Ortega v. Management and Training Corporation

Filing 24

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING IN PART AND DENYING IN PART 17 Plaintiff's Motion to Compel Discovery. (sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALEJANDRO ORTEGA,
Plaintiff,
v.

No. 16-cv-0665 MV/SMV

MANAGEMENT AND TRAINING
CORPORATION,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL DISCOVERY
THIS MATTER is before the Court on Plaintiff’s Motion to Compel Discovery
[Doc. 17], filed October 3, 2016.

Defendant responded on October 20, 2016. [Doc. 18].

Plaintiff replied on November 7, 2016. [Doc. 19]. The Court heard argument from the parties at
a hearing on the motion on January 5, 2017. Having considered the briefing, the parties’
argument at the hearing, the relevant law, and being otherwise fully advised in the premises, the
Court will GRANT IN PART and DENY IN PART Plaintiff’s Motion to Compel.
In his motion, Plaintiff asks the Court to compel Defendant to (1) produce electronically
stored information in its native format (that is, electronically), in addition to the hard copy format
in which Defendant has already produced the requested documents; and (2) produce copies of the
personnel files of those employees who had authority over Plaintiff’s discharge, including

evidence of any disciplinary actions taken against such employees. [Doc. 17] at 4–8.1 These
issues are addressed in turn.
Production of Electronically Stored Documents in Electronic Format
Plaintiff requests that the Court compel Defendant to produce requested documents in the
manner in which they are ordinarily kept; that is, Plaintiff requests that information kept
electronically in “the usual course of business” be produced electronically. [Doc. 17] at 4–7.
Plaintiff contends that Defendant has produced only in hard copy documents that Defendant kept
electronically. Id. at 6–7.
During oral argument at the hearing on January 5, 2017, counsel for Plaintiff
acknowledged that Defendant need not produce documents both electronically and via hard
copy; Plaintiff maintains, however, that Defendant should be compelled to produce electronically
any document kept electronically in the normal course of business, even where Defendant has
already produced such documents in hard copy format. At oral argument, counsel for Defendant
stated that Defendant has produced in hard copy all requested documents that are ordinarily kept
in hard copy and has produced electronically all requested documents that are ordinarily kept
electronically. Defendant further stated that, with respect to documents ordinarily kept by
Defendant both electronically and in hard copy, Defendant produced such documents in hard
copy format only. This last category of documents is the heart of the parties’ dispute.
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In his motion, Plaintiff also asks the Court to compel Defendant to respond to Plaintiff’s Requests for Production
(“RFPs”) 11–13 (communications by employees of Defendant relating to Plaintiff). [Doc. 17] at 9. At the hearing
on January 5, 2017, the Court clarified with counsel for both parties that, as the briefing indicated, Defendant will
produce documents in response to RFPs 11–13. Counsel for Plaintiff noted that Defendant agreed to produce the
documents subject to a confidentiality order, and the parties have not yet entered into a confidentiality order.
Counsel for Defendant added that Defendant has provided a draft confidentiality order to Plaintiff, and Plaintiff has
neither objected to the form of the order nor agreed to it. Given that the parties are working toward finalizing a
confidentiality order with respect to the requested documents and that there is no dispute currently before the Court
as to the confidentiality order, the Court will not address RFPs 11–13 in this Order.

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Rule 34 does not require the producing party to produce documents in multiple formats.
Fed. R. Civ. P. 34(b)(2)(E)(iii). Nor does Rule 34 require the producing party to produce
electronically stored documents in the form in which they are ordinarily maintained. Fed. R.
Civ. P. 34(b) advisory committee’s note to 2006 amendment. Rather, the producing party is
required only to produce such documents in a “reasonably usable form”; it cannot convert
electronically stored information “to a different form that makes it more difficult or burdensome
for the requesting party” to use the documents. Id. Defendant’s production of hard copy
versions of documents kept both electronically and in hard copy does not run afoul of Rule 34.
Plaintiff’s motion is DENIED as to Plaintiff’s request for electronic versions of
documents maintained by Defendant in both electronic and hard copy formats, where Defendant
has already produced such documents in hard copy format.2
Production of Personnel Files of Those Employees who had
Authority over Plaintiff’s Discharge
Plaintiff also requests that the Court compel Defendant to produce the personnel files of
those employees who had authority over Plaintiff’s discharge, including documentation of any
disciplinary actions against such employees.

[Doc. 17] at 7–8.

Plaintiff acknowledges

Defendant’s representation that the files of the pertinent employees—Warden Terry, Stephanie
Hall, Jared Christensen, and Neil Adler—contain no disciplinary actions or similar write-ups
regarding the discharge of Plaintiff. However, citing case law outside the Tenth Circuit, Plaintiff
maintains that the personnel files are still relevant because prior disciplinary actions, though not
in relation to Plaintiff’s discharge, could show an employee’s state of mind or habit of engaging

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Though Defendant is not obligated to do so, the Court encourages Defendant to produce electronic versions of
these documents, to the extent it can do so without incurring significant expense.

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in discriminatory practices. Defendant argues that these documents are not relevant because they
do not pertain to the termination of Plaintiff in this case. [Doc. 18] at 5. Defendant further
asserts the privacy interests of the employees, noting that Plaintiff’s request encompasses
medical, financial, and other highly personal information. Id. Finally, Defendant notes the
significant cost and burden of production. Id.
Neither party cites Tenth Circuit case law on this issue.

While Plaintiff cites two

non-binding cases that address the issue, they point in opposite directions, and neither sets out a
firm rationale for the conclusion reached. See [Doc. 17] at 7–8. Compare Hill v. Motel 6, 205
F.R.D. 490, 495 (S.D. Ohio 2001) (holding, in a disparate treatment case, that the plaintiff was
entitled to discovery of the personnel files of those employees who participated in the decision to
terminate the plaintiff), with Vann v. Mattress Firm, 2014 WL 1365943, at *4 (S.D. Tex. Apr. 7,
2014) (unpublished) (holding, also in a disparate treatment case, that the plaintiff was not entitled
the discovery of the personnel files of those employees involved in the decision to terminate the
plaintiff because such documents would not “assist plaintiff in her effort to show that she was
treated less favorably than similarly situated employees outside of her protected class”).
The Court finds that another case deciding this issue, Abrego v. Waste Management of
Texas, Inc., 2012 WL 2402890, at *1 (N.D. Tex. June 26, 2012) (unpublished), is more
instructive, and the Court adopts its reasoning. In Abrego, as in Vann, the court denied the
plaintiff’s motion to compel discovery of the personnel files of those involved in the plaintiff’s
termination. Id. It clarified that its decision was based on the representation of the defendant in
that case that the requested records did not contain:

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(1) the reasons for plaintiff’s termination; (2) any complaints of
harassment or retaliation by plaintiff or any other [employee of
defendant]; (3) any discipline received by the supervisor in
response to complaints of discrimination or retaliation; or (4) any
discipline received by the supervisor for failure to properly
investigate or respond to complaints of discrimination or
retaliation.
Id. The court’s decision in Abrego strikes an appropriate balance between a plaintiff’s need for
discovery and the privacy interests of the employees whose records are sought, and the Court
will adopt its approach in the present case.
Plaintiff’s motion is GRANTED IN PART and DENIED IN PART as to Plaintiff’s
request for the personnel files of the employees who were involved in the termination of
Plaintiff. The motion is granted as to any portions of the personnel files of Warden Terry,
Ms. Hall, Mr. Christensen, and Mr. Adler that pertain to either the reasons for Plaintiff’s
termination or past complaints of racial harassment or racial discrimination, as set out
specifically in the orders below.

The motion is denied as to any other portions of such

employees’ personnel files.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Compel is GRANTED IN PART and DENIED IN PART. The motion is granted as
to certain portions of the personnel files of Warden Terry, Ms. Hall, Mr. Christensen, and
Mr. Adler, in accordance with the below orders. The motion is denied as to any other portions of
such employees’ personnel files. The motion is further denied as to Plaintiff’s request for
electronic versions of documents maintained by Defendant in both electronic and hard copy
formats, where Defendant has already produced such documents in hard copy format. Each side
will bear its own costs and fees.
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IT IS FURTHER ORDERED that no later than January 20, 2017, Defendant must
serve a supplemental response to Plaintiff’s RFPs 7A–8B stating whether the personnel files of
Warden Terry, Ms. Hall, Mr. Christensen, and Mr. Adler contain (1) any reason for Plaintiff’s
termination; (2) any complaints of racial harassment or racial discrimination by Plaintiff or any
other employee of Defendant; (3) evidence of any discipline received by these individuals in
response to complaints of racial harassment or racial discrimination; or (4) evidence of any
discipline received by these individuals for failure to properly investigate or respond to
complaints of such harassment/discrimination.
IT IS FURTHER ORDERED that if Defendant certifies under Rule 11 that no such
document exists, Defendant need not produce any portion of the personnel files requested by
Plaintiff. If any such documents do exist, Defendant must produce all such documents, subject
to a confidentiality order. If the parties are unable to agree to a confidentiality order, the parties
must bring their dispute to the attention of the Court before January 20, 2017.
IT IS FURTHER ORDERED that after any such documents are produced, if Plaintiff
believes good cause exists to look at any further portions of the personnel files, Plaintiff may file
another motion to compel. Plaintiff will bear the burden of showing that good cause exists for
any further production of documents.
IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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