McNabb v. City of Overland Park, Case No. 12-CV-2331 CM/TJJ (D. Kans. April 16, 2014) is an employment discrimination case alleging sexual harassment, hostile work environment and retaliation. Plaintiff electronic discovery requests were answered, and Defendant agreed to produce five categories of email threads, which basically encompassed all emails to or from the Plaintiff, the officer accused of harassment and emails about the two of them.
Defendant began sending the defense production in “waves,” and produced approximately 36,000 documents. Plaintiff sought additional discovery of electronic files from 14 custodians for 35 specific additional search terms. The defense noted there existed another wave of 10,189 emails in this request, but it sought more specific search terms. The parties attempted to meet and confer regarding the production of these emails but were unable to come to an agreement. Plaintiff filed a Motion to Compel the production of 10,189 emails.
The defense countered the Motion with the following arguments:
1. Plaintiff failed to comply with local D. Kansas Rule 37.1 (requiring a Motion to Compel to be filed within 30 days of the non-movant’s discovery responses);
2. The 10,189 emails were never requested by Plaintiff and moreover, these emails were irrelevant to the claims and defenses;
3. There is a lack of proportionality in this request.
The court responded to these arguments as follows:
1. Plaintiff attempted to resolve the discovery disputes with Defendant within 30 days through cooperation and held meet and confers, as well as pre-motion conferences with the magistrate judge. Given such facts, the court did not feel as though the Motion was untimely.
2. Plaintiff never identified the substance of the specific discovery requests under which she sought the production of the disputed 10,189 emails. Plaintiff had not demonstrated she requested the documents she demanded, and she did not identify a single discovery request of which Defendant had failed to respond.
3. The court believed Plaintiff only had “mere speculation” that the additional 14 custodians’ ESI was to be searched with the 35 additional search terms would produce relevant evidence. Even if Plaintiff were to make such a showing, the court believed the requests were overly broad. The 35 search terms included some “sexual explicit” language, which Plaintiff argued were relevant to the case regarding sexual harassment. However, the court noted that a significant number of the 35 terms were not sexually charged at all.
In light of the 36,000 email chains produced in the five agreed-upon categories that were relevant to the case, the court denied the Motion to Compel.