Griffin et al v. Home Depot USA, Inc.
Filing
72
MEMORANDUM AND ORDER generally denying 49 Plaintiffs' Motion to Compel. Defendant shall supplement its prior production and responses to include the additional time period of January through March 2011. The parties are also directed to meet and confer regarding the use of metadata and the form of production of ESI. If an agreement cannot be reached regarding the production of ESI, the parties can seek relief from the Court by filing the appropriate motion within twenty-one (21) days of the filing of this Order. Signed by Magistrate Judge K. Gary Sebelius on 3/28/2013. (mrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAREN GRIFFIN, et al.,
Plaintiffs,
v.
HOME DEPOT USA, INC.,
Defendant.
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Case No. 11-2366-RDR
MEMORANDUM AND ORDER
This matter comes before the Court upon Plaintiffs’ Motion to Compel Discovery
Responses to Plaintiffs’ Initial Requests for Production of Documents and Interrogatories (ECF
No. 49). For the reasons set forth below, Plaintiffs’ Motion to Compel is generally denied.
I.
Procedural Conference Requirement
Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2 require a moving party, in good faith, to
confer with opposing counsel about any discovery disputes before filing a motion to compel.
When a motion to compel is filed, it “must include a certification that the movant has in good
faith conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” 1 The duty to confer generally requires
counsel to “converse, confer, compare views, consult, and deliberate, or in good faith attempt to
do so.”2 “When the dispute involves objections to requested discovery, parties do not satisfy the
conference requirements simply by requesting or demanding compliance with the requested
discovery.”3 The parties “must make genuine efforts to resolve the dispute by determining
1
Fed. R. Civ. P. 37(a)(1).
2
D. Kan. Rule 37.2.
3
Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999).
precisely what the requesting party is actually seeking; what responsive documents or
information the discovering party is reasonably capable of producing; and what specific, genuine
objections or other issues, if any, cannot be resolved without judicial intervention.”4
Here, Plaintiffs served their First Interrogatories and Request for Production of
Documents upon Defendant on April 4, 2012. On May 31, 2012, Defendant served Plaintiffs its
answers and objections to Plaintiffs’ First Interrogatories and Request for Production of
Documents. Since then, Plaintiffs contend that Defendant has not responded to their numerous
requests to meet and confer about Defendant’s discovery objections. Plaintiffs’ Motion to
Compel claims that Defendant has “simply refused to engage in the process at all[, and i]nstead
of [a] good faith discussion, Defendant has ‘run the clock’ in silence, and delayed discovery for
over a month.”5
Defendant’s Response to Plaintiffs’ Motion to Compel indicates that the parties have
since conferred and resolved some of the discovery disputes.6 In addition, with the exception of a
further meet-and-confer session regarding production of metadata for electronically stored
information (“ESI”), it does not appear additional attempts between the parties regarding the
remaining discovery disputes would be productive at this time. Therefore, because the moving
party made a good faith effort to confer with opposing counsel and a current impasse exists
between the parties, the Court finds Plaintiffs have satisfied the procedural conference
requirement for their Motion to Compel. The Court notes that, as explained in Section IV of this
Memorandum and Order, the parties have not satisfied the meet-and-confer requirement
4
Id.
5
Pls.’ Mem. in Supp. of Mot. to Compel at 1, ECF No. 49.
6
Def.’s Mem. in Opp’n to Mot. to Compel at 6, ECF No. 58.
2
regarding metadata and production of ESI discovery and, therefore, the parties are directed to do
so.
II.
Background
Currently, this case involves claims of age discrimination in employment by five former
employees of Defendant Home Depot. Plaintiffs Griffin and Hindman were employed by Home
Depot at its Leavenworth, Kansas, store. Plaintiff Case was employed at the Home Depot
location in Merriam, Kansas. Plaintiff Moore previously worked at the Overland Park, Kansas,
store while Plaintiff Stevans had been employed at the Defendant’s store in Patchogue, New
York.
Each Plaintiff claims that she was discharged in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621, et seq., and alleges a
“pattern and practice” of intentional age discrimination and retaliation. Plaintiffs seek to pursue
this action not only on behalf of themselves but also pursuant to 29 U.S.C. § 626(b) and 29
U.S.C. § 216(b) for “similarly situated employees of Home Depot who have suffered harm as a
result of Home Depot’s pattern and practice of age discrimination in the context of discharging
and retaliating against employees.”7 In other words, Plaintiffs are seeking potentially to have this
case certified as a nationwide collective action against Home Depot.
Plaintiffs’ discovery requests seek information not just from the stores where Plaintiffs
worked but for all retail stores owned by Home Depot from 2005 to the present. Since 2005,
Home Depot reports it has operated more than 2,000 stores located throughout all fifty states and
has employed more than one million individuals.8
7
See Pls.’ Second Am. Compl. at 4, ECF No. 25.
8
See Decl. of Amy Senatore, ECF No. 58-7.
3
At the initial scheduling conference held in this case, the Court directed that discovery be
bifurcated into two separate phases. The first phase of discovery, leading up to any certification
motion, should focus directly on collective action certification issues. The Court, however,
declined to strictly prohibit any merits discovery during this phase. Following a ruling on any
proposed motion for conditional collective action certification, the Court would hold another
scheduling conference to discuss case management deadlines for the second phase of discovery.
In addition to merits discovery, the Court informed the parties that the second phase of discovery
would focus on whether opt-in plaintiffs are similarly situated.9 To date, no motion for collective
action certification has been filed and this case is still in the first phase of discovery.
The discovery dispute before the Court largely focuses on the scope of discovery and
whether Plaintiffs are entitled to certain information from all of Defendant’s retail stores
spanning from 2005 to the present date. In addition, Plaintiffs argue that Defendant should be
compelled to produce any responsive ESI in its native format with metadata intact.10 Defendant
has responded in part to most of Plaintiffs’ discovery requests, subject to its objections.11 While
the motion before the Court originally sought to compel responses to all of Plaintiffs’ opening
interrogatories and requests for production of documents, it is the Court’s understanding that all
issues related to Interrogatory Nos. 3, 6, 7, and 8 and Request for Production Nos. 1, 2, and 6
have been resolved by the parties subsequent to the filing of Plaintiffs’ Motion to Compel. As a
result, Plaintiffs’ Motion to Compel as it pertains to these discovery requests is denied as moot.
9
See Scheduling Order at 3-4, ECF No. 19.
10
See Pls.’ Mem. in Supp. of Mot. to Compel at 5-6, ECF No. 49.
11
See Def.’s Objections to Pls.’ Opening Interrogs., ECF No. 49-6; Def.’s Objections to Pls.’ Opening Req. for
Produc. of Docs., ECF No. 49-7.
4
In addition, with the exception of Interrogatory No. 4, Defendant also produced
documents and information responsive to the other initial discovery requests for each of the
stores in which Plaintiffs worked but limited to the year of Plaintiffs’ termination (2010) and the
two years prior to their terminations.12 It remains for the Court to determine whether to compel
further responses to Interrogatory Nos. 1, 2, 4, and 5 and Request for Production Nos. 3, 4, and 5.
Likewise, the production of ESI in its native format with metadata intact has not been resolved.
III.
Discussion
Fed. R. Civ. P. 26(b)(1) provides that “[f]or good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action.” When a party fails to make
disclosure of discovery, the opposing party may file a motion to compel. When a motion to
compel is filed and asks the court to overrule certain objections, the objecting party’s response
must specifically show how each discovery request is objectionable.13 Objections initially raised
but not supported in the objecting party’s response to the motion to compel are deemed
abandoned.14 Similarly, any objections not asserted in the initial response to a discovery request
but raised in response to a motion to compel will be deemed waived.15 If, however, the discovery
request seeks information that does not appear facially relevant, the burden is on the movant to
demonstrate how the requests are not objectionable.16 With this standard in mind, the Court turns
to the discovery disputes in question.
12
See Def.’s Mem. in Opp’n to Mot. to Compel at 12, ECF No. 58.
13
Sonnino v. Univ. of Kan. Hosp. Auth., 221 F.R.D. 661, 670-71 (D. Kan. 2004).
14
Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 615 (D. Kan. 2005) (citing Sonnino, 221 F.R.D. at 670;
Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999).
15
Cardenas, 230 F.R.D. at 621.
16
See Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 663 (D.
Kan. 2003) (citing Steil v. Humana Kan. City, Inc., 197 F.R.D. 442, 445 (D. Kan. 2000)).
5
1. Interrogatory Nos. 1 and 2
Interrogatory Nos. 1 and 2 seek specific information related to Defendant’s entire
workforce. Specifically, Interrogatory No. 1 asks Defendant to identify each job title used at
Home Depot retail stores from 2005 to the present. In addition, Plaintiffs ask Defendant to state
the job description for each job title, including any requirements for holding each title, the
average number of employees in each job title at a given location, and the manner in which each
job title is compensated (e.g., hourly wage, commission, etc.). Interrogatory No. 2 asks
Defendant if any job titles have been changed or eliminated since 2005. If Defendant answers
Interrogatory No. 2 in the affirmative, Plaintiffs ask Defendant to describe the nature of any such
changes. Defendant reports it provided this information in three excel spreadsheets (years 20082010) for Plaintiffs’ individual stores which covered approximately 1,443 employees.17
Defendant also states it provided job descriptions for the positions at those stores and
information for the job titles eliminated in the stores where Plaintiffs worked.18
Defendant’s main objections to discovery presently in dispute, including Interrogatory
Nos. 1 and 2, are that such requests are irrelevant, overly broad, and unduly burdensome.
Defendant specifically argues that the discovery requests are irrelevant because they focus on
Home Depot nationwide rather than on the individual stores where Plaintiffs were employed and
where the decisions to terminate their employment were made.19 In addition, Defendant argues
that Plaintiffs’ requests are overboard and unduly burdensome because they are not reasonably
limited in temporal and geographic scope.
17
See Decl. of Lindsey Harmon at ¶ 3, ECF No. 58-6.
18
See id. at ¶ 2, 4.
19
See Decl. of Amy Senatore at Ex. A-B, ECF No. 58-7.
6
Fed. R. Civ. P. 26(b)(1) states that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . .” Relevant information
does not need to “be admissible at trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.”20 Relevancy is broadly construed at the discovery stage
and a “request for discovery should be considered relevant if there is ‘any possibility’ that the
information sought may be relevant to the claim or defense of any party.”21 Nevertheless,
“discovery, like all matters of procedure, has ultimate and necessary boundaries.”22 A discovery
request should not be allowed if “‘it is clear that the information sought can have no possible
bearing’ on the claim or defense of a party.”23 Additionally, “[t]here is no presumption in the
Federal Rules of Civil Procedure that a discovery request is relevant.”24
Relevance is often apparent on the face of the request.25 When discovery appears relevant
on its face, the opponent to the discovery request must “establish the lack of relevance by
demonstrating that the requested discovery (1) does not come within the broad scope of
relevance as defined under Rule 26(b)(1), or (2) is of such marginal relevance that the potential
harm the discovery may cause would outweigh the presumption in favor of broad disclosure.”26
20
Fed. R. Civ. P. 26(b)(1).
21
Sheldon v. Vermonty, 204 F.R.D. 679, 689 (D. Kan. 2001) (quoting Scott v. Leavenworth Unified Sch. Dist. No.
453, 190 F.R.D. 583, 585 (D. Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999)).
22
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1977) (quoting Hickman v. Taylor, 329 U.S. 495, 507
(1947)).
23
Jones v. Rent-A-Center, Inc., No. 01-2320-CM, 2002 WL 924833, at * 2 (D. Kan. May 2, 2002) (emphasis in
original) (quoting Scott, 190 F.R.D. at 585).
24
Presbyterian Manors, Inc. v. Simplexgrinnell, L.P., No. 09–2656–KHV, 2010 WL 3880027, at *7 (D. Kan. Sept.
28, 2010) (citing Thompson v. Jiffy Lube Int’l, Inc., No. 05–1203–WEB, 2007 WL 608343, at *8 n.20 (D. Kan. Feb.
22, 2007)).
25
Id. (citing Thompson, 2007 WL 608343, at *8 n.20).
26
Goodyear Tire & Rubber Co., 211 F.R.D. at 663 (citing Scott, 190 F.R.D. at 585).
7
On the other hand, when relevancy is not apparent on the face of the request, the proponent of a
discovery request must, at the outset, show the relevance of the requested information.27
Generally, precertification discovery should focus on the requirements for certification
rather than the merits of the parties’ claims.28 Merits discovery “pertains to the strengths or
weaknesses of the claims or defenses and whether they are likely to succeed.”29 Certification of a
collective action under the ADEA is authorized by 29 U.S.C. § 626(b) and expressly provides for
its enforcement in accordance with the procedures in 29 U.S.C. § 216(b).30 Section 216(b) allows
for an opt-in collective action on behalf of similarly situated employees.31 However, the term
“similarly situated” is not clearly defined in the statute.
The Tenth Circuit, in Thiessen v. General Electric Capital Corp., approved a two-stage
approach to determine whether plaintiffs are “similarly situated.”32 In the first stage, a court will
typically make “an initial ‘notice stage’ determination of whether plaintiffs are ‘similarly
situated.’”33 This step requires “nothing more than substantial allegations that the putative class
27
Presbyterian Manors, Inc., 2010 WL 3880027, at *7 (citing Thompson, 2007 WL 608343, at *8 n.20).
28
See Manual for Complex Litigation § 21.14; see also Thiessen v. Gen. Electric Capital Corp., 267 F.3d 1095,
1106-07 (10th Cir. 2001) (citing Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988) (holding that a district
court, in making a class certification decision, should avoid focusing on the merits of underlying class action);
Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982) (reversing and remanding denial of class
certification where district court indicated its belief that plaintiff could not prevail on individual claims)).
29
Manual for Complex Litigation § 21.14.
30
See 29 U.S.C. § 626(b) (stating that the ADEA “shall be enforced in accordance with the powers, remedies, and
procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection
(c) of this section.” Id.).
31
See 29 U.S.C. § 216(b); see also Thiessen, 267 F.3d at 1102 (noting that the “similarly situated” standard requires
a different showing than certification of a class action under Fed. R. Civ. P. 23).
32
267 F.3d at 1102-05.
33
Thiessen, 267 F.3d at 1102; see In re Bank of Am. Wage & Hour Emp’t Litig., 286 F.R.D. 572, 576 (D. Kan.
2012) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995); Zavala v. Wal Mart Stores Inc.,
691 F.3d 527, 536 (3rd Cir. 2012) (noting “conditional certification” is “not really a certification,” it is simply the
exercise of a district court's discretionary power to facilitate the sending of notice)).
8
members were together the victims of a single decision, policy, or plan.”34 When determining if
this standard is met, courts “consider the substantial allegations of the complaint along with any
supporting affidavits or declarations.”35 Therefore, this requirement “creates a lenient standard
which typically results in conditional certification of a representative class.”36 If Plaintiffs meet
the first-stage requirement, the collective action may be conditionally certified for the purpose of
sending notice to potential opt-in class members.37 The second stage of the analysis occurs after
the conclusion of discovery and is often prompted by a motion to decertify.38 It is at this stage
that the court utilizes a stricter standard to determine whether the opt-in class is “similarly
situated.”39 Thus, in the precertification stage of this case, Plaintiffs’ discovery requests should
primarily focus on information needed to meet the lenient first-stage standard for conditionally
certifying a collective action.
34
Thiessen, 267 F.3d at 1102 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)
(quoting Bayles v. Am. Med. Response of Colo., Inc., 950 F. Supp. 1053, 1058 (D. Colo. 1996))).
35
Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 434 (D. Kan. 2007) (citing Thiessen, 267 F.3d at 1102
(nothing more than substantial allegations required at notice stage of certification); Boldozier v. Am. Family Mut.
Ins. Co., 375 F. Supp. 2d 1089, 1093 (D. Colo. 2005) (considering allegations and declarations at notice stage);
Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 680-81 (considering allegations and affidavits at notice stage);
Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 485 (D. Kan. 2004) (at the notice stage, a court analyzes
certification under a lenient standard looking to substantial allegations and plaintiff's affidavits)).
36
Renfro, 243 F.R.D. at 432 (citations omitted).
37
See In re Bank of Am. Wage & Hour Emp’t Litig., 286 F.R.D. at 576-77.
38
Thiessen, 267 F.3d at 1102-03.
39
Id. at 1103 (stating:
During this “second stage” analysis, a court reviews several factors, including (1) disparate factual
and employment settings of the individual plaintiffs; (2) the various defenses available to
defendant which appear to be individual to each plaintiff; (3) fairness and procedural
considerations; and (4) whether plaintiffs made the filings required by the ADEA before
instituting suit.
Id. (internal quotation marks omitted) (citing Vaszlavik, 175 F.R.D. at 678)).
9
Since 2005, Home Depot reports it has employed more than one million employees in
more than two thousand stores nationwide.40 Plaintiffs’ current claims arise from alleged
unlawful terminations at only four stores in two different states.41 Interrogatory Nos. 1 and 2
seek specific information from every retail store owned by Home Depot within the United States.
Plaintiffs’ only explanation provided to the Court regarding these interrogatories is that
geographically Plaintiffs represent “several states” and the temporal scope of such information
dating from 2005 is “not unreasonable.”42
“When addressing overly broad objections to discovery requests, courts have limited the
geographic scope of discovery.”43 Section 216(b) collective actions “require a broader scope of
discovery in order to identify those employees who may be similarly situated, and who may
therefore ultimately seek to opt into the action.”44 In the precertification stage of this case,
however, the geographic scope of discovery should be focused on gathering evidence to meet the
requirements for any conditional certification motion by showing a substantial allegation that the
putative class members were victims of a single decision, policy, or plan.45
40
See Decl. of Amy Senatore, ECF No. 58-7.
41
See Pls.’ Second Am. Compl. at 4, ECF No. 25; Judge Rogers’ Order, ECF No. 60 (excluding the claims relating
to two Plaintiffs and any allegations seeking recovery based upon a disparate impact theory).
42
Pls.’ Mem. in Supp. of Mot. to Compel at 7, ECF No. 49.
43
McBride v. Medicalodges, Inc., 250 F.R.D. 581, 585 (D. Kan. 2008) (citing Owens v. Sprint/United Mgmt. Co.,
221 F.R.D. 649, 653-54 (D. Kan. 2004) (limiting scope of discovery to defendant’s sub-unit that employed plaintiff
rather than larger corporate division); Mackey v. IBP, Inc., 167 F.R.D. 186, 195 (D. Kan. 1996) (limiting scope of
discovery to defendant's Emporia plant that employed plaintiff); Gheesling v. Chater, 162 F.R.D. 649, 650 (D. Kan.
1995) (limiting scope to plaintiff's employing unit); Azimi v. United Parcel Serv., Inc., No. 06-2114-KHV-DJW,
2007 WL 2010937, at *2-3 (D. Kan. July 9, 2007) (limiting scope of discovery to Kansas district)).
44
Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 671 (D. Kan. 2003).
45
Thiessen, 267 F.3d at 1102 (citing Vaszlavik, 175 F.R.D. at 678 (quoting Bayles, 950 F. Supp. at 1058)).
10
The specific claims contained in Plaintiffs’ Second Amended Complaint as well as a
comparison of the administrative charges filed with the Equal Employment Opportunity
Commission (“EEOC”) suggest that the reasons given for Plaintiffs’ terminations were not the
same and were highly individualized.46 It appears that the decisions regarding Plaintiffs’
treatment and decisions to terminate their employment were made at the local store level where
each worked. Factual differences among the Plaintiffs and their employment settings are not fatal
to permitting certain broad-based discovery at the precertification state of this potential collective
action.47 However, beyond conclusory allegations of a “pattern or practice” of age
discrimination, little appears to suggest that these individual Plaintiffs were the subject of
decisions based upon a company-wide plan or policy. The Court finds that precertification
discovery should be limited to the stores in which the Plaintiffs worked.48 In response to
Plaintiffs’ discovery requests, Defendant previously provided detailed information regarding
approximately 1,443 employees who had been employed at these retail stores. The Court
concludes that the scope of discovery should be limited to these four retail store locations.
Plaintiffs’ Motion to Compel nationwide discovery with respect to Interrogatory Nos. 1 and 2 is
denied as irrelevant and overly broad based upon their geographic scope.
In addition, “[c]ourts in employment and employment discrimination cases typically
allow discovery for a reasonable period prior to, and following, the claimed violations or
46
See generally Pls.’ Second Am. Compl., ECF No. 25; Pls.’ EEOC Charges of Discrimination, ECF No. 58-1, 582, 58-3, 58-4, 58-5.
47
Thiessen, 267 F.3d at 1103, 1105.
48
See generally Tracy v. Dean Witter Reynolds, Inc., 185 F.R.D. 303, 311-12 (D. Colo. 1998) (holding that
discovery should not be extended nationwide because plaintiffs have failed to present any evidence to support that
defendant maintains a national policy in violation of the Fair Labor Standards Act).
11
discrimination.”49 When a potential collective action is filed under the ADEA, however, the
relevant time period is more restrictive. 29 U.S.C. § 626(d)(1) states that an ADEA civil action
may be brought only after the individual has made a charge alleging unlawful discrimination
with the EEOC. With limited exceptions, the charge of unlawful discrimination must be filed
within three hundred days after the alleged unlawful practice.50 One such exception arises in
collective action claims when plaintiffs allege the same unlawful discrimination under the
ADEA. This exception allows an individual, who did not file with the EEOC, to piggyback on an
EEOC complaint of another plaintiff so long as the non-filing plaintiff is “similarly situated” or
the filed charge gives notice of the collective or class-wide nature of the claim.51 Further, “a
subsequent plaintiff may only piggyback on a charge if he or she could have filed a timely
charge of discrimination at the time the charge-filing plaintiff filed his or her charge.”52 In sum,
all those in a potential collective action must have either filed their own charge with the EEOC
or were allowed to piggyback on another plaintiff’s EEOC charge. Thus, the relevant time frame
49
Long v. Landvest Corp., 2006 WL 897612, No. Civ. A. 04-2025-CM-DJ, at *7 (D. Kan. Mar. 31, 2006) (citing
Owens, 221 F.R.D. at 655 (“Courts commonly extend the scope of discovery to a reasonable number of years both
prior to and following [the liability period].”)); see generally Hammond, 216 F.R.D. 666 (D. Kan. 2003) (limiting
the temporal scope of discovery to three years prior to the institution of the cause of action based on the three year
statute of limitations for Fair Labor Standards Act claims).
50
29 U.S.C. § 626(d)(1)(B). “[I]n a case to which section 633(b) of this title applies, within 300 days after the
alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of
proceedings under State law, whichever is earlier.” Id. See Thiessen, 267 F.3d at 1110-1111 (holding that there are
exceptions to the three hundred day filing requirement). An individual does not have to file a charge with the EEOC
if he or she satisfies the requirements to piggyback on another filer’s charge. Id. Additionally, a potential opt-in
plaintiff’s claim arising more than three hundred days prior to the first EEOC charge may be within the time frame
allowing opt-in plaintiffs to join into the class if the potential plaintiff can satisfy the requirements to fall under
continuing violation doctrine. Id.
51
Thiessen, 267 F.3d at 1110.
52
Bolton v. Sprint/United Mgmt. Co., No. 05-2361-JWL, 2006 WL 1789142, at *2 (D. Kan. June 29, 2006) (citing
Thiessen, 267 F.3d at 1111; Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1226-27 (11th Cir. 2001)).
12
for a potential collective action begins three hundred days prior to filing the first EEOC charge
and ends with the date of the filing of the last EEOC charge.
The first EEOC charge was filed by Plaintiff Griffin on July 3, 2010, alleging an
unlawful termination in that same year.53 Further, the last EEOC charge was filed by Plaintiff
Stevans on March 21, 2011, claiming an unlawful termination on September 10, 2010.54
Accordingly, the Court holds that a request for discovery five years prior to the first EEOC
charge to be facially overbroad. Plaintiffs argue that “given the broad scope of discovery set
forth in Rule 26, Plaintiffs believe that their requests for information dating to 2005 are not
unreasonable.”55 Plaintiffs provide no further explanation as to why an eight year time frame is
warranted. At this precertification stage, the relevant time frame for potential opt-in plaintiffs is
from September 6, 2009 (three hundred days from the first EEOC charge) to March 21, 2011 (the
date of the last EEOC charge).56 The Court, therefore, concludes that Plaintiffs’ discovery
requests at this stage of the case are limited to the years of 2008, 2009, 2010, and the first three
months of 2011. Limiting the temporal scope of permissible discovery directed at issues
concerning conditional certification to this time period is appropriate.
Accordingly, Defendant’s relevancy and overbreadth objections are generally sustained
and Plaintiffs’ Motion to Compel further responses to Interrogatories Nos. 1 and 2 is hereby
denied with the exception of providing information for the additional period of January through
March 2011.
53
Pl. Griffin’s EEOC Charge of Discrimination, ECF No. 58-1.
54
Pl. Stevan’s EEOC Charge of Discrimination, ECF No. 58-5.
55
Pls’ Mem. in Supp. of Mot. to Compel at 7, ECF No. 49.
56
The first EEOC charge was filed by Plaintiff Griffin on July 3, 2010. Three hundred days prior to July 3, 2010, is
September 6, 2009. The last EEOC charge was filed by Plaintiff Stevans on March 21, 2011. The Court notes that
Defendant has already responded to Plaintiffs requests for 2008 with regards to the stores Plaintiffs worked.
13
2. Interrogatory No. 4
Interrogatory No. 4 asks Defendant if Home Depot engaged in a workforce reduction of
any kind since 2005.57 If there was a workforce reduction, Plaintiffs ask Home Depot to state the
criteria used for determining which positions and/or employees were terminated as part of the
workforce reduction.58 Defendant objects to this interrogatory on the grounds that it is irrelevant,
overly broad, unduly burdensome, and vague.
The Court is unable to determine how the information requested in Interrogatory No. 4
pertains to any certification issue in this case and, therefore, finds it is not facially relevant at this
stage of discovery. Therefore, the burden rests on Plaintiffs to show the relevancy of the
discovery they seek.59 Plaintiffs argue that such information is relevant because, “[a]ssuming that
Defendant has implemented a reduction-in-force, the criteria used for determining which
employees were terminated is clearly relevant to these claims.”60 In addition, Plaintiffs argue that
such information falls within the broad scope of discovery.61 Defendant submits that this
interrogatory is not relevant because none of the named Plaintiffs have based their termination on
a workforce reduction and “if they had, only the workforce reduction that affected them would
be relevant.”
Plaintiffs provide no explanation regarding how information related to workforce
reduction is relevant in this case. Mere conclusory statements do not provide the Court with
sufficient detail and explanation as to how this interrogatory is relevant. In their Second
57
See Def.’s Objections to Pls.’ Opening Interrogs., ECF No. 49-6.
58
See id.
59
Goodyear Tire & Rubber Co., 211 F.R.D. at 663 (citing Steil, 197 F.R.D. at 445).
60
Pls.’ Mem. in Supp. of Mot. to Compel at 10, ECF No. 49.
61
See id.
14
Amended Complaint, Plaintiffs do not allege they were terminated as a result of a workforce
reduction. Without alleging a workforce reduction or providing the Court with any explanation
as to the interrogatory’s relevance, the Court will not compel a further response to this
interrogatory. The Court sustains Defendant’s relevancy objection and Plaintiffs’ Motion to
Compel a discovery response to Interrogatory No. 4 is hereby denied.
3. Interrogatory No. 5 and Request for Production No. 4
Interrogatory No. 5 asks Defendant to state the number of persons employed by Home
Depot at its retail stores since 2005, the hire date and termination date (if applicable) of each
employee, the reason for termination of all terminated employees, and the date of birth of each
employee.62 Interrogatory No. 5 also asks Home Depot to produce, in lieu of responding to the
interrogatory, a file that includes a database or other electronic file that records the information
requested in Interrogatory No. 5, if Home Depot maintained such information. Request for
Production No. 4 requests Defendant to produce all databases or other electronic files maintained
by Home Depot that show the hire and termination dates (if applicable), and the dates of birth of
all employees at its retail stores.63 Defendant objects to producing this statistical information
claiming it is irrelevant, overly broad in temporal and geographic scope, and unduly burdensome.
Nonetheless, Defendant, subject to and without waiving any of the foregoing objections, has
produced three excel spreadsheets containing, among other information, the date of birth, hire
date, termination date, job title, and reason for termination of all employees in the stores that
Plaintiffs worked from 2008-2010.64
62
See Def.’s Objections to Pls.’ Opening Interrogs., ECF No. 49-6.
63
See Def.’s Objections to Pls.’ Opening Req. for Produc. of Docs., ECF No. 49-7.
64
Decl. of Lindsey Harmon, ECF No. 58-6.
15
Plaintiffs argue that nationwide discovery is “relevant to demonstrate that Defendant has
engaged in [a] pattern and practice [of] discrimination at its retail stores, to define the class and
identify potential members, and to refute any proffered reason for termination of employees that
Defendant asserts at trial.”65 For substantially the same reasons the Court limited the geographic
and temporal scope of Plaintiffs’ discovery requests, the Defendant’s relevancy objections are
sustained and Plaintiff’s Motion to Compel further responses to Interrogatory No. 5 and Request
for Production No. 4 is hereby denied. Defendant shall supplement its responses to include
additional information for the time period of January through March 2011.
4. Request for Production Nos. 3 and 5
Plaintiffs’ Request for Production No. 3 requests Defendant to produce any personnel or
policy manuals used by Home Depot in its retail stores. Request for Production No. 5 asks
Defendant to produce all training manuals or other documents, not limited to but including paper,
video, electronic, or other media used to train management at Home Depot’s retail stores.
Defendant objects to these requests for production stating that they are irrelevant, overly broad in
temporal and geographic scope, and unduly burdensome. Defendant has produced, subject to and
without waiving any foregoing objections, those portions of its policy manuals and training
materials related to discrimination, retaliation, employee discipline, termination, separations
other than termination, and lateral movement into other jobs.66
The Court is unable to determine, beyond what Defendant has produced, how Request for
Production Nos. 3 and 5 seek information that is facially relevant for the first phase of discovery.
Therefore, the burden rests on Plaintiffs to show their relevancy for this stage of discovery.
65
Pls.’ Mem. in Supp. of Mot. to Compel at 8-9, ECF No. 49.
66
Decl. of Lindsey Harmon, ECF No. 58-6.
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Plaintiffs’ sole argument is that their requests for manuals are “clearly relevant to the claims and
defenses at issue in this case . . . [and] will provide strong insight into Plaintiffs’ work
performance and whether Defendant’s proffered reason constitute pretext.” Mere conclusory
statements do not provide the Court with sufficient detail and explanation as to how these
requests are relevant. Without further explanation from the Plaintiffs, the Court concludes
Plaintiffs have not shown the relevancy of Request for Production Nos. 3 and 5 for this stage of
discovery. The Court hereby sustains Defendant’s objection.
IV.
Electronic Discovery
Plaintiffs argue that “to the extent that the information Plaintiffs have requested is stored
electronically in databases or spreadsheets, Defendant should be compelled to produce it in
native format with its metadata intact.”67 The Court’s Scheduling Order states the parties will
disclose ESI consistent with the guidelines adopted by the District.68 The District Court’s
guidelines require the parties to meet and confer regarding ESI with metadata.69 The parties’
briefing for this motion is unclear as to whether the parties have met and conferred regarding the
issue of ESI and metadata.
In addition, Plaintiffs’ discovery requests do not specify the form of production with
regard to ESI.70 The only discussions of ESI in Plaintiffs’ discovery requests come from
67
Pls.’ Mem. in Supp. of Mot. to Compel at 6, ECF No. 49.
68
Scheduling Order, ECF No. 19.
69
The United States District Court for the District of Kansas, Guidelines for Discovery of Electronically Stored
Information (ESI) (Feb. 1, 2008), http://www.ksd.uscourts.gov/wp-content/uploads/2010/03/electronicdiscovery
guidelines.pdf.
70
See Def.’s Objections to Pls.’ Opening Interrogs., ECF No. 49-6; Def.’s Objections to Pls.’ Opening Req. for
Produc. of Docs., ECF No. 49-7.
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Interrogatory No. 5 and Request for Production No. 4.71 Neither of these two discovery requests
state how metadata should be handled or provide in what form the ESI should be produced. The
District Court’s guidelines state that “under Fed. R. Civ. P. 34, if the requesting party has not
designated a form of production in its request, or if the responding party objects to the designated
form, then the responding party must state in its written response the form it intends to use for
producing ESI.”72 Defendant’s response to Interrogatory No. 5 and Request for Production No. 4
only make the general objections previously discussed. Nonetheless, Defendant has provided
electronic data, without waiving its previous objections, in an excel file as to the stores where
Plaintiffs worked. Based on the foregoing, the Court directs the parties to meet and confer
regarding the use of metadata and the form of production of ESI. If an agreement cannot be
reached on the matter, the parties can seek relief by filing the appropriate motion with the Court
within twenty-one (21) days of the filing of this Order.
Accordingly,
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel is generally denied.
Defendant shall supplement its prior production and responses to include the additional time
period of January through March 2011. The parties are also directed to meet and confer
regarding the use of metadata and the form of production of ESI. If an agreement cannot be
reached regarding the production of ESI, the parties can seek relief from the Court by filing the
appropriate motion within twenty-one (21) days of the filing of this Order.
71
See Def.’s Objections to Pls.’ Opening Interrogs., ECF No. 49-6; Def.’s Objections to Pls.’ Opening Req. for
Produc. of Docs., ECF No. 49-7.
72
The United States District Court for the District of Kansas, Guidelines for Discovery of Electronically Stored
Information (ESI) (Feb. 1, 2008), http://www.ksd.uscourts.gov/wp-content/uploads/2010/03/electronicdiscovery
guidelines.pdf (citing for a discussion of “form of production,” see Fed. R. Civ. P. 34(b) cmt. to 2006 amendments).
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IT IS SO ORDERED.
Dated this 28th day of March, 2013, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
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