*1 The Court, in its discretion, grants in part and denies in part Plaintiff's motion to compel brought pursuant to Federal Rule of Civil Procedure 37(a). [43]. Defendant must produce the documents discussed in detail below and an affidavit attesting to the completeness of its discovery searches by no later than March 23, 2018. The Court extends the fact discovery deadline until March 30, 2018.

STATEMENT

On May 19, 2017, Defendant Nationwide Mutual Insurance Company removed the present lawsuit from the Circuit Court of Cook County, Illinois, County Department, Chancery Division. See 28 U.S.C. §§ 1441, 1446. In his Complaint, Plaintiff Kevin Greenwood brings three claims under the American with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Before the Court is Plaintiff's Rule 37(a) motion to compel. For the following reasons, the Court, in its discretion, grants in part and denies in part Plaintiff's motion.

FACTUAL BACKGROUND

In his Complaint, Plaintiff alleges that Defendant employed him for over 16 years and that he successfully worked his way up to the position of Trial Attorney III. (R. 1-1, Verified Compl. ¶ 1.) While Defendant's employee, Plaintiff, a double amputee, underwent below the knee amputation surgery in September 2008 and February 2012. (Id. ¶ 2.) He alleges that Defendant discriminated against him on the basis of his disability, failed to accommodate his disability, and retaliated against him when he expressed his concerns about his treatment in violation of the ADA. (Id. ¶ 3.) In particular, Plaintiff maintains that he requested reasonable accommodations for his disability on February 7, 2015 and Defendant subsequently terminated his employment on May 13, 2015. (Id. ¶ 5.)

Plaintiff further alleges that the normal procedure at work was that Defendant would conduct a performance review of its attorneys on the work they actually performed, not on the work performed by the other attorneys. (Id. ¶ 15.) Plaintiff asserts that Defendant did not follow this policy when reviewing his performance starting in or around 2013. (Id.) As a result, Plaintiff did not pass his 2013 audit. (Id.) Also, Plaintiff contends that his supervising attorney, Anthony Schneider, rated his performance as unsatisfactory in 2014 and that management had told Plaintiff that commercial clients had lost confidence in him. (Id. ¶ 16.) Plaintiff alleges that despite management's reasoning, it appears that only one commercial client expressed dissatisfaction with him. (Id. ¶ 17.) Plaintiff states that Schneider nonetheless subjected him to increased reviews and that despite his successes, on September 23, 2014, Defendant issued Plaintiff a written warning due to alleged deficiencies in relation to several client files. (Id. ¶ 20.) Thereafter, Plaintiff received a final written notice on January 21, 2015. (Id. ¶ 21.)

On or about January 31, 2015, Plaintiff submitted a written request for accommodation under the ADA based on his disability as a double amputee. (Id. ¶ 23.) After contacting Nationwide's Human Resources Department, Plaintiff formally requested the reasonable accommodation of relocating to Defendant's Lombard, Illinois office on February 7, 2015. (Id. ¶ 25.) Although Defendant granted his request on March 25, 2015, Defendant “inexplicably continued to require him to commute almost daily to the downtown Chicago office” rendering the approval meaningless. (Id.) On May 13, 2015, Defendant terminated Plaintiff's employment based on the alleged performance issues. (Id. ¶ 27.)

PROCEDURAL BACKGROUND

*2 Because Plaintiff was an attorney for Defendant, his performance reviews and related documentation contains information about Plaintiff's cases, including the names of clients that he represented and details about how Plaintiff handled his cases. Due to the unique nature of this case, Defendant anticipated issues of waiver and privilege and filed a motion for a protective order early in this litigation. On August 30, 2017, the Court granted in part and denied in part Defendant Nationwide's motion for a protective order concerning the attorney-client and work product privileges and set forth guidance as to the privilege log requirements under Rule 26(b)(5)(A)(ii). The Court presumes familiarity with this ruling. On September 5, 2017, the Court signed the parties' Agreed Confidentiality Order, which states in pertinent part:

(R. 27, Agreed Protective Order, at 3-4.)

LEGAL STANDARD

In 2015, the Rules Committee amended Rule 26(b)(1) to “restore[ ] the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.” Advisory Committee Notes, 2015 Amendment. Accordingly, pursuant to Federal Rule of Civil Procedure 26(b)(1):

Fed.R.Civ.P. 26(b)(1) (emphasis added). In short, “[a]ll discovery must be relevant and proportional to the needs of the case[.]” Leibovitch v. Islamic Republic of Iran, ____ F.Supp.3d ____, 2018 WL 1072567, at *11 (N.D. Ill. Feb. 27, 2018). District courts have broad discretion in controlling and directing discovery. See Geiger v. Aetna Life Ins. Co., 845 F.3d 357, 365 (7th Cir. 2017).

ANALYSIS

I. Work Product Doctrine

In his motion to compel, Plaintiff first argues that in defending against his ADA claims, Defendant Nationwide has put his job performance at issue, and thus Defendant has waived its work product privilege in this respect. See Weinberg v. William Blair & Co., LLC, No. 12 CV 9846, 2014 WL 2699714, at *1 (N.D. Ill. June 13, 2014) (work product waiver occurs when a party “affirmatively put[s] at issue the specific communication, document, or information to which the privilege attaches.”) (citation omitted). As discussed in the Court's August 30, 2017 ruling, because Plaintiff was an attorney for Nationwide, his performance reviews and other documents relating to his work performance contain information about Plaintiff's underlying cases, including the names of clients that he represented and details about how Plaintiff handled his cases. The Agreed Confidentiality Order controls the production of these documents.

That being said, the “work-product doctrine protects documents prepared by attorneys in anticipation of litigation for the purpose of analyzing and preparing a client's case.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). Because Nationwide did not prepare Plaintiff's performance reviews in anticipation of litigation, these documents do not fall under the work product doctrine in the first instance. Indeed, the parties spent a considerable amount of time and effort reaching the terms of the Agreed Confidentiality Order addressing this very issue. Therefore, Plaintiff's waiver argument is misplaced, and thus the Court denies Plaintiff's motion that Defendant should provide this documentation without redaction.

*3 Nevertheless, Plaintiff also takes issue with certain redactions regarding the produced documents asking the Court to review them in camera. As it stands, Plaintiff's arguments are incomplete, including that he has provided only a few documents in support of his redaction arguments out of the approximately 40-50 documents that he claims need review. Also, Plaintiff has not provided the Court with the relevant privilege logs. Before considering Plaintiff's request for in camera review, Plaintiff and Defendant must meet and confer, as described in further detail in the last section of this ruling, at which time Plaintiff must point out the exact redactions at issue explaining why they are inappropriate under the Agreed Confidentiality Order. Only then, will the Court entertain a motion for in camera review.

II. Back-Up Tapes/Emails

Plaintiff also argues that Defendant Nationwide has been unwilling to address whether it has back-up tapes or other sources to find email accounts that Defendant no longer maintains. In response, Defendant explains that it has had discussions with Plaintiff's counsel that it only retains email accounts for thirty days after terminating its employees as a normal course of business and that it does not maintain back-up tapes. (R. 55-9, Ex. 9, 10/20/17 email.) Further, Defendant did not put a litigation hold on Plaintiff's email account because he did not file his EEOC Charge until approximately six months after his termination.

Nonetheless, Defendant asserts that it has extensively searched the emails of numerous other custodians that would capture relevant ESI, including the relevant supervisors at issue, and yet did not find the requested emails. Accordingly, Defendant must provide Plaintiff with an affidavit attesting to the completeness of its search for these emails. The Court therefore denies Plaintiff's motion to compel in this respect.

III. Personnel Files, Performance Reviews, and Job Descriptions

A. Similarly Situated Comparators

In his Interrogatory No. 5 and Document Request No. 5, Plaintiff requests the personnel files for his co-workers who are similarly situated comparators. To clarify, a plaintiff may present circumstantial evidence to establish intentional discrimination, including that the defendant treated similarly situated comparators differently than the plaintiff. See Lane v. Riverview Hosp., 835 F.3d 691, 696 (7th Cir. 2016); see also Ortiz v. Werner Enter., Inc., 834 F.3d 760, 766 (7th Cir. 2016). By presenting evidence of comparators, the “objective is to eliminate other possible explanatory variables such as differing roles, performance histories, or decision-making personnel, in order to isolate the critical independent variable of discriminatory animus.” Reed v. Freedom Mortg. Corp., 869 F.3d 543, 549 (7th Cir. 2017). “The similarly-situated inquiry is flexible, common-sense, and factual.” Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). Also, “precise equivalence is not required; the parties must be comparable, not clones.” Andy Mohr Truck Ctr., Inc. v. Volvo Trucks N. Am., 869 F.3d 598, 604 (7th Cir. 2017).

Here, Defendants have produced personnel documents for two individuals who were Trial Attorney IIIs reporting to the same supervisor as Plaintiff. In his motion to compel, Plaintiff seeks personnel information for the six other attorneys who worked in the Chicago and Lombard offices for the time period of January 1, 2012 through the end of 2015. Defendants argue that these six attorneys are not similarly situated, therefore, the production of this information would not be proportional to the needs of this case. The Court agrees that Plaintiff's supervisor, Anthony Schneider, is not a similarly situated comparator under the circumstances, and denies this aspect of Plaintiff's motion to compel. See, e.g., Curtis v. Earnest Mach. Prod. Co., No. 1:11-CV-0951-TAB-JMS, 2012 WL 5879439, at *1 (S.D. Ind. Nov. 20, 2012) (plaintiff's argument that his supervisor is similarly situated is misguided). Otherwise, the other five individuals are attorneys who worked in the Chicago and Lombard offices during the relevant time period. As such, at this early stage of the proceedings, Defendants must produce the personnel files for these five individuals. In other words, because the “similarly-situated inquiry is flexible, common-sense, and factual,” see Coleman, 667 F.3d at 841, this information is relevant and proportional to the needs of this case. The Court therefore grants in part and denies in part this aspect of Plaintiff's motion to compel.

B. Specific Document Requests Concerning Personnel Records

*4 Plaintiff takes issue with Defendant's response to certain document requests that are related to the job performance of his comparators and other Nationwide employees. More specifically, in Document Request No. 34, Plaintiff seeks information concerning the salary, benefits, and retirement plans of his comparators, whereas, Defendant posits that this information is not relevant because Plaintiff is not bringing an unequal pay claim. See White v. Money Store, No. 96 C 5955, 1997 WL 126847, at *3 (N.D. Ill. Mar. 18, 1997) (denying similar motion to compel because plaintiff “did not allege either in his complaint or his EEOC charge that he was paid less than similarly situated” comparators). Indeed, information about the comparators' salary and benefits is both irrelevant and disproportional to the needs of this case. The Court denies this request.

In Document Request No. 8, Plaintiff seeks documents that track performance statistics, also known as “metric scores” for the comparators with whom he works. In Plaintiff's case, Nationwide used these documents as a basis for disciplining and then terminating his employment. Defendant does not directly respond to this request concerning the comparators' metric scores, which are relevant because they directly relate to Plaintiff's performance, discipline, and termination. Instead, Defendant relies on its arguments about who is similarly situated, discussed above. As such, the Court grants this aspect of Plaintiff's motion to compel for the remaining five attorney comparators.

Plaintiff also seeks information about his supervising attorney, Anthony Schneider, and Lynn Sturm, the Nationwide employee who responded to Plaintiff's reasonable accommodation requests in his Document Request Nos. 20, 21, and 22. Specifically, Plaintiff requests all complaints made against Schneider, as well as Schneider's performance reviews and personnel file. Likewise, Plaintiff requests Sturm's performance reviews, personnel file, and any relevant complaints.

In response, Defendant maintains that it has produced Schneider's training records, job description, and documents concerning complaints against Schneider, but that Schneider's performance reviews are not relevant. The Court agrees. As discussed above, Schneider is not a similarly situated comparator, and thus his performance reviews are not relevant under the circumstances. As to Sturm, Defendant has produced her performance reviews and training record. Plaintiff, however, also seeks complaints made against Sturm, to which Defendant responds that there have been no complaints about her. Accordingly, in Defendant's affidavit of completeness, Defendant must aver that there are no complaints against Sturm. Therefore, the Court, in its discretion, denies Plaintiff's motion as to these documents.

Plaintiff's Document Request No. 27 seeks the production of emails concerning Plaintiff's job performance sent to Peter Hersha, a Nationwide Vice President. Defendant asserts that it has conducted a search of Hersha's email for the relevant time period, namely, January 1, 2014 through December 31, 2014, and there were no “hits” based on Plaintiff's search terms. In the present motion, Plaintiff argues that Defendant has the obligation to consult with Hersha and ask him if he possesses any documents or emails relevant to Plaintiff's job performance, despite Defendant explaining to Plaintiff that Hersha did not maintain a paper file for Plaintiff. Under the circumstances, and without a sufficient explanation as to why Defendant has an obligation to consult with Hersha, the Court denies this document request. Again, in Defendant's affidavit of completeness, it must aver that it has searched Hersha's emails for the relevant information to no avail.

IV. Reasonable Accommodation Discovery

*5 In Document Request No. 16, Plaintiff asks for information regarding individuals who were involved in responding to his requests for reasonable accommodations. In his motion to compel, Plaintiff asserts that Defendant did not turn over the performance reviews for these individuals. Plaintiff, however, fails to adequately explain why these performance reviews are relevant and proportional to the needs of this case. The Court, in its discretion, denies this request. Also, without explanation, Plaintiff argues that the information turned over by Defendants contains improper redactions. If Plaintiff believes the redactions are improper, counsel must meet and confer with Defendant, as discussed in this ruling, before bringing these redactions to the Court's attention in a motion for in camera review.

Plaintiff also asks for information concerning reasonable accommodations Nationwide has afforded its disabled employees during the time period of May 1, 2013 through May 31, 2015 in Document Request No. 24. In his motion to compel, Plaintiff explains that he seeks information about accommodations Nationwide provided other employees, such as assistance with driving or traveling, carrying or moving materials, and typing or computer tasks. Plaintiff further narrows his request to the attorneys and paralegals in Nationwide's trial division. On the other hand, Defendant argues that this request is not proportional to the needs of this case “given the individualized inquiry required during the interactive process for determining a reasonable accommodation.” Plaintiff is not seeking information about the “interactive process” necessarily, but information about how Nationwide accommodates disabled trial team members. Defendant's general argument that this request is overly broad, however, is well taken, especially because there is no geographical limitation to Plaintiff's request. As such, the Court grants Plaintiff's motion to compel production pursuant to Document Request No. 24 narrowing the request to Nationwide's trial attorneys located in Plaintiff's former region.

Similarly in Interrogatory No. 15 and Document Request No. 15, Plaintiff seeks documents reflecting complaints by Nationwide employees concerning any failure to provide reasonable accommodation from May 1, 2013 through May 13, 2015. During the parties' Rule 37.2 meet and confer, Plaintiff narrowed the scope of the requests to Human Resources Complaints, EEOC Complaints, and complaints to state agencies. Defendant responds that no one has filed a charge of disability discrimination in Illinois during the relevant time period, which Defendant must include in its affidavit of completeness. Defendant, however, does not address Plaintiff's request for Human Resources Complaints. The Court grants this aspect of Plaintiff's motion, but limits it to Nationwide's trial attorneys located in Plaintiff's former region.

In his Document Request and Interrogatory No. 11, Plaintiff seeks Nationwide's policies concerning whether a disabled employee's spouse is permitted to contact Nationwide's Human Resources. Likewise, in Document Request and Interrogatory No. 12, Plaintiff asks for Nationwide's policies in relation to accommodation requests. Here, Defendant asserts that it has produced these documents and offers to meet and confer with Plaintiff's counsel after she reviews these documents, which is a reasonable solution. Moreover, if certain policies do not exist, Defendant must state this in its affidavit of completeness. The Court therefore denies Plaintiff's motion as to these documents without prejudice.

V. Remaining Discovery Disputes

A. ADA Consultants Discovery

In Document Request and Interrogatory No. 7, Plaintiff seeks information pertaining to Nationwide's ADA consultants. Defendant objects to this request based on the work product and attorney-client privilege. Plaintiff asserts that this information is relevant to Nationwide's evaluation of its employees' reasonable accommodation requests and is not privileged. Because the parties fail to provide the Court with the necessary details to determine whether this information is relevant or privileged, the Court denies this request without prejudice.

B. Post-Termination Discovery

*6 Plaintiff seeks performance reviews and personnel files in relation to the attorneys who Nationwide has hired to work in his former department after Nationwide terminated his employment in Document Request and Interrogatory No. 13. In Document Request No. 14, Plaintiff asks for the performance reviews and personnel files for each attorney who was assigned to work on his cases after his termination. As discussed, Defendant must produce the relevant performance reviews and personnel files for the remaining five comparators, who are attorneys in Plaintiff's former department. As for the attorneys who were hired after Plaintiff's termination, Plaintiff has narrowed his request to the attorneys in his region whose start dates were between April 30, 2015 and December 31, 2015. Plaintiff's request is relevant and proportional to the needs of this case and the Court grants this aspect of Plaintiff's motion.

C. Actual Document Production

Plaintiff contends that Defendant has produced documents in violation of Rule 35(b)(2)(E)(i), which requires the production of electronic discovery “kept in the usual course of business.” First, Plaintiff points to an email arguing that Defendant did not provide the attachment to the email. Defendant, however, explains that the email has a link to Nationwide's Policy Guide found on Nationwide's intranet, which is not an attachment. (NWGREENWD-014808). As such, Plaintiff can access this policy online.

Next, Plaintiff points to the redactions in Bates Nos. 10390-92 without recognizing that Defendant turned over these documents in its unredacted form on November 10, 2017. Plaintiff also takes issue with other ESI documents to which Defendant did not have a chance to respond before Plaintiff filed this motion. Now that Defendant has had the ability to respond, if Plaintiff believes the redactions in the remaining documents are in error, he may file a motion for in camera review after the meet and confer requirements discussed in this ruling.

VI. Future Discovery Motions

In their legal memoranda, the parties argue about each other's shortcomings in relation to their Northern District of Illinois Rule 37.2 meet and confer obligations. If the parties file any further discovery or sanctions motions, including Plaintiff's motion for in camera review, they must first file a joint statement providing the information required by Local Rule 37.2. This joint statement must include the details of the arguments advanced by both sides and the steps taken to confer in good faith. Only then will the Court consider any further discovery motions in this matter. Tech. Lt See Miller UK Ltd. v. Caterpillar, Inc., 292 F.R.D. 590, 591 (N.D. Ill. 2013); Autotech . P'ship v. Automationdirect.Com, Inc., 05 C 5488, 2007 WL 2713352, at *4 (N.D. Ill. Sept. 12, 2007). In addition, all meet and confers between the lawyers must take place in person.