United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE.
David Brewer filed an Amended and Renewed Motion to Permit
Discovery and Compel Production of Noncustodial
Electronically Stored Information on November 11, 2017. (Doc.
247). United States Magistrate Judge John T. Johnston issued
Findings and Recommendations in this matter on January 11,
2018. (Doc. 260.) Judge Johnston recommended that the Court
deny Brewer's request. Id. at 17.
Court reviews de novo findings and recommendations
to which objections are made. 28 U.S.C. § 636(b)(1)(C).
Portions of findings and recommendations to which no party
specifically objects are reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where a
party's objections constitute perfunctory responses
argued in an attempt to engage the district court in a
relitigation of the same arguments set forth in the original
response, however, the Court will review for clear error the
applicable portions of the findings and recommendations.
Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont.
Feb. 21, 2014) (internal citations omitted).
timely filed an objection. (Doc. 264.) The document
“reiterates” claims contained in Plaintiff's
Brief in Support of Amended and Renewed Motion (Doc. 248) and
Plaintiff's Reply in Support of Amended and Renewed
Motion to Permit Discovery and Compel Production of
Noncustodial Electronically Stored Information (Doc. 259).
Judge Johnston considered these arguments in making his
recommendation to the Court. Thus, the Court finds no
specific objections that do not attempt to relitigate the
same arguments, and will review the Findings and
Recommendations for clear error.
have broad discretion in controlling discovery. Little v.
City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).
Litigants in a civil action are entitled to discovery,
generally, “regarding any non-privileged matter that
remains relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). In determining “relevancy” and
“proportionality, ” a court should consider
“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.” Id.
Management Compensation, Policies, and Metrics
seeks BNSF Railway Company's (“BNSF”)
records, data, statistics, and metrics regarding BNSF's
records of compensation and its metrics for determining
compensation for managerial employees. (Doc. 260 at 6.) Judge
Johnston found that Brewer dedicated the majority of his
argument to the relatively light burden BNSF would have in
producing the records and reports. This factor alone does not
determine whether the request remains proportional.
Brewer's objection reiterates much of the same argument
that Judge Johnston considered in issuing his findings and
recommendations, but asks the Court to come to a different
conclusion. (Doc. 264 at 11.)
argues that the fact that he “has now learned in
addition to the Incentive Compensation Program, the railroad
had additional management goals and rankings” does not
render those requests overly broad or disproportionate.
Id. Brewer argues, instead, that the information has
been narrowly tailored to the goals, ratings, and metrics of
the people “directly involved in the railroad's
termination of Brewer for the time period surrounding that
termination.” Id. The Court disagrees. Judge
Johnston correctly determined that Brewer's motion,
beyond what BNSF has already produced, exceeds the boundaries
of this case.
BNSF's Capability to Search For, Preserve, and Produce
Relevant Electronically Stored Information
requests a description of BNSF's capabilities and, use of
those capabilities, to search for, preserve, and produce
information. Id. at 9. “A party should not be
required to provide discovery about its e-discovery without
good cause.” The Sedona Conference Commentary on
Defense of Process: Principles and Guidelines for Developing
and Implementing a Sound E-Discovery Process, 42 (Sept.
2016) (“Sedona Conference”). Judge Johnston
previously allowed Brewer to conduct a Deposition by Written
Questions in order to address BNSF's search capabilities
and preservation of ESI. (Doc. 260 at 10.) A party seeking
discovery on discovery (“meta discovery”) must
show a specific deficiency in the other party's
production. Sedona Conference at 118.
argues, in his objection, that discovery on the existence,
description, nature, custody, condition and location of any
document remains firmly entrenched in Rule 26(b)(1) despite
its removal of text from the rule. (Doc. 264 at 12.) Brewer
further argues that the Sedona Conference does not provide a
basis for denial of the requested information. Id.
at 13. The Court disagrees. Judge Johnston determined that
“responding parties are best situated to evaluate the
procedures, methodologies, and technologies appropriate for
reserving and producing their own electronically stored
information.” Sedona Conference at 118. In
order for the non-responding party to overcome this
presumption, the non-responding party must show a specific
deficiency in the responding party's production.
Id. Judge Johnston correctly determined that Brewer
has not shown a specific deficiency in BNSF's production.
(Doc. 260 at 12.) The Court agrees that Brewer's request
remains disproportionate to the needs of the case.
Files and Databases on BNSF's Labor Relations ...