*1 Before the Court are dueling motions – Plaintiff Juan Jones’ motion to compel [57] and Defendant The American Bottling Company's (“ABC”) renewed motion to compel and for sanctions due to Plaintiff's spoliation of evidence [74]. For the reasons stated below, the Court (1) grants in part and denies in part Plaintiff's motion and (2) generally denies Defendant's motion.

Plaintiff began working at Defendant ABC as a delivery driver in 2009. (Dkt. 1 at ¶ 8.) Plaintiff alleges that his supervisor, Sherman Sanders, sexually harassed him and that Sanders’ supervisor, Dale Thompson, both participated in the harassment and allowed it to continue. (Id. at ¶¶ 11–13.) Plaintiff further alleges that Sanders, Thompson, and other employees retaliated against him after he raised his complaints with Defendant. (Id. at ¶¶ 16–17.) While Defendant acknowledges that Sanders held a supervisory role, it asserts that Sanders “was not Jones’ direct supervisor and did not have any authority to make tangible employment actions with respect to Jones.” (Dkt. 68 at p. 3.) Defendant terminated Sanders shortly after conducting an internal investigation of Plaintiff's complaints. (Dkt. 57 at p. 3.) In June of 2014, Plaintiff began a medical leave to seek mental health treatment for the alleged harassment and returned five months later before ultimately resigning on May 23, 2016. (Dkt. 1 at ¶ 21.) As a result of the purported behavior, Plaintiff claims that he “suffered and continues to suffer emotional distress,” in addition to other damages. (Id. at ¶ 23.)

Before addressing Plaintiff's discovery requests, the Court notes that Defendant broadly objects to Plaintiff's motion on the basis of timeliness. (See Dkt. 68 at p. 1 (“Inexplicably, [Plaintiff] waited approximately six weeks after the close of discovery before filing the instant motion to compel.”).) Defendant fails to mention, however, that the District Judge expressly allowed for Plaintiff to file his motion by July 31, 2019 – the day on which the motion was filed. (See 6/26/19 Trans. at p. 10:6–8 (“So I'll extend [fact discovery] for this one deposition and any motions to compel to July 31.”).) Plaintiff's motion is therefore timely. While Plaintiff arguably should have raised his discovery issues sooner to push this litigation forward in an efficient manner, Plaintiff has not forfeited his opportunity to raise this motion with the Court.

Turning to the discovery requests at issue, Plaintiff seeks (a) a list of drivers who were terminated between January 1, 2011 through the date of Sherman Sanders’ termination (June 2014), (b) the identification of any individual who had an impact on their termination, and (c) related documents. Specifically, Plaintiff issued the following requests:

Among other objections, Defendant relies on overbreadth and lack of relevance to challenge these requests, as they are not limited to a particular facility or supervisor(s) and Plaintiff himself was never terminated. (Dkt. 57 at Ex. 1.) Moreover, Defendant does not dispute that Sanders had the power to discipline employees who reported directly to him – it disputes that Sanders had the authority to discipline Plaintiff. As such, records of other employees, according to Defendant, are not relevant to the issue of whether Sanders had the authority to discipline Plaintiff. (Dkt. 68 at p. 9.) In any event, Defendant asserts that it no longer retains these records because pursuant to its record retention policy, the documents were destroyed three years after each employee's separation. (Id. at p. 10.)

Rule 26(b)(1) instructs that parties 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,” considering, among other things, “the importance of the discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” While overbroad as drafted, the requests generally seek relevant information to Plaintiff's argument concerning Defendant's vicarious liability for Sanders’ behavior. If Sanders disciplined employees he did not technically supervise, that would undermine Defendant's argument that Sanders lacked the authority to discipline Plaintiff. The Court narrows the scope of Plaintiff's requests to terminated drivers at the Harvey facility and any other facility that Sanders had a supervisory role from January 1, 2011 through June 2014. If this information no longer exists, Defendant shall produce an affidavit confirming the non-existence of the documents at issue and further explaining why no hard or digital copies of these documents are available.

In addition, Plaintiff seeks Sherman Sanders’ and Dale Thompson's complete personnel files, as well as “any and all other documents that relate or refer to their employment” with Defendant. (Dkt. 68 at Ex. B, No. 4.) As noted above, Sanders served as Plaintiff's supervisor and was fired in 2014 following investigation of his complaints. Thompson supervised Sanders, allegedly participated in the harassment, and failed to remedy the situation. (Dkt. 1 at ¶¶ 11–13.) While Defendant produced both personnel files, Plaintiff argues that they are outdated and incomplete. (Dkt. 57 at ¶¶ 7–11.) To support his contention, Plaintiff points to two documents that were produced after he filed the instant motion: (1) a letter to Thompson with the subject “Final Warning,” concerning his responsibility as a supervisor in light of another complaint by a driver about a supervisor's “inappropriate language,” (Dkt. 71 at Ex. A), and (2) an email referencing a letter from Plaintiff and asking about “next steps.” (Dkt. 70 at Ex. B.)

As Sanders’ and Thompson's workplace behavior are directly at issue, Defendant shall confirm in an affidavit that their complete personnel files have been produced. Additionally, Defendant shall produce all documents concerning any discipline or counseling Thompson received as a result of the “investigation” referenced in the warning letter, as they “relate or refer to [his] employment.” The investigation concerns an allegation of harassment within Thompson's department and Defendant has not articulated any undue burden in producing such information. If appropriate, the documents may be marked as confidential pursuant to the parties’ protective order (Dkt. 20), but Defendant may not redact any information unless it articulates a reason for doing so before this Court. With respect to follow-up documents about the letter from Plaintiff (Dkt. 70 at Ex. B), the parties shall engage in a Rule 37 meet and confer process. As the documents (if any) are not encompassed by the discovery requests at issue in this motion, Plaintiff will need to seek leave from the District Court to file an additional motion to compel if the parties are unable to reach an agreement.[1]

*3 Defendant renews its motion to compel and for sanctions and seeks (1) the identity of a mental health care provider from whom Plaintiff obtained treatment at or around the time of the alleged harassment; (2) any relevant information contained in his social media accounts; and (3) communications between Plaintiff and his former fiancée, Nichele Thomas. Additionally, Defendant argues that Plaintiff's failure to preserve a notebook in which he contemporaneously documented the alleged harassment prejudices Defendant and warrants sanctions. (See generally Dkt. 74.)

Defendant first deposed Plaintiff on March 7, 2019. (Dkt. 74 at p. 2.) During his deposition, Plaintiff disclosed the existence of a 25-50-page notebook in which he kept contemporaneous notes of the alleged harassment during 18 months of his employment. (Id. at pp. 2–3.) He further testified that he “lost track” of the notebook after creating a summary of its contents. (Id., Ex. C, at p. 106:4–11.) Defendant moved to compel and sought sanctions as a result of Plaintiff's alleged spoliation of evidence and filed a supplemental motion to compel on April 29, 2019. (Dkt. 25, 34.) The District Judge granted both of Defendant's motions to compel and ordered Plaintiff to respond to all outstanding discovery requests by May 15, 2019. (Dkt. 39.) On June 12, 2019, however, the District Judge (1) granted Plaintiff's motion to reconsider her rulings on Defendant's motions to compel and (2) denied Defendant's motion for sanctions, which will be discussed further below. (Dkt. 51.)

The District Judge allowed for Plaintiff to be re-deposed in light of the issues concerning Plaintiff's notebook. The second session of Plaintiff's deposition prompted the instant motion. According to Defendant, it became clear at the continued deposition that “(1) ABC has been irreparably prejudiced by Jones’ failure to preserve the notebook and that his production of the ‘summary’ did nothing to alleviate the prejudice to ABC; (2) Jones has made no effort to identify the mental health provider from whom he received treatment around the time of the alleged harassment; (3) he met with a key witness in this case hours prior to the second session of his deposition, but refuses to produce any communications with that witness; and (4) his production of social media information is incomplete.” (Dkt. 74 at p. 4.) As for the summary provided by Plaintiff, it fails to include key details, including: (a) the date of any of the incidents described; (b) the names of co-workers referenced by Jones who he claims witnessed the alleged harassment; or (c) the name of the union representative who heard Jones’ harassment complaints. Plaintiff was unable to recall this information during his deposition. (Id. at p. 6.)

Request for Sanctions

Defendant's renewed request for sanctions, which this Court construes as a motion to reconsider the District Judge's ruling, lacks merit.[2] In denying Defendant's original request on June 12, 2019, the District Judge stated the following: “I think there is no evidence that the plaintiff here intentionally destroyed the notebook that we are talking about; or; there is no basis to infer bad intent, based on the timing of the destruction. So, I do not think sanctions are warranted, particularly this plaintiff is unsophisticated and you had the opportunity to re-depose him.” (Id., Ex. A, at pp. 2:16–22; 3:5–8.) Although Defendant does not identify the type of sanction(s) contemplated, any sanction must be ordered by the District Court, if at all. See, e.g., O'Toole v. Sears, Roebuck & Co., 302 F.R.D. 490, 492 (N.D. Ill. 2014) (While magistrate judges “do not have the authority to ... issue Rule 37 sanctions,” they may issue a report and recommendation to the District Judge if “sanctions for discovery violations are appropriate.”). In other words, Defendant is asking this Court to recommend that the District Judge disregard her ruling of a few months ago without a legitimate basis for doing so. At the time of her ruling, the District Judge knew the notebook had been lost while Plaintiff had representation, knew a summary had been provided, and knew the summary would contain less detail than the notebook by nature of it being a “summary.” Defendant has pointed to nothing in Plaintiff's second deposition that changes this landscape or challenges the basis of the District Judge's ruling. At the hearing on this motion, defense counsel argued that the second deposition demonstrated that Plaintiff lacked details that might have been contained in the notebook. Yet, the lack of details is an obvious result that the District Judge would have considered in reaching her conclusion. Defendant pointed to nothing from the second deposition to support the notion that Defendant has been prejudiced in a manner or means that the District Judge did not contemplate (e.g. evidence that Plaintiff purposefully destroyed the notebook). As such, this portion of Defendant's motion is denied.

Identity of Mental Health Provider

*4 Defendant next contends that Plaintiff has made no effort to identify the mental health provider he saw around the time of the alleged harassment. (Dkt. 74 at pp. 9–10.) As Plaintiff has alleged mental and emotional distress, Defendant contends it has a right to explore the full extent of Plaintiff's treatment. Plaintiff responds that he has been unable to locate the identity of this provider who he and his ex-fiancée saw once or twice approximately six years ago about the blending of their families. Moreover, Defendant has already obtained ample testimony concerning Plaintiff's emotional health, having taken the depositions of Plaintiff's psychiatrist, therapist, and primary care doctor.

The Court denies Defendant's motion on this issue. Defendant has not offered any reason to believe that Plaintiff engaged in an extensive relationship with this provider or discussed anything even remotely related to the issues at hand. What Plaintiff may have shared regarding the merging of families with his ex-fiancée has no relevance here. As Defendant has already deposed several of Plaintiff's health care providers and had the opportunity to question Plaintiff himself about this specific treater, the Court will not require Plaintiff to locate the identity of the provider at this point in the litigation.

Communications with Nichele Thomas

Defendant also seeks text messages between Plaintiff and his ex-fiancée, Nichele Thomas. According to Defendant, Plaintiff regularly communicated with Thomas at the time of the harassment and the text messages may reflect a bias on the part of Thomas, a witness in this matter. During a hearing on June 26, 2019, the District Judge denied Defendant's request for these communications. Among other comments, she stated: “It seems to me that it's really ... trivial .... I just think this is a wild goose chase. You don't need it.” (6/26/19 Trans. at pp. 6:20–25; 7:19–20.)

This Court generally shares the District Judge's views on this issue. The relationship with an ex-fiancée is inherently charged and that person will undoubtedly have a known bias (either negative or positive) towards their former partner. The production of text messages is not necessary to show that this bias exists – all that is necessary to suggest bias is the fact of the relationship itself. More importantly, this Court is cautious about the potential chilling effect such a production of private text messages could cause on relationships, solely in the pursuit of establishing bias. Raising allegations of workplace harassment simply cannot open the door to the production of personal text messages unless the requesting party makes a showing of their relevance coupled with a showing that the burden of production justifies the needs of the case. In light of Defendant's concerns about the communications on the day of Plaintiff's second deposition, the Court orders Plaintiff's counsel to review text messages between Plaintiff and Ms. Thomas from the day of and day before his deposition for communications relevant to the substance of the harassment claim. If any such communications are found, the Court will consider ordering their production.

Social Media Information

Defendant argues that Plaintiff has only produced two pages from his Facebook account. The District Judge previously ordered Plaintiff's counsel to “review this social media material yourself and communicate whether there are arguably relevant posts.” (Dkt. 74, Ex. A, at p. 5:24–6:1.) She clarified that counsel was to review “the things that [Plaintiff] posted.” (Dkt. 74, Ex. A, at p, 8:15.) With respect to a Facebook group of drivers that Plaintiff may be/may have been a part of, she stated: “For one thing, for sure, look at whether this one sub-group of conversations, if he is a member of that, and if there are witnesses there who will testify or be relevant to the case. Then that might be some discovery that I would let you have.” (Dkt. 74, Ex. A, at p. 7:9–14.)

*5 Plaintiff's counsel asserts that he fully complied with the District Judge's order and reviewed Plaintiff's social media accounts beginning in 2011 with his client and produced relevant documents. Based on counsel's representation, the only remaining issue is whether Plaintiff is or ever has been a member of the drivers’ Facebook group discussed before the District Judge. Plaintiff's counsel shall provide an affidavit confirming whether Plaintiff has ever been a member, and if so, explaining his participation in the group. If he has been a member, Plaintiff's counsel shall review the Facebook group and produce relevant information, if any.

Attorneys’ Fees

Finally, Defendant requested attorneys’ fees under Rule 37(a)(5). As the Court generally denies Defendant's motion to compel, an award of fees is inappropriate here.

For the reasons stated above, the Court (1) grants in part and denies in part Plaintiff's motion to compel [57] and (2) generally denies Defendant's renewed motion to compel and for sanctions due to Plaintiff's spoliation of evidence [74]. Parties shall comply with this order by 10/25/19.

SO ORDERED.

ENTERED: October 16, 2019