Amador v. U.S. Bank National Association

Filing 45

ORDER granting in part and denying in part 35 Plaintiff's Appeal/Objection of the Magistrate Judge's Order of November 29, 2016; respectfully reversing in part and affirming in part 33 the Magistrate Judge's Order of November 29, 2016; and granting in part and denying in part 22 Plaintiff's Motion to Modify the Scheduling Order and to Compel Discovery (Written Opinion). Signed by Judge Susan Richard Nelson on 01/19/17. (MJC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Antonio G. Amador, Jr.,

Civil No. 16-CV-600 (SRN/HB)
MEMORANDUM OPINION
AND ORDER

Plaintiff,
v.
U.S. Bank National Association,
Defendant.

Matthew J. Schaap and Robert B. Bauer, Dougherty, Molenda, Solfest, Hills & Bauer
P.A., 14985 Glazier Avenue, Suite 525, Apple Valley, MN 55124, for Plaintiff.
David A. Schooler and Ellen A. Brinkman, Briggs & Morgan, PA, 80 South Eighth
Street, Suite 2200, Minneapolis, MN 55402, for Defendant.
_____________________________________________________________________
SUSAN RICHARD NELSON, United States District Court Judge
Before the Court is the Objection/Appeal [Doc. No. 35] filed by Plaintiff Antonio
G. Amador, Jr. to the magistrate judge’s order of November 29, 2016, (“the Order”), as
reflected in the Court’s minutes [Doc. No. 33] and the hearing transcript [Doc. No. 37].
Plaintiff objects to a portion of the ruling on his Motion to Modify the Scheduling Order
and to Compel Discovery [Doc. No. 22] that Magistrate Judge Hildy Bowbeer denied in

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part.1 Specifically, Amador objects to paragraphs 3 and 5 of the Order, consisting of
Magistrate Judge Bowbeer’s ruling concerning Plaintiff’s request for all customer advice
debit (“CAD”) services/tickets not previously produced by Defendant U.S. Bank and her
denial of Plaintiff’s request for attorneys’ fees or expenses. (Pl.’s Obj. at 1.) Based on
the Court’s review of the parties’ arguments and the record, the Court grants in part and
denies in part Plaintiff’s Objection/Appeal.
I.

BACKGROUND
This is a race discrimination action brought pursuant to the Minnesota Human

Rights Act, Minn. Stat. § 363A.01, and Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e. (Compl. ¶ 5 [Doc. No. 11].) Plaintiff was employed by U.S. Bank as a branch bank manager from September
2011 to April 2015. (Id. ¶¶ 7; 24; 38 .) Amador, who is Hispanic, alleges that he was
terminated by U.S. Bank based on unlawful racial discrimination. (Id. ¶ 41.) He alleges
that his superiors subjected him to treatment that was different than that of non-Hispanic
persons. (Id. ¶¶ 13-17.) Defendant, however, contends that it terminated Amador’s
employment for two primary reasons: (1) the improper use of a company credit card; and
(2) compliance concerns related to Amador’s use of CAD slips. (Decl. of Christine
Hobrough (“Hobrough Decl.”) ¶ 5 [Doc. No. 30].)
Plaintiff maintains that he occasionally provided CAD service to known

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Other portions of Plaintiff’s motion, concerning different discovery, were
granted in part or denied as moot.
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customers, consistent with his training at U.S. Bank. (Aff. of Antonio Amador (“Amador
Aff.”) ¶¶ 6-7 [Doc. No. 24].) Through a CAD slip, a branch manager could transfer
money from one account controlled by a good customer to another account, also
controlled by the same customer, without the customer’s signature. (Compl. ¶ 26.)
Plaintiff alleges that when he was hired and trained by Defendant, he was trained to use
the CAD service for particular customers. (Id.) As relevant here, Amador performed the
service on behalf of “DK,” the owner of a major restaurant in the Twin Cities, who
maintained commercial and personal accounts with U.S. .Bank. (Id. ¶ 26; Def.’s Opp’n
Mem. at 2, n.1 [Doc. No. 38].) Amador worked as a branch manager at U.S. Bank
branches in the Midway of St. Paul and in Eagan. (Compl. ¶¶ 7; 9.) Although U.S. Bank
denied Amador’s request to bring DK’s account with him when he transferred to the
Eagan branch, (Hobrough Decl. ¶ 3), he nonetheless continued to respond to DK’s email,
text, or telephone requests to transfer money from his business account to his personal
account. (Amador Dep. at 126-27, Ex. 4 to Decl. of David A. Schooler [Doc. No. 31-4].)
Amador accomplished this through CAD slips. (Amador Aff. ¶¶ 10-11.)
Defendant argues that it discourages the use of CAD slips, because they are
normally reserved for correcting teller errors. (Hobrough Decl. at ¶ 4.) Defendant
contends that CAD slips create risk for the bank because if a customer later challenges the
transfer, there is no signature by which the customer can validate the transfer, nor an
electronic footprint. (Id.; Def.’s Opp’n Mem. at 3 [Doc. No. 38].)

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In discovery, Plaintiff made the following document requests, pertinent to the
instant dispute:
REQUEST NO. 1: All documents consulted, referred to, or identified in
your Answers to Interrogatories and your Responses to the Request for
Admissions served contemporaneously herewith.
REQUEST NO. 15: All documents or tangible material of any kind,
including but not limited to all notes, memoranda, diaries, journals or other
tangible evidence that concern or relate in any manner to the subject matter
of the above-entitled lawsuit.
REQUEST NO. 16: To the extent that you deny any of Plaintiff’s Requests
for Admissions served contemporaneously herewith, provide each and
every document that you believe supports your denials.
(Pl.’s Doc. Prod. Req., Ex. 2 to Decl. of Matthew J. Schaap (“Schaap Decl.”) [Doc. No.
25-2].) Plaintiff also served the following requests for admissions, in pertinent part:
REQUEST NO. 13: Admit that U.S. Bank transfers funds for some of its
good clients, including paying a credit card from one of the client’s U.S.
Bank accounts or transferring money from the client’s account to a family
member’s account, when requested by the client, through the branch
manager’s use of customer service debits to service the client’s needs (the
“Advice Debit Services”).
REQUEST NO. 14: Admit that U.S. Bank performed Advice Debit
Services for the Client, as well as other clients, as a customer service
benefit long before Plaintiff was hired by U.S. Bank.
REQUEST NO. 15: Admit that U.S. Bank continues to perform Advice
Debit Services for its top clients as a customer service benefit.
REQUEST NO. 23: Admit that similar Advice Debit Services are
performed by other branch managers and employees working for U.S.
Bank.
REQUEST NO. 24: Admit that U.S. Bank has not terminated similarly
situated white branch managers for performing Advice Debit Services.
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(Pl.’s Req. for Admissions, Ex. 3 to Schaap Decl. [Doc. No. 25-3].)
At some point during the discovery period, U.S. Bank produced 25 CAD slips used
by Amador. (Pl.’s Obj. at 7.) Counsel for Defendant acknowledged at the hearing on the
instant motion that, through neither side’s fault, all of the depositions in the case occurred
within a one-month period. (Tr. of 11/29/16 Hrng. at 23 .) It appears that the month in
question was October 2016, as the discovery deadline was October 31, 2016. Following
one of the depositions, Plaintiff’s counsel emailed defense counsel on October 21, 2016,
with the request to see Minnesota CADs that were not related to teller error, for a fiveyear period. (Email chain of 10/21/16, Ex. 10 to Schaap Decl. [Doc. No. 25-10].)
Defendant declined to produce the CAD discovery involving branch managers other than
Amador. (See Pl.’s Obj. at 7.) On October 31, 2016–the discovery deadline– Plaintiff
moved to extend the scheduling order and to compel the production of certain discovery,
including “[a]ll CAD slips from U.S. Bank’s Minnesota branches for the five years
preceding Plaintiff’s motion, excluding CAD slips used to correct teller errors.” (Pl.’s
Mot. at 1 [Doc. No. 22].) Plaintiff also sought sanctions for Defendant’s failure to
comply with his discovery requests. (Id. at 2.)
At the hearing on Plaintiff’s motion, counsel for U.S. Bank represented that his
client did not consult any CAD slips in order to respond to Plaintiff’s admission requests.
(Tr. of 11/29/16 Hrg. at 34 [Doc. No. 37].) Instead, U.S. Bank produced the CAD slips
for the DK accounts which contributed to Amador’s termination. (Id.) Moreover, in a

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declaration submitted in opposition to Plaintiff’s motion, Christine Hobrough, U.S.
Bank’s Senior Vice President and Regional Market Manager, emphasized the burden that
U.S. Bank would face if it were required to produce the requested discovery. Hobrough
stated that U.S. Bank does not maintain a log system for CAD slips, (Hobrough Decl. ¶
7), and CAD slips are not easily accessible:
The only way to locate customer advice debits would be to review each
customer’s account, one transaction at a time. Notably, U.S. Bank has 3,122
branches across the United States and 135 branches in the Twin Cities.
Each branches [sic] typically has between 2 and 20 tellers. Each teller
processes approximately 200 to 500 transactions per day. Throughout the
day, the paper transactions are bundled and brought to process centers
located across the United States. U.S. Bank employees key in the
information regarding each transaction. After the transaction is keyed into a
U.S. Bank data system, the top copy of any transaction—including a
customer advice debit—goes to an offsite storage facility where it is stored
pursuant to our document retention policy. Those storage facilities are
located at various places throughout the United States. It is not possible to
isolate a customer advice debit in any of the U.S. Bank systems to locate
electronic versions of the customer advice debits.
(Id. ¶ 6.)
Magistrate Judge Bowbeer denied Plaintiff’s motion to compel regarding the CAD
slips on the following bases: (1) the CAD slips were never specifically or formally
requested in an interrogatory or request for production; (2) Defendant’s counsel stated
clearly and unequivocally that his client did not consult, refer to, or rely on those
materials in responding to the requests for admission pertaining to customer advice debits,
and that Defendant has produced all documents consulted, referred to, or relied on in
preparing its responses to those requests for admission; (3) Document Request Nos. 15

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and 16 were too broadly worded to fairly encompass the requested materials; and (4) it is
not improper for a party to refuse to provide the factual basis for denials to requests for
admission. (Order at 1-2.)
II.

DISCUSSION
A district court’s review of a magistrate judge’s order on a nondispositive matter,

such as the underlying motion, is “extremely deferential.” Reko v. Creative Promotions,
Inc., 70 F. Supp.2d 1005, 1007 (D. Minn. 1999); see also United States v. Raddatz, 447
U.S. 667, 673 (1980). The Court will reverse such a ruling only if it is clearly erroneous
or contrary to law. See 28 U.S.C. § 636(b)(1)(A); D. Minn. LR 72.2(a).
As to the scope of discovery, Federal Rule of Civil Procedure 26(b) provides in
pertinent part:
(1) Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). It is widely recognized that the rule is to be broadly construed,
In re Milk Prod. Antitrust Litig., 84 F. Supp. 2d 1016, 1027 (D. Minn. 1997), and “is
liberal in scope and interpretation.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th
Cir. 1992). Discovery is not without its limits, however, and the party seeking the
information must make a threshold showing of relevance. Id. In addition, Rule 26(b)(1)
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also requires that the requested information be proportional to the needs of the case,
giving due consideration to the importance of the information, issues of access, and the
balance between the burden of production and expense and the benefit of the information.
Respectfully, the Court disagrees with the magistrate judge’s blanket ruling to
deny Plaintiff’s motion to compel the CAD slips. Her ruling focused primarily on
whether Defendant consulted such documents in responding to requests for admission.
But even putting aside that basis for discovery, the request for CAD slips fell within the
admittedly broad scope of Request No. 15. Parties routinely issue broad discovery
requests. After the responding party lodges objections, it is incumbent upon both sides to
meet and confer in an effort to find a middle ground. This is particularly critical where the
narrowed request involves issues of high importance in the litigation, as is the case here.
Whether other U.S. Bank branch managers used CAD slips under the same or similar
circumstances in which Amador used them for DK is of significant importance. It is
relevant both to Amador (evidence as to legitimacy of termination and pretext) and to
U.S. Bank, since discovery of this information may support U.S. Bank’s position that
Plaintiff was not unlawfully terminated. But to not balance the need for the information,
the importance of the discovery, and Plaintiff’s lack of access to it against the tremendous
burden and expense to U.S. Bank was error.
The Court is mindful of the importance of the requested information, to which
Amador has no access. On the other hand, the Court appreciates U.S. Bank’s concerns
regarding the difficulty and cost of producing the discovery for a five-year period and for
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all U.S. Bank branches in Minnesota. Balancing these concerns, the Court grants
Plaintiff’s motion in part, subject to greater limitations for the discovery. The parties
shall meet and confer regarding a sampling protocol, limited to a sample of U.S. Bank
branches in Minnesota for an agreed upon two-year period between 2011 and 2015, to
locate CAD slips that are not teller error-related. Within 60 days, after agreement on a
sampling protocol, U.S. Bank shall conduct its search and produce any CAD slips that are
responsive to these limitations, i.e., not related to teller error and generated in a
Minnesota branch during the agreed upon two-year period. To the extent that U.S. Bank
is able to target its sample to the nearest storage facility and/or the storage facility or
facilities at which the CAD slips were previously located, it may do so.
As to Plaintiff’s appeal of Magistrate Judge Bowbeer’s decision denying Amador’s
request for attorneys’ fees for the cost of his motion to compel, it is denied. Granted, as
Plaintiff observes, Rule 37(a)(5) provides that if the motion to compel is granted or if the
requested discovery is provided after the motion was filed, the court must require the
opposing party to pay the movant’s reasonable expenses incurred in making the motion.
Fed. R. Civ. P. 37(a)(5)(A). However, the rule also prohibits an award of fees under
certain circumstances, including circumstances that make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A)(iii). Here, it appears that due to mutual circumstances
involving scheduling and illnesses, for which no bad faith is alleged, much of the
discovery occurred in the very final weeks of the discovery period. Perhaps Plaintiff
might have crafted a narrower request earlier in the discovery period and perhaps
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Defendant might have made efforts to provide a representative sampling of the
information. Under these facts, the Court finds that an award of fees is not required. The
magistrate judge’s ruling is therefore affirmed in this respect.
The Court recognizes that Defendant has moved for summary judgment, has filed
its brief in support of the motion, and has noticed a February 24, 2017 hearing on the
motion. The parties are directed to meet and confer on a new briefing schedule in light of
this additional discovery and advise the Court. The hearing on Defendant’s summary
judgment motion will be rescheduled.
THEREFORE, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Appeal/Objection [Doc. No. 35] is GRANTED in part and
DENIED in part;

2.

The Magistrate Judge’s Order of November 29, 2016 [Doc. No. 33] is
respectfully REVERSED in part and AFFIRMED in part, as set forth
herein; and

3.

Plaintiff’s Motion to Modify the Scheduling Order and to Compel
Discovery [Doc. No. 22] is GRANTED in part and DENIED in part.

Dated:

January 19, 2017
s/Susan Richard Nelson __
SUSAN RICHARD NELSON
United States District Court Judge

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