Equal Employment Opportunity Commission v. Performance Food Group, Inc. et al

Filing 154

MEMORANDUM AND ORDER re: Discovery Appeal. Signed by Judge Marvin J. Garbis on 3/15/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA

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Petitioner

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vs.

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PERFORMANCE FOOD GROUP, INC.

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Respondent
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CIVIL ACTION NO. MJG-13-1712

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MEMORANDUM AND ORDER RE: DISCOVERY APPEAL
On December 4, 2015, the Magistrate Judge issued a letter Order
[ECF No. 126] ("the Ruling") that resolved certain disputes regarding
document requests.

The Court has before it Plaintiff EEOC's

Objections in Part to the Magistrate Judge's Ruling of December 4,
2015 [ECF No. 130] filed pursuant to Federal Rule of Civil Procedure
72(a) and the materials submitted relating thereto.

The Court finds

that a hearing is unnecessary.

I. DISCUSSION
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure,
"the district judge in the case must consider timely objections [to
a Magistrate Judge's order on a non-dispositive pretrial matter] and
modify or set aside any part of the order that is clearly erroneous
or is contrary to law."
non-dispositive motions.

Discovery motions are quintessential
Moreover, the district court should,

normally, give great deference to the judgment calls necessarily made
by a Magistrate Judge in the course of resolving discovery disputes.
The Equal Employment Opportunity Commission ("EEOC") objected
to certain portions of the Ruling.

By the time the EEOC filed its

reply, all but one objection had been rendered moot.

The remaining

objection is to the Magistrate Judge's permitting Defendant
Performance Food Group, Inc. ("PFG") to redact, allegedly on the
basis of "relevancy," responses to discovery request 6, calling for
production of:
All Danbee or other employee hotline voice
messages and transcriptions of reports or
conversations on these hotlines referring in
any way to discriminatory, sexist, or hostile
talk or treatment of women at Broadline
facilities, and any written documents sent by,
to, or about such hotline complainants
regarding their complaints, including
unredacted versions of documents
D564434-D564446.
[ECF No. 125 at 2]. In a March 21 conference with counsel, the
Court asked PFG to provide redacted and unredacted versions of the
aforesaid documents.

PFG did so.

The Court conducted an in camera

review of the documents, and issued a letter Order [ECF No. 150] that
directed PFG to provide the EEOC with the identity of the locations
of the redacted entries.

The Court also, in that letter Order,

directed the parties to address whether redaction was appropriate
in regard to an entry that referred to:
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All dates referred to herein are in the year 2016.
2

a telephone call from a woman stating that a
certain management person had anger management
problems, employees were uneasy approaching
him, that a person (possibly a supervisor) told
her not to worry about being late to work due
to her car problems, but that the said
management person nevertheless had her sign
disciplinary action reports for poor
performance and tardiness.
[ECF No. 150 at 1-2].

The parties have responded presenting their

respective positions.
The Court, having considered the parties' respective
submissions regarding the instant objections reaches the following
conclusions.
Without attempting at this time to allocate fault, the Court
finds that the parties have developed an unnecessary "semantic"
molehill into a mountain of needless expenditure of time and effort
for all concerned.

This may be due to a "history" of squabbling

caused by unreasonable positions on one side, or both sides.
However, it is "high time" for counsel to engage in sensible,
constructive discussions and narrow, not expand, the scope of matters
requiring judicial resolution.
The essence of EEOC’s position as to the reactions at issue is
that "Defendant improperly produced what responsive documents it had
produced with redactions for 'relevance.'" [ECF No. 130 at 2].

Of

course, it would not be proper for PFG to redact material that is
within the scope of a document request on the ground that the material
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is irrelevant.

However, having reviewed the documents in camera,

the Court finds that PFG did not make any redaction of material that
it believed was within the scope of the request but was irrelevant.
PFG did not, therefore, attempt to utilize a relevancy objection as
if it were equivalent to a privilege objection.
Nevertheless, the Court must note that PFG may have planted the
seed of the instant dispute by using, unnecessarily, the word
"irrelevant" when stating to the Magistrate Judge in regard to
Document Request 6 that
Defendant has produced all relevant documents
or portions of documents that contain relevant
information, redacting the non-responsive,
irrelevant information.
[ECF No. 130-2 at 1] (emphasis added).
Perhaps, when the EEOC raised the "irrelevancy" issue, the
dispute could have been avoided by PFG clarifying that the basis on
which it made redactions was responsiveness.
Regardless of which side is at fault, or more at fault, there
is, in reality, no dispute regarding any improper redaction on the
basis of "relevancy" as distinct from a proper redaction based on
non-responsiveness.
In regard to the specific redaction at issue noted above – a
matter that was not presented to the Magistrate Judge - the Court
finds that the material in question must be unredacted.

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While the

Court does not find that the redaction was made in bad faith, it finds
that the material is within the scope of the Document request.
Specifically, the request relates to items reflecting
"discriminatory, sexist, or hostile talk or treatment of women." [ECF
No. 125 at 2] (emphasis added).

The Court does not find PFG's

position that the request should be limited to "hostile talk or
treatment of or to women on the basis of sex" [ECF No. 152 at 1]
(emphasis in original) the most reasonable interpretation of the
request.

It is more sound – particularly in a discovery context –

to conclude that a request regarding talk or treatment that is either
discriminatory or hostile would include talk or treatment that is
hostile even though not discriminatory.

The fact that the material

in question may turn out – upon inquiry - to be irrelevant although
responsive does not warrant redaction.

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II. CONCLUSION
Accordingly:
1.

Plaintiff EEOC's Objections in Part to the Magistrate
Judge's Ruling of December 4, 2015 [ECF No. 13] are
sustained in part.

2.

The Court finds appropriate the redactions PFG made
to documents D564434-D564446 except:
a.

The location identifications shall be produced.

b.

The item identified as "PFG-Batesville" that
begins "On March 27, Danbee" shall be produced
in unredacted form.

SO ORDERED, this Tuesday, March 15, 2016.

/s/__________
Marvin J. Garbis
United States District Judge

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