Deering v. Lockheed Martin Corporation et al

Filing 45

ORDER granting in part and denying in part 37 Motion to Compel. (Written Opinion) Signed by Magistrate Judge Becky R. Thorson on 4/16/2021. (DMM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Daniel’la Deering,
v.

Civ. No. 20-1534 (DSD/BRT)
Plaintiff,

ORDER

Lockheed Martin Corporation, a Maryland
corporation; Maryanne Lavan, an individual;
and Kenneth Bastian, an individual,
Defendants.
Heidi J.K. Fessler, Esq., Innova Law Group, PLLC; William J. Egan, Esq., Avisen Legal, P.A.,
counsel for Plaintiff.
Allyson J. Petersen, Esq., Donald M. Lewis, Esq., Joseph G. Schmitt, Esq., Nilan Johnson Lewis
PA; Krissy A. Katzenstein, Esq., Baker & McKenzie LLP; and Michael S. Burkhardt, Esq.,
Morgan, Lewis & Bockius LLP, counsel for Defendants.

This matter is before the Court on Plaintiff’s Motion to Compel Production of
Documents. (Doc. No. 37.) This motion relates to several discovery requests served by
Plaintiff on Defendants. A hearing was held on the motion on April 12, 2021. (Doc.
No. 44.) Plaintiff’s counsel clarified at the hearing which discovery requests remain at
issue and for which they seek rulings from the Court. This Order addresses only those
discovery requests argued in Plaintiff’s motion that remain at issue. Any other requests
referenced in Plaintiff’s motion papers are considered not at issue before the Court.
Guiding the Court’s rulings are the Federal Rules of Civil Procedure regarding
discovery in a civil case. Federal Rule of Civil Procedure 26 governs discovery in federal
court. Discovery under the Federal Rules of Civil Procedure, however, is not without

bounds even if relevance is shown. Federal Rule of Civil Procedure 26(b)(2)(C) provides:
On motion or on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines
that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can
be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Federal Rule of Civil Procedure 26(b)(1) provides:
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.
Therefore, Rule 26(b) imposes a proportionality requirement on the scope of discovery,
which must be considered when ruling on discovery disputes. See Provident Savings
Bank, F.S.B. v. Focus Bank, No. 1:19-CV-151 RLW, 2020 WL 6196132, at *2 (E.D.
Mo. Oct. 22, 2020) (“The parties and the court have a collective responsibility to
consider the proportionality of all discovery and consider it in resolving discovery
disputes.” (quoting Fed. R. Civ. P. 26 advisory committee’s notes to 2015 amendment)).
The discovery at issue in Plaintiff’s motion to compel pertains to requests for
documents. Fed. R. Civ. P. 34(b) provides that document requests must “describe with
reasonable particularity” the documents sought. The Court also considers that this is an
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employment discrimination case. While the Federal Rules of Civil Procedure apply to
employment discrimination cases, “the discovery of information pertaining to other
employees must be limited to those employees who are similarly situated.” QuinonezCastellanos v. Performance Contractors, Inc., No. 16-cv-4097-LTS, 2017 WL 3430511,
at *3 (N.D. Iowa Aug. 9, 2017). “The Eighth Circuit Court of Appeals has clearly stated
that ‘a plaintiff in a wrongful termination case is not entitled to company-wide discovery
absent a showing of a particular need for the requested information.’” Id. (quoting Semple
v. Fed. Express Corp., 566 F.3d 788, 794 (8th Cir. 2009)).
In addition, “the time period concerning the requested discovery must be
‘reasonable.’” Id. (citing Sallis v. Univ. of Minn., 408 F.3d 470, 478 (8th Cir. 2005)).
However, the statute of limitations is not a cut-off. Regarding temporal scope, while a
statute of limitations can be a helpful point of reference, discovery of information both
before and after the liability period may be relevant and proportional. See Johnson v.
Charps Welding & Fabricating, Inc., No. 14-CV-2081 (RHK/LIB), 2015 WL 13883903, at *6
(D. Minn. May 14, 2015) (“At the discovery stage, it is sufficient to note that the mere fact that
information pertains to a time period beyond a possibly applicable limitations period does not
render it undiscoverable, so long as the request for such information is reasonable.”).

The Court has reviewed the briefs and all the papers supporting the pending
motion and the response filed. The Court has considered the arguments made, has
reviewed each discovery request at issue, and considered both the relevance and
proportionality of the discovery sought based on the information provided. Based on the
Court’s consideration, the file, submissions, and proceedings herein, the Court grants in
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part and denies in part Plaintiff’s motion as explained further below.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Production of
Documents (Doc. No. 37) is granted in part and denied in part as follows:
a.

Regarding RFP No. 2, the motion is granted.

b.
Regarding RFP No. 3, the motion is denied as moot because Defendants
have agreed that they will produce non-privileged documents relating to Plaintiff’s claims
in this case.
c.
Regarding RFP No. 4, Defendants state that they have produced
non-privileged documents responsive to subparts (a), (c), (e), and (i), and that Defendants
will produce non-privileged documents responsive to subparts (d), (f), (g), and (h) to the
extent that they exist. The Court agrees with Defendants that Plaintiff has not shown that
policies referenced in subpart (b) are sufficiently relevant and proportional to the needs of
the case. Defendants must produce the agreed-upon subpart policies dating back to
January 1, 2014. Plaintiff’s request to produce policies dating back to January 1, 2012 is
denied as overly broad and not proportional.
d.
Regarding RFP No. 6, the motion is denied because the request as drafted is
overly broad and not proportional. The Court, however, observes that if Plaintiff seeks
discovery to identify the occasions when in-house attorneys in the RMS Division have
engaged outside trial counsel—who are not on the Preferred Provider lists at the time of
engagement—in a case that has been litigated through trial since 2015, an interrogatory
may be the better discovery vehicle.
e.
Regarding RFP No. 8, Defendants have already agreed to provide a list of
matters addressed by the RMS Discipline Review committee from January 1, 2014
through the date of the document requests that involve misuse of privileged, confidential,
and/or proprietary Lockheed Martin information in lieu of documents. Considering
Defendants’ position, Plaintiff’s motion is granted in part to the extent that the list of
matters prepared by the Defendants must include a summary of the allegations made
relating to misuse along with the outcome of each matter, including whether any
disciplinary action was taken on the matter. Regarding the remainder of the request, the
motion is denied as overly broad and not proportional.
f.
Regarding RFP No. 9, the motion is denied because the request as
drafted—and as modified—is overly broad and not proportional.
g.

Regarding RFP No. 10, the motion is granted in part and denied in part.
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Defendants must produce documents sufficient to show the names, race, job level, and
ratings history of attorneys in Lockheed Martin’s RMS Division’s legal department since
January 1, 2008, along with the date of their promotion. The motion on the remainder of
the request is denied as overly broad and not proportional.
h.
Regarding RFP No. 11, the motion is granted in part as limited to
documents relating to the appeals of Heritage RMS Division performance reviews for
lawyers in the RMS Division initiated between January 2014 through the date of service
of the document requests. The motion on the remainder of the request is denied as overly
broad and not proportional.
i.
Regarding RFP No. 14, the motion is granted in part and denied in part.
The motion is granted to the extent that Defendants must supplement their list of cases
already provided to include those cases that went to trial from January 1, 2014 forward.
To the extent there are summaries or reports relating to those cases, those must be
produced. The request is otherwise denied as overly broad and not proportional.
j.
Regarding RFP No. 15, the motion is granted in part and denied in part.
Defendants must produce documents in the possession custody and control of Defendants
that identify, show, or reflect Plaintiff’s internal communications regarding the status of
the cases entitled Balderrama v. Lockheed Martin Corporation and Braden v. Lockheed
Martin, and Plaintiff’s internal communications relating to the management of the cases
during the pretrial, trial, and post-trial stages. The motion on the remainder of the request
is denied as vague, overly broad, and not proportional.
k.

Regarding RFP No. 16, the motion is granted.

l.
Regarding RFP No. 17, the motion is denied because the request as
drafted—and as modified—is vague, ambiguous, overly broad, and not proportional.
m.
Regarding RFP No. 18, the motion is granted in part and denied in part.
Defendants must produce documents sufficient to identify complaints or charges of
claims of discrimination from January 1, 2014 to the date of service of Plaintiff’s
document requests, by in-house attorneys employed by Defendant Lockheed Martin
Corporation on the basis of race or color and/or retaliation and documents reflecting the
outcome from these complaints or charges. Plaintiff has shown a particularized need for
these documents. The motion on the remainder of the request is denied as overly broad
and not proportional.
n.
Regarding RFP No. 19, the motion is denied as vague, ambiguous, overly
broad, and not proportional.
o.

Regarding RFP No. 20, the motion is granted.
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p.
Regarding RFP No. 21, the motion is denied for a lack of showing of
relevance, as overly broad, and not proportional.
q.
Plaintiff’s request for Defendants to pay Plaintiff’s reasonable expenses and
attorney’s fees in bringing this motion is denied.
r.
To the extent the parties need to confirm ESI protocol to complete the
responses to document requests, the parties must complete their meet and confer
regarding ESI no later than 14 days following this Order, and a Stipulation regarding ESI
must be jointly filed by the parties no later than 14 days following this Order.
s.
Documents ordered produced pursuant to this Order must be produced no
later than 28 days following this Order.
t.
Nothing in this Order is intended to render any ruling on the assertion of
privilege or work product protection. To the extent Plaintiff’s motion seeks a ruling on
Defendants’ objections to specific document requests because responsive documents will
include privileged or work protected documents, Plaintiff’s motion is premature and
denied without prejudice.
u.
To the extent there are documents responsive to any of the above requests
that Defendants assert are privileged or protected under the work product doctrine, they
must be entered on a privilege log. Defendants must serve their privilege log within 35
days following this Order. The Court does not take a position at this time on what the
privilege logs should include and directs counsel for the parties to meet and confer no
later than 7 days following this Order to discuss what form and format the privilege logs
should take to describe the nature of the documents, communications, or tangible things
not produced or disclosed – and do so in a manner that, without revealing the information
itself, will enable other parties to assess the claims of privilege or work product
protection. 1
As set forth in the eDiscovery Guide provided on the Court’s website, a discussion
about privilege logs in connection with their productions may include:
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• Detail. What information will be contained on the log and how much
detail will describe the privilege asserted and content
withheld/redacted?
• Exclusions/Date Limitations. Will certain categories or date ranges of
communications be excluded, e.g., communications with outside
litigation counsel, or privileged documents or ESI dated on or after
the date of the complaint?
• Format. Will the log be provided as a spreadsheet containing agreed6

v.
Any disputes regarding the assertion of privilege or work product
protection must be brought to the Court (following a proper meet and confer) no later
than 21 days following the service of any privilege log. Informal Dispute Resolution is
not available for disputes regarding privilege or work product protection.

Date: April 16, 2021

s/ Becky R. Thorson
BECKY R. THORSON
United States Magistrate Judge

upon metadata from the load file along with the privilege rationale?
• E-mail Logging. Will e-mail threads be logged as a single entry or
multiple entries on the privilege log?
• Consolidated Entries/Categorical Logging. Can the parties log certain
categories of privileged documents or ESI as a single entry, rather
than individually, e.g., communications with outside litigation counsel?
Discussion of Electronic Discovery at Rule 26(f) Conferences: A Guide for Practitioners
at 12–13 (January 2021), available at
https://www.mnd.uscourts.gov/sites/mnd/files/eDiscovery-Guide.pdf.
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