Marcantonio v. Comcast Cable Communications Management, LLC

Filing 60

ORDER; Defendant's 58 Motion to Compel Request for Inspection is DENIED without prejudice, by Magistrate Judge Kristen L. Mix on 8/25/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03313-KLM
AMY MARCANTONIO,
Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC,
Defendant.
_______________________________________________________________________
ORDER
_______________________________________________________________________
This matter is before the Court on Defendant’s Motion to Compel Request for
Inspection [#58]1 (the “Motion”). Plaintiff filed a Response [#59]. For the reasons set forth
below, the Motion [#58] is DENIED without prejudice.
In short, this is a dispute about termination of Plaintiff’s employment. Defendant
seeks to inspect Plaintiff’s “personal computer which she used from January 1, 2008 until
her termination from employment on March 13, 2013.” Defendant states that the purpose
of the inspection will be “to inspect emails [Plaintiff] sent to her personal email accounts .
. . from her Comcast email account from January 1, 2008 until her termination from
employment on March 13, 2013. . . .” [#58-1] at 1. Plaintiff counters that the request is
designed to harass her, among other objections. [#59] at 3. She further states that “there
is no physical computer in Plaintiff’s possession for Defendant to inspect.” Id.

1

“[#58]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). The Court uses this convention throughout this Order.

1

There are several curious things about this discovery dispute which bear mentioning.
First, counsel for the parties followed my discovery procedures by first bringing this issue
to my attention orally at a discovery hearing. I ordered them to further confer and to brief
the issue, expecting to receive ample legal authority for the request and for Plaintiff’s
position in response. Instead, Defendant’s brief cites three cases where inspection of
computers was permitted (only two of which address inspection of computers relating to
alleged misuse of company information) and cites no legal authority for its central
contention, which is that “Defendant has the right to investigate the extent to which Plaintiff
improperly retained thousands of pages of emails and documents in order to determine the
applicability of, and ultimately prove, the after-acquired evidence defense.” [#58] at 2-3.
I decline to do Defendant’s research and make the argument for it. See Cordova v.
Aragon, 569 F.3d 1183, 1191 (10th Cir. 2009) (“It is not our role to sift through the record
to find evidence not cited by the parties to support arguments they have not made.”); Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“[D]istrict courts . . . have a
limited and neutral role in the adversarial process, and [ought to be] wary of becoming
advocates who comb the record . . . and make a party’s case for it.”); cf. United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles
buried in briefs.”). Plaintiff’s brief includes no legal authority whatsoever. I also decline to
do Plaintiff’s legal research.
Second, all of this wrangling appears to be about inspection of a computer that might
not exist. As indicated above, Plaintiff contends that she has no personal computer for
Defendant to inspect. She says that in her brief, see [#59] at 3, and she says that in her
Amended Response to Defendant’s Amended Request for Production/Inspection to
2

Plaintiff: “While I was employed by Comcast I used a Comcast issued laptop computer to
access my personal email accounts, and I returned that company issued laptop computer
to Comcast at the conclusion of my employment. I did not have a separate computer during
the time that I was employed by Comcast.” [#59-2] at 2. However, excerpts from Plaintiff’s
deposition, supplied to the Court by Plaintiff, suggest otherwise. The following exchange
occurred during Plaintiff’s deposition on June 30, 2015, which was reconvened for the
express purpose of allowing defense counsel to ask questions about the emails Plaintiff
had forwarded:
Q:
...
A:
Q:
A:
Q:
A:
Q:
A:

With respect to your personal computer, did you – when you
forwarded these emails, did they all go to your personal computer?
They went to my personal email.
Okay. On your personal computer?
On – they went to my personal email, which I could access from my personal
computer.
And that was my next question. How did you access these documents? Did
you access them from your personal computer?
No. I believe that – now I would access them from my personal computer,
but they were on my work computer.
Right. But they were forwarded to your personal computer, correct?
So that I could access my personal email. Correct.

[#59-1] at 6. To the uninitiated ear of the undersigned, this testimony sounds like Plaintiff
admitting under oath that she had a personal computer while she worked at Comcast and
that she has one now. Which would make the two statements to the contrary mentioned
earlier, one of which is also signed under oath by Plaintiff, untrue. Defendant does nothing
to address this inconsistency or to otherwise attempt to unravel the mystery of whether
Plaintiff actually possesses any computer which it might inspect. Again, I decline to do
Defendant’s work for it or to draw conclusions about apparently contradictory testimony
without an appropriate opportunity to assess the witness’ credibility.
3

Perhaps most curious of all is the lack of explanation of the document production to
date in this case, and of exactly what information Defendant expects to obtain from
inspecting Plaintiff’s personal emails from her personal computer which may or may not
exist. Both sides appear to agree that Plaintiff forwarded Comcast emails to her personal
email account or accounts. [#59] at 2; [#58] at 2. Plaintiff contends that her counsel went
through her personal email accounts and “extracted every Comcast email” from them, “then
produced pdfs of every non-privileged email to Defendant on February 5, 2015, along with
a privilege log.” [#59] at 2. Defendant does not even mention getting hard copies of the
emails themselves back. Instead Defendant makes brief mention of the possibility of
embedded data and metadata, but does not explain how that information would be relevant
in this situation, where the emails were forwarded from Plaintiff’s email address at Comcast
to her personal email accounts. Of what importance is information about any potential
deleted matter (i.e., embedded data) or the history of these emails (i.e., metadata) to
Defendant’s defense of the lawsuit? Absent such information, Defendant’s request appears
to be designed merely to snoop, which is of course not allowed.
As I have held many times, when the relevancy of a request for discovery is not
readily apparent, the party who is making the discovery request has the burden of showing
the relevance of the requested information. See, e.g., Carbajal v. St. Anthony Central
Hosp., No. 12-cv-02257-REB-KLM, 2014 WL 3746967, at *2 (D. Colo. July 30, 2014)
(citation omitted); Stanton v. Encompass Indem. Co., No. 12-cv-00801-PAB-KLM, 2013 WL
2423094, at *2 (D. Colo. June 4, 2013) (citations omitted). Especially in light of the other
curious issues addressed above, Defendant has not met that burden here. Accordingly,

4

IT IS HEREBY ORDERED that the Motion [#58] is DENIED without prejudice.
Dated: August 25, 2015

5