Rodd Wagner, Plaintiff, v. Gallup, Inc., Defendant Court File No.: 12-CV-1816 (JNE/TNL) Signed September 17, 2013 Filed September 18, 2013 Counsel Brian T. Rochel, Phillip M. Kitzer, Teske Micko Katz Kitzer & Rochel, PLLP, Michelle Dye Neumann, Neumann Law, Minneapolis, MN, for Plaintiff. Kristine D. Yen, Marko J. Mrkonich, William E. Parker, Littler Mendelson P.C., Minneapolis, MN, for Defendant. Leung, Tony N., United States Magistrate Judge ORDER *1 This matter is before the Court, Magistrate Judge Tony N. Leung, on Plaintiff Rodd Wagner's (“Wagner”) Motion to Compel (ECF No. 39). The Court heard oral argument on the Motions. Michelle Neumann represented Wagner, and Marko Mrkonich represented Defendant Gallup, Inc. (“Gallup”). After the hearing, the Court granted in part and denied in part Gallup's Motions for Protective Order (ECF Nos. 17, 22) and granted Gallup's Motion to Compel Production of Wagner's Electronic Devices (ECF No. 32) under tight restrictions and subject to a Court-ordered meet-and-confer process as stated on the record. (See Mins. for Mots. Hr'g, July 10, 2013, ECF No. 50.) For the reasons that follow, the Court will grant in part and deny in part Wagner's motion to compel. I. BACKGROUND Wagner was employed by Gallup from approximately January 1999 until his employment was terminated on October 13, 2011. Wagner executed a confidentiality and non-competition agreement with Gallup upon beginning employment, which provides Under no circumstances shall [Wagner] remove from Gallup's office any of Gallup's books, records, documents or customer lists, or any copies of such documents, without Gallup's prior written consent, nor shall [Wagner] make copies of such books, records, documents or customer lists for use outside of Gallup's office, except as specifically authorized in writing by Gallup. (Jones Decl. ¶ 3, ECF No. 37, Ex. 2.) This provision also applied to any records created or stored in a computerized format. (Id.) As part of his employment, Wagner obtained a United States government security clearance to work with some of Gallup's governmental clients. (Id. ¶ 2, Ex. 1.) To receive his security clearance, Wagner signed a Classified Information Nondisclosure Agreement with the United States, which provides in pertinent part: I understand that all classified information to which I have access or may obtain access by signing this Agreement is now and will remain the property of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law. I agree that I shall return all classified materials which have, or may come into my possession or for which I am responsible because of such access ... upon the conclusion of my employment or other relationship that requires access to classified information. (Jones Decl. Ex. 1.) Wagner filed the instant action on July 25, 2012, asserting claims of age discrimination in violation of the Minnesota Human Rights Act, Minn. Stat. §§ 363A.01 et seq. (“MHRA”), and invasion of privacy. (Compl., ECF No. 1.) After reviewing the Complaint, Gallup determined that Wagner might still have Gallup documents in his possession. On August 24, 2012, Gallup requested that Wagner “immediately return any and all Gallup files, documents, and property that he has in his possession or control, whether in hard copy or electronic format, and that he affirm under oath that he had returned all Gallup documents, materials, or property in his possession or control. (Parrot. Dec. ¶ 3, Ex. 2, ECF No. 38.) Wagner's counsel responded on August 28, 2012, that Wagner was “not aware that he [was] in possession of any documents or other property belonging to Gallup.” (Id. ¶ 4, Ex. 3.) A. Wagner's Motion to Compel *2 Wagner served Gallup with interrogatories and document requests on October 5, 2012. Gallup responded to Wagner's discovery requests on November 16, 2012, objecting to several requests on the grounds that they were overbroad, unduly burdensome, and sought irrelevant information that is not reasonably calculated to lead to admissible evidence. The parties exchanged written correspondence in November and December 2012. (Neumann Decl., ECF No. 42, Exs. 1-2.) On February 25, 2013, Wagner agreed to limit his requests for comparator information to client-facing positions within the United States. (Id. Ex. 3.) Gallup again objected to the scope of Wagner's requests as vague and overbroad. (Id. Ex. 4.) Despite these ongoing objections, Gallup supplemented some of its discovery production on March 29, 2013. (Parrott Aff. Ex. 5-6.) Wagner filed his motion to compel on May 15, 2013. (ECF No. 39.) Specifically, Wagner's motion seeks to compel further responses to interrogatories and document requests concerning punitive damages (Interrog. Nos. 23, 24; Doc. Req. Nos. 28, 29); the decision to terminate Wagner's employment (Interrog. Nos. 2, 4, 5); personnel files of non-party employees (Doc. Req. Nos. 11, 12, 13); information about employees who assumed Wagner's former duties (Interrog. Nos. 11, 12; Doc. Req. No. 14); documents relating to Wagner in any way and all documents regarding Wagner's employment and claims (Doc. Req. Nos. 5, 6); counseling received by Wagner (Interrog. No. 10); age discrimination complaints by other employees (Interrog. Nos. 13, 14, 15); and discipline and/or termination of other employees (Interrog. Nos. 6, 7, 8, 9). B. Gallup's Motion to Compel On March 8, 2013, Wagner produced 951 pages of Gallup documents in response to Gallup's first set of document requests. (Parrott Decl. ¶ 6.) According to Wagner, these documents came from his personal iPod, which was linked to his Gallup email account. (Wagner Dep. 34.) On March 27, 2013, Gallup served Wagner with a document request asking that he “produce, for inspection and bit-by-bit evidentiary imaging, the hard drive of any computer, hard drive, or mass storage device that Wagner has used since January 1, 2011, including the devices he identified in his deposition as containing Gallup information.” (Parrot Decl. ¶ 7, Ex. 4.) Wagner refused to acquiesce to Gallup's request, and Gallup's motion followed. At the hearing, the Court granted Gallup's Motion to Compel Production of Wagner's Electronic Devices for Forensic Examination (ECF No. 32) “under tight restrictions and subject to a Court-ordered meet-and-confer process as stated on the record.” (Mins. for Mots. Hr'g, July 10, 2013, ECF No. 50.) The parties' meet-and-confer was unsuccessful, and they have returned to the Court for guidance in crafting an appropriate procedure to produce and image Wagner's computer storage devices. II. ANALYSIS A. Standard of Decision Federal Rule of Civil Procedure 26(b)(1) allows a party “to obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. As a result, “[r]elevancy, in the discovery context, is extremely broad.” Mead Corp. v. Riverwood Natural Res. Corp., 145 F.R.D. 512, 522 (D. Minn. 1992). Nonetheless, some threshold showing is necessary “before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992); see also Bredemus v. Int'l Paper Co., 252 F.R.D. 529, 532 (D. Minn. 2008) (stating “relevancy under Rule 26 is not without bounds”). This Court “has considerable discretion in granting or denying discovery requests,” Bredemus, 252 F.R.D. at 534, and will not allow parties to “roam in the shadow zones of relevancy to explore matter which does not presently appear germane on the theory that it might conceivably become so.” Carlson Cos., Inc. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1089 (D. Minn. 1974). *3 The Federal Rules recognize that discovery may be limited where the benefits to be obtained are outweighed by the burdens and expenses involved. Rule 26(b)(2) directs courts to limit discovery upon a determination that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain he information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. These factors are to be applied in a common sense, practical manner. See In re Convergent Tech. Secs. Litig., 108 F.R.D. 328, 331 (D. Cal. 1985) (“After satisfying this threshold requirement [of relevancy] counsel must also make a common sense determination ... that the information sought is of sufficient potential significance to justify the burden the discovery probe would impose, that the discovery tool selected is the most efficacious of the means that might be used to acquire the desired information ... and that the timing of the probe is sensible....”) B. Wagner's Motion to Compel After the July 10 hearing, the parties engaged in a court-ordered meet-and-confer, during which they resolved their disputes surrounding Wagner's Interrogatory Numbers 23 and 24, and Wagner's Document Request Numbers 11, 12, 13, 28, and 29. Accordingly, to the extent Wagner's Motion to Compel requests further responses to those specific interrogatories and document requests, the Motion will be denied as moot. 1. Gallup's Decision to Terminate Wagner's Employment First, Wagner seeks discovery on Gallup's decision to terminate his employment. Specifically, Wagner seeks (1) the identity of all individuals involved in the decision to terminate Wagner's employment (Interrog. No. 2); (2) each and every communication of any kind relating or referring to the circumstances or reasons of Wagner's termination (Interrog. No. 4); and (3) for each communication, the identity of the individuals involved, the date and time of the communication, and any memorialization of such communication (Interrog. No. 5). Gallup identified Patrick Bogart as the primary decision-maker and Larry Edmond, Kevin McConnville, and Randy Beck as the Regional Managing Partners involved in the decision. Gallup objected in Interrogatory Number 5 as vague, ambiguous, overbroad, and seeking privileged documents. Such information, however, is directly relevant to Wagner's claim that his termination was the result of age-discrimination. Accordingly, Wagner's Motion will be granted with respect to Interrogatories 2, 4, and 5, and Gallup shall produce any information in its possession that is responsive to those requests. 2. Personnel Files of Non-Party Employees Wagner's Interrogatory Numbers 11 and 12 and Document Request Number 14 seek discovery concerning non-party employees who assumed Wagner's position after he was terminated. In employment-discrimination actions, the Supreme Court has noted that “liberal civil discovery rules give plaintiffs broad access to document their claims.” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989); see also Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 516 (D. Minn. 1997). Proving unlawful discrimination might require indirect, inferential, or circumstantial evidence, which accentuates the need for broad discovery. Onwuka, 178 F.R.D. at 516 (citing Miles v. Boeing Co., 154 F.R.D. 117, 119 (E.D. Pa. 1994); Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 55 (D.N.J. 1985)). Courts often tailor such requests to information concerning other employees who are similarly situated to the plaintiff. See, e.g., Ardrey v. United Parcel Svc., 798 F.2d 679, 682 (4th Cir. 1986). *4 Gallup argues that it has provided all available information, that members of Wagner's teams absorbed his workload, and that it has identified the only associate who was newly-assigned to one of Wagner's former projects. Gallup also argues that Wagner's request for information about, and personnel files of, non-party employees seeks irrelevant documents that are not reasonably calculated to lead to admissible evidence. Certain information about employees who assumed Wagner's responsibilities after his employment was terminated might lend indirect, inferential support to Wagner's age-discrimination claim. Moreover, Gallup tacitly concedes that Wagner's duties and responsibilities were absorbed by his former team members, and the controlling protective order in this case (see ECF No. 12) should assuage any concerns that Gallup might have about producing confidential employment information. Accordingly, Wagner's motion concerning Interrogatory Numbers 11 and 12 and Document Request Number 14 will be granted with respect to certain information, such as the names, dates of birth, and dates of employment for any individual who assumed any of Wagner's duties or responsibilities. 3. Files and Documents Regarding Wagner Wagner requests “a complete copy of any file, or any document contained in any file, regarding Wagner other than his personnel file,” as well as “all documents, including electronically stored information, that relate in any way to [Wagner's] employment and/or departure from employment and/or claims in the present lawsuit.” (Doc. Req. Nos. 5, 6.) Gallup argues that these document requests are overly broad and unduly burdensome. The Court agrees with some aspects of Gallup's concern. Wagner's request that Gallup search for and produce every single document in its possession that in any way references Wagner is not reasonably calculated to lead to admissible evidence concerning Wagner's age-discrimination claim. He has not made the bare minimum threshold showing of relevance with respect to his overly broad requests. The Court determines that Wagner's broader requests seek information that “does not presently appear germane” to the instant matter, and to that extent, his motion will be denied in part with respect to Document Request Numbers 5 and 6. But, with respect to documents that (1) specifically relate to Wagner's departure from employment and (2) are not already included in Wagner's personnel file, Wagner's motion will be granted in part with respect to Document Request Numbers 5 and 6. 4. Employment and Counseling File Wagner also moves to compel Gallup to respond further to Interrogatory Number 10, which seeks “any counseling, coaching, warning, or discipline given to Wagner, including but not limited to, those for unsatisfactory work performance, work-related problems or conduct.” Gallup produced copies of feedback that Wagner received, including Internal Customer Engagement reports in which Wagner's coworkers would rate his performance. Gallup also stated that Wagner received general coaching and informal counseling in routine communications during his employment. Information about this coaching and counseling, however informal, is relevant to Wagner's claim. Wagner's request for information concerning non-documented coaching or counseling, however, is almost impossible to satisfy without deposing every Gallup employee who ever spoke with Wagner concerning his job. Accordingly, Wagner's motion with respect to Interrogatory Number 10 will be granted to the extent it seeks information concerning any documented counseling, warnings or discipline administered to Wagner, whether such documented counseling, warnings or discipline was formally or informally delivered. Defendant shall also respond to Wagner's request concerning the identity of each and every person who participated in the decision to administer such counseling, warnings or discipline. 5. Age-Discrimination Complaints by and Discipline/Termination of Other Employees *5 Wagner seeks information about reports or allegations of age discrimination by other Gallup employees from January 1, 2008, to the date of production. Background evidence of an employer's discriminatory policies or practices may be critical to a jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive, so long as that evidence assists in the development of a reasonable inference of discrimination within the context of each case's respective facts. McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1101 (8th Cir. 2005) (citations and quotations omitted). “Companywide statistics,” however, “are usually not helpful in establishing pretext in an employment discrimination case, because those who make employment decisions vary across divisions.” Sallis v. Univ. of Minn., 208 F.3d 470, 478 (8th Cir. 2005) (quoting Carman v. McDonnell Douglas Corp., 114 F.3d 790, 792 (8th Cir. 1997)). Interrogatory Number 13 seeks the identity of all persons ever employed by Gallup who made a complaint or allegation of age discrimination; Interrogatory Numbers 14 and 15 seek information underlying each complaint and complaining employee. Gallup objected to the interrogatories as overly broad and unduly burdensome, but responded with information concerning formal, written, or documented age-discrimination complaints from employees that either (a) worked in the Minneapolis office with Wagner, or (b) had the same job title (Subject Matter Expert) as Wagner. Gallup also interpreted a “formal complaint” to include any written or oral complaint that resulted in a written report. The Court determines that Gallup's interpretation of and response to Interrogatory Numbers 13, 14, and 15 are reasonable. See Haiphong Le v. Delta Air Lines, Inc., Slip Copy, 2013 WL 3124550, at *5 (D. Minn. June 19, 2013) (using as comparators employees who were “subject to the same policies, performing similar jobs, and being supervised by the same managers”). Accordingly, Wagner's motion will be denied to the extent it seeks to compel further responses to Interrogatory Numbers 13, 14, and 15. 6. Discipline/Termination of Possible Comparators Wagner also seeks information for every Gallup employee since January 1, 2008, including identification information and information about any Gallup-approved discipline or termination. (Interrogs. 6-9.) Gallup objects to these requests as overbroad and unduly burdensome, arguing that they are not limited in any way to employees with similar functions and seniority to Wagner. In discrimination cases, circumstantial proof of discrimination “which in other kinds of cases may well unfairly prejudice the jury against the defendant .... may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive.” Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988); see also Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155-56 (8th Cir. 1990) (quoting Estes, 856 F.2d at 1103). Such circumstantial proof might comprise unflattering testimony about the employer's work history and work practices, see Estes, 856 F.2d at 1103, or company-wide statistics evaluating comparable employees to indicate pretext, see Bevan v. Honeywell, Inc., 118 F.3d 603, 612 (8th Cir. 1997). After careful consideration, the Court will grant Wagner's motion with respect to Interrogatory Numbers 6, 7, 8, and 9 to the extent they seek information of Gallup employees that (a) were terminated; (b) were 50 or more years old; (c) had a comparable employment function to Wagner; and (d) worked in the same region as Wagner. C. Gallup's Motion to Compel Production of Wagner's Devices for Imaging At the hearing on Wagner's Motions, the Court granted Gallup's Motion to Compel Production of Wagner's Electronic Devices for Forensic Examination (ECF No. 32). Following the parties' court-ordered meet-and-confer, the parties were unable to agree upon a procedure for forensic imaging of Wagner's electronic devices. After reviewing the submission of the parties and considering their respective positions, as well as the competing interests of Wagner, Gallup and the United States government, the Court determines that the parties shall implement the following procedure: *6 1. Wagner will provide Gallup with a complete list of his electronic storage devices. 2. The parties shall identify a mutually acceptable computer forensics vendor (“Vendor”). 3. Wagner and Gallup shall obtain permission and clearance to provide Wagner's computer storage devices to the Vendor for forensic examination as set forth in this Order from both government agencies with which Wagner signed security agreements. 4. Each party shall be responsible for the security of the other party's confidential or classified documents during and as a result of this electronic forensic examination process. 5. The Vendor will image Wagner's electronic devices and search for any references therein (a) to Gallup's books, records, documents or customer lists, or (b) to any of Gallup's governmental clients. 6. The Vendor will prepare and provide a report to Wagner detailing the results of its search, including information as to the status of each document containing a reference (a) to Gallup's books, records, documents or customer lists, or (b) to any of Gallup's governmental clients (e.g., information such as whether the document was deleted by the user of the device or whether it is an active accessible document). 7. Wagner and his counsel will review the documents resulting from the Vendor's search. With respect to each document containing one of more references (a) to Gallup's books, records, documents or customer lists, or (b) to any of Gallup's governmental clients, Wagner will either (a) produce the document to Gallup, or (b) enter the document onto a privilege log (identifying the date, author, recipient(s), type of privilege or trade secret asserted, title/subject line (if applicable), and subject matter of the document) to be provided to Gallup. 8. Gallup shall be responsible for any and all Vendor expenses. III. CONCLUSION Based on all the files records and proceedings herein, IT IS HEREBY ORDERED that Gallup's Motion to Compel (ECF No. 39) is GRANTED IN PART and DENIED IN PART as set forth above.