Tracey McEuen, Plaintiff, v. Riverview Bancorp, Inc., a Washington corporation; Riverview Community Bank, a Washington nonprofit corporation, Defendants CASE NO. C12-5997 RJB Signed October 01, 2013 Counsel Anne Foster, Samuel T. Smith, Dunn Carney Allen Higgins & Tongue, Portland, OR, for Plaintiff. Jennifer S. Pirozzi, Ryan Paul Hammond, Littler Mendelson, Seattle, WA, for Defendants. Bryan, Robert J., United States District Judge ORDER RE DEFENDANTS' MOTION TO COMPEL *1 This matter comes before the Court on Defendants' motion to compel discovery. Dkt. 39. The Court has considered the pleadings filed in support of and in opposition to the motion and the record herein. INTRODUCTION AND BACKGROUND Plaintiff, Tracey McEuen (McEuen), filed a complaint against Defendants Riverview Bancorp, Inc., and Riverview Community Bank (Riverview), asserting causes of action pursuant to Section 806 of the Corporate and Criminal Fraud Accountability Act, Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A(a)(1) and Washington common law prohibiting wrongful discharge against public policy. Dkt. 1. The complaint alleges that Riverview told McEuen that she was being terminated for violating company policy by bringing an external hard drive to work. Id. McEuen contends that Riverview's stated reason for terminating McEuen was a pretext and was in fact retaliation for McEuen's reporting of Riverview's violations of bank guidelines, Sarbanes-Oxley and governmental regulatory requirements. Id. Shortly after McEuen commenced this action, Riverview served Plaintiff McEuen with Defendants' First Interrogatories and Requests for Production of Documents. Dkt. 40-1 pp. 2-5. Included as part of these discovery requests, as Request for Production No. 27, Defendants requested the following: Produce for imaging, by a mutually agreeable third-party, the external hard drive referenced in Paragraph 14 of your Complaint, along with any other device or system identified in your answer to Interrogatory No. 18. Dkt. 40-1 p. 5. Plaintiff responded to this Request on March 15, 2013, as follows: Plaintiff relies on the general objections set forth above. Subject to and without waiving these objections, plaintiff's attorneys will provide the hard drive to any vendor of defendants' choice for imaging at defendants' expense with the understanding that plaintiff will receive an exact copy of what is provided to defendants. Dkt. 40-1 p. 10. On March 18, 2013, McEuen's counsel indicated the hard drive was in their office and they were having their vendor, Streamline, make a mirror image copy of the hard drive for their use. Dkt. 40-1 p. 13. Riverview's counsel then spoke with Streamline by telephone regarding the imaging that would be done with respect to the hard drive. Dkt. 40 p. 2. During that call, Streamline indicated that it was making a forensic copy of the hard drive for McEuen, and that all metadata would be preserved on the original hard drive. Id. Streamline also informed Riverview that it could make a forensic copy of the hard drive for Riverview for $400. Id. Riverview responded that it would incur the expense to obtain a copy of the hard drive and asked McEuen's counsel to authorize Streamline to proceed with that process. Id. On April 25, 2013, McEuen's counsel indicated that they planned to authorize Streamline to release the hard drive mirror image to Riverview's counsel the nest day. Dkt. 40-1 p. 16. On April 26, 2013, McEuen's counsel called to inform Riverview that McEuen had just realized that the hard drive contained a lot of personal information, and as a result McEuen would instead be producing an index of the files stored on the hard drive so that the parties could discuss the scope of McEuen's production of the documents on the hard drive. Dkt. 41. The index was produced on April 29, 2013. Dkt. 40. p. 2 According to the index, there are 4,590 documents contained on the external hard drive. Id. Of these 4,590 documents, 4,029 are coded by McEuen as “personal” and McEuen has refused to produce them on that basis. Id. *2 The parties have made efforts to resolve this issue through the possible production of an index and/or metadata file covering the “personal” documents contained in the hard drive. Dkt. 40; Dkt. 40-1; Dkt. 41. These efforts were unsuccessful. Ultimately, McEuen's counsel informed Riverview that the “private” documents contained on the hard drive, and metadata associated with those documents, would not be produced. Dkt. 40 pp. 3-4; Dkt. 41. DUTY OF PRODUCTION Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides in pertinent part: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter..... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitation imposed by Rule 26(b)(2)(C). Fed. R. Civ. P. 26(b)(2)(C) provides that a court must, on motion or on its own, limit the frequency or extent of discovery if it determines 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 the 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. See also Fed. R. Civ. P. 26(b)(2)(B)( undue burden factors apply to discovery of electronically stored information). The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections. F.D.I.C. v. Garner, 126 F.3d 1138, 1146 (9th Cir. 1997). Relevancy is broadly construed, and a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter to the action. Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). A request for discovery should be allowed “unless it is clear that the information sought can have no possible bearing on the subject matter of the action. Id. When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery does not come within the broad scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997). McEuen initially argues that she complied with the Request for Production (RFP) No. 27. McEuen states that RFP No. 27 merely requires Plaintiff to produce the external hard drive to an agreeable third party for imaging. McEuen complied with this request when the mutually agreeable third party vendor, Streamline created a mirror image of the hard drive for the Plaintiff. Although a complete copy was not delivered to Riverview, McEuen argues that RFP No. 27 does not require production to the Defendant, Riverview. *3 The Court rejects this argument. Although a technical reading of the RFP may support McEuen's argument, it is evident from the parties' dealings and McEuen's responses to the discovery request, that it was understood that Riverview was requesting a complete copy of the hard drive. It is questionable as to whether McEuen may claim a privilege to any information in the hard drive, whether personal or otherwise. It may be argued that once McEuen's hard drive was connected to Riverview's computer system, Riveriew obtained the right to monitor and review the contents of the hard drive. See Dkt. 46-1. Nonetheless, to the extent McEuen is claiming a privilege in personal information, she must produce a privilege log. Pursuant to Fed. R. Civ. P. 26(b)(5), when a party withholds discovery on the basis of privilege, the party must provide a privilege log. The privilege log must document which documents are withheld and describe “the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). It appears from the record that the production of a file metadata may satisfy the privilege log requirements and the concerns of Riverview. This metadata would include: file path, file name, whether deleted, file created, last written, and last accessed. The production of a metadata would enable Riverview to determine what files were accessed during McEuen's employment with Riverview and accordingly, negate the relevance of documents on the hard drive that were not accessed by McEuen during her tenure with Riverview. All other documents (those accessed by McEuen) may have possible relevance to the subject litigation and are subject to discovery. CONCLUSION For the above stated reasons, Defendant Riverview is entitled to discovery. Therefore, it is hereby ORDERED: Defendants' Motion to Compel (Dkt. 39) is GRANTED as MODIFIED: 1. Plaintiff shall produce and deliver to Defendant, no later than October 11, 2013, at Plaintiff's own expense, a privilege log that includes a metadata of file path, file name, whether deleted, file created, last written, and last accessed, for all documents in the hard drive that are being withheld on the basis of privilege. 2. All documents in the subject hard drive that were accessed during the course of employment with Riverview are subject to production and shall be produced to Defendant no later than October 11, 2013. 3. In the event Plaintiff does not produce a timely and appropriate privilege log and metadata, Plaintiff shall produce at her own expense a copy of the entire hard drive to Defendants. Dated this 1st day of October, 2013.