Robinson v. Arkansas City, City of

Filing 216

MEMORANDUM AND ORDER granting in part and denying in part 209 Motion to Compel. Plaintiff's motion to compel the e-mail and attachment labeled as Exhibit B to the motion is granted. Defendant shall investigate the circumstances surrounding the deletion of this e-mail and produce this information to Plaintiff by August 6, 2012. The remainder of Plaintiff's motion is denied. Signed by District Judge Julie A. Robinson on 7/26/2012. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TRENCE ROBINSON,

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Plaintiff,
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)
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vs.
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CITY OF ARKANSAS CITY,
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KANSAS,
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)
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Defendant.
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____________________________________)

Case No. 10-1431-JAR

MEMORANDUM AND ORDER
This is an employment discrimination case in which Plaintiff alleges federal claims of
race discrimination, due process violations, and a state law claim under the Kansas Wage
Payment Act. Before the Court is Plaintiff’s Renewed Motion to Compel and for Monetary
Sanctions (Doc. 209), seeking production of an alleged tape recording and certain emails and
attachments (the “Archer-Paton emails”) that Plaintiff maintains the City improperly withheld or
destroyed. The motion is fully briefed and the Court is prepared to rule. As described more
fully below, the Court denies the balance of Plaintiff’s motion to compel. There is no evidence
that Defendant possesses the tape recording and several of the e-mails at issue are not responsive
to the First Request for Production. But because Defendant concedes that Plaintiff’s Exhibit B
was not produced and was most likely deleted, the Court will grant the motion to compel to the
extent it seeks an order compelling Defendant to explain to Plaintiff the circumstances of the
deletion. The Court declines to impose sanctions.

I.

Background

The protracted history and nature of the discovery issues in this case are set forth in detail
in Judge Rushfelt’s February 24, 2012 Memorandum and Order ruling on several of the parties’
discovery motions, including objections by the City to Plaintiff’s First Request for Production of
Documents (“FRP”) served on April 11, 2011. These requests included the following:
REQUEST TO PRODUCE NO. 1:
Any and all documents related to Robinson’s employment with the
City of Arkansas City, Kansas, including, but not limited to, all
personnel files, electronic files, e-mails, and correspondence from
January 1, 2006 to the present.
REQUEST TO PRODUCE NO. 2:
Any and all documents and things relating to communications by
and between the City and Mark Patton, Judy Reedy, Charles
Jennings, or any combination thereof concerning any aspect of the
December 8, 2008 and December 30, 2008 hearings before the
Mediation Committee regarding Robinson or any aspect of the
subsequent written decision by the Mediation Committee.
REQUEST TO PRODUCE NO. 3:
Any and all documents maintained by any manager and/or
supervisor, including human resources, concerning Robinson,
including, but not limited to, e-mails, payroll records, calendars,
notes, memoranda, claim files, performance evaluations,
disciplinary documents, safety reports, complaints filed by
Robinson, pay grade documents, and correspondence from January
1, 2006 to the present.
REQUEST TO PRODUCE NO. 6:
Copies of any notes or statements taken during interviews of any
individual, whether such documents are in documentary form, or
recorded via audio or video means, which were taken by you or
any agent working on your behalf that relate to any allegation at
issue in the Complaint.
REQUEST TO PRODUCE NO. 10:
Any and all files, documents, memoranda, notes, or e-mails created
or revised since January 1, 2006, discussing Robinson.
The term “documents” is defined to include tape recordings.

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Judge Rushfelt found that the City made insufficient efforts to locate and produce
documents responsive to the FRP when it initially responded on May 11, 2011. Due to these
“half-hearted efforts,” Judge Rushfelt ordered the following:
(1) Defendant shall fulfill its duty to identify each individual who
is likely to have documents responsive to the First RFP, conduct a
sufficient search for paper documents from them, and provide a
supplemental response to the First RFP which indicates that it has
done so. (2) Defendant shall produce at its expense a mirror image
of Baugher’s second computer and the computer items sent to
Digital Mountain for imaging and preservation. (3) Defendant shall
review its network files, emails, and local hard drives for all
individuals who are likely to have responsive documents,
including Baugher, Steve Archer, Marla McFarland, Douglas
Russell, Tapia, Jacobs, and Bartlett. Because Defendant is only
required to produce a forensic copy of the identified computer
items, the Court sees no risk of spoliation.
To facilitate the production of the mirror images, the Court
orders counsel for the parties, using their computer experts, to
confer regarding the best procedure for the production. After
conferring, the parties shall agree to a set of procedures or
protocols for Plaintiff or his expert to inspect the mirror images,
and if necessary, file the protocols in this case. Any such
procedure
should be designed to preserve claims of attorney-client privilege
and protect the confidentiality of personal information located on
the hard drives that is not related to the claims and defenses or the
subject matter of the present case. To the extent necessary, the
parties should also consider an agreed, proposed protective order
that addresses the confidentiality of such personal information.1
The instant renewed motion to compel argues that the City failed to fulfill its duties under Rules
26 and 34 in responding to the FRP and to Judge Rushfelt’s directives. First, Plaintiff argues
that the City has withheld a tape recording of a meeting between Plaintiff and Gary Baugher, his
supervisor. Second, Plaintiff argues that the City has not produced copies of all communications

1

Doc. 162 at 40 (footnotes omitted).

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between City Manager Steve Archer, and Mediation Committee member Mark Paton.
II.

Tape Recording
One of the documents the City produced in response to Judge Rushfelt’s Order consists

of handwritten notes by Baugher from a meeting he conducted with Plaintiff on June 4, 2008.
The top portion of the notes states his intent to tape record the meeting and the lower portion
appears to document the meeting itself. He noted that he “called Trence into the conference
room . . . . Myself, Trence, and a tape recorder, and proceeded to ask Plaintiff questions about
his Grievance.” When Plaintiff’s counsel asked Defendant’s counsel for a copy of the tape
recording referenced in this document, Defendant’s counsel responded that “[t]he note you
reference A00269 only indicates there was a tape recorder in the room. There is no indication
the conversation was taped. We have provided what we have. If you want to do an interview of
Gary Baugher or a telephonic deposition on this topic let me know.”2
Plaintiff seeks to compel production of this tape recording, arguing that Defendant’s
counsel failed to adequately investigate whether the conversation was in fact recorded, and if so,
ascertain its location. The City has submitted Baugher’s declaration, which states that he did not
record the conversation, and other evidence that shows it did an extensive search of all materials
responsive to the FRP. Plaintiff does not submit evidence, other than Baugher’s notes, that
suggest otherwise. Instead, he argues that Baugher lacks credibility and therefore the Court
should reject his sworn statement that the meeting was not recorded.
Rule 34 only obligates parties to produce discovery that is within their custody,

2

Doc. 210, Ex. K.

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possession, or control.3 Defendant has submitted evidence that the June 4, 2008 meeting was not
tape recorded and Plaintiff has failed to controvert this evidence. Defendant also has submitted
evidence that it has searched for documents, including tape recordings, responsive to the FRP.
The Court declines to reject Baugher’s declaration based on the testimony of other witnesses that
he is not trustworthy. Plaintiff’s motion to compel production of this tape recording is denied.
III.

Archer-Paton Emails
Plaintiff discovered two emails that include attachments—ex parte communications

between City Manager Steve Archer and Committee member Paton—when he subpoenaed
documents from Paton during discovery, attached as Exhibits B and C to the motion to compel,
as well as an alleged follow up e-mail to Exhibit C with the subject line “Try Again,” that was
sent on January 6 with an attachment.4 Plaintiff now seeks to compel production of the emails
between these two individuals in December 2008 and January 2009, including five emails on
January 5, 2009, because the City never produced copies of Exhibits B and C, or the “Try
Again” email. After the City endeavored to produce more documents in compliance with Judge
Rushfelt’s Order, it produced what Plaintiff characterizes as “traces” of unproduced ArcherPaton emails, including Exhibit B. On June 18, 2012, Defendant’s counsel emailed Plaintiff’s
counsel and conceded that the January 5, 2009 e-mail (Ex. C) was not produced, but contended
that the e-mail is not responsive to any of the FRPs because it does not mention Robinson or the
grievance committee meeting. In that same email, Defendant’s counsel asked for more
information about the other emails Plaintiff claimed had not been produced; there is no

3

Fed. R. Civ. P. 34; see Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 307 (D. Kan. 1996).

4

Plaintiff has discovered a read-receipt e-mail for the “Try Again” email, attached as Exhibit G.

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indication that a reply was sent or received.
Plaintiff argues that the City failed to produce Exhibits B and C, the “Try Again” e-mail,
and potentially other documents like them that are responsive to the FRPs. According to
Plaintiff, since the City produced other Archer emails during the December 2008 and January
2009 time period, the nonproduction of Exhibits B and C must be the result of either an
inadequate search protocol or a prior deletion of documents. Plaintiff urges the Court to compel
their production or require Defendant to explain their destruction. The City responds that it has
produced all responsive documents in its possession, and that to the extent documents no longer
exist that are responsive to the FRPs, the City was under no duty to preserve them in December
2008 and January 2009.
A.

Search Protocol and Responsiveness

Plaintiff first argues that Defendant used “secret” search terms in searching documents
responsive to the FRPs after Judge Rushfelt’s Order. Based on this lack of transparency, he
suggests that emails were not produced that are in fact responsive. But Defendant has submitted
a draft of an Agreed Protocol Governing Production of Defendant’s Electronic Data that was
sent to Defendant’s counsel by Plaintiff’s counsel on March 5, 2012 in response to Judge
Rushfelt’s Order.5 Defendant also attaches an e-mail its counsel sent to Digital Mountain, an ediscovery vendor, with search terms to be used in searching e-mail data that was collected by the
City in March 2012. Plaintiff complains that Defendant states it “used search terms derived from
the search terms contained in the suggested ESI protocol sent to the City by Plaintiff,”
questioning the meaning of this representation. The Court does not find Defendant’s semantics

5

Doc. 214-2.

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to be suspicious or dispositive. The two search terms documents appear to the Court to be
identical and the Court accepts Defendant’s representation that these search terms were sent to
Digital Mountain and used to search the City’s electronic data. The Court is satisfied that the
failure to produce any Archer-Paton emails is not due to inadequate search terms.
Using these search terms, it is clear that the Exhibit B e-mail would have been produced
if it existed. It refers to the Mediation Committee and is sent by Archer to Paton and Jennings.
As to Exhibit C and the “Try Again” e-mail attached as Exhibit G, the City contends that they
are not responsive to the FRP 2. Exhibit B is from Paton to Archer on January 6, 2009, advising
Archer that he could not open an attachment Archer had sent the day before in the e-mail chain.
The January 5 e-mail states: “I have this on my desk and try to review it weekly. Might help
when dealing with Charles. I especially like number 3.”6 FRP 2 does not request all
communications between committee members, but instead contains a temporal and subject
matter limitation: “concerning any aspect of the December 8, 2008 and December 30, 2008
hearings before the Mediation Committee regarding Robinson or any aspect of the subsequent
written decision by the Mediation Committee.” Plaintiff characterizes Defendant’s position that
this e-mail is nonresponsive as “brazen.” But the Court agrees with Defendant that on its face,
the e-mail does not concern the Mediation Committee hearings or its decision. Exhibit C does
not refer to Plaintiff, or the Mediation Committee, or a hearing, or a written decision. Instead,
Plaintiff argues that Defendant should have produced this e-mail based on its context—the fact
that it was sent after an attachment was sent from Archer to Paton about “Charles.” The Court
agrees that this e-mail is not responsive to FRP 2.

6

Doc. 210, Ex. C.

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It is also not clear that the “Try Again” e-mail is responsive to FRP 2. That request did
not require production of any communication between Archer and Paton, but only those
communications that concern the Mediation Committee hearings or decision. For the same
reasons the Exhibit C e-mail was nonresponsive, the Court finds no evidence to suggest the “Try
Again” e-mail was responsive to FRP 2.
B.

Deletion

Thus, the only Archer-Paton communication that remains in question is Exhibit B.
Defendant concedes in a footnote that “the most obvious answer” for the missing Exhibit B email and attachment is that it was deleted. Plaintiff clarifies in his reply that he does not seek
spoliation sanctions; instead, he asks the Court to compel Defendant to explain the circumstances
of the email’s destruction. Yet the parties spend the bulk of their briefs arguing about whether
the City had a duty to preserve documents concerning the grievance process in December 2008
and January 2009. The Court declines to decide an issue not properly before it. Because
Defendant concedes that this e-mail was most likely deleted, the Court cannot compel its
production. Instead, Defendant shall investigate the circumstances surrounding the deletion of
this email—the who, when and why—when other similar emails were produced and when a
litigation hold was placed on documents dealing with Plaintiff’s access to the grievance
procedure.7 The City shall produce this information to Plaintiff by August 6, 2012.
IV.

Sanctions
Plaintiff’s prior motions to compel argued that Defendant’s original responses to the FRP

were woefully insufficient; the motions were largely granted by Judge Rushfelt. Judge Rushfelt

7

Doc. 215, Ex. P.

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made clear in his February 24 Order that Defendant’s efforts in responding to the FRP were
inadequate and ordered Defendant to review and produce electronic and non-electronic
documents responsive to the FRP, resulting in the production of more than 32,000 documents.
Judge Rushfelt also ordered the City to produce a mirror image of Baugher’s hard drive and
ordered Plaintiff to protect any privileged documents in that ESI. Judge Rushfelt denied
Plaintiff’s request for sanctions for fee-shifting based on the discovery violations he had
identified in the Order. Plaintiff now claims that he was required to work with a third party
vendor and incur over $11,000 in costs associated with reviewing the Defendant’s production for
responsiveness and relevance.
Defendant concedes that it conducted an “overly broad” search in an effort to comply
with Judge Rushfelt’s very clear directives. Plaintiff now complains that Defendant has
“dumped” tens of thousands of unreviewed and nonresponsive documents on him. Given Judge
Rushfelt’s admonishment in the February 24, 2012 Order, the Court declines to find that
Defendant’s subsequent production was abusive. And the e-mail correspondence between
counsel suggests that Defendant offered to review and whittle down the production of documents
from the computer hard drive at issue. Subsequent to that exchange, Defendant sent over
working files of its documents to help reduce the burden of review on Plaintiff. Plaintiff
prevailed on its last round of motions to compel, convincing Judge Rushfelt to compel
production of large categories of documents that had been previously withheld. On this motion
to compel a tape recording and discrete series of emails, Plaintiff has received only nominal
relief—one responsive e-mail appears to have been deleted under unknown circumstances.
The Court declines to sanction Defendant for producing too much information and is

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satisfied based on Defendant’s submissions that it has complied with Judge Rushfelt’s Order. To
the extent certain documents have not been produced, the Court is satisfied that they do not exist.
Having determined that Defendant complied with Judge Rushfelt’s Order with the exception of
the Exhibit B e-mail, the Court need not determine whether Rule 37 sanctions are warranted. It
appears to the Court based on the parties’ submissions that Defendant has made a good faith
effort to confer with Plaintiff and to comply with Judge Rushfelt’s Order and honor its
obligations under Rules 26 and 34.
The Court now considers Defendant’s motion for summary judgment under advisement
and will proceed to turn its attention to the parties’ numerous submissions on that motion.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Renewed Motion
to Compel and for Monetary Sanctions (Doc. 209) is granted in part and denied in part.
Plaintiff’s motion to compel the e-mail and attachment labeled as Exhibit B to the motion is
granted; Defendant shall investigate the circumstances surrounding the deletion of this e-mail
and produce this information to Plaintiff by August 6, 2012. The remainder of Plaintiff’s
motion is denied.
IT IS SO ORDERED.
Dated: July 26, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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