S. Dist. LEXIS 29265, at *8-9.
*5 Plaintiff misses the mark with her argument that the hard drives at issue, which are within a civilian division, are not likely to have national security information. (See doc. no. 37, p. 1.) This argument fails to account for Defendant's reasonable assertion that the hard drives in question contain a variety of confidential information that has nothing to do with national security, such as the medical information of Army personnel, as well as documents that are protected by the attorney-client privilege and work product doctrine. These latter categories of documents are particularly salient, as the confidentiality order in effect in this case does not justify requiring the production of such documents. (See doc. no. 33.) Also, Plaintiff's unwillingness to allow for procedures needed to prevent the disclosure of privileged information runs contrary to cases in which courts have required the type of production requested here. See Genworth, 267 F.R.D. at 449; Ameriwood., 2006 WL 3825291, at *, 2006 U.S. Dist. LEXIS 93380, at * 16-21. Furthermore, the deposition testimony of Mr. Bailey does little to bolster Plaintiff's position. As Defendant persuasively argues, notwithstanding the possibility that one of the emails in question was altered by someone with the Department of the Army in 2008, the security of the material at issue in the instant motion—the images of the hard drives made by Mr. Jewell, rather than the hard drives themselves—is not in question.
In sum, in consideration of the circumstances discussed herein, Defendant has shown that he should not be required to respond to Plaintiff's request for production as set forth in her January 8th discovery request. Accordingly, Defendant's motion for a protective order is GRANTED.
Notably, in issuing a protective order, the Court may “prescrib[e] a discovery method other than the one selected by the party seeking discovery.” Fed. R. Civ. P. 26(c)(1)(C). The Court is likewise authorized to limit the scope of the discovery at issue or designate the persons who may be present while the discovery is conducted. Fed. R. Civ. P. 26(c)(1)(D)–(E). In this instance, the Court finds it appropriate to allow Plaintiff discovery of the material identified in her January 8th discovery request pursuant to any of the alternative procedures described by Defendant in the instant motion and set forth above. See supra Part I. As Defendant has indicated his consent to these procedures, Plaintiff may choose any of these alternative methods; however, irrespective of which method is chosen, Defendant shall be entitled to have his expert, Mr. Jewell, present while any discovery involving the images of the hard drives is conducted, and Defendant's counsel shall be entitled to review any documents produced by such discovery prior to disclosure for the purpose of determining whether they are privileged or otherwise exempt from disclosure.
The Court notes that, under the Revised Scheduling Order in effect in this case, the remaining deadlines are set to run from the date that Plaintiff files her supplemented expert report, which Plaintiff has stated will occur following her inspection of the hard drive images at issue in the instant motion. (See doc. no. 38, p. 2; doc. no. 41.) Accordingly, Plaintiff must choose one of the available methods prescribed herein, conduct any discovery relating to the hard drive images, and file her supplemented expert report by September 8, 2011.
Finally, under Fed. R. Civ. P. 37(a)(5)(A), upon granting a motion for a protective order, the Court must consider whether to require the opposing party to pay the expenses incurred by the movant in making the motion, including attorney's fees. See also Fed. R. Civ. P. 26(c)(3) (clarifying that Rule 37(a)(5) applies in the context of motions for protective orders). Such an award must not be ordered if the movant filed the motion before attempting to obtain the discovery without court action, the opposing party's conduct was substantially justified, or other circumstances make an award unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). Here, because the instant motion involved a genuine dispute as to the method of accessing electronically stored information with respect to which discovery is due to be conducted, the Court finds it unjust to award expenses.
III. CONCLUSION
For the reasons set forth above, Defendant's motion for a protective order is GRANTED. (Doc. no. 35.) Furthermore, Plaintiff shall be permitted to conduct discovery relating to the material referenced in her January 8, 2011 discovery request as set forth above, and shall file her supplemented expert report by September 8, 2011.
*6 SO ORDERED this 26th day of July, 2011, at Augusta, Georgia.
Footnotes
Because of the delay caused by Mr. Jewell's examination, the proceedings in this case were stayed for a two month period in late 2010 pursuant to an Order issued by the Honorable Dudley H. Bowen, Jr., United States District Judge, granting a joint motion to stay. (See doc. no. 25.) The proceedings were again stayed from March 14 to May 2, 2011, pursuant to an Order granting a second joint motion to stay. (See doc. nos. 40, 41.)
5 U.S.C. § 552a (1974).
Pub. L. No. 91-190, 83 Stat. 852 (1996).