Terrell v. Memphis Zoo, Inc., No. 2:2017cv02928 - Document 48 (W.D. Tenn. 2018)
Court Description: ORDER granting in part and denying in part 35 Plaintiff's Motion to Compel. Signed by Magistrate Judge Tu M. Pham on 7/3/2018. (Pham, Tu)
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Terrell v. Memphis Zoo, Inc. Doc. 48 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ) ) ) ) ) ) ) ) ) KIMBERLY TERRELL, Plaintiff, v. MEMPHIS ZOO, INC., Defendant. 17-cv-2928-JPM-tmp ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S FIRST MOTION TO COMPEL Before the court by order of reference is plaintiff Dr. Kimberly Terrell’s First Motion to Compel, filed on April 18, 2018. (ECF Nos. 35, 38.) Defendant Memphis Zoo, Inc. (“Memphis Zoo”) responded to this motion on May 2, 2018, and Dr. Terrell replied on May 7, 2018. (ECF Nos. 36, 39.) On May 15, 2018, the court ordered Memphis Zoo to produce records for in camera inspection. For the following reasons, Dr. Terrell’s motion is GRANTED in part and DENIED in part. I. BACKGROUND Dr. Terrell was hired by Memphis Zoo on August 31, 2015, to serve as the Director of Research and Conservation. at 2; ECF No. 27 at 2.) (ECF No. 1 She apparently reported directly to Dr. Chuck Brady, Memphis Zoo’s President and CEO. (ECF No. 39-2.) Dr. Terrell claims that, beginning in July of 2017, she grew Dockets.Justia.com concerned that Dr. Brady was treating her differently from the men who worked for him. examples of criticized colored this her how behavior, work, he (ECF No. 1 at 3.) made viewed her she alleges comments and that Among various he indicating other female arbitrarily that gender employees, and subjected her to a performance review when none of the current or former male employees at her level were required to undergo such a review. (Id. at 3–4.) Dr. Terrell claims that she complained about this treatment to Dr. Brady and to the Chairman of the Board for Memphis Zoo. (Id. at 4–6.) She asserts that, after making her concerns known, Dr. Brady withheld a standard salary increase, was excessively undermined her authority. critical (Id. at 5–7.) of her work, and On September 14, 2017, Dr. Terrell’s attorney contacted Memphis Zoo and informed it of Dr. Terrell’s complaints of discrimination. (ECF No. 1 at 7; ECF No. 27 at 9.) While Memphis Zoo acknowledges that Dr. Brady critiqued Dr. Terrell’s work, it claims that every criticism was justified in light of Dr. Terrell’s relationships. gender bias efforts (ECF No. 27 at 3–5.) and Brady’s actions. On subpar November retaliation played and tumultuous work Memphis Zoo denies that any role in its or Dr. (Id. at 3–10.) 1, 2017, Memphis Zoo either ordered or requested that Dr. Terrell not return to her office and that she -2- work remotely. (ECF No. 1 at 9; ECF No. 27 at 11.) On November 13, 2017, Dr. Terrell filed a charge of gender discrimination and retaliation Commission. with the Equal Employment Opportunity (ECF No. 1 at 9; ECF No. 27 at 11.) On November 27, 2017, Memphis Zoo terminated Dr. Terrell’s employment. No. 1 at 9; ECF No. 27 at 11.) part of the basis for the (ECF Memphis Zoo has indicated that was termination Dr. Terrell’s violation of Memphis Zoo policies requiring her to cooperate with other employees, to perform her work in a respectful and timely manner, and to act in a manner that is not obviously detrimental to the best interest of Memphis Zoo. at 5.) Dr. Terrell filed the present suit against Memphis Zoo on December 22, 2017. Zoo’s (ECF No. 35-3 actions retaliation (“THRA”). (ECF No. 1.) constitute in violation She asserts that Memphis gender discrimination of Tennessee the and Human unlawful Rights Act (Id. at 9.) In the instant motion to compel, Dr. Terrell argues that Memphis Zoo has withheld discoverable materials, provided unsatisfactory responses to several of her interrogatories and document requests, improperly refused to respond to interrogatories and document requests, and improperly provided her with a disorganized mass of emails. Zoo responds requirements that and it that has the complied information -3- (ECF No. 35.) with Dr. all Terrell Memphis procedural seeks is either irrelevant, overly burdensome to produce, privileged, or protected by the work-product doctrine. (ECF No. 37.) Memphis Zoo has provided only one affidavit, which relates to how it produced the requests. emails It has in response provided to no Dr. Terrell’s affidavit document relating to the documents listed on the privilege log. II. A. ANALYSIS Documents Listed on Memphis Zoo’s Privilege Log As a preliminary matter, Memphis Zoo argues that, because Dr. Terrell cites only Title VII cases and not THRA cases, she has not demonstrated The discoverable. that THRA the serves information to she “[p]rovide seeks for is execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972.” 4-21-101(a)(1). Tennessee Code Annotated § Consequently, courts apply the same framework of analysis to claims brought under the THRA that they apply to claims brought under Title VII. See Goree v. United Parcel Serv., Inc., No. 17-5139, 2017 WL 5664924, at *4 (6th Cir. Nov. 8, 2017) (“THRA claims. . . ‘are governed by the same burdenshifting standards as the claims under Title VII.’” (quoting Wade v. 2001))); 00004, Knoxville Anderson 2017 WL Utils. v. Bd., Int'l 3237319, at 259 Comfort *4 F.3d 452, Prod., (M.D. 464 LLC, Tenn. (6th No. July Cir. 1:16-CV- 31, 2017); Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375, 381 -4- (Tenn. 2014). Therefore, the court will consider the Title VII cases cited by Dr. Terrell in deciding the instant motion. Dr. Terrell argues that the documents in Memphis Zoo’s privilege log with the following Bates numbers are discoverable: Nos. 0079, 0107–09, 0110–12, 0169, 0170, 1262–63, 1267–69, 1270– 73, 1278–82, 1283–90, 1291–93, 1313, 1314, and 1318–20. documents is protected 1294–96, 1297–99, 1306, 1311, Memphis Zoo claims that each of these from discovery by the attorney-client privilege, the work-product doctrine, or both. A federal court refers to state law to resolve issues of attorney-client privilege relating to state law claims. Fed. R. Evid. 501. See Currently, all of the claims in this case are state law claims, and neither party appears to contest the applicability of Tennessee law to those claims. looks to the Tennessee law of The court thus attorney-client privilege. However, this is done with the understanding that “the courts of Tennessee are often guided by state and federal common law when fashioning the contours of the attorney-client privilege.” See Royal Surplus Lines Ins. v. Sofamor Danek Grp., 190 F.R.D. 463, 484 (W.D. Tenn. 1999). “By statute evidentiary and privilege common that law, protects attorney-client communications.” 323, 326 (Tenn. 2007). Tennessee the recognizes an confidentiality of State v. Buford, 216 S.W.3d According to T.C.A. § 23-3-105, -5- No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person's injury. Although T.C.A. § 23-3-105 refers to communications made to an attorney by a client, communications made by a client to an attorney are privileged to the extent those communications are based upon a client’s confidential communication or would reveal the nature of a confidential communication if disclosed. Buford, 216 S.W.3d at 326 (citing Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992)). Tennessee’s codification of the privilege embodies common law principles, and the purpose of the privilege is to encourage “full and frank communication between attorney and disclosure.” client by Culbertson sheltering v. these Culbertson, communications 393 S.W.3d 678, from 684 (Tenn. Ct. App. 2012); see also Bryan, 848 S.W.2d at 79 (“[T]he purpose of the privilege is to shelter the confidences a client shares with his or her attorney when seeking legal advice, in the interest of protecting a relationship that is a mainstay of our system of justice.”). “The [attorney-client] privilege is not absolute nor does it encompass attorney.” all communications between Bryan, 848 S.W.2d at 80. -6- the client and the The party asserting the privilege bears the burden of showing that the purported privileged communications “were made in the confidence of the attorney-client relationship.” Id. The party asserting the privilege must establish that 1. The asserted holder of the privilege is or sought to become a client; 2. The person to whom the communication was made is a member of the bar of a court, or his subordinate and in connection with this communication is acting as a lawyer; 3. The communication relates to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding and not for the purpose of committing a crime or tort; and 4. The privilege has been claimed and not waived by the client. State v. Leonard, No. M2001-00368-CCA-R3CD, 2002 WL 1987963, at *7–8 (Tenn. Crim. App. Aug. 28, 2002) (quoting Royal Surplus Lines, 190 F.R.D. at 468–69); see also Boyd v. Comdata Network, Inc., 88 S.W.3d communications 203, must 213 (Tenn. involve the Ct. App. subject 2002) matter of (“The the representation and must be made with the intention that they will be kept confidential.”). As the work-product doctrine is a federal procedural rule, it applies to the state law claims in this case. See In re Professionals (6th 2009). Direct Ins. Co., 578 F.3d 432, There are two types of work product. -7- 438 Cir. Upjohn Co. v. United States, opinion work impressions, theories.” may U.S. product, opinions, 383, 401 (1981). involves an conclusions, The first “attorney’s judgments, type, mental or legal In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986). party 449 The Sixth Circuit has found that “absent waiver, a not adversary.” obtain In re the ‘opinion’ Columbia/HCA work product Healthcare Corp. of his Billing Practices Litig., 293 F.3d 289, 294, 304–05 (6th Cir. 2002) (quoting In re Antitrust Grand Jury, 805 F.2d at 163–64). The second type, fact work product, consists of “all other work product.” Restatement (Third) of the Law Governing Lawyers § 87; see also Upjohn, 449 U.S. at 400. Federal Rule of Civil Procedure 26 governs documents and tangible things and regulates the discovery of those items that “are prepared in anticipation of litigation or representative.” for trial by or for another Fed. R. Civ. P. 26(b)(3)(A). party or its Attorneys may obtain discovery of another party’s fact work product when there is waiver, see In re Antitrust Grand Jury, 805 F.2d at 163 (citing In re Special Sept. 1978 Grand Jury (II), 640 F.2d 49, 63 (7th Cir. 1980)), or when one party has shown “substantial need” for the evidence and “undue hardship” in obtaining it, Fed. R. Civ. P. 26(b)(3)(A)(ii). As with the attorney-client privilege, once the party requesting access to another party’s work product demonstrates -8- its relevance, the party claiming the protection of the workproduct doctrine doctrine applies. F.3d 365, 381 bears the burden of establishing that the See Biegas v. Quickway Carriers, Inc., 573 (6th Cir. 2009) (citing In re Powerhouse Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006)). To make this showing, the party must show the sought-after information was the product litigation” and reasonable.” 590, 594 “a that party’s the subjective anticipation anticipation was of “objectively Id. (citing United States v. Roxworthy, 457 F.3d (6th anticipation of of Cir. 2006)). litigation When also documents serve an prepared ordinary in business purpose, “the burden is on the party claiming protection to show that anticipated litigation was the ‘driving force behind the preparation of each requested document.’” In re Professionals Direct, 578 F.3d at 439 (quoting Roxworthy, 457 F.3d at 595). 1. Dr. Brady’s Notes The document with Bates No. 0079 is described in Memphis Zoo’s privilege log as “[n]otes from a performance hearing with Kimberly Terrell August 25 — Summary prepared in anticipation of litigation.” (ECF No. 35-5 at 2.) Dr. Terrell argues that these notes were not prepared in anticipation of litigation and, even if they were, they would not be protected by the workproduct doctrine because they were not prepared by or for an attorney. Memphis Zoo argues that the document was prepared in -9- anticipation of litigation because the document was created after Dr. Terrell had notified Memphis Zoo of her discrimination concerns and after it had obtained counsel, attempted negotiations, and requested that Dr. Terrell work off-site. With respect to Dr. Terrell’s first argument, the court finds that Memphis Zoo has not shown that this document was prepared in anticipation of litigation. The document is a summary of a conversation that Dr. Brady had with Dr. Terrell during a performance review and his personal thoughts regarding what was discussed during the review. There is no indication in the document or the email to which it is attached that the document was made for any purpose other than a business purpose. Although Memphis Zoo points out that, at this point in time, there was a looming possibility of litigation, timing alone does not automatically grant a document the protection of the workproduct doctrine. 438–39 (“The fact See In re Professionals Direct, 578 F.3d at that [the party] reasonably anticipated litigation at this point does not answer whether it prepared the disputed documents ‘because of’ litigation or not.”). an ordinary business purpose creation of this document, see was the id., driving Summary of Dr. Terrell’s Conduct -10- behind Dr. Terrell’s motion to compel the disclosure of this document is GRANTED. 2. force Because The email and attachment with Bates Nos. 0107–09 are described in Memphis Zoo’s privilege log as a “[s]ummary of Dr. Terrell’s conduct prepared in anticipation of litigation.” No. 35-5 at The 4.) parties’ arguments (ECF concerning the discoverability of these documents are essentially identical to those raised for the document with Bates No. 0079. Having reviewed these documents, the court notes that, aside from the timing of the documents’ creation, there is no indication that these documents were Instead, the emails assessing whether to business purpose. are not protected discoverable. prepared are in anticipation intended terminate to Dr. aid of litigation. decision Terrell’s makers employment — a Thus, the court finds that these documents by the work-product doctrine and are Dr. Terrell’s motion to compel the disclosure of these documents is GRANTED. 3. Discussion of Dr. Terrell’s Actions The documents Memphis Zoo’s with privilege Bates log Nos. as 0110–12 “[i]nternal regarding validity of Dr. Terrell’s actions.” 4.) are described in communications (ECF No. 35-5 at The parties’ arguments concerning the discoverability of these emails are essentially identical to those raised for the document with Bates No. 0079. these emails contain However, unlike that document, information indicating that the anticipation of litigation was the driving force behind their -11- creation. The negotiations, emails how discuss Memphis Zoo how to should approach utilize services, and broader litigation tactics. settlement its attorney’s Although Dr. Terrell repeats her argument that these emails are discoverable because they were not prepared by or for an attorney, a document need not be prepared by or for an attorney in order for the workproduct doctrine to apply. protect tangible another party 26(b)(3)(A). or items The Federal Rules of Civil Procedure that its have prepared been representative.” Fed. “by R. or for Civ. P. Consequently, documents prepared by a party in anticipation of litigation are protected from discovery by Rule 26, regardless of whether the documents were prepared for the party’s attorney. documents are As protected a result, by the the court finds work-product that these doctrine. Dr. Terrell has not shown substantial need to view these emails. Moreover, the court finds that these emails, which were also sent to Memphis Zoo’s trial attorney client privilege. counsel, are protected by the Therefore, Dr. Terrell’s motion to compel the disclosure of these emails is DENIED. 4. Communications with Maria Leggett The emails with Bates Nos. 0169, 0170, 1262, 1267–69, 1270– 73, 1278–82, 1283–90, and 1297–99 are described in Memphis Zoo’s privilege log as protected by the attorney-client privilege because they contain communications with Maria Leggett, a member -12- of Memphis Zoo’s Board of Directors, General Counsel for AutoZone. who is also Assistant (ECF No. 35-5 at 5, 12 to 13.) Dr. Terrell argues that these emails are not privileged because there is no indication that Memphis Zoo was Leggett’s client and, even if it was, when participating in these emails she was acting in a business capacity, not a legal capacity. Memphis Zoo argues that Leggett played multiple roles when dealing with this matter, but her primary role was that of legal advisor. In order for Memphis Zoo’s communications with Leggett to be considered privileged, Memphis Zoo must first show that it “is or sought to become a client” of Leggett’s. See Leonard, 2002 WL 1987963, at *7 (quoting Royal Surplus Lines, 190 F.R.D. at 468–69). Memphis Zoo has not made this showing. Rather, Memphis Zoo proposes that, because Leggett’s role on the Board of Directors was to provide “legal advice and legal guidance to the other members of Memphis Zoo’s attorney. legal advice, by the board,” she should (ECF No. 37 at 17.) itself, does not make be treated as However, providing the communication privileged — there must also be an attorney client relationship — and Memphis Zoo has not demonstrated the existence of the required relationship. communications between Therefore, Leggett privileged. -13- and the court Memphis finds Zoo are that not The privilege log also describes several of the previously mentioned emails and related emails with Bates Nos. 1263–64, 1291–93, and 1294–96 as protected by the work-product doctrine. (Id. at 12–13.) argument. Memphis Zoo has not expanded upon this And, the court notes that these emails deal with how best to inform certain members of the Board of Directors of the agenda for a telephone decide whether to business purpose. conference Dr. terminate at which Terrell’s the board employment would — a Thus, the court finds that these emails are not protected by the work-product doctrine. The court does find, however, that the documents with Bates Nos. 1297–99 consist entirely of privileged emails. Consequently, Dr. Terrell’s motion to compel discovery of all of these documents, except those with Bates Nos. 1297–99, is GRANTED. 5. Board Meeting Notes The emails with Bates Nos. 1306, 1311, 1313, and 1318–20 are described in Memphis Zoo’s privilege log as notes of a board meeting that occurred on November 22, 2017, that are protected by the work-product doctrine. (ECF No. 35-5 at 14 to 15.) This meeting was the telephone conference at which members of the board voted to terminate Dr. Terrell. these notes are not protected by Dr. Terrell argues that the work-product doctrine because the notes were mandatory under Memphis Zoo’s bylaws and -14- made in the normal course of business. these emails expectation are of protected because, litigation, the Memphis Zoo argues that but for meeting its would reasonable never have occurred. Without the likelihood of litigation, these emails may never have been created, but that fact does not place the emails under the protection of the work-product doctrine. For the doctrine to apply, the anticipation of litigation must have been the driving force behind the preparation of the emails. See Fed. R. Civ. P. 26(b)(3)(A); In re Professionals, 578 F.3d at 439. Here, the emails at issue were primarily created, not in anticipation of litigation, but to record the board’s discussion at a meeting dealing with whether to terminate an employee — a business purpose. Therefore, the court finds that the documents are not protected by the work-product doctrine. Nonetheless, like the communications with Leggett discussed in the previous section, there are portions of the documents containing irrelevant and/or privileged information. The partial paragraph at the top of the page with Bates No. 1306-4 (beginning with the words “It doesn’t mean that we” and ending with “external stakeholders”), the first full paragraph on the page with Bates No. 1306-9 (beginning with the word “David” and ending with “separate”), and the first full paragraph on the page with Bates No. 1306-12 -15- (beginning with the word “Instructions” and ending “you with know now”) all contain descriptions of opinions expressed by Memphis Zoo’s counsel that is privileged. Therefore, while Dr. Terrell’s motion to compel disclosure of these documents is GRANTED, Memphis Zoo may redact the previously mentioned privileged information and other iterations of this information from the documents. 6. Media Coverage Report The document with Bates No. 1314 is described in Memphis Zoo’s privilege argues that log the as “Media document Hits does not Thus Far.” appear to Dr. be Terrell related to pending litigation and, as a result, is not protected by the work-product doctrine. Memphis Zoo responds that the document was prepared due to the litigation and that Dr. Terrell has not shown that she faces undue difficulty acquiring the information contained in the document. Having reviewed the document, the court finds that, since it contains no information related to any claim by Dr. Terrell or any defense that Memphis Zoo might bring, it is not relevant to Dr. Terrell’s suit. See Fed. R. Civ. P. 26(b)(1) (“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 . . . .”). coverage contains In addition, the report of media information that Dr. acquire by performing her own research. -16- Terrell could easily For these reasons, Dr. Terrell’s motion to compel disclosure of this document is DENIED. B. Memphis Zoo’s Responses to Dr. Terrell’s Interrogatories and Document Requests Dr. Terrell argues that Memphis Zoo improperly responded to Interrogatories Nos. 4, 5, and 9, and Requests Nos. 5 and 13. Memphis Zoo claims that it has properly responded to Interrogatory No. 4 and Request No. 5 and that the remaining interrogatories and document requests are improper. “An interrogatory may relate to any matter that may inquired into under Rule 26(b).” be Fed. R. Civ. P. 33(a)(2). Under Rule 26(b), parties may discover information concerning “any nonprivileged matter that is relevant to any party's claim or defense”; however, information must be limited in scope by an number of factors including its “proportional[ity] to the needs of the case,” “the parties' relative access to relevant information,” and “whether the burden or expense of the proposed discovery 26(b)(1). outweighs its likely benefit.” Fed. R. Civ. P. Rule 26 requires courts to restrict the scope of discovery if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Civ. P. 26(b)(2)(c)(i). Fed. R. The party requesting the information has the burden of showing its importance and the party from whom -17- the information is requested has the responsibility explaining how the request is unreasonable. of See, e.g., Shah v. Metro. Life Ins. Co., No. 2:16-CV-1124, 2018 WL 2309595, at *3 (S.D. Ohio May 22, 2018); see also Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment. 1. Disclosing Meeting Board Members Present at Termination In Interrogatory No. 4, Dr. Terrell requests that Memphis Zoo name each person who decided to ask her not to return to work on November 1, 2017, each person who decided to fire her, and each person who was consulted about these two decisions. (ECF No. 35-1 at 6.) Memphis Zoo responded to this interrogatory by stating that Leah Jensen and Dr. Brady decided to ask her not to return to work after consulting with counsel and members of the Board of Directors. Memphis Directors Zoo also consulted responded that concerning then voted to terminate her. her (ECF No. 35-3 at 6.) Jensen and the termination and (Id.) Board the of board In later correspondence concerning this interrogatory, Dr. Terrell specified that she is asking for the identities of the board members who participated in these decisions. (ECF No. 37-1 at 3.) Dr. Terrell argues that Memphis Zoo erred by not identifying which board members were consulted about or participated in these decisions. Memphis Zoo argues that it complied with Interrogatory No. 4 -18- because the interrogatory only asks for the name of “person(s)” who had a role in the decisions, and the definitions section of the interrogatories defines “person” to include various forms of business entities and agents in addition to “natural person.” (ECF No. 37 at 4 (quoting ECF No. 35-1 at 1, 3.)) further argues that Dr. Terrell Memphis Zoo mischaracterized her own interrogatory because the interrogatory does not ask Memphis Zoo to “identify” decisions. the individuals Memphis “substantially Zoo increase who claims the played that scope a such and role a in these request would complexity of her interrogatory because the term ‘identify’ . . . is defined six different ways in Dr. Terrell’s interrogatory definitions.” (Id.) The court finds that Memphis responded to Interrogatory No. 4. compel Memphis Zoo to Zoo has not appropriately Thus, Dr. Terrell’s motion to supplement its response to this interrogatory is GRANTED. 2. Disclosing Information About Individuals Have Violated Memphis Zoo Policies In Interrogatory No. 5 requests that documents for present who Memphis Zoo and Request No. 13, identify and Alleged to Dr. Terrell produce relevant every individual from January 1, 2013, to the Memphis Zoo alleges violated any of the same policies that it alleges she violated and for which she was -19- terminated. Zoo (ECF No. 35-1 at 6; ECF No. 35-2 at 8.) responded that these requests are vague, Memphis overly broad, unduly burdensome, and seek irrelevant privileged information. (ECF No. 35-3 at 7; ECF No. 35-4 at 11.) Dr. Terrell argues that she seeks relevant comparator information because the way male employees were treated prior to her employment is pertinent to the allegations in her complaint. Memphis Zoo argues that policy violations that occurred before Dr. Terrell was employed are not relevant and that the interrogatory is too expansive, requesting the disciplinary history of “potentially hundreds of Memphis Zoo employees.” Plaintiffs (ECF No. 37 at 7.) proving discrimination claims based upon circumstantial evidence must, among other showings, demonstrate that they were “treated non-protected employees.” differently than similarly-situated, Golden v. Mirabile Inv. Corp., No. 17-5346, 2018 WL 1168253, at *4 (6th Cir. Mar. 6, 2018) (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)); see also Familoni v. The Univ. of Memphis, No. W200402077COAR3CV, 2005 WL 2077660, at *3 (Tenn. Ct. App. Aug. 29, 2005) (noting that this showing is also required for discrimination claims brought under the THRA); see also Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 753 (6th Cir. 2012) (“The refusal of a defendant to disclose requested comparator -20- information denies whether evidence the plaintiff the actually opportunity reveals to determine comparator status and different treatment, critical elements of the claim that the trier of fact must determine.”). Courts attempting to reconcile the need for broad discovery with the need for relevant and reasonable including Clinic discovery random Found., have sampling 676 F. relied of App'x upon a number comparators, Lee 488, (6th 501–02 of v. methods Cleveland Cir. 2017), limiting the span of time from which the responding party has to provide information, Escalera v. Bard Med., a Div. of C.R. Bard, Inc., No. 4:16-CV-00121-JHM, 2017 WL 4012966, at *4 (W.D. Ky. Sept. 12, 2017), and limiting the discovery to comparators who held similar positions to the plaintiff, Fleming v. Honda of Am. Mfg., Inc., No. 2:16-CV-421, 2017 WL 4296314, at *5 (S.D. Ohio Sept. 28, 2017). Dr. Terrell has shown that Memphis Zoo’s treatment of male employees prior to her hiring is relevant to her allegations of discrimination. Due to the lack of specificity in Memphis Zoo’s response, Memphis Zoo has not shown that the five-year span of her discovery request is overly burdensome. Instead, it has speculated that the request could “potentially” require Memphis Zoo to provide information about hundreds of employees. Nonetheless, because of the broad wording of the policies that Memphis Zoo claims Dr. Terrell -21- violated, a response to Dr. Terrell’s discovery request would likely include employees at all levels of Memphis Zoo’s employment structure — many of whom would not qualify as comparators. Therefore, while Dr. Terrell’s motion to compel a response to Interrogatory No. 5 and Request No. 13 is GRANTED, the court limits the discovery that Memphis Zoo must provide to employees in her Conservation and Research Department, and employees who hold or have held a position at the same level as Dr. Terrell on the organizational chart. (ECF No. 39-2.) 3. Disclosing Information About Individuals who Reported Directly to Dr. Brady In Interrogatory No. 9 and Request No. 5, Dr. Terrell requests that Memphis Zoo provide the identification, job title, gender, date of evaluation and supporting documentation of the evaluation, date and quantity of salary increases, disciplinary history, and, if terminated, the reason for termination, of every individual from January 1, 2013, to December 31, 2017, who reported directly to Dr. Brady. 2 at 6.) overly (ECF No. 35-1 at 7; ECF No. 35- Memphis Zoo responded that these requests are vague, broad, unduly privileged information. burdensome, and seek irrelevant and (ECF No. 35-3 at 9; ECF No. 35-4 at 7.) Memphis Zoo also claimed that it had provided documents relevant to Request No. 5. (ECF No. 35-4 at 7.) Dr. Terrell argues that this information is relevant because of Memphis Zoo’s statement -22- that her performance review provided part of the basis for her termination and her requests are not overbroad because “only a handful of employees” report directly to Dr. Brady. at 6.) (ECF No. 35 Memphis Zoo argues that information for workers employed before Dr. Terrell is not relevant. Dr. Terrell individuals case. And, has shown that who were employed before Memphis Zoo has not information her shown concerning is relevant to her that so many people reported directly to Dr. Brady as to make unduly burdensome the number of comparators it would have to identify. Even so, Dr. Terrell has not shown the relevancy of several of the pieces of information she requests concerning these comparators, including the disciplinary history leaving Memphis Zoo. of each person and the reason for Therefore, while Dr. Terrell’s motion to compel response to Interrogatory No. 9 is GRANTED, the court limits the scope of the required response to the following relevant categories of information: identities of employees, job titles, gender, dates and supporting documentation performance reviews,1 and dates of employment. 1One of Dr. Terrell’s of the central allegations of Dr. Terrell’s complaint is that “Dr. Brady met with Dr. Terrell to provide a performance review. Dr. Brady had not held any such reviews with Dr. Terrell in the previous two years of her employment, and none of the male employees at Dr. Terrell’s level underwent a performance review.” (ECF No. 1 at 4.) Therefore, discovery relating to the existence of any performance reviews is warranted discoverable. -23- motion to compel supplementary disclosures to Memphis Zoo’s response to Request No. 5 is DENIED. C. Format for Electronic Discovery that Memphis Zoo Provided to Dr. Terrell Dr. Terrell argues that Memphis Zoo violated Fed. R. Civ. P. 34 by responding to her document requests with approximately four thousand electronically organizational pattern. stored documents lacking any Memphis Zoo claims that it has complied with Rule 34 because it produced the documents in the form they are kept in the usual course of business and has provided an affidavit from (ECF No. 37-3.) the documents’ custodian affirming its claim. Memphis Zoo further argues that it would be inequitable to require it to reorganize this discovery when it previously offered Dr. Terrell an opportunity to collaborate on the gathering and production of this information. (ECF No. 37 at 9.) Rule 34 requires that parties produce electronically stored information either in the form that it is maintained in the usual course of business or in a form organized to correspond to categories 34(b)(2)(E). in the discovery request. Fed. R. Civ. P. “A party need not produce the same electronically stored information in more than one form.” Id. Once a party demonstrates that it has produced discovery in the form it is maintained in the ordinary course of business, the party has met -24- the requirements of Rule 34. See State Farm Mut. Auto. Ins. Co. v. Universal Rehab Servs., Inc., No. 15-10993, 2016 WL 5369610, at *1 (E.D. Mich. Sept. 26, 2016); Appalachian Land Co. v. EQT Prod. Co., No. 7:08-CV-00139-KKC, 2009 WL 10689269, at *1 (E.D. Ky. June 24, 2009); FenF, LLC v. Healio Health Inc., No. 5:08CV404, 2008 WL 11379993, at *4 (N.D. Ohio Dec. 11, 2008); Clark Constr. Grp., Inc. v. Eagle Amalgamated Servs., Inc., No. 01-2478-DV, 2007 WL 9710165, at *6 (W.D. Tenn. Aug. 1, 2007). Here, Dr. Terrell has not provided any information to refute Memphis Zoo’s showing that the discovery was provided in the form it was kept in the ordinary course of business. Terrell’s motion to compel Memphis Zoo to Thus, Dr. designate which documents correspond to which request is DENIED. III. CONCLUSION For the foregoing reasons, Dr. Terrell’s First Motion to Compel is GRANTED in part and DENIED in part. To the extent the court has granted the motion, all documents and responses to discovery requests shall be produced within fourteen days from the date of this order. IT IS SO ORDERED. s/ Tu M. Pham TU M. PHAM United States Magistrate Judge July 3, 2018 Date -25- __
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