In Russell v. Kiewit Corp., No. 18-2144-KHV (D. Kan. June 4, 2019), a Kansas Magistrate Judge denied Plaintiff’s request to receive his entire e-mail personal storage (PST) file on the grounds that such a request was overbroad and not proportional to the underlying action.
This case stems from Plaintiff’s allegations that he was fired in retaliation for opposing age discrimination, disability discrimination, and FMLA violations in the workplace. During the course of the litigation, several disputes arose regarding the scope of discovery, specifically, whether Plaintiff was entitled to the entire e-mail PST file from his employment with Defendant.
In his motion to compel, Plaintiff argued that his lack of access to the PST gave Defendants an unfair advantage in accessing the unproduced emails. Further, Plaintiff argued that it was proportional to allow him to “see all emails in context maintained in his own email folders” because it “equalizes access.”
In response, Defendants argued that the request for the entire PST file was overly broad, not proportional, and further that they had already searched for all terms requested by Plaintiff, as well as numerous additional search terms, and most importantly, had produced all responsive and relevant e-mails already during the course of litigation.
In ruling on the motion, the Magistrate Judge stated: “The court agrees with Defendants. Rule 26(b)(3)(c) relates to a party’s ‘own previous statement about the action or its subject matter.’ To the extent Plaintiff seeks his own e-mails related to this action, those were captured in the e-mails Defendants produced in response to Plaintiff’s search terms, plus the additional terms Defendants searched…Conspicuously, Plaintiff has not cited any authority for the proposition that Rule 26(b)(3)(C) requires the production of all statements Plaintiff has ever made in an e-mail about any subject, such that his entire e-mail file during his tenure with Defendant must be produced.”
Further, the Magistrate Judge held: “Although Plaintiff is entitled to request the production of files in .pst format, which are ‘generally associated with the Microsoft Outlook email program,’ Document Request No. 29 seeks the entire file for the ‘email account assigned to Plaintiff during his employment with Defendants.’ Plaintiff purports to address the ‘proportionality standpoint’ by arguing the .pst file would allow him to more efficiently review the file. But producing the entire PST is ‘simply requesting discovery regardless of relevancy,’ which most definitely is not the standard under the 2015 amendments to Rule 26(b). The language in Document Request No. 29 is not tied to Plaintiff’s protected activity or his employment with the company; rather, Plaintiff requests the entire e-mail account during the entire length of his employment. That request is facially overly broad and not proportional. Plaintiff has not shown how every e-mail he has sent and received is relevant to this action, particularly in light of Defendants’ production of 775 documents from e-mail searches. The court sustains Defendants’ objection to Document Request No. 29.”