Brown v. West Corporation
MEMORANDUM AND ORDER granting in part and denying in part 34 Motion to Compel; defendant's Motion to Strike 64 , 77 , and 78 are denied as moot. Ordered by Senior Judge Lyle E. Strom. (ADB)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
WEST CORPORATION, a Delaware )
MEMORANDUM AND ORDER
This matter is before the Court on the motion of
plaintiff Rex Brown (“Brown”) to compel discovery (Filing No.
The March 26, 2012, protective order (Filing No. 20) has
satisfied defendant that its objections based on the proprietary
and confidential nature of some documents are no longer necessary
(Brief in Opposition, Filing No. 60, at 20 n.11).
The parties have had a difficult time communicating
clearly on discovery matters.
Many of the issues complained of
in plaintiff’s motion appear to have been fully and completely
resolved by defendant.
In addition, many of the alleged failures
are the product of insufficiently specific requests.
frequently argues against discovery because of the burden of
The Rules of Civil Procedure require only a showing
Though the Court has the obligation under Rule
26(b)(2)(C) to limit discovery where the burden outweighs the
likely benefit, many requests that defendant disputes, though
they carry significant burdens, are highly relevant to disputed
The purpose of discovery is to explore the materials
relevant to the claims to determine whether evidence supporting
the claims exists.
It is with that purpose in mind that the
Court addresses the present motion.
I. Interrogatory No. 18 and Request No. 13: Electronically Stored
Plaintiff asks that the Court compel defendant “to
perform an independent search for communications regarding Rex
Brown and/or other issues in this matter from all available
sources and schedule a conference with the Magistrate to discuss
the method of the search and/or monitoring of production of
[electronically stored information]” (Motion to Compel, Filing
No. 34, at 7).
The communications plaintiff seeks are e-mails.
The Court reads “other issues” as plaintiff’s additional proposed
search terms (aside from “Rex Brown”).
The Court reads “all
available sources” as all sources, electronic and otherwise, from
every West employee with even the remotest connection to Rex
Brown’s employment at West.
Finally, the Court notes the
plaintiff’s request for an “independent search” -- a reference to
the defendant’s search procedure which allows the user of the e-
mail account to “self search,” as opposed to a search conducted
by an information technology specialist.
A. Privilege Log1
The mandate of Rule 26(b)(5) clearly requires a
privilege log “whenever a party withholds information otherwise
discoverable by claiming that the information is privileged.”
Such privilege logs “can aid the court in its resolution of a
dispute, but ‘[t]he tribunal ultimately decides what information
must be disclosed on a privileged document log.’”
Technologies, LLC v. Adobe Sys., Inc., 8:10CV220, 2011 WL
5523389, *2 (D. Neb. Nov. 14, 2011) (quoting PaineWebber Group,
Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988, 992 (8th Cir.
This Court has joined other district courts in assuming
privilege for attorney-client communications that transpire after
the initiation of litigation in situations where the plaintiff is
requesting extensive discovery.
The Court sees no reason to
depart from that assumption in this case.
This does not relieve defendant of its remaining
While the Court recognizes that some communications
between the parties may have left vague the necessity of creating
Plaintiff has broached this issue both generally and with
specific regard to Request No. 5. The Court addresses all the
a privilege log (Brief in Opposition, Filing No. 60, at 34), the
instant motion makes clear that the plaintiff has not agreed to
forgo the strictures of Rule 26(b)(5) for requests aimed at the
pre-litigation period or materials in the post-litigation period
that were not prepared in anticipation of litigation.
will instruct the defendant to produce such logs now.2
B. Independent Search
None of the cases which plaintiff cited hold, as
plaintiff claims, that “self-searching is wholly unreliable”
(Brief in Support, Filing No. 35, at 18).
At best, the cases
caution that effective custodian-conducted searches must give
specific directions as to search terms and techniques and that
the reliability of a self-search cannot be determined without
examination of the parameters of the search.
See, e.g., Nat’l
Day Laborer Org. v. United States Immigration and Customs
Enforcement Agency, No. 10 Civ. 3488 (SAS), 2012 WL 2878130
(S.D.N.Y. July 13, 2012).
Nor do the cases suggest a baseline
requirement for an independent search.
Still, defendant has refused to produce the litigation
hold memo, which appears to be the document that triggered
searches by West employees.
While such letters are themselves
The privilege log provided to the Court by the defendant
has entries for only two documents (Filing No. 62, Ex. A-8).
privileged, the information surrounding the letters is not.
Magnetar Tech. Corp. V. Six Flags Theme Park Inc., CA
07-127-LPS-MPT, 2012 WL 3609715, n.114 (D. Del. Aug. 22, 2012)
The people to whom the letter was sent, the
directions for preservation, the sources identified for search,
the terms used for the search, the defendant’s continued efforts
to ensure compliance, and any other information relevant to the
scope and depth of the preservation or the search must be
disclosed in detail so that precise objections can be made and so
that defendant’s search can be effectively reviewed by this
The affidavits by West employees describing their
searches are not sufficiently detailed to determine whether
defendant has reasonably complied with plaintiff’s request for
production -- in fact, the variety and general language in the
affidavits suggests precisely the kind of unguided, unreliable
search warned of in National Day.
Only production of the search
parameters given to those employees can help overcome this
To the extent that the parameters of the litigation
hold show negligence, bad-faith, or are simply too narrow, the
plaintiff can make further motions if the parties cannot agree to
expanded terms or sources.
To the extent that these parameters
delineate the “who” (which employees) and “what” (which files
sources), they might also resolve the issue of whether all
“available sources” have been searched.
C. Scope of Discovery
Defendant has objected to many of plaintiffs requests
as being some combination of “overbroad, burdensome, harassing”
and insufficiently specific.
Under the Federal Rules of Civil
Procedure, the plaintiff is entitled to “nonprivileged matter
that is relevant to any party’s claim or defense.”
Fed. R. Civ.
The rules place an additional limit on discovery of
Electronically Stored Information only to the extent that the
sources are not “reasonably accessible.”
Id. at 26(b)(2)(B).
More generally, the Court must limit the extent of discovery
under Rule 26(b)(2)(C) where the burden or expense of production
outweighs the likely benefit.
The e-mails from John Thielen’s computer found using
the plaintiff’s name as the search term are clearly relevant to
Thielen’s assessment of and attitude toward the plaintiff and, by
proxy, Thielen’s ultimate motives for any disparate treatment.
It is difficult to imagine how any of the limits on discovery in
the Federal Rules might apply considering the defendant has
already run the search and identified the e-mails.
failed to make a showing of undue burden or cost.
must either review the e-mails for privileged information and add
any documents withheld to the privilege log or agree to
plaintiff’s proposed clawback provision.
II. Interrogatory No. 2: Witness Statements
This interrogatory has clearly been addressed by
defendant’s supplemental answer in which it states that it does
not have any such witness statements.
Plaintiff has failed to
identify any specific statements by persons that he thinks are
responsive but have not been disclosed.
III. Interrogatory Nos. 14, 15, and 16 and Request for Production
of Documents Nos. 9, 15, 16 and 37: Complaints by Other
Other complaints that indicate a pattern of racial
discrimination would be circumstantial evidence of individual
See Estes v. Dick Smith Ford, Inc., 856
F.2d 1097, 1103 (8th Cir. 1988) (finding comparative data
probative of “whether discrimination has motivated a particular
employee’s treatment”), overruled in part on other grounds by
Price Waterhouse v. Hopkins, 490 U.S. 228, (1989).
plaintiff is claiming disparate treatment ranging from hostile
work environment to constructive discharge, the individuals who
are relevant to such inquires include all those who allegedly
contributed to the hostile atmosphere or took part in allegedly
Likewise, information concerning how
these individuals personally handled complaints of discrimination
is relevant to their attitude toward plaintiff and the intention
of their actions toward him.
However, the marginal relevance of such complaints
diminishes the further the complaining employee was from the
decision makers that allegedly discriminated against the
See generally, Sallis v. Univ. of Minn., 408 F.3d
470, 478 (8th Cir. 2005) (approving of “limit[ing] the discovery
of company records to the local facility where plaintiff was
employed, where there is no showing of the need for regional or
nationwide discovery”); Carmen v. McDonnell Douglas Corp., 114
F.3d 790, 792 (8th Cir. 1997) (“Companywide statistics are
usually not helpful in establishing pretext in an employment
discrimination case, because those who make employment decisions
vary across divisions.”).
The Court recognizes a factual dispute involving
defendant’s affirmative defense of failure to report (compare
Complaint, Filing No. 1, at 17 ¶ 5, with Answer, Filing No 9, at
19 ¶ 5).
The plaintiff may be entitled to broader discovery
regarding the defendant’s record and actual practices regarding
complaints of discrimination.
However, this is a potentially
enormous expansion of the scope of discovery for which there is
nothing to suggest that a broader practice of discrimination -occurring in defiance of the written policy -- will be uncovered.
At this time, plaintiff has failed to show any “particularized
need and relevance” to move beyond the “source of the complained
E.E.O.C. v. Woodman of the World Life Ins.
Society, 8:03CV165, 2007 WL 1217919, *3 (D. Neb. Mar. 15, 2007).
If it has not already done so, defendant shall respond
to Interrogatory Nos. 14, 15, 16 and produce all responsive
documents to Request Nos. 15, 16, and 37 that relate to
complaints against (1) individuals involved in the decision to
fire plaintiff or with discretionary authority to grant or refuse
plaintiff’s alleged requests for support (2) individuals accused
of discrimination, harassment, or retaliation in this case.
Request No. 9 seeks documents regarding the investigation “into
Again, defendant appears to have
satisfactorily addressed this issue by making facially valid
privilege objections and pointing out that no other evidence of
internal complaints exist.
It is unclear whether defendant has
provided an appropriate privilege log for all the information and
IV. Interrogatory No. 20: Continuing Education Materials, Request
No. 14: Documents Reviewed in Responding to Interrogatories
A motion to compel on these matters appears to be
unnecessary or premature.
accommodate these requests.
Defendant has not refused to
In fact, it appears that defendant
has largely complied and continues to address plaintiff’s
Absent a specific request from plaintiff
regarding documents he thinks are being withheld, no affirmative
order to compel is appropriate at this time.
withheld on the basis of privilege should be noted on the
V. Interrogatory No. 23: Persons Involved in Performance
Improvement Plan Decision
Defendant is correct that the “various business
leaders” consulted by Thielen might not have played a large role
in the decision making process.
Still, the fact that they were
consulted before the decision was reached suggests that they
might have relevant information and, therefore, provides a basis
for the minimal discovery requested here:
disclosure of their
names and the extent of their involvement.
VI. Interrogatory No. 27 and Request No. 17: Statistical Evidence
Plaintiff cites Dias v. AT&T, 752 F.2d 1356 (9th Cir.
1985), in which the Ninth Circuit found discovery of statistical
data appropriate where plaintiff required the data to prove the
inference of discrimination.
The plaintiff in Dias was claiming
disparate treatment in the form of failure to promote because of
race which implicated the broader policies and practices of his
Brown’s allegations of harassment, constructive
discharge, and unequal managerial support are all tied to the
actions of a few key players in his department or related to his
At this time, plaintiff has not shown that information
relevant to the individualized treatment of which he complains is
likely to be uncovered through this discovery request.
Further, statistical comparisons will inevitably
require comparisons of West’s racial makeup against the makeup of
the qualified applicant pool or some similar statistic.
generally, Hazelwood Sch. Dist. v. United States, 433 U.S. 299
(1977); Thomas v. Caldera, 221 F.3d 1344, *1 (8th Cir. 2000);
Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778 (8th Cir.
1995) (“[S]tatistics, to be meaningful indicators of pretext,
evaluate the treatment of comparable employees. . . . [Companywide] statistics ‘have relatively little relevance to determining
. . . discriminatory animus’ of the specific manager who made the
ultimate decision to terminate” (quoting MacDissi v. Valmont
Ind., Inc., 856 F.2d 1054 (8th Cir. 1988))).
individualized allegations of discrimination, it is unlikely that
any useful comparisons can be made using the broader set of West
employees as a statistical starting point.
plaintiff’s request must be limited to the makeup of those who
have been subject to the hiring, firing, or direct managerial
control of those individuals the plaintiff is accusing of
VII. Interrogatory No. 28: Justifications for Performance
Understandably, plaintiff seeks West’s purported nondiscriminatory motivations for the adverse employment decision.
Defendant has provided copious documentation supporting its
decision, but plaintiff appears to object that defendant has
provided too much.
Defendant’s answer, along with plaintiff’s
deposition of the decision-makers, will provide plaintiff with
adequate opportunity for discovery on this topic.
VIII. Request No. 6: Employee Surveys and Interviews Regarding
Concerns About Discrimination
The defendant reasonably read the interrogatory to
cover surveys, interviews, or other documents reflecting
employees views on race, exclusive of complaints covered by
Interrogatory No. 15.
Plaintiff has not established the
relevance of discrimination complaints on grounds other than
It appears that defendant has otherwise complied with this
IX. Request No. 7: Documents that Provide Basis for Placing
Plaintiff on a Performance Improvement Plan
Request No. 7 asks defendant to identify the documents
“relied upon” in making the adverse employment decisions.
Defendant has offered to supplement its response by
“identify[ing] by Bates-Range the documents that West believes
supports its reasons for taking adverse action against
However, this would, presumably, be a much broader
set of materials, including all documents that support the
decision in hind-sight even if they were not actually relied upon
by the decision-makers.
Defendant should not only identify the
documents actually relied upon, but also, as requested, identify
which decision-makers relied on those documents.
X. Request No. 11: Minutes of Meetings Concerning Plaintiff
This issue appears to have been adequately addressed by
the assurance in defendant’s brief that “West has produced all
documents regarding such meetings or discussions that it has been
able to locate to date. . . . No documents other than documents
created after this litigation was filed, are being withheld.”
above, the defendant should produce a privilege log for noncommunications that are being withheld on the basis of privilege.
XI. Request No. 21: Wage/Salary/Commission Information
Plaintiff is satisfied with the production on this
request except with regard to “commission audit reports.”
Plaintiff’s brief does not establish what these materials are or
how they are relevant.
Therefore, an affirmative motion to
compel is inappropriate at this time.
XII. Request No. 24: Comparator Information
Comparator information is relevant to plaintiff’s
claims of disparate treatment in the terms and conditions of his
Comparators may have different job titles if they
had substantially similar responsibilities.
relevance are comparators whose files or other sources indicate
the same conduct as plaintiff, regardless of whether or how they
Again, the limited nature of the pleadings
does not occasion discovery beyond the allegedly discriminating
XIII. Request No. 26:
The Court agrees that the term “relating to the
business sold” is either vague and ambiguous -- failing the
specificity requirement of Rule 34(b) -- or includes in its
breadth non-relevant materials.
Yet, the defendant has continued
to supply additional materials as plaintiff has made more
A comprehensive motion to compel on this
request appears to be premature.
However, defendant has refused to produce certain
materials with the explanation that the data collection software
does not create reports of the kind requested.
If it has not
already done so, defendant should produce the most robust
“Salesforce.com” reports relevant to sales, leads, and
commissions regarding plaintiff and comparators that are capable
of being created.
Also, to the extent possible, defendant shall
supplement its production by distinguishing old business from new
business because it is relevant to any comparisons based on the
Performance Improvement Notification.
Plaintiff’s request for
underlying documents are duplicative absent a specific showing
that they are in some way irreparably incomplete or unreliable.
XIV. Request No. 32 and 33: Business Expenses and Travel Expenses
Plaintiff’s complaint of discriminatory treatment
regarding business expenses hinges on two points.
single incident regarding a parking fee that was questioned and
ultimately was not paid for by West -- the only reimbursement
request of plaintiff’s that was ever denied.
This alone does not
constitute a showing that relevant information will be
Under the starkest contrast possible, this was the
one and only reimbursement request that West had ever denied.
Given the facially reasonable rationale (that a higher-cost
express lot was used), this would not suggest discriminatory
Second, plaintiff suggests that his requests were
subject to higher scrutiny based on longer turn around time.
source of this disparate treatment is in the scrutiny employed by
John Thielen and Mike Sturgeon, but plaintiff has not established
that the requested records would reflect the level of scrutiny
The only factor that could be measured is the time it
took to process plaintiff’s requests, but plaintiff has not asked
for this data or suggested that it would be contained in the
In fact, the only evidence presented to the Court --
the deposition testimony of Christine Rodriguez -- gives no
indication of any unusual delay for plaintiff’s reimbursement
Thus, this aspect of plaintiff’s request for
production is not likely to uncover relevant information.
One type of information would be relevant as a helpful
basis for comparison:
any similar requests that were granted or
Thus, defendant shall produce any requests for the kind
of “express lot” parking reimbursements from comparators that
were accepted or denied between January of 2004 and the present.
XV. Request No. 35: Pricing Given to Comparable Clients
Plaintiff is claiming discrimination in the pricing
offered to his prospects and clients.
Documents that provide a
basis for comparing pricing structures for plaintiff’s prospects
and the prospects of other Directors of Sales are relevant to
whether such a difference exists.
The defendant’s argument that
differences in profit margins could explain these differences go
to the weight of the evidence.
XVI. Request No. 40: Rex Brown E-Mail Activity
The Court assumes the absence of Request No. 40 in
plaintiff’s prayer for relief was an oversight, but the Court
notes that it has been fully briefed by both parties.
another case in which the defendant appears to have produced all
Absent a specific reference to available
materials that have been withheld, no affirmative order is
appropriate at this time.
XVII. Request No. 41: Minimum FTE/Revenue Policies
The parties agree that any written global policies,
even if they are specific to the business units, are
Defendant claims to have complied with this
This addresses most of the relevant materials that
To the extent plaintiff seeks “all e-mails
. . . that discuss West’s [minimum standards],” the Court finds
that the burden of identifying all such e-mails outweighs the
expected benefit because the lack of any written global policies
held by the business units makes e-mail discussions of such
policies highly unlikely and of dubious value.
XVIII. 30(b)(6) Deposition
A. Designation of 30(B)(6) Witnesses
A “spirit of cooperation, openness, and candor [is]
owed to fellow litigants and the court and [is] called for in
Sentis Group, Inc., Coral Group, Inc. v.
Shell Oil Co., 559 F.3d 888, 891 (8th Cir. 2009).
initial objections lodged by the opposing party serve as a means
of communication between the parties over the appropriate scope
of a deposition.
Plaintiff’s insistence that the only
appropriate action for defendant was a motion to quash is not
supported anywhere in the case it cites for that proposition.
Rather, the background of that case demonstrates a process of
objections and concessions by the parties before seeking guidance
from the Court.
Murphy v. Kmart Corp., 255 F.R.D. 497, 499-500
In the present case, the process was initiated by
the defendant’s objections only six days before the deposition
was scheduled to occur and received only isolated responses from
plaintiff before both parties proceeded with the deposition
despite their differences.
Plaintiff now seeks an order
compelling discovery on the disputed areas despite his failure to
address these objections before proceeding with the deposition.
Similarly, plaintiff cites Dravo v. Liberty Mutual
Insurance Company, 164 F.R.D. 70, for the proposition that “[t]he
only proper objection to questioning at any deposition is if the
information sought is privileged” (Brief in Support, Filing No.
35, at 55).
In fact, that case stands for the broader, well-
accepted proposition that the only basis for instructing a
witness not to answer is to protect privileged information.
A sampling of the record indicates that, despite the
objection, the witnesses were allowed to answer all but one of
Broadly speaking, plaintiff’s requests were not
sufficiently specific in identifying the topics he wished to
For example, he asserts that “[t]here was no IT
representative designated regarding the litigation hold to
discuss e-mail searches.”
However, the closest category under
the “Electronic Records” heading is “Company Email Systems and
It should have been no surprise, therefore,
that when asked about litigation holds, the IT witness was not
prepared to answer.
1. E-Mail Activity on Mike Sturgeon’s E-Mail Account Regarding
The Court notes that defendant’s counsel’s offer to
stipulate does not substitute for testimony of a corporate
representative on that fact.
A stipulation is an agreement
between the parties on a certain fact.
Plaintiff’s refusal to
agree to a version of the facts that is beneficial to the
defendant is not a basis for refusing to provide a designee who
can speak knowledgeably for the corporation on that issue.
However, plaintiff has requested a motion to compel without any
articulation as to how the information requested is relevant.
2. Minutes or Records of Meetings Held by West Personnel
Following Receipt of the Litigation Hold or Regarding Plaintiff
As noted above, while litigation hold memos are
themselves privileged, the information surrounding a memo is not.
See Magnetar, 2012 WL 3609715, n.114.
Still, Rule 26(b)(3)(A)
provides protection for “documents and tangible things that are
prepared in anticipation of litigation or for trial by . . .
The Eighth Circuit has held this standard met
where documents were “prepared or obtained because of the
prospect of litigation”
397, 401 (8th Cir. 1987).
Simon v. G.D. Searle & Co., 816 F.2d
It can hardly be said that meetings
discussing the litigation hold were not held in reasonable
anticipation of litigation; nor can it be said that minutes of
those meetings were not created “because of” the litigation.
3. Other Complaints of Discrimination
The scope of this request has been fully addressed in
4. Any Meetings that Occurred Post-Litigation Regarding West’s
Employees Wherein Litigation Was Discussed
Though such meetings are closely connected with
privileged documents and information, the fact of the meetings
themselves and some circumstances or content of the meetings may
Resolution Trust Corp. v. Dabney, 73 F.3d 262,
266 (10th Cir. 1995) (“[W]ork product does not preclude inquiry
into the mere fact of an investigation.”).
agrees that this request is overbroad.
However, the Court
Plaintiff failed to
specify the kind of information requested so that defendant could
adequately prepare an appropriate corporate representative.
5. The Amount Paid and Itemization of Other Client-Related
Expenses for each DOS from 2004-2010 and Travel Requests for
The scope of these requests have been fully addressed
in sections XI-XIV.
6. Employment of Robert Henderson
Plaintiff’s requests are only relevant to the intent of
the West decision-makers if the same individuals were responsible
for the hiring of Robert Henderson and the adverse employment
decisions or harassment against the plaintiff.
chooses to further pursue this issue, defendant must identify the
decision-makers in the hiring of Robert Henderson.
overlapping decision-makers, defendant must answer additional
questions regarding what those individuals knew at the time of
7. Affirmative Action Plan
Plaintiff claims that Craik v. Minnesota State
University Board, 731 F.2d 465 (8th Cir. 1984) “clearly holds
that information regarding an employer’s Affirmative Action Plan
In fact, Craik does not address any discovery
Rather, in reviewing the magistrate judge’s balancing of
the evidence, the Eighth Circuit held that in a class action case
where pattern and practice allegations regarding promotions are
supported by evidence that a defendant organization did not abide
by its affirmative action plan, such evidence should be
considered as “relevant to the question of discriminatory
Id. At 471-72.
This is not a class action, nor is it a promotion case,
nor does plaintiff allege an overarching discriminatory policy,
pattern, or practice in defendant’s organization.
plaintiff makes claims of disparate treatment by specific
individuals within the organization.
Thus, the only relevant
information is the content of West’s affirmative action policy
and whether the individuals accused of discrimination followed
B. Failing to Properly Prepare Witnesses and Produce Documents
Plaintiff points to a number of deposition questions
that defendant’s witnesses were unable to answer, many of which
involved the identification and interpretation of documents.
Plaintiff has failed to establish that the information requested
Given the breadth of the categories in plaintiff’s
request, deficient answers on the part of defendant’s witnesses
are understandable and, perhaps, unsurprising.
It would appear
that defendant made a good-faith attempt to provide witnesses
with knowledge of relevant information within plaintiff’s
Efforts at interpretation by defendant in
identifying the relevant information under plaintiff’s categories
is understandable given plaintiff’s failure to more specifically
identify the relevant information he was seeking.
also failed to establish that he has conferred with opposing
counsel regarding these deficiencies in an attempt to obtain the
additional information without a court order.
failed to specifically link the unanswered questions to specific
categories in his 30(b)(6) notice, making it impossible for the
Court to determine whether the failure to answer was due to an
unreasonably narrow reading of the requested topics.
Plaintiff’s request for documents face similar shortcomings.
In addition, plaintiff requested documents that had
already been produced.
VI. Costs and Fees
As discussed throughout, most of the conflicts
requiring this motion to compel are maintained in good faith.
Others can be ascribed to the parties equally.
Many of the
requests appear to have been satisfactorily addressed or
prematurely accuse the defendant of failing or refusing to
Though it is not clear that all of the
specific mandates made in this order are strictly necessary in
view of the production that has already been made, the Court has
included them to ensure a resolution moving forward.
circumstances, the Court will not assess costs and fees.
The Court has not been presented with enough
information to make any rulings on the appropriateness of most of
defendant’s privilege objections.
This is in part because, as
discussed above, defendant’s privilege log is incomplete.
as regarding Interrogatory No. 18 and Request No. 13, this order
does not address the appropriateness of privilege objections and
defendant may continue to make such objections while making the
proper entries in a privilege log.
IT IS ORDERED:
1) Defendant shall produce a privilege log covering all
materials that it refuses to produce on the grounds of attorney
client privilege or work product privilege if defendant would
otherwise be required to produce such materials.
The log may
exclude attorney-client communications following the initiation
of this litigation.
2) Defendant shall disclose to plaintiff information
stemming from the litigation hold as follows by November 21,
a) The names of individuals to whom
the litigation hold was sent and
the dates on which the hold was
communicated to those individuals;
b) The specific sources that
custodians were instructed to
search (hard drives, e-mail inbox,
e-mail archives, back-up files,
network drives, personal computers,
cell phones, etc.);
c) What specific search terms, if
any, custodians were instructed to
use in their search;
d) Any other directions custodians
were given to limit or aid in their
e) When and for what specific
sources preservation policies were
put in place;
f) When and what steps were taken
to preserve ESI;
g) What steps where taken to ensure
compliance with preservation
policies and to ensure the accuracy
of searches after the litigation
hold was distributed;
h) Identification of all documents
related to preservation or search
efforts, either in a privilege log
i) The capabilities and limitations
of running a global search for email and other electronically
3) Defendant shall produce the non-privileged documents
and communications from John Thielen’s e-mail that were
identified using the plaintiff’s name as a search term.
4) Plaintiff’s motion to compel additional responses to
the following requests are denied:
a) Interrogatory Nos. 2, 20, 28
b) Request Nos. 6, 9, 11, 14, 21,
5) Plaintiff’s motion to compel additional responses is
granted as follows:
a) Defendant shall respond to
Interrogatory Nos. 14, 15, 16 and
produce all responsive documents to
Request Nos. 15, 16, 37 that relate
to complaints against (i)
individuals involved in the
decision to fire plaintiff or with
discretionary authority to grant or
refuse plaintiff’s alleged requests
for support (ii) individuals
accused of discrimination,
harassment, or retaliation in this
b) Defendant shall identify the
names of the “business leaders”
consulted before making the
employment decisions identified in
Interrogatory No. 23 and the
substance of their contribution to
those employment decisions.
c) Defendant shall respond to
Interrogatory No. 27 and Request
No. 17 for those employees who have
been subject to the hiring and
firing discretion or direct
managerial control of those
individuals the plaintiff is
accusing of discriminatory
d) Defendant shall provide further
response to Request No. 7 by
specifically identifying the
documents actually relied upon in
making the employment decisions and
which decision-makers relied on
e) Defendant shall provide response
to Request No. 24 for all employees
with the same job title or
substantially similar duties as
plaintiff whose file or other
sources indicate that they engaged
in the same conduct for which
plaintiff was disciplined. This
includes only conduct that occurred
in the period January 1, 2004, to
f) Defendant shall provide further
response to Request No. 26 by
producing the most robust
“Salesforce.com” reports relevant
to sales, leads, and commissions of
plaintiff and comparators that are
capable of being created.
Defendant shall also supplement any
commissions production by
distinguishing, where possible,
commissions derived from old
business and new business.
g) Request Nos. 32 and 33:
Defendant shall produce any
requests for “express lot” parking
reimbursements from comparators
that were made between January of
2004 and the present. Defendant
shall indicate whether they were
accepted or denied, who made the
request, and any documentation
indicating who made the decision to
accept or reject the request.
h) Request No. 35: Defendant shall
provide existing documents
indicating the rates provided to
prospective customers of
comparators for the period in which
plaintiff was employed at West.
6) Plaintiff may hold an additional 30(b)(6) deposition
over topics that are sufficiently particularized to put defendant
on notice of the questions likely to be asked.
questions shall be consistent with the relevance findings and
other limitations noted above.
The deposition shall last no
longer than four hours.
7) Plaintiff’s motion for costs and fees is denied.
8) Defendant’s motion to strike (Filing No. 64) and
objection (Filing Nos. 77 and 78) are denied as moot.
DATED this 5th day of November, 2012.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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