McNabb v. City of Overland Park, Kansas

Filing 71

MEMORANDUM AND ORDER denying 65 Plaintiff's Motion to Compel Discovery. Signed by Magistrate Judge Teresa J. James on 4/16/2014. (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EBONY MCNABB,
Plaintiff,
v.
CITY OF OVERLAND PARK,
Defendant.

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Case No. 12-CV-2331 CM/TJJ

MEMORANDUM AND ORDER
Pending before the Court is Plaintiff’s Motion to Compel Discovery (ECF No. 65).
Plaintiff requests an order compelling Defendant to produce 10,189 emails responsive to
Plaintiff’s requests for production. For the reasons set forth below, the Motion is denied.
I.

Facts
Plaintiff, Ebony McNabb, a police officer employed by Defendant, City of Overland

Park, filed this suit alleging sexual discrimination, harassment, a hostile work environment, and
retaliation stemming from alleged misconduct by a fellow officer. At issue here are 10,189
emails responsive to Plaintiff’s requests for production, which Plaintiff asks the Court to compel
Defendant to produce.
Defendant served Plaintiff with its answers and objections to Plaintiff’s First Request for
Production on May 31, 2013,1 its supplemental answers and objections on June 7, 2013,2 and its
supplemental responses and objections on August 14, 2013.3 Following service of Defendant’s
answers and objections, Defendant states that counsel held a meet and confer conference to

1

See Def.’s Cert. of Service (ECF No. 41).

2

See Def.’s Cert. of Service (ECF No. 42).

3

See Def.’s Cert. of Service (ECF No. 55).

discuss Plaintiff’s requests, and Defendant “explained that many of the requests were overly
broad and would encompass potentially millions of documents.”4 The parties specifically agreed
that the search term list would limit the documents responsive to Plaintiff’s interrogatories 7–9,
and requests for production 2–5, 8 and 17.
After additional emails and discussions among counsel, Defendant agreed to produce five
categories of emails: (1) all emails sent or received by Plaintiff; (2) all emails sent or received by
Officer Bever, (3) all emails mentioning Plaintifff, (4) all emails mentioning Officer Bever, and
(5) any emails containing both “McNabb” and “Bever.”5 Defendant states that it has produced
over 36,000 of these “McNabb/Bever” emails.6
Plaintiff notes that the parties have been engaged in a dispute over the production of
emails retained by the Defendant since mid-summer 2013. Plaintiff summarizes:
The City has produced thousands of discoverable internal emails in “waves,” but
the final “wave” has not yet been produced. In an email dated August 14, 2013,
counsel for the City acknowledged that there were 10,189 emails in the “second
wave,” but asked for a more specific search term list.7
The parties requested and participated in a telephone conference with Magistrate Judge
Waxse on October 21, 2013, in an attempt to resolve the dispute over this second wave of emails.
The parties have produced numerous emails sent both before and after the telephone conference,
in which they continued to deliberate over the manner in which the emails were stored, the size

4

Def.’s Resp. (ECF No. 66) at 4.

5

Id. at 6.

6

Id. at 4.

7

Pl.’s Mot. to Compel Disc. (ECF No. 65) at 2.
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of the documents, the overall amount of data to be searched, and potential search terms or
methods of searching the data.
No resolution was reached. Ultimately, on January 3, 2014, Plaintiff filed the instant
Motion to compel Defendant to produce the identified 10,189 emails.
Plaintiff argues in her Motion that the Defendant’s principal, or perhaps only, argument is
proportionality. Plaintiff’s response to the proportionality argument is that she “made a very
reasonable proposal to involve a third-party ESI vendor to act as an independent monitor in the
[discovery] process” and the ESI experts could streamline the process.8 Plaintiff has not attached
copies or quoted the substantive language of the requests for production that are the subject of
the Motion, and has not cited any legal authority in support of the Motion.
Defendant counters that Plaintiff’s Motion should be denied, because: (1) the disputed
emails were never requested by Plaintiff and, even if so, they are not relevant to Plaintiff’s
claims against Defendant; (2) Plaintiff failed to comply with D. Kan. Rule 37.1; and (3) there is a
lack of proportionality.
II.

Timeliness of the Motion
Under D. Kan. Rule 37.1(b), any motion to compel discovery “must be filed and served

within 30 days of the default or service of the response, answer, or objection that is the subject of
the motion, unless the court extends the time for filing such motion for good cause.” If the
motion is untimely, the objection by the moving party is waived.9
In a recent case in this district, Chicago Tribune Co. v. Masterpiece Marketing Group,
the movant’s motion to compel was not deemed untimely even though the movant did not file the
8

Id. at 6–7.

9

D. Kan. Rule 37.1(b).
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motion within 30 days of the service of the non-movant’s discovery responses.10 The movant in
Chicago Tribune attempted to confer before the deadline, arranged and participated in a premotion conference with the assigned magistrate judge over the dispute, and continued to confer
with the non-movant about the discovery dispute until the motion was filed.11 The court deemed
waiver of objections too strict a penalty because the movant showed good cause to resolve the
underlying dispute, especially when the movant attempted to confer within the timeframe of D.
Kan. Rule 37.1(b).12
The facts in this case are similar to the facts in Chicago Tribune, including a meet and
confer session prior to the discovery response deadline, extensive communications among
counsel, and a pre-motion conference with the assigned magistrate judge, all prior to Plaintiff’s
filing of the Motion. Plaintiff notes this is an “ongoing discovery dispute” and stresses her efforts
to settle the discovery dispute through cooperation with opposing counsel, in the spirit of
Mancia.13
The Court will not deny Plaintiff’s Motion on untimeliness grounds, given these facts.
However, Plaintiff’s delay in filing her Motion until January 3, 2014, literally months after the
30-day deadline even from service of Defendant’s second supplemental responses, does give the
Court pause. The Court, therefore, cautions counsel to beware of the Rule 37.1 deadline and
good cause requirement for exceptions to it, in future cases and situations.

10

Chicago Tribune Co. v. Masterpiece Mktg. Grp., No. 13-2157-CM-KGG, 2014 WL 644941, at
*2 (D. Kan. Feb. 19, 2014).
11

Id.

12

Id.

13

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008).
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III.

Plaintiff Fails To Meet Her Initial Burden of Proof
Although the Motion has now been fully briefed, Plaintiff has never identified or quoted

the substance of the specific discovery requests for which she seeks to compel production of the
emails. Nor did she attach the applicable discovery requests at issue to her Motion.14 Even after
the Defendant pointed out the failure and quoted the interrogatories and requests for production
apparently at issue in its Response to the Motion, Plaintiff did not identify any specific discovery
request or Defendant’s response or objection thereto in her Reply.
Defendant argues initially that Plaintiff has not shown she requested the documents she
now demands15 and that Plaintiff cannot identify a single discovery request to which Defendant
has failed to respond.16 These points are well-taken; Plaintiff has done neither. Plaintiff is unable
to meet her initial burden of addressing Defendant’s objections, because she has not identified
any specific discovery request for which she seeks to compel production, or any specific
objection thereto that she claims to be invalid.
IV.

Relevance and Overly Broad Objections to Search Terms
Through her Motion, Plaintiff seeks to require Defendant to search the electronic files of

14 custodians for 35 specific words. Defendant argues that Plaintiff’s search term list does not
request anything of relevance.17 Plaintiff argues that she has offered the search term list simply
to narrow the production of relevant documents. Plaintiff notes in apparent disbelief Defendant’s
14

D. Kan. Rule 37.1(a) requires that Plaintiff attach copies of the portions of the interrogatories or
requests for production in dispute to her Motion.
15

ECF No. 66 at 7.

16

Id.

Plaintiff claims that Defendant’s only objection was that the results of the searches yielded “too
many” documents but, as noted previously, Plaintiffs have never provided the Court with the discovery
requests in dispute and responses/objections thereto, to support their Motion and argument.
17

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argument that a search of documents using “sexually explicit” language is irrelevant in a case in
which the principal allegations are sexual harassment and inappropriate workplace behavior.18
However, the proposed search term list includes numerous terms that are not sexually explicit
(e.g., Administrative leave, Blog + officer, Blue Valley + SRO, Booze, Defamation,
Discriminate, Facebook).
Additionally, Defendant has already produced five categories of emails totaling over
36,000 documents: (1) all emails sent or received by Plaintiff; (2) all emails sent or received by
Officer Bever; (3) all emails mentioning Plaintiff; (4) all emails mentioning Officer Bever; and
(5) any emails containing both “McNabb” and “Bever.” Thus, if any of the terms included on the
proposed search term list were used in an email mentioning Plaintiff or Officer Bever, or in an
email sent or received by either of them, those documents would have already been produced.
Plaintiff must present something more than mere speculation that a search of the 14 custodians’
email files using the proposed search terms is likely to reveal additional responsive emails in
order for this Court to compel the searches and productions requested.19 Plaintiff has not done so.
Moreover, even if Plaintiff could show that the search term list might produce some
marginally relevant documents, the list is overly broad. A recent opinion from this district,
Cotton v. Costco Wholesale Corp.,20 sheds some light on discovery of ESI using search terms.
In Cotton, the court considered the overbreadth of search terms with regard to documents that it

18

Pl.’s Reply (ECF No. 67) at 2.

19

Garcia v. Tyson Foods, Inc., No. 06-2198-JWL-DJW, 2010 WL 5392660, at *14 (D. Kan. Dec.

21, 2010).
20

No. 12-2731-JW, 2013 WL 3819974, at *1–2 (D. Kan. July 24, 2013).
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considered “arguably relevant,” in connection with a racial discrimination case.21 As in Cotton,
the search term list in this case is on its face overly broad in that it “could conceivably
encompass some information that may arguably be relevant to this litigation but would also
likely encompass much information having nothing to do with issues in this case.”22 Because the
Court finds that Plaintiff’s search term list is objectionable on its face, Plaintiff bears the burden
of convincing the Court that her proposed search terms are proper.23
Plaintiff’s contention that the requested searches are appropriate because the principal
allegations in this case are sexual harassment and inappropriate workplace behavior is not
persuasive. Nor does Plaintiff’s offer of a third party vendor with built-in mechanisms to stop the
production of irrelevant emails overcome Defendant’s objection to the overly broad search
terms. As noted above, a significant number of the 35 search terms are not sexually charged. In
addition, a number of the search terms are duplicative terms (“bullied” and “bully;”
“defamation” and “defame;” “discriminate” and “discrimination;” “harass” and “harassment;”
“kissed,” “kisses,” and “kissing;” “retaliate” and “retaliation;” and “sex” and “sexual”). The
results for any single word in each pair or group of words would presumably encompass all
responsive emails for the pair or group.
Again, as noted previously, to the extent any documents relevant to this case containing
the search terms exist, they presumably have already been produced in the five categories of
emails produced relating to Plaintiff and/or Officer Bever. On the other hand, because of the

21

Id.

Id. at *2. See also Linnebur v. United Tel. Ass’n, No. 10-1379-RDR, 2011 WL 5103300, at *5
(D. Kan. Oct. 27, 2011).
22

23

Id. See also Allen v. Mil-Tel, Inc., 283 F.R.D. 631, 633–34 (D. Kan. Apr. 18, 2013).
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broad and in many instances non-sexually charged nature of the terms on the list a significant
number of emails without any relevance to this case would be yielded by the requested searches
of the 35 terms on the list.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Compel Discovery (ECF
No. 65) is DENIED.
IT IS SO ORDERED.
Dated this 16th day of April, 2014 at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

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