*1 In this civil action under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Tennessee Disability Act, Tenn. Code Ann. § 8-50-103, Plaintiff Robert Wigington alleges that Defendant Metropolitan Nashville Airport Authority (MNAA) wrongfully terminated him from his position as MNAA President and CEO after he took two months of medical leave to undergo a liver transplant. (Doc. No. 34.) This Order addresses Wigington's motion to compel MNAA to search for and produce all emails and text messages to or from members of the MNAA Board of Commissioners related to Wigington, his illness, or his termination.[1] (Doc. No. 48.)

MNAA does not dispute that these communications fall within the scope of discovery. It opposes Wigington's motion based on the fact that, because MNAA does not provide its commissioners with official phones, computers, or email accounts to use when communicating about MNAA business, such communications are made from their personal electronic devices and accounts. MNAA argues that it does not have possession, custody, or control of any communications made from those personal devices for purposes of Federal Rule of Civil Procedure 34 and that it otherwise lacks the authority to require its commissioners to produce them. (Doc. No. 53.)

For the reasons that follow, Wigington's motion to compel will be granted.

I. Background

Because the parties' arguments turn on MNAA's organizational relationship with its commissioners—and because MNAA is a governmental body subject to the Tennessee Public Records Act (TPRA), Tenn. Code Ann. § 10-7-101 et seq.—a review of MNAA's structure and the TPRA's requirements provides helpful context for Wigington's motion.

A. The MNAA[2]

In 1969, the Tennessee General Assembly passed the Metropolitan Airport Authority Act, Tenn. Code Ann. § 42-4-101 et seq., which authorized the creation of “public and governmental bodies acting as agencies and instrumentalities of the creating and participating municipalities” for the purpose of “acquiring, operating and financing [ ] airports[.]” Tenn. Code Ann. § 42-4-102(a). The Act provides that “[t]he governing body” of any airport authority created under the statute “shall be a board of commissioners[,]” id. § 42-4-105(a)(1)(A)–(D), comprised of “person[s] of good standing and reputation” in the fields of “engineering, law, industry or commerce, and finance[,]” id. § 42-4-105(a)(2)(A), who have no financial interest in an airport or its concessions, id. § 42-4-105(a)(1)(A)–(D). Commissioners receive no salary, but are reimbursed for “necessary expenses incurred in the performance of their official duties.” Id. § 42-4-105(f). Any “commissioner may be removed from office by a two-thirds (2/3) vote of the governing body of the creating municipality” after notice and the opportunity for a public hearing. Id. § 42-4-405(d)(4).

*2 In 1970, the Council of the Metropolitan Government of Nashville and Davidson County invoked this authority to create MNAA and authorize the appointment of the first MNAA Board of Commissioners. See Metro. Gov't of Nashville & Davidson Cty. Res. No. 70-872 (1970). As provided by the statute, MNAA is governed by its Board of Commissioners, Tenn. Code Ann. § 42-4-105, and “[a]ll powers granted to the Authority ... [are] vested in and exercised by or under the authority of the Board[,]” Third Am. & Restated Bylaws of the Bd. of Comm'rs of the MNAA art. II, § 2.1 (2018) (MNAA Bd. of Comm'rs Bylaws); (Doc. No. 50-9, PageID# 733). MNAA's commissioners are prominent members of their respective fields, appointed by the mayor. They are not government employees and do not receive a salary for their service. MNAA Bd. of Comm'rs Bylaws art. II, § 2.2 (incorporating by reference Tenn. Code Ann. § 42-4-105); (Doc. No. 50-9, PageID# 733, 735). All MNAA commissioners are subject to the Board's Code of Business Conduct and Ethics Policy, which requires each commissioner to “comply with all laws, rules and regulations applicable to the [MNAA] ....” Bd. of Comm'rs of the MNAA Res. No. 04-02, Ex. A § 5 (2004) (MNAA Bd. of Comm'rs Code of Bus. Conduct & Ethics)[3]; see also MNAA Bd. of Comm'rs Bylaws art. IV, § 4.2.2 (requiring MNAA's Board of Commissioners to “adopt a Code of Business Conduct and Ethics Policy”); (Doc. No. 50-9, PageID# 737).

B. The Tennessee Public Records Act

As a governmental agency, MNAA is subject to the TPRA, which mandates “public access to governmental records” in order to “promote[ ] governmental accountability ....” Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 360 (Tenn. 2008); see Tenn. Code Ann. § 10-7-301(1) (defining “agency” to include “any department, division, board, bureau, commission, or other separate unit of government created by law or pursuant to law ...”). The TPRA covers a broad scope of public records, including “all documents ... regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.” Tennessean v. Metro. Gov't of Nashville, 485 S.W.3d 857, 864 (Tenn. 2016) (quoting Tenn. Code Ann. § 10-7-503(a)(1)(A)). Among other things, the TPRA requires custodians of public records to “promptly make available for inspection any public record not specifically exempt from disclosure.” Tenn. Code Ann. § 10-7-503(a)(2)(B). Courts must “broadly construe the [TPRA] ‘so as to give the fullest possible access to public records.’ ” Tennessean, 485 S.W.3d at 864 (quoting Tenn. Code Ann. § 10-7-505(d)).

C. Wigington's Motion to Compel

At that heart of this case is Wigington's claim that MNAA's Board of Commissioners improperly terminated him from his position as its President and CEO after he took medical leave to undergo a liver transplant. (Doc. No. 34.) Wigington requested in discovery that MNAA produce certain categories of electronic communications from MNAA officers, employees, and commissioners, including emails and text messages to or from MNAA commissioners discussing Wigington, his illness, or his termination. (Doc. Nos. 48, 50-2.) MNAA objected to producing “communications to or from the Board of Commissioners and anybody else because the Board is comprised of volunteers not employed by MNAA nor controlled by MNAA.” (Doc. No. 50-3, PageID# 670.) MNAA further explained that “individual commissioners are not issued an MNAA phone, tablet, or computer to receive emails or documents” and, instead, “use their own personal devices.” (Doc. No. 50-4, PageID# 703.) For that reason, MNAA asserted that it “simply does not control the individual commissioners or their personal devices.” (Id.) MNAA stated that it would make good-faith efforts “to obtain responsive data from the commissioners” voluntarily, but would not compel production from any commissioner who refused to comply. (Id.)

After reviewing MNAA's resulting production, Wigington found that MNAA had “not produced a single document from the files of Commissioners Amanda Farnsworth, John Doerge, and Dierks Bentley.” (Doc. No. 50-6, PageID# 718.) MNAA responded that “[s]ome of the Commissioners simply will not permit MNAA to access their personal electronic devices and download data” responsive to Wigington's requests. (Doc. No. 50-7, PageID# 723.) MNAA ultimately collected documents and electronic communications from Commissioner Doerge, but reported that Farnsworth would not permit MNAA to search her personal cellphone or other devices and that Bentley “ha[d] been, and continue[d] to be, on tour promoting his latest music album.” (Doc. No. 50-8, PageID# 727–28.)

*3 Wigington now moves to compel production of all commissioners' responsive electronic communications. (Doc. No. 48.) Wigington asks the Court to “compel MNAA to search all text and email communications discussing MNAA affairs made or received by each Board member, and to produce those communications responsive to Plaintiff's discovery requests.” (Id. at Page ID# 513.) In support of his motion, Wigington points to several already produced emails and text messages sent to and from commissioners' personal devices and accounts as proof that the commissioners did, in fact, use those means to discuss Wigington, his illness, and his termination. (Doc. No. 50-10.)

MNAA opposes the motion, arguing only that it lacks actual possession, custody, or control over the commissioners' personal electronic devices and the information stored within them. (Doc. No. 53.) Wigington maintains that MNAA has actual possession of the contested communications because those communications “are in the actual possession of MNAA's Board members, who, by law, are MNAA.” (Doc. No. 55, PageID# 777 (emphasis in original).) In the alternative, Wigington argues that MNAA has control over the requested communications because it has a legal right to obtain public records from individual commissioners, including the requested communications. (Doc. No. 55.)

II. Legal Standard

The scope of discovery in civil litigation falls within the sound discretion of the trial court. S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008). “Unless otherwise limited by court order,” Federal Rule of Civil Procedure 26 allows discovery of “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). Rule 34 specifically provides that “[a] party may serve on any other party a request within the scope of Rule 26(b)” to produce “any designated documents or electronically stored information” “in the responding party's possession, custody, or control[.]” Fed. R. Civ. P. 34(a)–(a)(1)(A). If a party fails to produce documents requested under Rule 34, the requesting party may move for a court order compelling production. Fed. R. Civ. P. 37(a)(3)(B), (a)(3)(B)(iv). “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make ... discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1); see also M.D. Tenn. R. 37.01 (discovery motions) (requiring parties to confer in good faith to resolve discovery disputes and file a joint discovery dispute statement in connection with any discovery motion).

III. Analysis

In compliance with Rule 37 and Local Rule 37.01, the parties have filed a joint discovery dispute statement. (Doc. No. 50-1.) That statement confirms that the only issue before the Court is “whether Defendant MNAA has custody, control or possession of communications made by individual Commissioners that are stored on their personal electronic devices, i.e. cellphones, iPhones, and/or iPads, etc., and personal email accounts.” (Id. at PageID# 638.) MNAA does not argue that Wigington's request falls outside the scope of discovery or that Wigington is otherwise not entitled to review the communications. Moreover, MNAA has not disputed that it is subject to the TPRA or that the communications Wigington requests are public records that it is obligated to produce for public inspection. The only remaining question, therefore, is whether the fact that the commissioners used personal electronic devices to communicate about official board business deprives MNAA of possession, custody, and control of those public records. It does not. MNAA cannot avoid its public duties by requiring its commissioners to communicate through their private devices, and it must produce the requested discovery.

*4 “[D]ocuments are deemed to be within the ‘possession, custody or control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.” In re Bankers Tr, Co., 61 F.3d 465, 469 (6th Cir. 1995) (emphasis in original). Here, MNAA has both. It has actual possession of its commissioners' communications about MNAA business because MNAA does not exist separately from its commissioners. The Board of Commissioners is MNAA's governing body, see Tenn. Code Ann. § 42-4-105, and “[a]ll powers granted to” MNAA are “vested in and exercised by or under the authority of the Board[,]” MNAA Bd. of Comm'rs Bylaws, art. II, § 2.1. Cf. Conlin v. City of Des Moines, No. 4:12-CV-00608, 2014 WL 11514496, at *2 (S.D. Iowa Sept. 4, 2014) (finding that city had “sufficient control for purposes of Rule 34 over responsive documents which were either generated by, provided to, or are in the possession of City Council Members or Historic Preservation Commissioners because of their official duties for the city”); Barkeyville Borough v. Stearns, 35 A.3d 91, 96 (Pa. Commw. Ct. 2012) (finding that municipality had possession of emails “in the personal accounts of individual Council members” where municipality itself was “made up of individual council members”). As Wigington argues, the commissioners are MNAA. Any official communication possessed by a commissioner is necessarily also in MNAA's possession, custody, or control.

MNAA also has a legal right to obtain the requested communications because it is required by the TPRA to disclose public records that are not otherwise exempt. Tenn. Code Ann. § 10-7-503(a)(2)(B). That duty runs to MNAA commissioners under the Board's code of business conduct and ethics, which requires each commissioner to “comply with all laws, rules and regulations applicable to the [MNAA].” MNAA Bd. of Comm'rs Code of Bus. Conduct & Ethics § 5. MNAA does not lack the authority to require its commissioners to produce their official communications—it is legally required to do just that. See Flagg v. City of Detroit, 252 F.R.D. 346, 356 (E.D. Mich. 2008) (finding that where state law imposed duty on city to disclose public records, “it would be problematic, to say the least, to conclude that the City lacks a legal right to obtain these records as necessary to discharge its statutory duty of disclosure”).

MNAA's attempt to minimize its relationship to its commissioners by characterizing them as unpaid volunteers is unavailing. The fact that commissioners are not government employees is prescribed by statute. Tenn. Code Ann. § 42-4-105(f). And the reason that MNAA cannot fire its commissioners is because MNAA can only act through its commissioners. See MNAA Bd. of Comm'rs Bylaws, art. II, § 2.1; cf. Barkeyville Borough, 35 A.3d at 96 (“A borough, made up of individual council members, acts and carries out its duties through its council members.”). Rather than allow MNAA commissioners to hire and fire themselves, the General Assembly provided for appointment and removal procedures through Nashville's municipal governing body. Tenn. Code Ann. § 42-4-105(a)(1)(A)–(D), (d)(4). That in no way detracts from the Board's authority and its central role in MNAA's affairs. See Conlin, 2014 WL 11514496, at *2 (finding that city had “the practical ability and authority to obtain documents relevant to this action” from council members and commissioners who “are not employees”).

MNAA's argument that it can only possess, have custody of, or control documents stored on its own internal computer network also misses the mark. The TPRA expressly provides that public records subject to public inspection include “all documents ... regardless of physical form or characteristics made or received ... in connection with the transaction of official business by any governmental agency[.]” Tenn. Code Ann. § 10-7-301(6). Tennessee courts have long held that “a governmental agency cannot, intentionally or unintentionally, avoid its disclosure obligations under the [TPRA] by contractually delegating its responsibilities to a private entity.” City Press Commc'ns, LLC v. Tenn. Secondary Sch. Athletic Ass'n, 447 S.W.3d 230, 237 (Tenn. Ct. App. 2014) (quoting Memphis Publ'g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 79 (Tenn. 2002)). It therefore cannot come as a surprise to MNAA or its commissioners that the commissioners' communications about official MNAA business are subject to public inspection under the TPRA regardless of where they may be found.

*5 MNAA's choice to relegate commissioners' official communications to personal electronic devices and accounts also does not excuse it from complying with its discovery obligations under Rule 34. MNAA cannot avoid producing the narrow category of public records that Wigington seeks here by routing its commissioners' communications through private accounts. Cf. Memphis Publ'g Co., 87 S.W.3d at 79 (“[W]hen an entity assumes responsibility for providing public functions to such an extent that it becomes the functional equivalent of a governmental agency, the Tennessee Public Records Act guarantees that the entity is held accountable to the public for its performance of those functions.”). None of the authorities that MNAA relies on for its argument provides otherwise. Unlike Wigington's request for production here, which addresses only relevant communications, Hayse v. City of Melvindale involved a request to produce cell phones and other electronic devices belonging to several city officials. No. 17-13294, 2018 WL 3655138, at *6 (E.D. Mich. Aug. 2, 2018). The Hayse court found that nothing in Michigan's open records act required “a public employee to produce his or her entire personal device for inspection[,]” and that the party moving to compel production therefore had “not met his burden of demonstrating that ... personal devices belonging to nonparty employees are within defendants' possession, custody or control” for purposes of Rule 34. Id. at *7. Similarly, Kickapoo Tribe of Indians of Kickapoo Reservation in Kansas v Nemaha Brown Watershed Joint District No. 7 involved “a broad, non-specific request to inspect all personally-owned computers of all current and former Board members, staff and employees of the [defendant] District.” 294 F.R.D. 610, 619 (D. Kan. 2013). That court found, among other things, that the requesting party had “not shown beyond speculation that any personally-owned computers of current Board members, employees, and staff were used by those persons for District business.” Id.

Here, Wigington has not asked MNAA to produce its commissioners' personal electronic devices for inspection. Instead, he seeks a narrow subset of MNAA commissioners' official communications made on those devices that MNAA does not dispute fall within the TPRA's definition of public records and within the scope of discovery in this case. The fact that Wigington's request may require MNAA to search for public records on its commissioners' personal electronic devices is a foreseeable consequence of MNAA's choice not to provide commissioners with official channels of communication. Wigington's showing that several commissioners did in fact communicate about him, his illness, and their plans to terminate his employment from personal phones and email accounts bolsters his claim that more responsive communications will be found there. (Doc. No. 50-10.) The requested communications are within MNAA's actual possession, custody, or control for purposes of Rule 34, are subject to disclosure under the TPRA, and must be produced.

IV. Conclusion

For these reasons, Plaintiff Wigington's motion to compel (Doc. No. 48) is GRANTED.

Defendant MNAA is ORDERED to search all text and email communications discussing MNAA affairs made or received by each commissioner on a personal electronic device or otherwise, and to produce those communications responsive to Wigington's discovery requests by no later than June 21, 2019.

It is so ORDERED.