EEOC v. Proctor Fin., Inc.
EEOC v. Proctor Fin., Inc.
2020 WL 13729971 (E.D. Mich. 2020)
May 19, 2020
Grand, David R., United States Magistrate Judge
Summary
The EEOC requested emails referencing Angela Kellogg from July 1, 2016, through January 1, 2018. After the parties conferred, the EEOC narrowed its request to emails where Jim Harris, Mike Cox, Angela Kellogg, or Lisa Golden are either the author or recipient. The Court ordered Proctor Financial to produce all emails referencing Angela Kellogg from July 1, 2016, through November 30, 2016, where Jim Harris, Mike Cox, or Lisa Golden are either the author or recipient. The parties were also informed of their right to file objections within fourteen days.
Additional Decisions
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
PROCTOR FINANCIAL, INC., Defendant
v.
PROCTOR FINANCIAL, INC., Defendant
Civil Action No. 19-11911
United States District Court, E.D. Michigan, Southern Division
Signed May 19, 2020
Counsel
Diana Marin, Equal Employment Opportunity Commission Detroit Field Office - Legal, Detroit, MI, Nedra D. Campbell, Department of Justice — USAO, Detroit, MI, for Plaintiff.Gillian P. Yee, Marlo J. Roebuck, Jackson Lewis, P.C., Southfield, MI, for Defendant.
Grand, David R., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (ECF No. 19)
*1 Before the Court is a Motion to Compel filed by Plaintiff Equal Employment Opportunity Commission (“EEOC”) on March 30, 2020. (ECF No. 19). Defendant Proctor Financial, Inc. filed a response in opposition on April 20, 2020, and the EEOC filed a reply on April 27, 2020. (ECF Nos. 27, 30).
On March 30, 2020, this motion was referred to the undersigned for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 20). Having reviewed the pleadings and other papers on file, the Court finds that the facts and legal issues are adequately presented in the parties’ briefs and on the record, and it declines to order a hearing at this time.
Background
On June 27, 2019, the EEOC filed a complaint against Proctor Financial on behalf of Charging Party Angela Kellogg (“Kellogg”), alleging that Proctor Financial retaliated against Kellogg on November 7, 2016, by issuing her a three-day suspension for complaining about race discrimination. (ECF No. 1). Proctor Financial maintains that it suspended Kellogg because she repeatedly failed to obtain necessary adjuster licenses and displayed a lack of integrity and resistance to adhering to such requirements. (ECF No. 27, PageID.481).
At issue in the EEOC's motion is a single request for production, which reads as follows: “Produce a copy of all emails referencing Angela Kellogg from July 1, 2016, through January 1, 2018.” (ECF No. 19, PageID.91). Proctor Financial objected to this request, stating:
Defendant objects to this request to the extent that it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine. Defendant further objects to this request as unduly burdensome, overly broad as to timeframe and scope, and seeking information that is neither relevant nor proportional to the needs of this case. Defendant also objects to this request to the extent that it seeks confidential and proprietary information belonging to Proctor Financial and/or its clients. Subject to and without waiving these objections, Defendant states that it would be willing to consider a more narrowly-tailored request from Plaintiff to which it may produce responsive emails that are non-privileged, relevant, proportional to the needs of this case, and subject to an appropriate protective order and/or agreement to protect confidentiality.
(Id., PageID.92). Subsequently, Proctor Financial supplemented its response to this request for production, stating:
Defendant incorporates its initial objections to this request as if fully stated herein. Subject to and without waiving these objections, Defendant refers Plaintiff to emails from January 1, 2016 through November 1, 2016 pertaining to Defendant's efforts to assist Kellogg obtain the appropriate licensing, Ms. Kellogg's resistance to same, and the events leading up to the issuance of the Disciplinary Action Form to Ms. Kellogg on November 7, 2016, which are produced herewith....
*2 Subsequently, counsel for the parties conferred about Proctor Financial's response to the discovery request at issue. On February 27, 2020, the EEOC agreed to further limit its request to emails “where Jim Harris, Mike Cox, Angela Kellogg, or Lisa Golden are either the author, or recipient either directly or indirectly (i.e., blind carbon-copy).” (Id., PageID.94). According to the EEOC, Jim Harris was Kellogg's direct supervisor, Mike Cox also supervised her, and Lisa Golden was a human resources representative; thus, it claims that the request, as narrowed, seeks emails that are directly relevant to the issues and defenses in this case and is proportional to the needs of the case. (Id., PageID.106).
In response, Proctor Financial points out that it has already produced approximately 300 pages of documents responsive to the discovery request at issue, acknowledging, however, that it produced only emails that “it determined were relevant and proportional to the needs of this case – to wit, those pertaining to Defendant's efforts to assist Angela Kellogg obtain the appropriate licensing, Ms. Kellogg's resistance to same, and the events leading up to the issuance of the Disciplinary Action Form to Ms. Kellogg on November 7, 2016.” (ECF No. 27, PageID.486). Proctor Financial continues to maintain that, even though the EEOC has now limited its request in scope to four specific custodians, its request for all emails referencing Kellogg without any specific search parameters or terms, and extending through January 1, 2018 (more than one year after Kellogg was issued the three-day suspension), seeks irrelevant information and is not proportional to the needs of the case.
Analysis
Rule 26(b)(1) controls the scope of discovery and provides, in relevant part:
Unless otherwise limited by court order, the scope of discovery is as follows: 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 the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “Although Rule 26 was amended in 2015 to include a ‘proportionality’ requirement, the basic tenet that Rule 26 is to be liberally construed to permit broad discovery remains unaltered.” United States v. Quicken Loans Inc., No. 16-14050, 2017 WL 2306444, at *1 (E.D. Mich. May 26, 2017) (internal quotations omitted).
Applying these principles, the Court finds merit to Proctor Financial's objection to the scope of the discovery request at issue. Proctor Financial has provided the affidavit of Martin Tse, the Director of IT for its parent company, Brown & Brown, Inc. (ECF No. 28). In that affidavit, Mr. Tse explains that obtaining copies of the emails at issue, even as limited in the EEOC's motion, would require Proctor Financial's local IT personnel to rebuild from the archives every single email that was sent to, and received from, each of the four custodians’ mailboxes for the entire 18-month time frame at issue. (Id., PageID.622). Once rebuilt, the emails would need to be downloaded and exported to Mr. Tse, who would then upload them into a separate tool to conduct individual searches to ensure that all possible references to Kellogg (for instance, “Angie,” “Angela,” “Ms. Kellogg,” “Angela Kellogg,” etc.) were encompassed in the results set. (Id., PageID.623). As Mr. Tse points out, the inclusion of Kellogg as one of the four custodians would necessarily include every single email that she received or sent, regardless of whether it has any bearing on the claims or defenses in this lawsuit. (Id.). According to Mr. Tse, this would be an extremely time-intensive exercise, particularly in light of the amount of IT resources currently devoted to supporting employees working remotely during the ongoing COVID-19 pandemic. (Id.).
*3 Given all of these facts, the burden of the discovery sought by the EEOC outweighs its likely benefit and, therefore, is not proportional to the needs of this case. As set forth above, Kellogg was issued a three-day suspension on November 7, 2016, and she resigned her employment shortly thereafter. Given these facts, and the burdens described above, the EEOC's request for emails referencing Kellogg all the way through January 1, 2018 is overly broad. Moreover, including Kellogg as one of the four custodians, which would necessarily require production of every single email that she received or sent, regardless of the subject matter, is also unduly burdensome.
But, the Court agrees that some emails encompassed within the EEOC's request are relevant and proportional to the needs of the case. Thus, for the reasons set forth herein, the Court believes it appropriate to require production of all emails referencing Angela Kellogg from July 1, 2016, through November 30, 2016, where Jim Harris, Mike Cox, or Lisa Golden are either the author or recipient, either directly or indirectly (i.e., blind carbon-copy). Narrowing the EEOC's discovery request in this way should significantly reduce the burden on Proctor Financial, while still capturing relevant emails to and from the key players in this matter, during the relevant time period.
Conclusion
For the foregoing reasons, Plaintiff's Motion to Compel Discovery (ECF No. 19) is GRANTED IN PART and DENIED IN PART as set forth above. Within twenty-one (21) days of the date of this Order, Proctor Financial shall produce all emails referencing Angela Kellogg from July 1, 2016, through November 30, 2016, where Jim Harris, Mike Cox, or Lisa Golden are either the author or recipient, either directly or indirectly (i.e., blind carbon-copy).
IT IS SO ORDERED.
NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which provides a period of fourteen (14) days from the date of receipt of a copy of this order within which to file objections for consideration by the district judge under 28 U.S. C. § 636(b)(1).