Pochert v. Rest. Partners Inc.
Pochert v. Rest. Partners Inc.
2019 WL 13294841 (W.D. Mich. 2019)
May 23, 2019
Neff, Janet T., United States District Judge
Summary
Natalie Pochert sued Defendants under Title VII and the Elliot-Larsen Civil Rights Act for sexual harassment and assault. The Magistrate Judge ordered Defendants to review witness Andrew Fochtman's company-owned cellular telephone for text messages sent and received during the time period from July 20, 2017 through July 30, 2017. Pochert appealed the decision, but the Court denied the appeal, finding that the Magistrate Judge's decision was a proper exercise of her discretion and that mere skepticism was not sufficient to warrant drastic electronic discovery measures.
NATALIE POCHERT, et al., Plaintiffs,
v.
RESTAURANT PARTNERS INC., et al., Defendants
v.
RESTAURANT PARTNERS INC., et al., Defendants
Case No. 1:18-cv-399
United States District Court, W.D. Michigan, Southern Division
Filed May 23, 2019
Neff, Janet T., United States District Judge
MEMORANDUM OPINION AND ORDER
*1 Plaintiff Natalie Pochert, who was formerly employed by Defendants, filed this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and Michigan's Elliot-Larsen Civil Rights Act (ELCRA), MICH. COMP. LAWS § § 37.2101 et seq., to recover damages for sexual harassment and sexual assault by store manager Joshua Gonzalez.[1] Now pending before the Court is Plaintiff's April 10, 2019 Appeal to District Judge (ECF No. 87) from the Magistrate Judge's March 27, 2019 Order (ECF No. 85). Defendants filed a response in opposition to Plaintiff's appeal on April 24, 2019 (ECF No. 89). For the following reasons, Plaintiff's appeal is denied.
I
In her February 11, 2019 Motion to Compel (ECF No. 62), Plaintiff sought an order compelling Defendants to immediately and completely produce those documents responsive to her First Requests for Production numbers 1, 2, and 3, to wit: “responsive documents from key witnesses’ cellular phones” (id. at PageID.280). Plaintiff opined that communications regarding Plaintiffs, their claims, and the co-worker they accuse of committing sexual harassment and assault against them are directly relevant to her claims, and no assertion of proportionality or burden justifies withholding these responsive documents (id.). Defendants opposed the motion, pointing out that they turned over “all of the devices in their possession custody and control potentially containing responsive documents to be forensically imaged” (ECF No. 73 at PageID.334). Following a hearing on March 22, 2019, the Magistrate Judge issued an Order on March 27, 2019, granting in part and denying in part Plaintiff's motion to compel (ECF No. 85). Specifically, the Magistrate Judge ordered the following:
IT IS ORDERED that, counsel for defendants shall review witness Andrew Fochtman's company-owned cellular telephone for text messages sent and received during the time period from July 20, 2017 through July 30, 2017 that are responsive to plaintiff's Requests to Produce. Following the review of the cell phone, defendants will produce any non-privileged responsive text messages discovered and will send plaintiff's counsel an affidavit stating that the search occurred and detailing the results of the search.
The remainder of plaintiff's motion to compel discovery is DENIED.
(id. at PageID.365-366). This appeal followed.
II
“[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court,” with certain exceptions. 28 U.S.C. § 636(b)(1)(A). “When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision.” FED. R. CIV. P. 72(a) (Nondispositive Matters). “A party may serve and file objections to the order within 14 days after being served with a copy.” Id. See also W.D. Mich. LCivR 72.3(a) (Appeal of nondispositive matters).
*2 This Court will reverse an order of a magistrate judge only where it is shown that the decision is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also FED. R. CIV. P. 72(a); W.D. Mich. LCivR 72.3(a). “ ‘A finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Mabry, 518 F.3d 442, 449 (6th Cir. 2008) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
In her appeal, Plaintiff requests this Court set aside the portion of the Magistrate Judge's Order denying Plaintiff's motion (ECF No. 87 at PageID.373). Specifically, Plaintiff requests that this Court order Defendants to conduct a “complete and reliable search” of the cell phones and computers of Vice President Andrew Fochtman, Senior Director of Operations Scott Parkhurst, and store manager Shanna Petersen “in order to produce responsive and highly relevant documents that were likely missed” (id. at PageID.373-374). Plaintiff opines that she cannot rely on non-attorney and personally invested witnesses to search for and determine that “there are no responsive text messages” (id. at PageID.376). Plaintiff points out that Fochtman has missed at least one text and “all evidence strongly suggests other text messages exist” (id.). Plaintiff argues that because discovery from Fochtman's, Petersen's, and Parkhurst's devices meets the Rule 26 discovery standard that discovery is permitted “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” Defendants are required to conduct a search for responsive material (id. at PageID.379-380).
In response, Defendants point out that the Magistrate Judge took into account the specific circumstances of Fochtman, Petersen and Parkhurst (ECF No. 89 at PageID.425-426, 429). Defendants further point out that with respect to Fochtman, because of his position as Vice President of Operations, and because of a single previously produced email referring to a text message, the Magistrate Judge ruled that it was reasonable to require defense counsel to collect and search Fochtman's phone for responsive text messages in the ten-day window surrounding the email (id. at PageID.426). Defendants argue that the Magistrate Judge's ruling properly guarded against undue intrusiveness with regard to inspection of the electronic devices (id. at PageID.428). Defendants opine that just because Plaintiff claims texting is “ubiquitous” does not mean Plaintiff has the right to force defense counsel to forensically image or personally search the employees’ cell phones and computers, especially when it is clear that Defendants already took more than reasonable steps to meet their obligation to search their records and devices and produce the requested information (id. at PageID.429).
Defendants’ argument has merit.
“[M]ere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008). For the reasons more fully stated by Defendants, the Court agrees that the Magistrate Judge's decision is not “clearly erroneous or contrary to law” but a proper exercise of her discretion in this case, based on a thorough review of the circumstances, including the involvement of these employees in the Gonzalez investigation and the steps already taken to respond to Plaintiff's discovery requests. The Court therefore determines that Plaintiff's appeal is properly denied. Accordingly:
*3 IT IS HEREBY ORDERED that Plaintiff's Appeal to District Judge (ECF No. 87) is DENIED.
Footnotes
On December 4, 2018, Plaintiffs Jacole Gray and Ashley Tolar were dismissed with prejudice from this case pursuant to the parties’ stipulation (ECF Nos. 46 & 47).