In Boone v. TFI Family Services, Inc. et. al., Case No. 14-2548 (D. Kansas, June 3, 2016 and June 6, 2016), Plaintiffs sued Defendants for civil rights violations and various tort claims related to the death of a minor child. The child was allegedly murdered by the girlfriend of his biological father, after the boy had been placed in his father’s custody by family services/Defendants. Plaintiffs filed two motions to compel production during the case for ESI related to Defendants’ placements of four other children subject to administrative actions (one motion was filed against each of the two Defendants). Defendants ultimately produced 172 GB of electronically stored information, but none concerning these four foster children. Defendants asserted that the information sought was irrelevant, as it related to out-of-home foster placements and not reintegration with a biological parent as was the case here.
The court disagreed with Defendants, holding that Defendants had not made any showing about the difference between a reintegration process placement and a foster process placement and how such difference would make the request irrelevant. The court also found that the request was relevant for issues of pattern or habit as well as negligence and recklessness. With regard to the Defendants’ argument that the requested ESI was not “proportional to the needs of the case” as required by FRCP 26, the court determined that Defendants failed to establish that the burden of responding to the request outweighed the importance of the information. The court disposed of Defendants’ remaining argument against production, that the ESI comprised confidential information regarding the other four foster children, by ruling that “confidential” and “privileged” are not identical, and that confidential information may still be discoverable.