Yvonne MACIAS, Plaintiff, v. SOUTHWEST CHEESE COMPANY, L.L.C., Defendant CV 12-0350 LH/WPL United States District Court, D. New Mexico Filed May 01, 2013 Counsel Eric D. Dixon, Attorney & Counselor at Law, P.A., Portales, NM, for Plaintiff. Danny S. Ashby, Caleb Wood, Jaime Ramon, K&L Gates LLP, Justin Roel Chapa, Ann Marie Arcadi, Morgan, Lewis & Bockius LP, Dallas, TX, Jack N. Hardwick, Sommer Udall Hardwick Ahern & Hyatt, LLP, Santa Fe, NM, for Defendant. Lynch, William P., United States Magistrate Judge ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY *1 This matter is before me on Yvonne Macias's motion to compel additional responses to a Request for Production (“RFP”) from Southwest Cheese Company, L.L.C. (“Southwest Cheese”). (Doc. 28.) Southwest Cheese responded to the motion (Doc. 29), and Macias filed a reply (Doc. 30). Having considered the filings, the record before me, and the relevant law, I deny Macias's motion. After Southwest Cheese removed this action to the District of New Mexico (Doc. 1), Macias filed an amended complaint alleging sexual discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2006), and the New Mexico Human Rights Act, N.M. STAT. ANN. § 28-1-1 et seq. (2012); racial discrimination in violation of 42 U.S.C. § 1981; and several state tort claims (Doc. 8). The Court dismissed Macias's § 1981 claim (Doc. 19), and discovery commenced several months later (see Doc. 23). Macias subsequently sent Southwest Cheese her Second Set of Requests for Production, which consisted entirely of an RFP seeking “the Southwest Cheese e-mail accounts for all management employees on the Cheese side” during Macias's period of employment at Southwest Cheese. (Doc. 28 Ex. 1 at 5.) Macias says that such documents are “critical to ... establishing a continuous hostile work environment at Southwest Cheese.” (Doc. 28 at 3-4.) On March 28, 2013, Southwest Cheese responded with an objection that the RFP was overly broad, unduly burdensome, irrelevant, and unlikely to lead to the discovery of admissible evidence. (Doc. 28 at 1; Doc. 28 Ex. 1 at 5.)[1] Macias's subsequent attempt to acquire the requested material from Southwest Cheese was unsuccessful. (Doc. 28 Ex. 2.) DISCUSSION A party is entitled to seek discovery as to “any nonpriviliged matter that is relevant to any party's claim or defense.” FED. R. CIV. P. 26(b)(1). The scope of permissible discovery is construed broadly so as “to achieve the full disclosure of all potentially relevant information.” Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004). Still, “broad discovery is not without limits,” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (citation omitted), and the concept of relevance should not be stretched so as to encourage a “fishing expedition,” see Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1169 (10th Cir. 2000). To that end, RFPs “must describe with reasonable particularity each item or category of items to be inspected.” FED. R. CIV. P. 34(b)(1)(A). The decision to grant or deny a motion to compel is left to the sound discretion of the trial court. Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (citation omitted). *2 Macias notes that I recently ruled on a similar motion to compel in another case brought against Southwest Cheese, Martinez v. Southwest Cheese LLC, 12-cv-0660 MCA/WPL, 2013 WL 12180706, Doc. 57 (D.N.M. Mar. 28, 2013). (Doc. 30 at 2.) However, the most analogous RFP sought by the plaintiff in that action requested interoffice correspondence “related in any way to any discussion to discipline, put on probation, or terminate” that plaintiff. Id. at 2. Here, by contrast, Macias seeks all email to or from any management employees at Southwest Cheese, “including but not limited to references to Plaintiff,” females, or female anatomy. (Doc. 28 Ex. 1 at 5.) This is a significantly broader request that requires a different analysis than that employed in Martinez. In Regan-Touhy v. Walgreen Co., the Tenth Circuit considered an appeal from a plaintiff alleging that a pharmacy technician accessed her pharmacy records and disclosed them to the plaintiff's ex-husband. 526 F.3d 641, 644 (10th Cir. 2008). During discovery, the plaintiff sought “all communications” between the pharmacy technician and her employer as well as “all emails from [the plaintiff's work] email account,” requests that the district court deemed overbroad. Id. at 649. The Tenth Circuit affirmed, observing that “[r]ather than being tailored to ascertaining” information related to her allegations, the plaintiff's RFPs “cast a much wider net, encompassing much information irrelevant to that stated purpose, of a potentially personal nature, or protected by attorney-client privilege.” Id. Similarly, the court concluded that a request for “all documents ... that refer to, mention, or relate in any way to” the plaintiff, defendant, or litigation at hand was overly broad and not made with the reasonable particularity required under Rule 34(b)(1)(A). Id. at 649-50. In the instant case, Macias has alleged that assistant team leader Cody Stewart exposed himself to her, that team supervisor Jose Brojas harassed her, that Southwest Cheese did nothing to punish the alleged wrongful actors or to remove her from their presence, and that Southwest Cheese fired her in retaliation for not accepting her supervisor's sexual advances. (Doc. 8 at 4-6.) Like the RFP at issue in Regan-Touhy, Macias's request for access to all management emails during her time at Southwest Cheese is not tailored to these allegations and would encompass much irrelevant and potentially personal information. This “kitchen sink request,” see Regan-Touhy, 526 F.3d at 650, is overbroad and will be denied. Macias attempts to skirt this outcome by implying that Southwest Cheese waived its objections when it previously requested extensive electronic discovery from Macias. (Doc. 28 at 4.) Without any citation to caselaw for support, Macias insists that “[t]he proverbial saying that what is good for the goose is good for the gander should be applied here.” (Doc. 30 at 4.) There is, of course, no rule or caselaw suggesting that a party is compelled to disclose materials simply because the opposing party voluntarily disclosed arguably similar materials without objection. Had Macias objected at that point, perhaps the litigants might have discovered that Southwest Cheese's request was not so good for the goose, either. Though I do not decide the matter, it is also conceivable that Macias's disclosures would have been considered relevant to a claim or defense even though the disclosures sought here are not. SeeFED. R. CIV. P. 26(b)(1). Regardless, Macias's purported goose/gander rule cannot transform an otherwise irrelevant discovery request to a relevant one. Finally, Macias belatedly attempts in her reply brief to limit her RFP to management emails “involving Ms. Macias and[/]or references to female employees, females in general, [and] references to female anatomy, [including] jokes, banter, cartoon[s] and pictures.” (Doc. 30 at 2; see also Doc. 28 Ex. 1 at 5.) However, Southwest Cheese would be at an unfair disadvantage if I were to consider Macias's newly limited request. When Macias contacted Southwest Cheese seeking RFP responses, she did not suggest these limitations (see Doc. 28 Ex. 2 at 1-2), and her motion itself seeks the same overbroad discovery sought in the original RFP (see Doc. 28 at 3-5). Because Macias only proposes these new limits to her RFP in her reply brief, Southwest Cheese did not receive proper notice of her argument, and it would be unable to respond to these proposed limits unless I were to grant it leave to file a surreply. For this reason, courts generally will not reach a decision based on arguments raised for the first time in a reply brief, as such arguments are deemed waived. See, e.g., United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (citation omitted); Okland Oil Co. v. Knight, 92 Fed.Appx. 589, 607 (10th Cir. 2003) (unpublished) (“[D]istrict courts are not required to address arguments and allegations raised for the first time in a reply brief.”) (citing F.D.I.C. v. Noel, 177 F.3d 911, 915 (10th Cir. 1999)); see also Christie v. K-Mart Corp. Emps. Ret. Pension Plan, 784 F. Supp. 796, 802 n.2 (D. Kan. 1992) (noting that “a party is expected to present her strongest case in the first instance”). Because Macias proposed these limits in an untimely fashion, I need not and will not address them. CONCLUSION *3 For the foregoing reasons, Macias's Motion to Compel is denied. Pursuant to Federal Rule of Civil Procedure 37, Macias shall show cause within ten days of the entry of this Order as to why I should not require her or her attorney to pay Southwest Cheese's reasonable expenses incurred in opposing the motion, including attorneys' fees. See FED. R. CIV. P. 37(a)(5)(B). IT IS SO ORDERED. Footnotes [1] Southwest Cheese also objected on the grounds that documents responsive to the RFP may be protected by the attorney-client and work-product privileges. (Doc. 28 Ex. 1 at 5.) However, because Southwest Cheese does not address that objection in its response to the instant motion, I deem that objection to be waived.