Banerjee v. The University of Tennessee
Filing
95
MEMORANDUM AND ORDER denying 76 Motion to Compel. Signed by Magistrate Judge H Bruce Guyton on 3/6/19. (JBR, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAMAYANTI BANERJEE,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
THE UNIVERSITY OF TENNESSEE,
Defendant.
No. 3:17-CV-526-HSM-HBG
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiff’s Motion to Compel Certain Electronically Stored
Information Searches and Document Production and Memorandum in Support (“Motion to
Compel”) [Doc. 76]. The parties appeared before the Court on February 19, 2019, for a motion
hearing. Attorney Laura Bailey appeared on behalf of Plaintiff. Attorney Rachel Powell appeared
on behalf of Defendant. Accordingly, for the reasons explained below, the Court hereby DENIES
Plaintiff’s Motion to Compel [Doc. 76].
I.
BACKGROUND
The current dispute relates to Plaintiff’s First Requests for Production of Documents (“First
Requests”) and Plaintiff’s Second Requests for Production of Documents (“Second Requests”).
With respect to Plaintiff’s First Requests, the parties began communicating in January 2018,
regarding the personal storage table (“PST”) files that would be searched and the search terms that
would be used. According to Defendant, the parties agreed that Defendant would search eleven
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administrator custodians using Plaintiff’s first and last name. Defendant states that it produced
such documents on February 16, 2018.
On February 27, 2018, Plaintiff proposed faculty custodians’ PST files to search along with
a list of proposed search terms. [Doc. 77-1]. In Plaintiff’s letter, she states that she “reserves the
right to amend, supplement or change the search terms” and that her proposal is to resolve a
potential discovery dispute. [Id.]. Defendant states that in May 2018, it sent Plaintiff a “final
letter,” specifying the terms it agreed to and a list of terms that it did not agree. [Doc. 77 at 5-6].1
Defendant also informed Plaintiff that it would begin a rolling production of relevant documents
from the search terms that it agreed to search. On May 29, 2018, Defendant produced such
documents for five of the faculty custodians and began the process for the remaining custodians.
On June 25, 2018, Plaintiff responded [Doc. 77-3] to Defendant’s May 9 letter, requesting
that additional terms be searched for administrator and faculty custodians. In an email dated July
19, 2018, Defendant responded that it would search for several of the terms in the faculty
custodians’ PST files as Plaintiff suggested, but it declined to search the other terms and
custodians’ PST files, stating that such searches had already been covered. [Doc. 94-1]. This was
the last written communication regarding the First Requests.
With respect to the Second Requests, Defendant sent Plaintiff a letter [Doc. 94-2] dated
September 10, 2018, proposing search terms and explaining that other searches have already been
conducted. Plaintiff never responded to Defendant’s September 10 letter. On September 17, 2018,
Defendant produced documents in response to Plaintiff’s Second Requests.
As an initial matter, the Court agrees that Plaintiff has not complied with the meet and
confer process outlined in Federal Rule of Civil Procedure 37(a) with respect to the Second
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Defendant did not submit its May 9 letter to the Court.
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Requests. Plaintiff does not dispute that in response to the Second Requests, Defendant sent the
September 10 letter. Plaintiff did not respond to that letter, but instead, filed the instant Motion
three months later. At the hearing, Plaintiff argued that she served the Second Requests to narrow
the discovery that was requested in the First Requests in hopes of resolving the discovery disputes
that arose with the First Requests. Plaintiff, however, did not communicate her position until the
hearing. The Court reminds the parties that the good-faith certification pursuant to Rule 37(a)(1)
is not an “empty formality” and that the parties are required to engage in meaningful attempts to
resolve discovery disputes prior to filing such motions. Brady v. LTD Parts, Inc., No. 2:08-0058,
2009 WL 2224172, at *1 (M.D. Tenn. July 22, 2009) (quoting Ross v. Citifinancial, Inc., 203
F.R.D. 239, 240 (S.D. Miss. 2001)). Thus, the Court finds that Plaintiff’s Motion to Compel with
respect to the Second Requests (Request Nos. 51-56, 60-66, and 70-75) could be denied on that
basis alone.
In any event, however, the Court has reviewed the merits of the parties’ dispute, and as
mentioned above, the parties attended a motion hearing to argue their positions. At the conclusion
of the hearing, the Court granted the parties leave to file additional documents for the Court’s
consideration. Defendant filed a Notice [Doc. 94], containing additional communication between
the parties.
The Court will now turn to the issues raised at the hearing.
II.
ANALYSIS
The Court has considered the parties’ filings, along with the oral arguments presented at
the hearing. Accordingly, the Court finds Plaintiff’s Motion [Doc. 76] not well taken, and it is
DENIED.
Federal Rule of Civil Procedure 26(b)(1) provides as follows:
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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.
Courts have explained that the “scope of discovery under the Federal Rules of Civil
Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D.
240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir.
1998)). Courts have cautioned, however, that “[d]iscovery requests are not limitless, and parties
must be prohibited from taking ‘fishing expeditions’ in hopes of developing meritorious claims.”
Bentley v. Paul B. Hall Reg'l Med. Ctr., No. 7:15-CV-97-ART-EBA, 2016 WL 7976040, at *1
(E.D. Ky. Apr. 14, 2016). “[T]he [C]ourt retains the final discretion to determine whether a
discovery requests is broad or oppressive.” Id. (citing Surles v. Greyhound Lines, Inc., 474 F.3d
288, 305 (6th Cir. 2007)).
Given the above guidance, the Court will now turn to the instant Motion. During the
hearing, Plaintiff requested that Defendant provide the following: (1) Plaintiff’s entire PST file;
(2) curricula vitae (“CVs”) annual evaluations, and other evaluations for Plaintiff’s alleged
comparators, Dr. Gellert and Dr. Jones; (3) statement from Defendant that no other documents
exist, formal or otherwise, relating to Plaintiff’s appeal; (4) documents relating to allegations of
self-plagiarism (using Plaintiff’s proposed search terms); and (5) documents relating to retractions
(using Plaintiff’s proposed search terms).
The Court will address Plaintiff’s discovery requests separately.
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A.
Request Nos. 22 and 29 (Plaintiff’s PST File)
Plaintiff requests her entire PST file during her employment with Defendant. Plaintiff
argues that her emails that were sent and received during her employment do not contain any
information protected by the Family Educational Rights and Privacy Act of 1974 (“FERPA”). At
the hearing, Plaintiff acknowledged that the request could be construed as overly broad, but she
stated that Defendant objected based on burdensome grounds. In order to resolve Defendant’s
concern that the search will be burdensome, Plaintiff proposed that Defendant produce the entire
PST file, which she will then review. In her Motion, Plaintiff proposes that Defendant search
permutations of Plaintiff’s first and last name as a compromise to providing the full PST file.
At the hearing, Defendant stated that it had conducted a search of Plaintiff’s first and last
name and that Plaintiff’s request for her entire PST file is overly broad and unduly burdensome,
especially given that the trial is a few months away. In addition, Defendant stated that Plaintiff
worked from 2008 to 2015 and that any emails relating to students are protected by FERPA.
Defendant stated that it could not produce the PST file without reviewing each email because it
maintains the responsibility of ensuring FERPA is protected.
The Court has considered Plaintiff’s request and finds it to be overly broad and unduly
burdensome. Defendant has already performed a search of several individuals’ emails using
agreed upon search terms, including Plaintiff’s first and last name. While Plaintiff argues that the
discovery is not too burdensome because she will review all the emails, the Court disagrees. As
Defendant noted at the hearing, it has an obligation to ensure FERPA information is protected.
Further, the Court finds Plaintiff’s proposal that Defendant produce the entire PST, which she will
then review, is simply requesting discovery regardless of relevancy. This is not the standard under
Rule 26(b).
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Plaintiff’s alternative proposal (i.e., that Defendant search for permutations of Plaintiff’s
first and last name) is also overly burdensome. Plaintiff explained at the hearing that such a search
would ensure that emails are not missing. It is not clear whether custodians routinely misspelled
Plaintiff’s first and last name, and without more, the Court will not require Defendant to rerun its
searches this late in the litigation. Accordingly, the Court denies Plaintiff’s request for her entire
PST file or the related request to run additional searches for permutations of Plaintiff’s first and
last name.
B.
Request No. 30 (Dr. Gellert’s Personnel File)
Plaintiff states that she is missing documents from Dr. Gellert’s personnel file, and she
requests that Defendant search Dr. Gellert’s name and email ID pertaining to his promotion, annual
retention, and evaluations. Defendant argues that it produced Dr. Gellert’s entire personnel file
and that Plaintiff’s discovery request does not require email searches. At the hearing, Defendant
stated that it produced Dr. Gellert’s file that is kept by the Department of Sociology and the file
maintained by the Human Resources Department.
Plaintiff’s Request No. 30 states as follows:
Produce the entire personnel file for Dr. Paul Gellert, including all
documents relating to or reviewed in connection with his application
for tenure, documents submitted for publication, and any
complaints, discipline, counseling, or adverse actions taken against
him, whether those documents are part of formal or informal
personnel file.
The Court finds that Defendant has produced the information requested in Plaintiff’s
discovery request. Plaintiff now requests that Defendant search the accounts of “all custodians,
administrative and faculty” using a number of search terms. See [Doc. 76 at 5]. Plaintiff’s instant
request is not included in Request No. 30. Accordingly, Plaintiff’s request is not well taken.
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C.
Request Nos. 17 and 41 (Self-Plagiarism Documents)
In Request No. 17, Plaintiff requests “each and every document that shows discipline,
counseling, adverse employment action, and/or discharge of any other employees of Defendant for
reasons similar” to Defendant’s stated reason for not renewing Plaintiff’s contract. In Request No.
41, Plaintiff requests all documents and communications relating to allegations of plagiarism and
self-plagiarism regarding Plaintiff or Dr. Bohon from 2008 to present.
With respect to Request No. 17, Plaintiff argues that Dr. Bohon and Dr. Gellert had similar
allegations against them and that she is entitled to such documents. Defendant states that it
produced responsive documents, but search terms for faculty issues that did not result in
“discipline, counseling, adverse employment action, and/or discharge are not necessary.” Plaintiff
replies that she is entitled to documents relating to Dr. Bohon’s retracted article.
Request No. 17 simply requests documents involving specific actions that were taken (i.e.,
discipline, counseling, adverse employment action and/or discharge). The Court agrees with
Defendant that search terms for faculty issues that did not result in the above specific actions are
not necessary to respond to Request No. 17.
With respect to Request No. 41, Plaintiff argues that Defendant has not produced sufficient
searches for all email custodians. Defendant argues that it ran Plaintiff’s search terms, which were
listed in Plaintiff’s February letter, in the PST files for Dr. Shefner (the Department Head) and Dr.
Bohon. In addition, Defendant submits that it reviewed every email for every custodian that
contained Plaintiff’s first and last name with a view towards “self-plagiarism.” Defendant
maintains that it has produced all documents responsive to Request No. 41.
The Court finds Defendant’s production relating to Plaintiff’s self-plagiarism sufficient.
Defendant represents that it reviewed every email for all custodians with a view towards Plaintiff’s
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self-plagiarism. Further, with respect to Dr. Bohon’s retraction, the Court observes that in
Plaintiff’s June 25 letter, she requests, in section D of her letter, documents relating to the
“[r]etraction of an article from ‘Society & Natural Resources,’ on which Dr. Stephanie A. Bohon
was a coauthor.” [Doc. 77-3]. Plaintiff then submits a list of search terms for all faculty
custodians. [Id.]. Subsequently, on July 19, 2018, Defendant sent Plaintiff an email, following
upon a telephone call that took place between the parties’ counsels. [Doc. 94-1]. Defendant
responds, “Second, as we discussed last week, I have crafted potential search terms to discover
sections D and E from your June 25 letter. They are as follows: (1) for section D, all faculty
custodians up to June 30, 2016[,] for (stephanie OR bohon) AND (retract* OR (SNR or “society
& natural resources”)).” [Id.].2 Plaintiff did not respond to Defendant’s proposal. The Court finds
Defendant’s proposal sufficient to recover documents relating to Dr. Bohon’s retraction, and the
Court declines to order another search for all custodians.
D.
Request No. 27 (Documents relating to Plaintiff’s FMLA claims)
The Court finds this issue to be moot given that the District Court dismissed Plaintiff’s
FLMA claims.
E.
Request Nos. 51-56 (Documents from Senate Appeals Committee)
In Request Nos. 51-56, Plaintiff requests documents relating to her appeal. At the hearing,
she stated that she believes that formal documents were created during this process and that she
struggles to accept Defendant’s representation that it has produced all documents. Plaintiff stated
that she would like a statement from Defendant that no other documents exist. Defendant
2
As mentioned below, the Court observes that in September 10, 2018, Defendant proposed
to search the PST files for administrator custodian accounts for the following individuals: Cheek,
Chancellor, Lee, Martin, Zomchick up to June 30, 2016, a search for (Stephanie OR bohon). [Doc.
94-2].
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responded that it has produced all documents associated with Plaintiff’s appeal and that the process
is not as formal as Plaintiff believes.
In response to Plaintiff’s Request Nos. 51-56, Defendant responded that such documents
had already been produced or that it did not have the documents that were requested. At the
hearing, Plaintiff did not offer a sufficient reason as to why she believes Defendant’s response is
inaccurate. Accordingly, the Court finds Plaintiff’s request not well taken.
F.
Request Nos. 70-72 (Dr. Bohon’s Retraction)
The Court observes that Request Nos. 70-72 are similar to Plaintiff’s Request Nos. 17 and
41. Specifically, in Request Nos. 70-72, Plaintiff requests documents relating to the retraction of
an article for which Dr. Bohon was a co-author. Plaintiff asserts that Defendant’s proposed search
terms are unacceptable because they include the title of the article and the journal involved, but
the sociology faculty could have discussed the retraction of this article without using the article
name or the journal. Defendant responds that after receiving Plaintiff’s Second Requests, it sent
Plaintiff a letter proposing search terms for these requests. Plaintiff did not respond. Defendant
further states that the searches that Plaintiff has now proposed are duplicative of the search that it
has already conducted. Defendant argues that there are no additional responsive documents that
Plaintiff’s proposed searches would locate. At the hearing, Defendant represented that it is not
aware of any other documents responsive to these requests and that it has produced all documents.
In Defendant’s September 10 letter, Defendant proposed the following searches for
Requests No. 70-72:
The University proposes the following search of the PST files: (1)
for administrator custodian accounts Cheek, Chancellor, Lee,
Martin, Zomchick up to June 30, 2016, a search for (Stephanie OR
bohon); (2) for all faculty custodians up to June 30, 2016, a search
for (Stephanie OR bohon) AND (retract* OR (SNR OR “society &
natural resources”).
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[Doc. 94-2 at 1]. Plaintiff did not respond to Defendant’s proposal. Plaintiff now seeks another
search using additional terms, after the deadline for discovery has expired. The Court declines
Plaintiff’s request. Defendant has represented that it has already produced responsive documents
to Request Nos. 70-72. Further, the Court finds requiring Defendant to run another search
burdensome given that the discovery deadline has expired and trial is a few months away.
G.
Requests No. 73 and 74 (Salaries and Course Information for Dr. Jones and
Dr. Gellert)
In Request No. 73, Plaintiff requests documents or evidence showing “detailed salary
information for up to four months before and after the raises given to Dr. Jones and Dr. Gellert.”
In Request No. 74, Plaintiff requests a list of courses taught by Dr. Gellert and Dr. Jones. Plaintiff
argues that Defendant has not produced such documents and that with respect to Request No. 73,
Plaintiff seeks a broader time frame (i.e., 2000 to 2015).
Defendant argues that it produced the complete pay history and earnings statements for Dr.
Jones and Dr. Gellert from 2008 to 2015, which were the years Defendant employed Plaintiff.
Defendant states that Plaintiff did not request salary information dating back to 2000. With respect
to Request No. 74, Defendant states that no one document exists that includes all the information
requested. Instead, Defendant produced documents that would contain much of the information
Plaintiff requested.
The Court finds that Dr. Jones’s and Dr. Gellert’s pay history prior to Plaintiff’s
employment with Defendant is irrelevant in establishing that she was treated differently while
employed with Defendant. Defendant has produced eight years of pay history for Dr. Jones and
Dr. Gellert, and the Court finds Defendant’s production sufficient. Further, with respect to Request
No. 74, Defendant has no duty to create a document that does not exist. Smallwood v. Collins, No.
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2:08-CV-679, 2010 WL 2044953, at *3 (S.D. Ohio May 21, 2010) (“Defendants
have no duty to create a report for Plaintiff or to produce documents that do not exist or which are
not within the Defendants' custody and control.”). Accordingly, Plaintiff’s request is not well
taken.
H.
Request No. 75 (Communications between Dr. Prosser and Dr. Zomchick)
In Request No. 75, Plaintiff requests “all communications” between Dr. Prosser and Dr.
Zomchick that mention Plaintiff’s name and/or her appeal. Plaintiff states that Defendant’s
searches are insufficient because it did not take into account any possible misspellings of her name.
Defendant responds that such documents were produced on February 16, 2018, and that it has no
additional documents.
As mentioned above, the Court declines to order Defendant to perform another search,
given that Plaintiff did not respond to Defendant’s email concerning what search terms to utilize.
In addition, the Court declines Plaintiff’s request that Defendant search for permutations of her
first and last name for similar reasons as stated in Section II, A.
I.
Requests Nos. 60-67 (Information relating to Dr. Jones and Dr. Gellert)
In Request Nos. 60-67, Plaintiff requests information relating to Dr. Jones and Dr. Gellert,
including annual evaluations, CVs, a tabulated list of papers, and so forth. At the hearing, Plaintiff
stated that the following information is missing from Defendant’s production in response to these
requests: (1) Dr. Jones’s CVs for 2009-2013; (2) Dr. Gellert’s CVs for 2007-2008; (3) Dr. Jones’s
raises and evaluations from 2007-2010; and (4) Dr. Gellert’s raises and evaluations from 20072010.
Defendant stated that it has produced all documents responsive to Plaintiff’s discovery
requests.
Defendant states that it has produced as follows: (1) Dr. Gellert’s evaluations,
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departmental narratives, and raises and remunerations; (2) all available versions of Dr. Gellert’s
CVs; (3) all available outcome letters for Dr. Gellert’s submitted papers; (4) all of Dr. Jones’s
evaluations, departmental narratives, and raises and remunerations; (5) all available versions of
Dr. Jones’s CVs; and (6) all available final outcome letters for Dr. Jones’s submitted papers.
Defendant states that it did not produce a “year-wise tabulated list” because no such document
exists.
As mentioned above, Defendant has already produced the complete pay history for Dr.
Gellert and Dr. Jones from 2008 to 2015. The Court finds such production sufficient. Further, as
outlined above, Defendant has produced the documents that it possesses in response to Plaintiff’s
Request Nos. 60-67. See also Smallwood, 2010 WL 2044953, at *3 (explaining that defendants
have no duty to create documents that do not exist). Accordingly, the Court finds no further
production is warranted.
III.
CONCLUSION
Accordingly, for the reasons stated above, the Court DENIES Plaintiff’s Motion to Compel
[Doc. 76].
IT IS SO ORDERED.
ENTER:
United States Magistrate Judge
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