Madere v. Compass Bank

Filing 33

ORDER GRANTING IN PART AND DENYING IN PART 16 Motion to Compel. Signed by Judge Andrew W. Austin. (mc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
KIM MADERE
V.
COMPASS BANK

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A-10-CV-812 LY

ORDER
Before the Court is Plaintiff’s Motion to Compel Discovery (Clerk’s Doc. No. 16); Defendant
Compass Bank’s Response (Clerk’s Doc. No. 23); and Plaintiff’s Reply to Defendant’s Response
to Plaintiff’s Motion to Compel (Clerk’s Doc. No. 27). On August 31, 2011, the District Court
referred the motion to the undersigned Magistrate Judge for a resolution pursuant to 28 U.S.C.
§636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate
Judges (Clerk’s Doc. No. 19). On September 27, 2011, the Court held a hearing on the aforesaid
motion. After the hearing, the Plaintiff submitted a reply (Clerk’s Doc. No. 29), and the Defendant
filed a supplemental response (Clerk’s Doc. No. 32).
Kim Madere alleges that her former employer, Compass Bank, violated the Family and
Medical Leave Act (FMLA) by discriminating and retaliating against her after she took FMLA leave.
Madere worked for Compass Bank as a business banking officer (BBO) from June 2006 until
January 2009. She took FMLA leave in late 2007 until early 2008. After Compass Bank fired her,
her lawyer sent a demand letter to the bank on May 20, 2010, and she filed suit September 23, 2010.
Compass Bank admits that it fired Madere, but claims that it fired her because of her poor job
performance—not because she took FMLA leave. Compass Bank claims that it brought in Libby

Seamans in late 2008 and she fired seven BBOs, including Madere, based on a ranking report that
measured the BBOs’ production over the last two quarters of 2008.
Madere has requested three categories of documents to support her contention that Compass
Bank wrongfully terminated her. First, she requests the personnel files of business banking officers
and branch managers Compass Bank either did not terminate, terminated and then rehired, or simply
hired after the bank fired Madere. Second, she requests ranking reports from 2007 and 2008.
Although Compass Bank produced the ranking reports from the last two quarters of 2008—the
reports it claims to have relied on when making its layoff decisions—it did not produce reports from
the first half of 2008 or any reports from 2007, and claims it cannot find any copies. Finally, Madere
requests emails concerning her FMLA leave and her termination. Compass Bank produced
responsive emails, but only if someone had retained a hard copy of an email. The other emails were
deleted under the bank’s e-mail retention/destruction policy. Madere requests the Court to order
Compass Bank to use its backup tapes to restore and find responsive emails, which Compass Bank
resists as cost-prohibitive.
The Court GRANTS Madere’s request for the personnel files of the BBOs and branch
managers. At the hearing, Compass Bank’s counsel stated that the number of relevant people was
approximately 15 people. This information may be relevant to Madere’s claim, as she must
demonstrate that similarly-situated employees were treated differently. Therefore, the Court
ORDERS Compass Bank to produce these personnel files.
The Court also GRANTS Madere’s request for the ranking reports from 2007 and the first
half of 2008. While obviously Compass Bank cannot produce what it does not possess, Compass
Bank’s counsel stated that the reports were sent to branches all over the country. The Court
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ORDERS Compass Bank to make a diligent effort to locate copies of those reports and produce them
to Madere.
The emails raise a more difficult issue. Compass Bank averred that it would cost over
$270,000 and require hundreds of hours to search for relevant emails that might exist on backup
tapes. At the hearing, the Court granted Madere time to file an affidavit contradicting that estimate.
She did so, but her expert could not ascertain an estimate for the actual cost. Further, in Compass
Bank’s reply, its expert refuted Madere’s expert’s method for restoring the backups and his
contention that it would cost significantly less. Madere’s expert claims that Compass Bank need not
restore all 510 backup tapes, but he makes that claim “without any information regarding the backup
scheme” because Compass Bank had not provided it. Affidavit of Brandon Mack ¶ 8. He believes
that if Compass Bank identified which tapes contained what information, it could limit its restoration
to specific tapes. Id. ¶ 9–11. He also argues that Compass Bank could save money by outsourcing
the project. Id. ¶ 12.
Compass Bank’s expert refutes Mack’s contention that it could save money by only restoring
particular tapes. Affidavit of John Sibert ¶ 3. Sibert explains the system and software Compass
Bank uses and states that to fully respond to Madere’s request, Compass Bank would have to restore
all of the backup tapes. Id. ¶ 4. He also expressed concern about outsourcing sensitive financial
information to a third-party vendor and skepticism that it would save much money. Id. ¶ 8. He
maintains his earlier contention that it would “require more than 350 man hours and cost more than
$270,200 to restore the backup tapes.” Id. ¶ 10.
The Court does not need to resolve the conflicting expert testimony and determine the actual
cost of restoring the tapes. The amount in controversy in this case is much less than $270,000, and
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even if the actual cost of restoring the backup tapes was only a fraction of that amount, it would still
outweigh the amount Madere seeks to recover. The Court is required to limit discovery if “the
burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in
the action, and the importance of the discovery in resolving the issues.” FED . R. CIV . P.
26(b)(2)(C)(iii). As the cost to restore Compass Bank’s backup tapes “outweighs its likely benefit,”
especially in light of the amount in controversy, the Court DENIES Madere’s request for
production.1
Accordingly, the Court HEREBY GRANTS IN PART AND DENIES IN PART Madere’s
Motion to Compel Discovery (Clerk’s Doc. No. 16) as set forth above. Compass Bank shall produce
the documents addressed herein within 20 days of the date of this order.
SIGNED this 28th day of October, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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One of the primary reasons Madere requested to search the backup materials is to locate one
or more emails she has testified she sent to supervisors giving them notice she had taken FMLA
leave. It is possible that the absence of any copy of these emails could be used against Madere at
trial, to try to discredit her claim of having sent them. Nothing in this order should be taken as
permitting Compass Bank to do this, or to prevent Madere from approaching the trial judge and
seeking an instruction to the jury addressing the fact that emails were destroyed pursuant to Compass
Bank’s policy and backup tapes were not searched due to the expense of doing so. Whether such
measures are required is something the trial court will be in the best position to determine and is not
within the scope of this referral.
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