Mitch Goree and James Wherry, Plaintiffs, v. United Parcel Service, Inc., Defendant No. 14-cv-2505-SHL-dkv United States District Court, W.D. Tennessee, Western Division Signed October 30, 2015 Counsel Andrew C. Clarke, Andrew C. Clarke, Attorney at Law, Memphis, TN, Lucien Ramseur Gillham, Luther Oneal Sutter, Harrill & Sutter, PLLC, Benton, AR, for Plaintiffs. Waverly D. Crenshaw, Jr., Aron Z. Karabel, Marcus M. Crider, Waller Lansden Dortch & Davis, LLP, Nashville, TN, for Defendant. Lipman, Sheryl H., United States District Judge ORDER ADOPTING IN PART AND ALTERING IN PART THE MAGISTRATE JUDGE'S DISCOVERY ORDER *1 Monty Python offers its own version of the famed search for the Holy Grail. In it, King Arthur and his sidekick, Patsy, are on the search for the Holy Grail: the most revered and sought-after Christian relic of all time, purportedly capable of bestowing eternal youth, happiness and sustenance to its beholder. For some inexplicable reason, however, Patsy has brought along two halved coconuts for percussion purposes. These coconuts, while otherwise inconsequential, appear to doom the King's current mission, as is told below. The King and Patsy approach a castle seeking to enlist its master to join them in Camelot for their sublime undertaking. Unfortunately, they are met by two guards who, despite their duties to the master of the castle and in utter blindness to the mission of ineffable importance before them, simply focus on Patsy's coconuts. They ignore King Arthur's repeated attempts to focus their attention, and continue to query how a tropical fruit might have come before them. Finally, the King and Patsy leave wholly dissatisfied with the guards' imprudent attentiveness. Monty Python and the Holy Grail (EMI Films 1975). The case before this Court, thus far, feels very similar to the events just described. This is a court of justice, and the quest for justice, confined only by fairness, is the sole goal of the Court. Nonetheless, the parties have incessantly quibbled over otherwise tangential issues. Moreover, they have done so in direct disobedience of this Court's and the Magistrate Judge's repeated edicts to focus their efforts on what is relevant and important (in fact, Magistrate Judge Pham warned the parties that, while he considers such a course of action to only be appropriate in the most egregious of cases, he has sincerely considered sanctions against the parties in this case). Plaintiffs appear to seek every single document ever conceived by Defendant, while Defendant apparently refuses to conduct any ESI searches that it has not construed itself, and neither has seemingly budged. This behavior might arguably stretch to the bounds of petulance or contumaciousness, but, either way, it is misguided and wasteful (on two Motions to Compel, the Court counts thirty-three related filings by the parties or hearings before the Magistrate Judge and this Court). Both the parties and the Court have spent valuable resources in a drawn-out discovery war that could have been easily settled through a civil and clear-eyed approach by the parties. The following Order outlines what is relevant and important for this case in an effort to preserve everybody's resources and focus the parties' attention on what the ultimate intention of the legal system is: justice. If Plaintiffs were harmed illegally, the Court wishes them to receive their remedy in a judicious manner; if they were not, the Court wishes this case to be disposed of as expeditiously as possible. We cannot, however, get to that stage if the parties continue to focus on the proverbial coconuts and not the Holy Grail. *2 Before the Court are Plaintiffs' two Motions to Compel that were referred to the Magistrate Judge. The Magistrate Judge entered an Order addressing each yet-to-be-settled discovery request, granting in part and denying in part Plaintiffs' Motions. (ECF No. 117.) Plaintiffs have appealed the Magistrate Judge's Order (ECF No. 123), and Defendant responded to Plaintiffs' appeal (ECF No. 124). For the reasons stated below, the Magistrate Judge's Order is ADOPTED IN PART AND ALTERED IN PART. I. STATEMENT OF THE CASE Plaintiffs, black employees of Defendant in Tennessee, allege that they were not promoted in 2014 by Defendant due to racial discrimination and retaliation. Plaintiff James Wherry (“Wherry”) was promoted to the position of Division Manager, overseeing the Western Tennessee Division, around 2006. He was demoted to the Business Manager position in 2011 for allegedly failing to conduct a timely investigation of the report of misconduct by another employee. Plaintiff Mitch Goree (“Goree”) was promoted to Business Manager in 2000, but then demoted to Supervisor in 2004. In 2010, however, Goree worked as an “acting” Business Manager for some time, and was allegedly promised an official promotion back to Business Manager. He was then passed over for that promotion in favor of a white male. Based on Wherry's demotion and Goree's failure to be promoted, both Wherry and Goree sued Defendant in 2011, in Tennessee state court, alleging racial discrimination and retaliation (Goree had formerly sued Defendant following his demotion in 2004 as well). The jury reached a verdict in that case in January, 2014. Plaintiffs then attempted to receive equitable relief from the state court for reinstatement and promotion to the positions for which they felt they were entitled (Business Manager for Goree and Division Manager for Wherry). The state court denied this relief. Plaintiffs then returned to work, and three weeks later filed the current lawsuit after they were not reinstated or promoted by Defendant. Plaintiffs allege that they were qualified for the reinstatement and promotion in February, 2014, and that they were passed over because of their race and their previous litigation against Defendant. (See ECF No. 1.) Defendant contends that, in each case, Plaintiffs were “not ready” for the positions they alleged they should have received. (ECF No. 20.) To be promoted, Defendant avers that an employee must be placed on the “Ready Now” list by her supervisor, be approved by the Business Planning Unit (a group of 10-11 managers at UPS), and ultimately be signed off on by Ken Harms, the District President for the Mid-South District covering Alabama, Louisiana, Mississippi and Tennessee. Plaintiffs argue that the “Ready Now” list is pretext. Before the Court are Plaintiffs' Motions to Compel seeking, among other things, broad discovery of personnel files of potential comparators and emails from high-level managers regarding Plaintiffs' job performance and evaluation. Although Plaintiffs have only worked in Tennessee, and, in this lawsuit, allege being passed over for promotions in 2014, they seek discovery spanning back to 2010 (not counting every email Plaintiffs have ever sent) and across the entire Mid-South District for Defendant. (See ECF Nos. 41, 79.) The Court entered an initial order on the Motions to Compel, limiting the temporal scope of discovery dating back to January 1, 2011, and the geographic scope to the State of Tennessee, although the Court noted that any employees within the Mid-South District who were promoted to the positions that either Plaintiff sought, but were also not on the “Ready Now” list, would be discoverable comparators. (ECF No. 122) (hereafter “Discovery Order I”). Additionally, the Court required Defendant to produce a copy of the career development records for two employees promoted to the Division Manager position in 2014 in Jackson, Mississippi and Jacksonville, Florida. Lastly, the Court required Defendant to produce responsive documents to its own ESI query and to further provide a response to Plaintiffs' ESI proposal. *3 On September 29, 2015, the Magistrate Judge entered an Order addressing each yet-to-be-settled discovery request, granting in part and denying in part Plaintiffs' Motions to Compel. (ECF No. 117.) Plaintiffs have appealed the Magistrate Judge's Order (ECF No. 123), and Defendant responded to Plaintiffs' appeal (ECF No. 124). For the reasons stated below, the Magistrate Judge's Order is ADOPTED IN PART AND ALTERED IN PART. II. STANDARD OF REVIEW Plaintiffs' Motions to Compel were referred to the Magistrate Judge pursuant to 28 U.S.C.A. § 636(b)(1)(A), which iterates that: “A judge may designate a magistrate judge to hear and determine [a motion to compel] pending before the court ... A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” “A magistrate's ruling is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules of procedure, and is clearly erroneous if the district court is left with the definite and firm conviction that a mistake has been committed.” Thai Lao Lignite (Thailand) Co. v. Gov't of Lao People's Democratic Republic, 924 F. Supp. 2d 508, 512 (S.D.N.Y. 2013) (internal citations and quotation marks omitted). “Under this highly deferential standard, magistrate judges are afforded broad discretion in resolving nondispositive disputes and reversal is appropriate only if their discretion is abused.” Id. (internal citations and quotation marks omitted). Accordingly, the Court will review the Magistrate Judge's Order under an abuse of discretion standard, determining whether the Order is contrary to law or clearly erroneous. III. ANALYSIS This section first addresses two general issues with Plaintiffs' motions: the electronically stored information (ESI) debacle and the proper comparators for Plaintiffs. As to the first issue, the Court finds, for discovery purposes, that Defendant must run Plaintiffs' newest proposed ESI search limited by the appropriate custodians and time periods outlined in this Order. And, as to the second issue, the Court finds that the relevant comparators for Goree are Supervisors in Tennessee who were placed on the Ready Now list or promoted to Business Managers since 2011, and Supervisors who were promoted to Business Managers in the Mid-South District since 2011 but were not on the Ready Now list; and the proper comparators for Wherry are Business Managers in Tennessee who were placed on the Ready Now list or promoted to Division Managers since 2011, and any Business Managers who were promoted to Division Managers in the Mid-South District since 2011 but were not on the Ready Now list.[1] The next section will review the Magistrate Judge's ruling as to each discovery request under an abuse of discretion standard, finding that most of the Magistrate's rulings are not clearly erroneous, while altering a select few. A. Electronically Stored Information (ESI) Search Results The current matter is not a discovery dispute –– it is a discovery war –– and the parties' heavy artillery has been aimed at the ESI theater. Plaintiffs originally suggested an ESI search that was, self-admittedly, overbroad (resulting in more than a million hits). Defendant then countered with two separate proposals, and ended up conducting the more limited search and production at a cost of $27,000 borne solely by Defendant. Plaintiffs, however, contend that this search was both overly broad and too restrictive. Plaintiffs have since proposed a new ESI search. Defendant refused to run Plaintiffs' newest proposal, let alone produce new documents responsive to the search. The Court orders Defendant to run Plaintiffs' newest ESI search limited by the relevant time frame and custodians as outlined below, and, if that is to the disliking of either party, to confer in good faith and conduct new searches that will both respond completely to Plaintiffs' discovery requests (as modified by the Court's ruling) but not produce an abundance of non-responsive documents. The Court proceeds under the following guidance: *4 Under the 2006 amendments to Rule 26(b)(2), if the party from whom ESI is requested, considers the ESI request unduly burdensome, then that party can file a motion for a protective order or the requesting party can file a motion to compel. Upon the filing of either motion, the Court first assesses whether the ESI production is an undue burden. If so, then the Court considers whether the ESI discovery request is duplicative or available elsewhere or whether the requesting party could have sought the ESI earlier. If an undue burden is shown, the requesting party must show ‘good cause’ to justify the ESI production. For the ‘good cause’ determination, the Court is to consider whether the discovery request's ‘burden or expense ... outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.’ John B. v. Goetz, 879 F. Supp. 2d 787, 865-67 (M.D. Tenn. 2010) (quoting Fed. R. Civ. P. 26(b)(2)(C)(i)(ii) and (iii)). Here, neither party can agree to the lexicon of search terms or appropriate custodians for the search. Instead, Defendant has apparently refused to run Plaintiffs' proposed ESI search, and Plaintiffs lament that the $27,000 production was ineffective. The parties appear ready to defer completely to the Court in crafting proper ESI search queries – this is not a position the Court wishes to be in. See William A. Gross Const. Associates, Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) (the parties' inability to agree on search terms left the court in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties.”) “While key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process.” In re Seroquel Products Liab. Litig., 244 F.R.D. 650, 662 (M.D. Fla. 2007) (emphasis added). Such a process involves a complicated and highly technical understanding of both accurate search methodologies and the parties' electronic systems for storing information. See Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87, 109 (S.D.N.Y. 2012) (discussing intricate and highly technical optimization techniques for ESI searches). “Of course, the best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Associates, Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009). In fact, this Court is “loathe to decide the search terms to be used because the parties are far better positioned to do so.” Saliga v. Chemtura Corp., No. 3:12CV832 RNC, 2013 WL 6182227, at *3 (D. Conn. Nov. 25, 2013). If this was a bygone era, when physical documents were stored in palpable places, the Court would not have instructed the parties as to which specific filing cabinets to open, which tabs to look for, and which desk drawers to investigate. Likewise, the Court will not engage in micromanagement of the ESI discovery here. Throughout the multitude of briefings and hearings on Plaintiffs' discovery requests, the issue of ESI has largely been conflated with the issue of discoverable information. The Court now disentangles that conflation. As to questions of discoverability, the Court is in the best position to determine the limit and scope of what is discoverable and must be produced. As to questions of how all discoverable documents are to be produced, the parties are undoubtedly in the best position to crack that puzzle. Accordingly, the Court requires Defendant to run Plaintiffs' newest proposed ESI search (again, as limited by the appropriate time frame and custodians as outlined below), and, if neither party is satisfied with the number of hits produced by this search, then both parties must meet and confer in good faith to determine a new ESI search until both are satisfied. The Court will not hold the parties hands, walk them to the file cabinets, and turn the keys for them. It will, however, tell them what they must produce as a result of their ESI exploration. B. Proper Comparators *5 The following analysis focuses on who the proper comparators are for each Plaintiff, finding that, for discovery purposes, Wherry may be compared to other Business Managers and Goree may be compared to other Supervisors. Plaintiffs can surmount their burden of persuasion in this case in two ways: first, discover direct evidence of discriminatory or retaliatory intent; or, second, use circumstantial evidence by juxtaposing Plaintiffs and comparators. As was discussed extensively in Discovery Order I, comparators need not be “mirror-image” employees. See Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). Instead, they must be similarly situated in all relevant respects, depending on the facts of the case. See Seay v. Tennessee Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003) (“The [same supervisor] requirement is particularly problematic here, where a violation such as vehicle misuse does not occur frequently enough to invite such a direct comparison within a compartmentalized organization.”). However, this does not give free range to a plaintiff to compare themselves with any other employee that they personally deem similar. Just as the Sixth Circuit held that a defendant could not egregiously limit discovery to a single comparator chosen by the defendant, the converse applies to plaintiffs; namely, a plaintiff cannot simply assert that they are relevant to all other employees and therefore engage in a massive fishing expedition for irrelevant information. See Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 746 (6th Cir. 2012). Here, Plaintiffs contend that they are entitled to compare how they once performed the positions they now seek with the performance of employees who currently hold those positions. For instance, Wherry wishes to compare how he performed as a Division Manager from 2006-2011 to the performance of other Division Managers from 2011-2014 in order to show that he was in fact “Ready Now” to be a Division Manager in 2014. Such a comparison is inappropriate for this case. Plaintiffs have alleged claims based on a failure to promote, not a failure to perform after promotion. Wherry is currently a Business Manager who wants to be a Division Manager. Defendant selects other Business Managers as being “Ready Now,” and then promotes those employees to Division Managers. The appropriate comparison for Wherry is the performance of Business Managers who were placed on the Ready Now list or promoted to Division Manager. A decision to promote an employee must be done ex-ante to that employee's performance in the subsequent position, necessarily. Promotions involve looking back at how an employee performed in a specific position in an attempt to estimate how that employee will then perform in the future in a different position. The Ready Now list, accordingly, is not a prophetic scripture dictating who shall be the best managers in the future; it merely says who Defendant thinks will be the best managers in the future by looking at their past performance. For that reason, looking at how an employee performs after their promotion says nothing about the decision to actually promote that employee. Moreover, whether a Division Manager in 2014 had similar or dissimilar performance reviews to Wherry's performance reviews from 2006 says nothing about whether Wherry should have been promoted in 2014 because of the different time periods, facilities, supervised employees, economic realities and company policies. Permitting Plaintiffs to compare those two things simply invites irrelevant mini-trials within this case. In keeping with this Court's analysis in Discovery Order I, the relevant comparators for Goree are Supervisors in Tennessee who were placed on the Ready Now list or promoted to Business Managers since 2011, as well as Supervisors in the Mid-South District who were promoted to Business Managers but were not on the Ready Now list since 2011. The relevant comparators for Wherry are Business Managers who were placed on the Ready Now list or promoted to Division Managers in Tennessee since 2011, as well as Business Managers who were promoted to Division Managers in the Mid-South District but were not on the Ready Now list since 2011. The above notwithstanding, Plaintiffs are entitled to discovery relating to their own performance over their careers. Defendant stated that an individual's employment history is considered when deciding whether to promote that individual. Accordingly, how Plaintiffs have performed in various positions is relevant information as to why they were not promoted or placed on the Ready Now list. For instance, if the record reflects that Wherry performed exceptionally well as a Division Manager from 2006-2011, that would be relevant to his claim. What is not relevant to why Wherry was not promoted, however, is how somebody else performed in that position in a different time period, with different employees, economic realities and company policies. C. Individual Discovery Requests and Interrogatories *6 The following section reviews the Magistrate Judge's ruling on each disputed discovery request and interrogatory. The analysis reproduces, verbatim, Plaintiffs' requests (in italics), Defendant's response/production (indented and single-space), and the Magistrate Judge's ruling (standard font). Then, each section reviews the ruling to determine if it was clearly erroneous or contrary to the law (in bold). The Court finds that most of the Magistrate Judge's rulings are not clearly erroneous, although a handful are altered to either expand or limit the response required to fulfill the discovery request. i. First Motion to Compel 1. Request for Production No. 1: Please produce the Balanced Score Cards and monthly Operation ranking for each Package Division Manager and Business Manager since Harms became District President until the present date. UPS's response/production: UPS specifically objects to this request because this request is overly broad, unduly and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The performance and ranking of every Package Division Manager and Business Manager in the Mid-South District since Mr. Harms became District President is not relevant to Plaintiffs' claims in this lawsuit. UPS further objects to this request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present[2] and this request far exceeds the temporal scope of that limitation. Subject to and without waiving the foregoing objections, UPS will search, and, if available, produce subject to a mutually-agreed protective order operation rankings for the Memphis Package Center for the period February 2014 to the present. UPS [has now] produced monthly operational reports and rankings for the period January 1, 2011 to February 2015 and those documents are Bates labeled UPS_GWII_0000261-350 and 1115-1288. Magistrate Judge Ruling: Plaintiffs argue that this request seeks discovery relevant to refuting UPS's argument that Wherry did not qualify for the 2014 promotions because he was not and is not “ready now” to be a Division Manager. Plaintiffs argue that Wherry is competing with other Business Managers for promotion to Division Manager. The court finds that limited discovery aimed at determining how Wherry's scores and rankings compare to other Business Managers since 2011 (some of whom are or may have been on a Ready Now list) is relevant and discoverable under Rule 26. In addition, although Wherry last held the Division Manager position in 2011, how Wherry's scores as a Division Manager in 2011 compare to other Division Managers is arguably relevant to whether he should have been on a Ready Now list in 2014. UPS has not shown that production of this information would be unduly burdensome. The court, however, disagrees with plaintiffs' argument that this ranking information should be provided from 2009 and for Harms's entire district. The court orders UPS, within 30 days, to supplement its prior production by producing the monthly operational reports and rankings (referred to as Balance Score Cards/Casey Cup) for each Package Division Manager and Business Manager since 2011 who worked at UPS facilities within the State of Tennessee.[3] The court denies plaintiffs' motion to the extent they seek any additional records. District Court Ruling *7 The Magistrate Judge's ruling is clearly erroneous insofar as it permits discovery of comparator information for Division Managers and limits comparators solely to Tennessee. In accordance with the above analysis, Defendant need not produce monthly operational reports and rankings for any Division Managers since 2011 because comparing their performance with Wherry's previous performance is not relevant to whether Wherry should have been promoted or placed on the Ready Now list. However, the geographic limitation should be expanded to include the monthly operational reports and rankings for Business Managers who were promoted in the Mid-South District but were not on the Ready Now list, if any exist. 2. Request for Production No. 2: Please produce all emails sent to or received by the BPU [Business Planning Unit], Ken Harms, Plaintiffs, Rick Winters, Anthony Nuckles regarding the goals or performance of centers in Wherry's former division. UPS's response/production: UPS specifically objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. As framed, this request could encompass thousands of irrelevant emails that in any way relate to several centers in the Memphis Package Division, irrespective of the subject matter. This request is well beyond any permissible discovery. UPS further objects to this request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. UPS [has now] produced emails sent to or received by Ken Harms, Jack McDowell and Jeff Taylor regarding the goals or performance of centers in the West Tennessee Division since 2011 that are listed in the attached spreadsheet by Bates number. Additionally, UPS produced performance metrics for the West Tennessee Division for the period 2011-2015 and those documents are Bates labeled UPS_GWII_261-350, 1115-1288. Magistrate Judge Ruling: Plaintiffs state that UPS's Business Planning Unit (“BPU”) is comprised of 9 or 10 individuals who purportedly meet at a “People's Meeting” to determine which UPS employees are “ready now” for promotion and to decide who to promote. In 2014, the BPU was comprised of Jeff Bloedorn, Jeff Taylor, Linda Nelson, Ken Kelly, Jack McDowell, Ken Watkins, Frank Bouyer, Steve Boulton, Pat Arthur, and Ken Harms. Plaintiffs contend that these emails among and between the members of the BPU, Harms, the plaintiffs, Rick Winters, and Anthony Nuckles relating to the “goals or performance” of centers in the Memphis Package Division would be relevant to show that UPS's decision to not put Wherry and Goree on the Ready Now list was pretextual. The court finds that the request for all emails regarding the goals or performance of centers in the Memphis Package Division centers is overly broad and seeks largely irrelevant information. UPS has already produced emails received by Harms, McDowell, and Taylor since 2011 found in its ESI search, as well as performance metrics for the West Tennessee Division since 2011. No further production in response to this request is warranted. District Court Ruling *8 The Magistrate Judge's ruling is not clearly erroneous. As noted by Defendants, this request, as written, would produce thousands of irrelevant emails – that is, any email sent to or received by approximately sixteen different individuals, without any time frame, that relate whatsoever to the goals or performances of the Memphis Package Division centers. Here, Magistrate Judge Pham has struck a reasonable balance between what is appropriate discovery and what would be unduly burdensome in light of the discovery request. The ruling carefully selects the most important custodians within the geographic region specified by Plaintiffs, and limits the time frame reasonably. Plaintiff objects, stating that such discovery could uncover direct evidence of retaliation by Harms. However, the ruling is consistent with this concern because it permits discovery of Harms' emails that are responsive to this request. 3. Request for Production No. 3: Produce all emails sent to or received by the BPU, Ken Harms, Rick Winters, Anthony Nuckles regarding Wherry's job performance. UPS's response/production: UPS specifically objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. As framed, this request encompasses every email that in any way relates to Wherry during the entire course of his 20+ year employment with UPS, irrespective of the subject matter. This request is well beyond any admissible discovery. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. Subject to and without waiving the foregoing objections, UPS will search, and, if available, produce subject to a mutually-agreed protective order Wherry's 2014 Quality Performance Review. UPS [has now] produced emails sent to or received by Jack McDowell, James Wherry, Ken Harms, Jeff Taylor, Rick Winters and Anthony Nuckles regarding Wherry's performance for the period 2011-2015 that are Bates labeled UPS_GWII_0000203-210, 213, 228-231, 437-488, 490-503, 505-528, 533-537, 539-541, 574, 590, 592, 599. Also see the attached spreadsheet for additional responsive documents by Bates number. Magistrate Judge Ruling: Plaintiffs ask for all emails relating to Wherry's job performance received by the BPU, Harms, Rick Winters (Wherry's supervisor 2011-2014) and Anthony Nuckles (who became Division Manager of the Memphis Package Division in 2014). Plaintiffs argue that these emails will show that Wherry is “ready now” and may reveal direct evidence of retaliation or discriminatory intent. UPS has produced those emails that were captured when it conducted its ESI search using Query No. 3, including emails that were received by Winters and Nuckles. The court finds that emails relating to Wherry's job performance sent to or received by Harms as well as Winters and Nuckles, since 2011, are relevant and must be produced. The court finds that the request for emails sent to or received by the members of the BPU (comprised of 9 or 10 individuals), as well as emails prior to 2011, is overly broad and unduly burdensome. *9 A separate ESI search shall be conducted to locate these emails, since Query No. 3 run by UPS did not specifically include Winters and Nuckles as custodians. Within 30 days, the parties and their IT professionals shall jointly develop search terms tailored to capture these emails, and documents responsive to the search shall be produced within 60 days. If the parties are unable to reach an agreement on search terms, the parties shall file a joint motion seeking review by the court within the initial 30-day period. District Court Ruling Magistrate Judge Pham's ruling is not clearly erroneous. Plaintiffs have only objected to the ruling based on the ESI search results, and this matter has been addressed above. 4. Request for Production No. 4: Produce all emails sent to or received by the BPU, Ken Harms, Plaintiffs, Rick Winters, Anthony Nuckles regarding Goree's job performance. UPS's response/production: UPS objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. As framed, this request encompasses every email that in any way relates to Goree during the entire course of his 20+ year employment with UPS, irrespective of the subject matter. This request is well beyond any admissible discovery. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. If Plaintiffs will clarify and narrow this request, UPS will attempt to respond. Subject to and without waiving the foregoing objections, UPS will search, and, if available, produce subject to a mutually-agreed protective order Goree's 2014 Quality Performance Review. UPS [has since] produced emails sent to or received by Jack McDowell, James Wherry, Ken Harms, Jeff Taylor, and Mitch Goree regarding Goree's performance for the period 2011-2015 that are listed in the attached spreadsheet by Bates number and Goree's QPRs Bates labeled UPS_ GWII_152-182. Magistrate Judge Ruling: The court finds that emails relating to Goree's job performance sent to or received by Harms and Wherry (Goree's supervisor), since 2011, is relevant and must be produced. The court finds that the request for emails sent to or received by members of the BPU, as well as by Winters or Nuckles (neither of whom apparently supervised Goree), is overly broad and unduly burdensome. A separate ESI search shall be conducted to locate these emails, since Query No. 3 did not include Wherry as a custodian. The parties shall follow the same procedures outlined for Request for Production No. 3 above. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs have only objected to the ruling based on the ESI search results, and this matter has been addressed above. 5. Request for Production No. 6: Produce an entire copy of all emails sent by or received by either Plaintiff. UPS's response/production: UPS specifically objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. This request seeks every email sent to or received by either Plaintiff during the course of their 20+ year careers with UPS, irrespective of the subject matter, which is well beyond any admissible discovery. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. UPS [has since] produced emails sent to or received by Plaintiffs for the period 2011-2015 that are Bates labeled UPS_GWII_0000203-210, 213-228, 231, 437-488, 490-503, 505-528, 533-537, 539-541, 599. Also see the attached spreadsheet for additional responsive documents by Bates number. *10 Magistrate Judge Ruling: The court finds that the request is overly broad, unduly burdensome, and would result in the production of irrelevant information, even with the temporal and geographic restrictions set by the court. In addition, UPS has produced emails sent to or received by the plaintiffs for the period 2011 to 2015, which were captured using its ESI search. UPS need not provide a further response to this request. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs' objection relies on Federal Rule of Civil Procedure 26(b)(3)(C), which requires Defendant to produce any statements it has in its possession made by Plaintiffs, including emails, “about the action or its subject matter.” It is unclear how an email written by Plaintiffs before 2011 would pertain to the current lawsuit. Accordingly, the current ESI search results appear to be responsive to this request in full. If Defendant does, in fact, knowingly have in its possession any statements by Plaintiffs about this lawsuit or subject matter that were not captured by the ESI search, then Defendant must, of course, produce those statements or emails. 6. Request for Production No. 8: Produce all emails or write-ups referencing Plaintiffs' job performance since Ken Harms has been District President. UPS's response/production: See UPS's Response to Request for Production No. 1. UPS [has since] produced the following responsive documents: Bates labeled documents UPS_GWII_361-406; 418, 431-32, 433, 434-436, 441, 442, 443, 451, 452, 467, 477, 478, 479, 480, 484, 485, 489, 504, 531, 532, 538, 539, 540, 541, 544, 545-557, 572-573, 604-609. Also see the attached spreadsheet for additional responsive documents by Bates number. Magistrate Judge Ruling: Plaintiffs argue that this request goes to qualifications, to establishing a basis for comparison to comparators, to establish discriminatory intent and pretext, and knowledge of decision-makers as to plaintiffs' performance. As discussed above, the court finds that emails relating to plaintiffs' job performance (which would include write-ups) sent to or received by Harms as well as Winters and Nuckles (as to Wherry) and Wherry (as to Goree), since 2011, is relevant and must be produced. A separate ESI search shall be conducted to locate these emails, consistent with the procedures for responding to Request for Production Nos. 3 and 4 outlined above. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. The ruling requires production of all performance-related emails, including write-ups, written by Plaintiffs' direct supervisors and the District President, whom Plaintiffs aver holds retaliatory intent. Moreover, Plaintiffs have only objected to the ruling based on the ESI search results, and this matter has been addressed above. 7. Request for Production No. 9: Produce all write-ups, QPR's, or emails regarding Winters' promotion to Texas or his transfer to Memphis. UPS's response/production: UPS objects to this Request because it is overly broad and seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Mr. Winters' transfer to Memphis in 2011 and subsequent promotion [to Texas in 2014] are wholly unrelated to Plaintiffs' claims in this action. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. UPS further objects because Plaintiffs seek to improperly re-open discovery in the state court proceeding that is now on appeal in the Tennessee Court of Appeals. No documents produced per objections. *11 Magistrate Judge Ruling: Plaintiffs state that Winters was the Division Manager who replaced Wherry in 2011, and later was promoted to Operations Manager in 2014 and transferred to Texas. Plaintiffs argue that “[i]f Wherry's performance as Division Manager is comparable to, or better than, Winter's performance, this would cut against any allegation that Wherry is not ready now, establishing that this position is false and pretextual, as well as making out the qualification element of the prima facie case.” The court finds that this request is overly broad and seeks irrelevant information. With regard to Request for Production No. 1 above, the court has ordered UPS to produce the monthly operational reports and rankings for each Division and Business Manager since 2011 who worked at UPS facilities within the State of Tennessee, which would include Winters. The court will further order UPS to produce, within 30 days, Winters's QPR scores from 2011 to 2014 in response to the instant discovery request. However, UPS need not provide any further response to this request. District Court Ruling The Magistrate Judge's ruling is clearly erroneous insofar as it requires any production in response to this request. As noted above, this request seeks information for an inappropriate comparator. Winters was promoted to the Division Manager position left vacant when Wherry was demoted in 2011 because of a rules violation. Wherry's demotion was the subject of the previous state court action and will not be relitigated here. Thus, Winters cannot be a comparator for purposes of this lawsuit regarding promotion. Winters was then promoted to Operations Manager in 2014, which is not the position Wherry seeks. For those reasons, Defendants need not provide any response to this request. 8. Request for Production No. 10: Identify each center manager, stating their race and whether they have sued UPS, who has been on the ready now list since 2010, in Tennessee. Please provide a copy of each person's personnel file, 360, and QPR. UPS's response/production: UPS objects this request because it is overly broad and unduly burdensome insofar as it seeks a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and well beyond the permissible scope of discovery identified by the Court. UPS further objects because Plaintiffs seek to improperly re-open discovery in the state court proceeding that is now on appeal in the Tennessee Court of Appeals. UPS [has since] produced documents identifying each Center Manager in 2014 and their QPR rankings and ratings that are Bates labeled UPS_GWII_00001128-1130. UPS also produced career development records, which includes QPR scores, for every Center Manager that was promoted to a Division Manager since 2011 that are Bates labeled UPS_GWII_00001332-3978. UPS also produced a ready now list for Business Managers in 2014 that is Bates labeled UPS_GWII_841-842. Magistrate Judge Ruling: The court finds that this request, to the extent it is limited to 2011 to the present, seeks relevant and discoverable information. Within 30 days, UPS shall provide a verified response identifying each Center Manager in Tennessee who has been on the Ready Now list from 2011 to the present, stating their race and whether they have sued UPS. For each employee, UPS shall provide his or her QPR rankings and ratings during the 2011 to 2015 time period. Because plaintiff has not shown compelling relevance of the personnel files, plaintiffs' blanket request for each Center Manager's personnel files is denied. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs have failed to demonstrate any reason, let alone a compelling one, as to why they are entitled to complete personnel files of hundreds of employees at this point in time. However, pursuant to Discovery Order I, Defendants shall also identify each employee who was not on the “Ready Now” list in the Mid-South District but was promoted to Division Manager from 2011-present. *12 9. Request for Production No. 11: Identify each person considered to replace James Wherry when he was demoted, stating their race, whether they have sued UPS, and the reason each person was or was not selected. Please provide a copy of each person's personnel file, 360 and QPR. UPS's response/production: UPS objects this request because it is overly broad and seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. UPS also objects to this Request because the Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. UPS further objects because Plaintiffs seek to improperly re-open discovery in the state court proceeding that is now on appeal in the Tennessee Court of Appeals. UPS produced career development records that include QPR scores for Wherry's replacement that are Bates labeled UPS_GWII_00001324, 3979-4023. Magistrate Judge Ruling: The court finds that UPS's decisions relating to other candidates who were not selected to replace Wherry in 2011 is irrelevant to the retaliation claim in this lawsuit or to the challenge to the Ready Now process. Plaintiffs are aware that Winters replaced Wherry in 2011. Within 30 days, UPS shall provide plaintiffs with a verified response stating Winters's race, whether he has sued UPS, and the reasons why he was selected. No further response from UPS is required. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. This request is wholly irrelevant to the current lawsuit. It seeks information pertaining to Plaintiffs' previous lawsuit against Defendant in state court in which he challenged his demotion that resulted in the promotion of Winters. Moreover, as discussed above, Defendant need not produce any discovery regarding Winters because Winters is not a relevant comparator to Wherry. 10. Request for Production No. 12: Identify each supervisor, stating their race and whether they have sued UPS, who has been on the ready now list since 2010 in Tennessee. Please provide a copy of each person's personnel file, 360 and QPR. UPS's response/production: UPS objects this request because it is overly broad and unduly burdensome insofar as it seeks a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. UPS further objects because Plaintiffs seek to improperly re-open discovery in the state court proceeding that is now on appeal in the Tennessee Court of Appeals. UPS [has since] produced career development records (including QPR scores) for every supervisor that was promoted to Business Manager since 2011 that are Bates labeled UPS_GWII_1332-3978. UPS also produced a ready now list for Full-Time Supervisors in 2014 that is Bates labeled UPS_GWII_841-842. *13 Magistrate Judge Ruling: As discussed above for Request for Production No. 10, the court finds that this request, to the extent it is limited to 2011 to the present, seeks relevant and discoverable information. Within 30 days, UPS shall provide a verified response identifying each Full-Time Supervisor in Tennessee who has been on the Ready Now list from 2011 to the present, stating their race and whether they have sued UPS. For each employee, UPS shall provide his or her QPR rankings and ratings during the 2011 to 2015 time period. Because plaintiff has not shown compelling relevance of the personnel files, plaintiffs' blanket request for each Full-Time Supervisor's personnel files is denied. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs have failed to demonstrate any reason, let alone a compelling one, as to why they are entitled to complete personnel files of hundreds of employees at this point in time. However, pursuant to this Court's Discovery Order I, Defendant shall also identify each employee who was not on the Ready Now list in the Mid-South District but was promoted to Business Manager from 2011-present. 11. Request for Production No. 16: Produce all emails sent to or received by BPU, Ken Harms, Plaintiffs, Rick Winters, Anthony Nuckles regarding Nuckles's transfer into Memphis. UPS's response/production: UPS specifically objects to this request as vague, overly broad and unduly burdensome. This request is vague because there is no “BPU” custodian of records. If Plaintiffs will identify the individuals they seek information from, UPS will revisit this request. This request is also overly broad and unduly burdensome because, as stated, it would include multiple documents that are wholly unrelated to Plaintiffs' claims in this action. Subject to and without waiving the foregoing objections, UPS will produce for inspection and copying documents related to Knuckles' 2014 transfer to the position of Package Division Manager in Memphis. UPS [has since] produced documents related to Nuckles' 2014 transfer to Memphis that are Bates labeled UPS_GWII_714, 727, 817, 819-20, 823, 839-40, 860-61, 1324. Magistrate Judge Ruling: The court finds that emails relating to UPS's decision to transfer Nuckles's into Memphis in 2014 is relevant and must be produced. The custodians shall be limited to Harms, limited key members of the BPU (to be mutually agreed upon by the parties), and Nuckles. A separate ESI search shall be conducted to locate these emails. The parties shall follow the same procedures set forth above regarding the procedures for additional ESI searches. District Court Ruling The Magistrate Judge's ruling is clearly erroneous insofar as it does not specify the appropriate custodians from the BPU. At the hearing on this Motion, both parties agreed to work together to conduct proper ESI searches. Without sufficient information, “[t]he court is loathe to decide the search terms to be used because the parties are far better positioned to do so.” Saliga v. Chemtura Corp., No. 3:12CV832 RNC, 2013 WL 6182227, at *3 (D. Conn. Nov. 25, 2013) (citing William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009)). However, because both Plaintiffs and Defendant agree that the BPU is the committee responsible for initial promotion decisions, there is no reason to limit discovery on this very narrow issue (Nuckles' transfer to Memphis to fill the position Wherry sought) to all of the members of the BPU who were involved in that decision. Moreover, Defendant's primary objection is that Plaintiffs have failed to identify who exactly is on the BPU; however, this information is clearly within Defendant's control, and Plaintiffs should not be denied discovery for that reason. Defendant shall respond to this discovery request in full as to all members of the BPU involved in the decision to transfer Knuckles. *14 The above notwithstanding, there is no showing as to how Plaintiffs' or Rick Winter's emails regarding Knuckles' transfer are relevant whatsoever to Defendant's decision to transfer Knuckles to Memphis instead of promote Plaintiff. The Magistrate Judge's ruling is not clearly erroneous in excluding discovery as to those custodians. ii. Second Motion to Compel 1. Interrogatory No. 1: Identify each and every person who was emailed about, consulted about, or participated in, any decision to fill the position of Package Division Manager since 2/1/14 within Harms' District. For each such individual identified, describe what participation of that individual was. Additionally for each of those individuals identified, list the individual's last known address and telephone number (if known) for service. UPS's response/production: UPS states that the Mid-South District BPU Team consisting of Jeff Bloedorn, Jeff Taylor, Linda Nelson, Ken Kelly, Jack McDowell, Ken Watkins, Frank Bouyer, Steve Boulton, Pat Arthur, and Ken Harms would have been involved in any decision to fill a Division Manager position since February 1, 2014. Magistrate Judge Ruling: In plaintiff's Discovery Brief (ECF No. 104), they state that “[d]uring final consultation on the Motions to Compel, UPS agreed to produce this information for each Package Division Manager filled since February 1, 2014 in Harms's District and identify each person's involvement. However, no such documents have been produced and/or specifically identified.” UPS did not identify this interrogatory in its August 24 filing as a matter still in dispute. As it appears that the parties have resolved this dispute, the court orders UPS to provide a verified response to this interrogatory within 30 days. The Package Division Manager position shall include the three identified in the complaint. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs object based on the last sentence of the Magistrate Judge's ruling. Plaintiffs' interpret the Magistrate Judge's final sentence as an exhaustive or exclusive edict. This Court, however, interprets the final sentence as an inclusive proposition – that is, that Defendant shall fully respond to Plaintiffs' request, and within that response, must also include the three individuals identified in the complaint. Under that interpretation, the ruling is not clearly erroneous and Plaintiffs' objection is moot. 2. Interrogatory No. 2: Please identify all individuals considered for position of Package Division Manager since 2/1/14 within Harms' District, stating their race and whether they have ever sued UPS or engaged in a protected activity. If the individuals were ranked, please identify their rank and produce all documents that reflect said ranking. UPS's response/production: Due to the complexities of the West Tennessee Division, the Mid-South District BPU decided to fill the position vacated by Rick Winters in June 2014 by a lateral transfer, Anthony Nuckles who is African American and, to UPS's knowledge, has not engaged in protected activity. No further response required. Also see, subject to UPS's objections, documents Bates labeled UPS_GWII_ 1128-30, 1233-1292, 2728-2821. *15 Magistrate Judge Ruling: In plaintiff's Discovery Brief (ECF No. 104), they state that “[d]uring a final consultation on the Motion to Compel, Defendant agreed to produce this information for each Package Division Manager filled since 2/1/14 in Harms' District, Defendant agreed to identify individuals considered for package division manager since 2/1/14 within the Mid-South District, their race, whether they have sued UPS or filed a corporate concern and produce their operations rankings from 2/1/14 to the present. Plaintiffs have not received these documents and/or they are not specifically identified.” UPS did not identify this interrogatory in its August 24 filing as a matter still in dispute. As it appears that the parties have resolved this dispute, the court orders UPS to provide a verified response to this interrogatory within 30 days. The Package Division Manager position shall include the three identified in the complaint. District Court Ruling The Magistrate Judge's ruling is clearly erroneous insofar as it conflicts with the geographic scope of Discovery Order I. The response to this interrogatory shall include, for the time period 2011 to the present, the names of all individuals considered for promotion to the Division Manager position within Tennessee and also all individuals who were not on the Ready Now list but were promoted to a Division Manager position within the Mid-South District. The response shall also state whether those individuals have previously sued Defendant or engaged in a protected activity and their race. 3. Interrogatory No. 3: Please identify every person you or your attorney has communicated with, interviewed, with whom a discussion has been held, or from whom a statement (written, oral, or otherwise recorded) has been taken, with or without their knowledge, relating filling the position of Package Division Manager since 2/1/14 within Harms' District. For each such person, please state the substance of each conversation, interview, discussion, or statement, and identify all documents and things relating to, referring to, or otherwise memorializing said interview, discussion, or statement. (NOTE: This interrogatory does not seek privileged information).[4] UPS response/production: Objection. In addition to its general objections, UPS specifically objects to this Interrogatory because it is confusing as drafted, impermissibly requiring UPS to speculate as to Plaintiffs' intended meaning. Additionally, while this Interrogatory specifically disclaims that it seeks any privileged information, without that qualifier, this Interrogatory reasonably could include within its ambit information protected by the attorney-client privilege or work product doctrine, and UPS accordingly asserts those privileges. No documents were produced. UPS's additional response in August 24, 2015 submission: The parties were unable to resolve this request because: (1) the parties disagree on the relevant custodians; and (2) the parties disagree that every communication related to filling the position of Package Division Manager since 2/1/14 is within the permissible scope of discovery. Magistrate Judge Ruling: The court finds that this interrogatory seeks information that is relevant, as the positions were ones that Wherry was allegedly wrongfully denied. A separate ESI search shall be conducted to locate responsive emails. Within 30 days, the parties and their IT professionals shall jointly develop search terms tailored to capture these emails, and documents responsive to the search shall be produced within 60 days. Although UPS asserts that, to date, the parties have been unable to agree on the relevant custodians and search terms, UPS did not attempt to run any additional searches proposed by the plaintiffs after the parties exchanged their initial set of queries. Without those additional “test runs,” the parties and the court cannot assess whether a more limited query is appropriate. The court will require the parties and their IT professionals to consult in good faith to reach an agreement on this ESI search. If the parties are unable to reach an agreement, the parties shall file a joint motion seeking review by the court within the initial 30-day period. District Court Ruling *16 Magistrate Judge Pham's ruling is not clearly erroneous. Plaintiffs have only objected to the ruling based on the ESI search results, and this matter has been addressed above. 4. Interrogatory No. 4: Since Harms has been District President, please identify all persons employed by the Defendants as Package Division Manager by name, address, telephone number, race, date of hire, job title, job functions, pay rate, promotions, demotions, transfers, disciplinary actions, date of termination (if applicable) and reason for termination (if applicable). UPS's response/production: Objection. In addition to its general objections, UPS objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal or geographic limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. As framed, this request encompasses disciplinary information irrespective of the subject matter. This request is well beyond any admissible discovery. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. If Plaintiffs will clarify and narrow this request, UPS will attempt to respond. Subject to and without waiving the foregoing objections, UPS identifies Rick Winters (African American) and Anthony Nuckles (African American) as Package Division Managers in the Memphis Division. These individuals may be contacted through counsel. UPS will supply a job description for this position. We will be producing the job description and have produced documents related to J.B Hardaway, Bates labeled UPS_GWII_878-974. UPS's additional response in August 24, 2015 submission: The parties were unable to resolve this request because: (1) Plaintiffs disagree with Judge Pham's temporal and geographic limitations; and (2) the parties disagree that information related to every individual that has occupied the position of Package Division Manager in the District is within the permissible scope of discovery, and that such individuals are proper comparators. Magistrate Judge Ruling: Plaintiffs argue that this interrogatory “goes to qualifications, the promotional process itself, to establishing a basis for comparison to comparators to establish the intent elements at the prima facie and pretext stage, knowledge of decision-makers as to that performance, and could provide direct evidence of discriminatory or retaliatory intent.” The court finds that this interrogatory seeks irrelevant information, and any arguable relevance is outweighed by the burden of production. No further response is required of UPS. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs' objection makes clear that Plaintiffs intend to use this discovery only to compare Wherry's past performance with the performance of current Division Managers. As discussed above, this comparison is not relevant to the question of whether Wherry should have been promoted to the position of Division Manager at some point from February 2014 to the present. Defendant need not further respond to this request. *17 5. Interrogatory No. 5: Please describe in detail every communication, including, but not limited to, correspondence, verbal conversations, memoranda, texts, emails, voice mail messages, and electronic communications, by and between any and all agents or employees of Defendants regarding filling the position of Package Division Manager since 2/1/14 within Harms' District. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this Interrogatory because it is overly broad in that the position was filled by a lateral transfer and not a promotion. Subject to and without waiving the foregoing objections, UPS produced documents responsive to this request. UPS [has since] produced documents related to Nuckles' 2014 transfer to Memphis that are Bates labeled UPS_GWII_714, 727, 817, 819-20, 823, 839-40, 860-61, 1324. UPS's additional response in August 24, 2015 submission: The parties were unable to resolve this request because: (1) Plaintiff's disagree with Judge Pham's temporal and geographic limitations; and (2) the parties disagree on the relevant custodians; and (3) the parties disagree that any communication regarding filling the position of Package Division Manager in the District is within the permissible scope of discovery. Magistrate Judge Ruling: As with Interrogatory No. 3 above, the court finds that this interrogatory seeks information that is relevant, as the positions were ones that Wherry was allegedly wrongfully denied. A separate ESI search shall be conducted to locate responsive emails, in the same manner as described above. District Court Ruling Magistrate Judge Pham's ruling is not clearly erroneous. Plaintiffs have only objected to the ruling based on the ESI search results, and this matter has been addressed above. 6. Second Request for Production No. 2: Produce the original and color copies of all documents whatsoever maintained by the Defendant or its agents pertaining to Wherry's employment which includes, but is not limited their complete personnel file(s), employment application, resumes, hiring documents, assignments/titles, job descriptions and duties, acknowledgments of receipt of employment handbook and other documents, performance evaluations, deficiency notices, written warnings, security files, write-ups, criticisms, complaints, reprimands, wages records, W-2's, payroll records, rates of pay, promotion/demotion records, attendance records, time records, time cards, computerized time sheets, job evaluations or reviews, discharge papers, termination/separation notices, unemployment filings and/or documents, etc. UPS's response/production: Objection. UPS objects to this request because it is overly broad and unduly burdensome. Plaintiff James Wherry has been employed with UPS for 20+ years and these records are irrelevant to Wherry's claims in this lawsuit and could not lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objection, UPS produces the following additional records related to Mr. Wherry's employment with UPS: Websir file; Concerns made by or about Plaintiff since January 2014; Current Employee History Profile; and Payroll History 2014 – present. UPS [has since] produced responsive documents Bates labeled UPS_GWII_0000203-210, 213, 228-231, 437-488, 490-503, 505-528, 533-537, 539-541, 574, 590, 592, 599, 683-689. UPS will produce additional corporate concerns and has produced career development records for Wherry UPS_GWII_1059-1114. *18 Magistrate Judge Ruling: The court finds that Wherry is entitled to obtain a complete copy of his own personnel file. Within 30 days, UPS shall produce Wherry's personnel file as it is kept in the normal course of UPS's business. UPS need not produce color copies of documents, nor will UPS be required to separately gather each of the documents listed in the document request. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. The ruling strikes a balance between undue burden and relevant production. It is unclear how Wherry's attendance record from thirty years ago would factor into Defendant's decision to promote him in 2014; however, his personnel file, as regularly kept, is undoubtedly relevant to that decision. Plaintiffs object, saying that the request is limited to the “time and area of control of Ken Harms and when Plaintiffs were actually performing the jobs that they have been denied.” However, this characterization is misleading. The request asks for every single document relating to Wherry's thirty-year employment with Defendant, without limitation. Accordingly, the Magistrate Judge's ruling is not clearly erroneous. 7. Second Request for Production No. 4: If you contend that Wherry's or Goree's work performance was less satisfactory at any time during their employment with Defendant, please produce all documents which substantiate this claim. UPS's response/production: UPS has made available for copying and inspection documents responsive to Mr. Wherry in its response to Request No. 2 above. See Response to Request No. 2. Also, see documents Bates labeled UPS_GWII_152-183, 418, 433, 485, 556, 684. UPS's additional response in August 24, 2015 submission: The parties were unable to resolve this request because: (1) Plaintiff's disagree with Judge Pham's temporal limitation; (2) the parties disagree on the relevant custodians; and (3) the parties disagree that any document whatsoever related to Goree's and Wherry's performance is within the permissible scope of discovery. Magistrate Judge Ruling: The court finds that the request seeks relevant information, in that the request asks UPS to produce documents only to the extent UPS contends that plaintiffs' work performance was less than satisfactory. If UPS does not take that position, then it need not produce any documents. UPS shall respond to this request within 30 days. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs object solely to the scope of the ESI search, and this issue has been addressed above. 8. Second Request for Production No. 5: Please produce a copy of all documents or things in the possession or control of the Defendants with respect to promotion within UPS. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because it is vague and ambiguous such that responding would impermissibly require UPS to speculate as to Plaintiffs' intended meaning. UPS does not know what Plaintiffs mean by “documents ... of the Defendants with respect to promotion.” In addition, this Request is overly broad and unduly burdensome. Interpreted broadly, this Request could encompass any email, memo, or notation about a promotion at UPS, at any time and in any location. Compiling such information would be both impossible and wholly irrelevant to Plaintiffs' claims in this case. Subject to and without waiving the foregoing objection, see UPS's response to Interrogatory No. 6. UPS has already produced its Policy Book and produces MAPP policies. See documents Bates labeled UPS_GWII_1-60 and will be producing documents related to the MRE. *19 Magistrate Judge Ruling: Plaintiffs state that “there is training and other guidance provided to UPS managers and the BPU with respect to the promotional process and this information should be identified.” The court finds this request to be vague and overly broad. The request does not describe with any level of specificity the kinds of documents plaintiffs seek. UPS need not provide a further response. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs object on the grounds that Defendant “well knows” what Plaintiffs are seeking. Unfortunately, the Court must also be able to decipher what Plaintiffs have requested, and, as written, the Court is unable to do so in this instance. 9. Second Request for Production No. 6: Please provide the original and color copies of each and every document in the possession of the Defendants pertaining to the employment of Ken Harms, Jack McDowell and any other employee identified in response to Interrogatories Nos. 1 and 2, including all security investigations and alleged policies violated. UPS's response/production: Objection. UPS objects to this request because it is overly broad and unduly burdensome and not calculated to lead to the discovery of admissible evidence. Several of the employees identified, including Mr. Harms and Mr. McDowell, have worked with UPS in excess of twenty years and all documents related to their employment during the course of that time are irrelevant to Plaintiffs' claims in this case. Subject to and without waiving the foregoing objections, UPS is producing corporate concerns involving Ken Harms and Jack McDowell since January 2014. Subject to and without waiving its objections, UPS produced the following responsive documents: UPS_GWII_633-683. UPS's additional response in August 24, 2015 submission: The parties were unable to resolve this request because: (1) Plaintiffs disagree with Judge Pham's temporal and geographic limitations; (2) the parties disagree on the relevant custodians; and (3) the parties disagree that any documents related to the employment of Ken Harms, Jack McDowell and members of the BPU is within the permissible scope of discovery. Magistrate Judge Ruling: The court finds that this request is overly broad and seeks irrelevant information, as it seeks all documents pertaining to the employment of Harms, McDowell, and other employees identified by UPS in response to the two interrogatories at issue. No further response is required of UPS. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. This case has nothing to do with the employment of Ken Harms, Jack McDowell, or other members of the BPU. Moreover, Defendant has already produced all corporate concerns regarding Harms and McDowell, thus satisfying Plaintiffs' objection that they are entitled to know of other complaints about Harms. 10. Second Request for Production No. 8: Produce the original and color copies of all documents whatsoever maintained by the Defendant or its agents pertaining to the individual's identified in response to the above interrogatories' employment which includes, but is not limited their complete personnel file(s), employment application, resumes, hiring documents, assignments/titles, job descriptions and duties, acknowledgments of receipt of employment handbook and other documents, performance evaluations, deficiency notices, written warnings, security files, write-ups, criticisms, complaints, reprimands, wages records, W-2's, payroll records, rates of pay, promotion/demotion records, attendance records, time records, time cards, computerized time sheets, job evaluations or reviews, discharge papers, termination/separation notices, unemployment filings and/or documents, etc. *20 UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because it is overly broad and unduly burdensome and not calculated to lead to the discovery of admissible evidence. Several of the employees identified have worked with UPS in excess of twenty years and all documents related to their employment during the course of that time would be irrelevant to Plaintiffs' claims in this case. If Plaintiffs will clarify and narrow this request, UPS will attempt to respond. See documents identified above for Goree and Wherry along with all career development records for individuals that have occupied a Business Manager and Division Manager Position in Tennessee since 2011 that are Bates labeled UPS_ GWII_1332-4013. UPS's additional response in its August 24 submission: The parties were unable to resolve this request because: (1) Plaintiffs disagree with Judge Pham's temporal and geographic limitations; (2) the parties disagree on the relevant custodians; and (3) the parties disagree that any document related to the employment of Ken Harms, Jack McDowell, members of the BPU, and every individual that has occupied the position of supervisor, center manager or division manager in the District is within the permissible scope of discovery. Magistrate Judge Ruling: In their August 24 submission, plaintiffs state that “[d]uring final consultation, with respect to persons promoted to Package Division Manager after 2/1/14, Defendant agreed to produce their Center File, write-ups, discipline, performance evaluations, security investigations and operational rankings. Plaintiffs submit that all requested information should be produced.” The court finds that this request, in its current form, is overly broad and seeks irrelevant information. No further response is required of UPS. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs are seeking the entire personnel files of a number of unidentified employees prior to showing a compelling reason for such production. At this point, the Magistrate Judge struck a reasonable balance in requiring production of each employee's Center File, write-ups, discipline, performance evaluations, security investigations and operational rankings. Plaintiffs object, stating that Defendant has simply failed to produce documents to fulfill the more constrained request. Defendant shall comply with the Magistrate Judge's ruling to produce what was promised and no more. 11. Second Request for Production No. 9: Please produce any and all photographs, emails, negatives, audio recordings and/or videotapes which pertain to the Plaintiffs or the allegations set forth in the Complaint. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. As framed, this request could encompass thousands of irrelevant emails that in any way relate to Plaintiffs, irrespective of the subject matter. This request is well beyond any permissible discovery. UPS further objects to this request because the Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. For this period of time, there are no documents responsive to this request. UPS's additional response in its August 24 submission: The parties were unable to resolve this request because: (1) Plaintiff's disagree with Judge Pham's temporal and geographic limitations; (2) the parties disagree on the relevant custodians; and (3) the parties disagree that any document related to Plaintiff is within the permissible scope of discovery. *21 Magistrate Judge Ruling: The court finds that this request is overly broad, unduly burdensome, and seeks production of irrelevant information. No further response is required of UPS. District Court Ruling The Magistrate Judge's ruling is clearly erroneous insofar as it contradicts Fed. R. Civ. P. 26(b)(3)(C). As addressed above, Defendant is required to produce any statements made by Plaintiffs, including emails, “about the action or its subject matter,” Fed. R. Civ. P. 26(b)(3)(C). Here, Plaintiffs request all evidence that Defendant “has obtained regarding Plaintiffs' [sic] personally.” That request is too broad. Nonetheless, applying Fed. R. Civ. P. 26(b)(3)(c) to this request, Defendant is required to produce all statements in Defendant's possession made by Plaintiffs, including videotapes or audio recordings “about the action or its subject matter.” Plaintiffs' own emails, however, have already been covered under Request for Production #6 in their First Motion to Compel. It is also unclear how any photographs or negatives of Plaintiffs could be considered a statement by Plaintiffs. Therefore, Defendant need not produce photographs or negatives in response to this request. Moreover, this request shall be limited to statements made by Plaintiffs, even though the original request is much broader. 12. Second Request for Production No. 10: Please produce any and all documents that relate or pertain to any written statements or declarations (signed or unsigned), made by any person, which mention, discuss or refer to Plaintiffs or any complaints, whether formal or informal. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because it is overly broad and unduly burdensome and not calculated to the lead to the discovery of admissible evidence. As framed, this request encompasses every email that in any way relates to Wherry during the entire course of his 20+ year employment with UPS, irrespective of the subject matter. This request is well beyond any admissible discovery. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. Subject to and without waiving the foregoing objections, there are no declarations or written statements since 2014. UPS's additional response in August 24 submission: The parties were unable to resolve this request because: (1) Plaintiff's disagree with Judge Pham's temporal and geographic limitations; (2) the parties disagree on the relevant custodians; and (3) the parties disagree that any document related to Plaintiff is within the permissible scope of discovery. Magistrate Judge Ruling: The court finds that this request, in its current form, is overly broad and seek production of irrelevant information. No further response is required of UPS. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. As written, this request would require production of anything ever written that even “mention [s]” Plaintiffs. Plaintiffs object to the ruling, stating that it is narrowly tailored. Plaintiffs are incorrect, and Defendant need not further respond to this request. *22 13. Second Request for Production No. 11: Please produce any and all documents that relate or pertain to any of Defendant's policies, guidelines, training or procedures regarding discrimination, harassment, and retaliation which were in effect during the last five (5) years. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because it is vague and ambiguous such that requiring UPS to respond would impermissibly require it to guess as to Plaintiffs' intended meaning. Subject to and without waiving the foregoing objections, UPS will make available for inspection and copying responsive documents, and additionally will provide Plaintiffs with 30(b)(6) testimony on behalf of UPS on this topic.[5] Magistrate Judge Ruling: The court finds that this request seeks relevant, discoverable information. Within 30 days, UPS shall produce its company policies, guidelines, training or procedures regarding discrimination, harassment, and retaliation which were in effect since 2011. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. No objections have been made by either party. 14. Second Request for Production No. 12: Please produce any and all emails sent to or received by the BPU and the individuals identified in response to Interrogatories # 1 and 2 since Plaintiffs 3/1/11 regarding the Plaintiffs, their job performance, their lawsuit, and whether Wherry is capable of performing the job of Package Division Manager. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because as drafted it is grammatically and syntactically indecipherable. To the extent Plaintiffs are seeking emails related to their job performance, UPS objects to this request because it is overly broad and unduly burdensome insofar as it contains no temporal limitation and potentially encompasses a vast amount of information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. As framed, this request encompasses every email that in any way relates to Wherry during the entire course of his 20+ year employment with UPS, irrespective of the subject matter. This request is well beyond any admissible discovery. UPS also objects to this Request because the [District] Court has specifically limited the relevant time period of inquiry from February 1, 2014 to the present and this request far exceeds the temporal scope of that limitation. See documents identified above regarding Wherry and Goree. UPS's additional response in August 24 submission: The parties were unable to resolve this request because: (1) the parties disagree on the relevant custodians; and (2) the parties disagree that any document related to Plaintiffs is within the permissible scope of discovery. Magistrate Judge Ruling: The court agrees with UPS that the wording of this request makes it difficult to decipher. In its current form, the court cannot conclude that the request seeks relevant, discoverable information. UPS need not respond to this request. District Court Ruling *23 The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs have included typographical errors in both their request and their objection to the ruling, making it difficult for the Court to understand exactly what they request. Regardless, the request is unclear, and it would be inappropriate for the Court to guess what Plaintiffs intended and then hold Defendant to the Court's estimation without having a proper opportunity to respond. For that reason, Defendant need not respond to this request. 15. Second Request for Production No. 13: Please produce all emails that address, concern, or relate to the process by which UPS promotes management personnel. UPS's response/production: Objection. In addition to its general objections, UPS specifically objects to this request because it is overly broad and unduly burdensome. There is no temporal or geographic limitation to this request and it would be impossible for UPS to meaningfully respond. Subject to and without waiving the foregoing objection, if Plaintiffs will clarify and narrow this request, UPS will attempt to respond. Otherwise, see response to Interrogatory No. 6 and UPS's Policy Book that has already been produced. See response to Interrogatory No. 5. Magistrate Judge Ruling: The court finds that, in its current form, this request is overly broad and unduly burdensome. UPS need not provide a further response to this request. District Court Ruling The Magistrate Judge's ruling is not clearly erroneous. Plaintiffs object, stating that the request is “clear;” however, clarity is not the defect in this request. The request is overly broad and unduly burdensome because it would capture an inordinate amount of documents that have nothing to do with this case (for instance, emails between Human Resources Managers regarding non-substantive forms that need to be filled out when a person is promoted). Defendant need not respond to this request. 16. Second Request for Production No. 13: A copy of all job requisitions for all Grade 30 and above since 2/1/14 within Tennessee.[6] UPS's response/production: Objection. UPS objects to this request because it is overly broad, unduly burdensome, and not calculated to lead to the discovery of admissible evidence. UPS also objects to this request to the extent that it seeks requisitions for any position above Package Division Manager, as that is the position Mr. Wherry claims he was denied in the Complaint. Subject to and without waiving the foregoing objections, UPS produces any requisitions for Package Division Manager positions in Tennessee that became available to be filled between February 1, 2014 and the present. UPS produced documents Bates labeled UPS_GWII_1293-1331. Additional requisitions will be produced for Package Division Manager positions in Tennessee. Magistrate Judge Ruling: The court finds that this request, to the extent it is limited to job requisitions for Package Division Managers, seeks relevant information. Within 30 days, UPS shall produce any requisitions for Package Division Manager positions in Tennessee that became available to be filled between February 1, 2014 and the present. District Court Ruling *24 The Magistrate Judge's ruling is not clearly erroneous. Wherry's complaint alleges failure to be promoted to the position of Division Manager. Accordingly, the posting of any Division Manager positions which became available since February 1, 2014, to the present, would be relevant and discoverable. Plaintiffs now object, stating that the job requisitions should span the entire Mid-South District, even though their original request was limited to Tennessee. In accordance with this Court's Discovery Order I, and the fact that Wherry has shown a willingness to be considered for positions outside of Tennessee, the Court finds that this request shall also include job requisitions for Division Manager positions within the Mid-South District from February 1, 2014, to the present. IV. CONCLUSION For the foregoing reasons, the Magistrate Judge's Order is ADOPTED IN PART AND ALTERED IN PART. IT IS SO ORDERED, this 30th day of October, 2015. Footnotes [1] The Court notes that these specific parameters for appropriate comparators shall be consistent throughout the entire Order; however, for the sake of avoiding verbose repetition, the Order will refer to the comparators for Goree as Supervisors, and the comparators for Wherry as Business Managers. [2] This reference to the District Court “limiting the relevant time period of inquiry from February 1, 2014 to the present” relates to comments made by the court at the Rule 16(b) scheduling conference held on October 23, 2014. (ECF No. 35, Transcript.) [3] If UPS has already produced this discovery, UPS shall within 30 days serve plaintiffs with a supplemental discovery response confirming that it has provided these documents and identifying by Bates numbers all documents produced in response to this request. [4] Plaintiffs also sought production of a privilege log from UPS. A privilege log was produced to plaintiffs by the September 9 hearing. [5] UPS did not address this request in its August 24 submission. [6] There are apparently two “Second Request for Production No. 13.”