Brooks et al v. Detroit Baptist Manor et al

Filing 77

ORDER denying 45 Motion for Protective Order and granting in part and denying in part 58 Motion to Compel- Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Debra Brooks, Taunni Sanders,
and Angel Slayton,
Plaintiffs,
vs.

Civil Action No.: 11-CV-11551
District Judge George Caram Steeh
Magistrate Judge Mona K. Majzoub

Detroit Baptist Manor,
and Elizabeth Goleski,
Defendants.
_____________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION TO COMPEL [58] AND DENYING PLAINTIFFS’ MOTION FOR
PROTECTIVE ORDER [45]
This matter comes before the Court on Plaintiffs’ Fourth Motion to Compel (docket no. 58)
and Plaintiffs’ Motion for Protective Order (docket no. 45). Defendants responded to Plaintiffs’
Motion for Protective Order (docket no. 53) and Motion to Compel (docket no. 61), and the parties
filed a Joint Statement of Resolved and Unresolved Issues Regarding Plaintiffs’ Motion to Compel
(docket no. 64). The district court has referred these matters to this Court. (Docket nos. 48, 59). The
parties have fully briefed the motions; the Court has reviewed the pleadings and dispenses with oral
argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to
rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.

Plaintiffs’ Fourth Motion to Compel
The information at issue in Plaintiffs’ discovery requests concerns Plaintiff Slayton’s alleged

wrongful conduct in granting herself Administrator access to Defendants’ computer system and in
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accessing the system remotely. Defendants raise this alleged wrongdoing as good cause for
Slayton’s termination. Plaintiff contends that she did not–and cannot–access the computer system
from her home.
In their effort to determine how Defendants can show that Slayton committed any of the
alleged wrongful acts, Plaintiffs served Defendants with the following Request for Production of
Documents on March 15, 2012:
Any and all documents or things that indicate that any of the Plaintiffs remotely
accessed data (of any kind) stored in any computer owned by Defendants, including
but not limited to the pictures of the screen or work prepared by Jonathon Abramson
as referenced by Goleski in her deposition on March 13, 2012.
In response, Defendants provided eight pages of illegible “screen shots.” Defendants later provided
legible screen shots that Defendants argue prove Slayton’s wrongful conduct.
Not satisfied with the document production, and believing that Defendants must have more
information on hand, Plaintiffs served Defendants with the following Request for Production of
Documents on May 4, 2012:
The application, security and systems event logs for each date you claim that any of
the Plaintiffs accessed the Detroit Baptist Manor computers.
Defendants responded by stating that the request was “vague” and “overbroad” and that they have
been unable to gather the information necessary to respond properly.
Despite being captioned a Motion to Compel, Plaintiffs’ motion is, in substance, a motion
to test Defendants’ affirmative defense regarding Plaintiffs’ improper computer network access.
Specifically, Plaintiffs argue that Defendants should be precluded from raising Slayton’s alleged
wrongful conduct because Defendants have failed to produce any evidence of such conduct.
Defendants argue that the screen shots produced in response to the March 15, 2012 Request for

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Production of Documents show that Slayton gave herself administrative access and that she accessed
the computer remotely using the Logmein.com service. Defendants specifically point to “cookies”
on Slayton’s hard drive as evidence of her remote access, the partial screen shots of which were
provided in Defendant’s March document production. Defendants indicate that the only other
information that they have in their possession is “temporary, unreadable computer gibberish, which
indicates that there are temporary files implicating improper network access by Plaintiff Slayton.”
(Def.’s Resp. ¶ 11.)
II.

Discovery Standard
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery
on any matter that is not privileged and is relevant to any party’s claim or defense if it is reasonably
calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). “Relevant
evidence” is “evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without the
evidence.” Fed.R.Evid. 401. Such a request under Rule 34 is limited, however, to items “in the
responding party’s possession, custody, or control.” Fed.R.Civ.P. 34(a)(1).
The Court finds that there is nothing “vague” or “overbroad” with regard to Plaintiffs’
Request for Production of Documents on May 4, 2012. Plaintiffs requested system and event logs
for dates that Defendant’s allege that Slayton accessed its network remotely. As Plaintiffs contend,
these system logs either exist or they do not. Similarly, the additional documents requested in
Plaintiffs’ March 13, 2012 Request for Production either exist or they do not.
To the extent that such documents exist and are in the possession, custody, and control of

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Defendants, the Court will order Defendants to produce the documents in full, including producing
electronically stored information “in a form or forms in which it is ordinarily maintained or in a
reasonably usable form.” Fed.R.Civ.P. 34(b)(2)(E)(ii). This may include electronic copies of the
log files requested by Plaintiffs and electronic copies of the “cookies” relied on by Defendants.1 If,
however, no such documents exist or are not in the possession, custody, or control of Defendants,
the Court will order Defendants to produce an affidavit stating that Defendants do not have the
documents within their possession, custody, or control and an affidavit stating the specific steps
taken to locate the documents, including the location, date, and time of attempts to procure or locate
the documents.
III.

Plaintiffs’ Motion for Protective Order
Rule 26(c) allows the Court to issue protective orders for good cause shown to protect a party

or person from annoyance, embarrassment, oppression, or undue burden or expense, including that
the disclosure or discovery not be had or that the disclosure or discovery be limited to certain
matters. Fed.R.Civ.P. 26(c). Rule 45 allows the court to enforce subpoenas that issued from the
court and to protect persons subject to subpoenas. Fed.R.Civ.P. 45. The party seeking a protective
order has the burden of showing that good cause exists for the order. Nix v. Sword, 11 Fed. App'x
498, 500 (6th Cir.2001). To show good cause, the movant must articulate specific facts showing
clearly defined and serious injury resulting from the discovery sought and cannot rely on conclusory
statements. Id.

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The Court notes that Defendants attached documents as Exhibit 12 to their Motion for
Summary Disposition (docket no. 62) that they apparently did not produce in response to
Plaintiffs’ discovery request, including printouts of the raw “cookie” data that Defendants’
forensic analysts used to create the access-record printout included in the Exhibit.
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Defendants seek to depose Plaintiff Slayton’s husband, Jerome Slayton, Sr. (“Mr. Slayton”)
and her son, Jerome Slayton, II (“Mr. Slayton II”). Plaintiffs have not voluntarily produced either
Mr. Slayton or Mr. Slayton II for depositions. Thus, Defendants have served them with the
subpoenas at issue in this Motion.
At the time Defendants terminated Plaintiff Slayton on September 11, 2009, Mr. Slayton and
Mr. Slayton II were also employed by Defendants. According to Defendants, Mr. Slayton was in
Defendant Goleski’s office immediately following Plaintiff Slayton’s termination, and Mr. Slayton
and Plaintiff Slayton have been to Defendant Goleski’s home. Mr. Slayton II resigned from his
employment with Defendants on December 14, 2009. Defendants believe that Plaintiffs will call
Messrs. Slayton and Slayton II to testify at trial and that the information they possess is reasonably
calculated to lead to admissible evidence.
Plaintiffs object to the subpoenas as harassing Plaintiff Slayton because neither Mr. Slayton
nor Mr. Slayton II are on Plaintiffs’ witness list and because “they have only limited knowledge of
the facts of this case.” (Pl.s’ Mot. ¶ 12.) Nevertheless, Plaintiffs do not seek to quash the
subpoenas;2 instead, Plaintiffs ask the Court to (1) order that the depositions of Mr. Slayton and Mr.
Slayton II be taken at the courthouse to avoid any obstructions by Defendants’ counsel, and (2) limit
the scope of the depositions.
A.

Location of Depositions
Defendants do not object to Plaintiffs’ request that the depositions be held at the courthouse.

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Even if Plaintiffs had moved to quash the subpoena under Rule 45(c), the Court would
deny the Motion because, as Defendants articulate, Plaintiffs “have interjected these individuals
as witnesses,” even if Plaintiffs have not included them on their witness list. (Def.s’ Resp. Br. at
2.)
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To the contrary, Defendants believe that such a requirement would also avoid any obstruction by
Plaintiffs’ counsel. Nevertheless, counsel is expected at all times to act civilly and cooperate with
discovery. Although the parties have each provided examples of discord during prior depositions,
the Court expects counsel to act appropriately and in accordance with the Rules while conducting
these depositions. Therefore, the Court will not order that the depositions of Jerome Slayton, Sr. and
Jerome Slayton, II be conducted at the courthouse. The Court will order Mr. Slayton and Mr.
Slayton II to comply with the subpoenas and will order counsel to schedule the depositions
accordingly.
B.

Scope of the Depositions
On the evening of December 13, 2011, Defendants’ counsel called Plaintiffs’ counsel to

inform her that Mr. Slayton had allegedly committed criminal activity while working for
Defendants.3 The nature of the conversation between counsel is contested, but it suffices to say that
Plaintiffs’ counsel did not and does not represent Mr. Slayton.
Plaintiffs argue that allowing Defendants to inquire into any alleged criminal wrongdoing
by Mr. Slayton during his deposition would present him with the need to hire a criminal defense
attorney to represent him at the deposition, which would be an undue burden and expense on Mr.
Slayton, thereby implicating the need for a protective order under Rule 26(c). Thus, Plaintiffs ask
the Court to limit both depositions to facts related to Plaintiff Slayton’s termination and to bar any
questions related to Mr. Slayton’s alleged criminal conduct.
Defendants have indicated no desire to depose Mr. Slayton II regarding any matter unrelated

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To protect the confidential nature of the information provided by Plaintiffs under seal,
the Court will not discuss the nature of the accusations in this Opinion and Order.
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to Plaintiff Slayton’s termination or its defense of that termination. Defendants do argue, however,
that Plaintiffs opened the proverbial door to any questions regarding Mr. Slayton’s alleged
wrongdoing by asking Defendant Goleski about his conduct during Defendant Goleski’s deposition.
Plaintiffs’ concern that Mr. Slayton may open himself up to criminal liability if he should
attend the deposition without criminal counsel is a serious one. The Court is aware that there would
be a cost involved in obtaining counsel and that Mr. Slayton would likely have to bear that burden.
Nevertheless, Plaintiffs have provided no specific facts showing clearly defined and serious injury
resulting from Defendant engaging in this line of questioning. Plaintiffs merely rest on their
conclusive argument that Mr. Slayton may have to hire an attorney, and if an attorney is necessary,
it is not an undue burden. Therefore, the Court finds that this argument is insufficient to support a
showing of good cause to grant the protective order.
Even without the Court’s intervention, however, the scope of Defendants’ discovery is
limited by Rule 26(b)(1). That is, Defendants may not inquire into matters that are not relevant to
any parties’ claim or defense. Fed.R.Civ.P. 26(b)(1). Therefore, any questioning of Mr. Slayton or
Mr. Slayton II need not be limited by a protective order. Again, counsel is expected to act in
accordance with the Rules.
IT IS THEREFORE ORDERED that Plaintiffs’ motion to compel the production of
documents in response to their March 15 and May 4 Requests for Production of Documents is
GRANTED. Defendants will serve full and complete responses no later than September 21, 2012.
IT IS FURTHER ORDERED that if no such documents exist or if such documents are not
in the possession, custody, or control of Defendants, Defendants must produce no later than
September 21, 2012, an affidavit stating that Defendants do not have the documents within their

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possession, custody, or control and include in said affidavit a statement describing the specific steps
taken to locate the documents, including the location, date, and time of attempts to procure or locate
the documents.
IT IS FURTHER ORDERED that Plaintiffs’ motion for a protective order is DENIED.
IT IS FURTHER ORDERED that Plaintiffs must produce Jerome Slayton, Sr. and Jerome
Slayton, II for depositions in compliance with the subpoenas served by Defendants.

NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).

Dated: September 10, 2012

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Dated: September 10, 2012

s/ Lisa C. Bartlett
Case Manager

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