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Davis v. Eastern Idaho Health Services, Inc.

United States District Court, D. Idaho

May 3, 2017

EASTERN IDAHO HEALTH SERVICES, INC, d.b.a. Eastern Idaho Regional Medical Center, Defendant.




         The Court has before it Plaintiff's Motion to Compel (Dkt. 29) and the parties' Joint Motion for Extension of Dispositive Motion and Mediation Deadlines (Dkt. 32). The Court's staff attempted two mediation sessions that were partially successful, and the parties then briefed their remaining disputes. For the reasons explained below, the Court will grant in part and deny in part the Motion to Compel and grant the Joint Motion for Extension.


         This action is brought by John Brent Davis against his former employer, Eastern Idaho Health Services Inc., d/b/a Eastern Idaho Regional Medical Center (“EIRMC”). Plaintiff alleges that he was wrongfully terminated when he failed to clock out to attend doctor appointments related to a workplace injury. Plaintiff brings claims for employment discrimination and retaliation under various federal statutes and Idaho common law.

         Discovery in this case has been contentious and the subject of ongoing informal mediation with the Court. Central to the parties' dispute is Plaintiff's requests for comparator employee discovery, contained in the following requests for production:

REQUEST FOR PRODUCTION NO. 23: Please produce any documents showing disciplinary action given to other employees for alleged time card violations within the last five (5) years.
REQUEST FOR PRODUCTION NO. 25: Please produce any documents showing disciplinary actions taken within one year of an employee reporting a disability, making a worker's compensation claim, taking FMLA leave, and/or making a complaint regarding time card concerns for the last five (5) years.

         Ulrich Decl., ¶ 3-4, Ex. A & B, Dkts. 29-3, 29-4. Defendant argues that the requests are overbroad and unduly burdensome, asserting that it cannot search for such disciplinary actions without great expense and that the request is not appropriately tailored to the universe of similarly-situated employees.

         Defendant also objects to three requests seeking production of employee email correspondence, asserting that any search of company emails would be disproportionately expensive. These requests include:

REQUEST FOR PRODUCTION NO. 12: Please produce any documents, including email correspondence, that concern or discuss the factual allegations in Plaintiffs Complaint.
REQUEST FOR PRODUCTION NO. 17: Please produce any documents related to worker's compensation claim made by Plaintiff, including but not limited to email correspondence regarding Plaintiff's claims.
REQUEST FOR PRODUCTION NO. 24: Please provide any correspondence, emails, or other documents provided to employees with worker's compensation claims regarding how to manage related medical appointments required during scheduled work hours.


         On March 3, 2017, the Court conducted its first discovery dispute conference with the parties. Counsel agreed to a “test case” search of personnel files in the Imaging Department, where Plaintiff formerly worked. Counsel was unable to reach agreement on production of employee emails, but Defendant agreed to provide the Court and opposing counsel with an explanation of how its emails are stored and the accessibility of such files for electronic search, to substantiate its objections on cost grounds.

         The Court conducted a second discovery mediation on April 4, 2017, after the test case search was completed, to discuss whether an expanded search outside the Imaging Department would be warranted. Additionally, the parties raised a new dispute concerning Plaintiff's request to depose Celia McKenzie and to produce certain notes from the investigation preceding Plaintiff's termination. The parties were unable to resolve their disputes during that conference, and the Court granted Plaintiff leave to file the present Motion to Compel. The matter is now fully briefed and ripe for disposition.


         Federal Rule of Civil Procedure 26(b), as amended effective December 1, 2015, provides that:

“[p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Fed. R. Civ. P. 26(b)(1). Rule 26 contains more specific limitations on discovery of electronically stored information:

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows ...

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