GEORGE BLOOMER, et al., Plaintiffs, v. THE WORD NETWORK OPERATING COMPANY, INC., et al., Defendants Civil Action No. 22-12433 United States District Court, E.D. Michigan, Southern Division Filed December 07, 2023 Counsel Joseph Corey Asay, Hkm Employment Attorneys LLP, Cincinnati, OH, Michael N. Hanna, Morgan and Morgan, P.A., Southfield, MI, for Plaintiffs. Amanda McSween Empey, Rebecca C. Seguin-Skrabucha, Bodman PLC, Detroit, MI, John T. Below, Bodman PLC, Troy, MI, for Defendant The Word Network Operating Company, Inc. John T. Below, Bodman PLC, Troy, MI, Rebecca C. Seguin-Skrabucha, Bodman PLC, Detroit, MI, for Defendant Kevin Adell. John T. Below, Bodman PLC, Troy, MI, for Defendant Church of the Word. Grand, David R., United States Magistrate Judge ORDER DENYING DEFENDANTS' MOTION TO DEEM DEFENDANTS' REQUESTS FOR ADMISSION ADMITTED AND TO COMPEL DISCOVERY (ECF No. 36) Background *1 This is a race discrimination case brought by Plaintiffs George Bloomer (“Bloomer”) and GG Bloomer Ministries against Defendants The Word Network (“TWN”) Operating Company, Church of the Word, and Kevin Adell (“Adell”). Bloomer is an African American televangelist, pastor, and author. Adell is a Caucasian owner of TWN, a large African American religious network. Plaintiffs allege that “Plaintiffs and Defendants entered into a valid written and/or oral contract, both express and implied-in-fact,” pursuant to which Bloomer would “host[ ] various programs for Defendants” and “Defendants [would] compensate Plaintiffs a certain amount for the sale and/or promotion of inter alia, books, Bibles, audio Bibles, and oils ...” (ECF No. 17, PageID.291). Plaintiffs allege that Bloomer worked for Defendants as a preacher/television program host from approximately 2011 to September 2019. Plaintiffs claim that in September 2019, Adell sent Bloomer multiple text messages and made oral statements to Bloomer that violated 42 U.S.C. § 1981 as “race discrimination” (Count I), “race harassment” (Count II), and “race retaliation” (Count III), resulting in the termination of the working relationship between Plaintiffs and Defendants. (Id., PageID.277-91). Plaintiffs also bring state-law claims for breach of contract (Count IV), quantum meruit (Count V), and unjust enrichment (Count VI). (Id., PageID.291-94). Presently before the Court is Defendants' Motion to Deem Defendants' Requests for Admission Admitted and to Compel Discovery, which was filed on August 31, 2023. (ECF No. 36).[1] (ECF No. 36). Counsel for the parties met and conferred multiple times in an attempt to resolve the issues presented in Defendants' motion; however, when they were unable to fully do so, Plaintiffs filed a response (ECF No. 48), and Defendants filed a reply (ECF No. 51). Oral argument was held on November 20, 2023. Defendants argue that following the parties' meet-and-confers, the disputed issues were narrowed to three: (1) Plaintiffs' responses to Defendants' Requests for Admission (“RFAs”) Nos. 1-6; (2) Plaintiffs' position that communications between Bloomer and Jimmy Battles (“Battles”) are irrelevant to the issue of damages and damage mitigation in this case; and (3) Plaintiffs' refusal to use a “Michigan licensed computer forensic investigation firm to extract ESI from both parties in this Michigan litigation.” (ECF No. 51, PageID.878) (emphasis in original).[2] For the reasons stated on the record and detailed more fully below, the Court will deny Defendants' motion, in certain respects without prejudice. Applicable Standards Rule 26 of the Federal Rules of Civil Procedure provides: *2 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Although Rule 26 was amended in 2015 to emphasize the importance of the “proportionality” requirement, the “basic tenet that Rule 26 is to be liberally construed to permit broad discovery” remains unaltered. State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 315 F.R.D. 220, 222 (E.D. Mich. 2016) (internal quotations omitted); Martin v. Bimbo Foods Bakeries Distrib., LLC, 313 F.R.D. 1, 5 (E.D.N.C. 2016) (“The rules of discovery, including Rule 26, are to be given broad and liberal construction.”). Relevance, in turn, “has been broadly construed to encompass any possibility that the information sought may be relevant to the claim or defense of any party.” Martin, 313 F.R.D. at 5 (internal quotations and citations omitted). “ Thus, the scope of relevance under Rule 26(b) is broader than the Federal Rules of Evidence which govern admissibility at trial.” Inovision Software Sols., Inc. v. Autis Ingenieros, S.L.U., No. 19-12580, 2021 WL 1422777, at *2 (E.D. Mich. Apr. 14, 2021). When ruling on discovery-related motions, the district court has broad discretion to determine the proper scope of discovery, including whether a discovery request is too broad and oppressive. See Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007); see also Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). In doing so, the district court must balance the “right to discovery with the need to prevent ‘fishing expeditions.’ ” Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). Ultimately, whether to grant or deny a motion to compel is left within a district court's broad discretion. See Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993) (noting district court's substantial discretion in resolving motions to compel and reviewing such decisions on appeal for abuse of discretion). Discussion RFA Nos. 1-3 Federal Rule of Civil Procedure 36 authorizes a party to serve requests for admission on another party. The Rule requires that “[e]ach matter [to be admitted] must be separately stated,” and that “[i]f a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it.” Fed. R. Civ. P. 36(a)(2), (4). The Rule further provides that “[a] denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.” Fed. R. Civ. P. 36(a)(4). In RFA Nos. 1-3, Defendants apparently were attempting to get Plaintiffs to admit that: (1) there is no single document which, on its own, constitutes the “contract” referenced in Plaintiffs' amended complaint; and/or (2) there is no specific group of documents which, on their own, constitute the “contract” referenced in Plaintiffs' amended complaint. Plaintiffs clearly do not disagree with either of those propositions. But, instead of phrasing the RFAs so narrowly, Defendants asked Plaintiffs to admit broader and more vague propositions. For example, RFA No. 1 asked Plaintiffs to admit “that neither George Bloomer nor GG Bloomer Ministries possess any written contract or agreement containing the terms of a business relationship or arrangement between or among either or both Plaintiffs and any Defendant(s).” (ECF No. 36-2, PageID.528). Defendants answered: *3 Denied. While the Parties did not memorialize their agreement into a “written contract” based on Mr. Adell's preferred business practice, an “agreement” was reached concerning the terms of their business relationship and arrangement, as reflected in the Parties' course of dealings, the available record, and/or written communications to this effect. (Id.).[3] Given the manner in which the RFA was drafted, Plaintiffs' answer is not improper. The RFA asked Plaintiffs to admit more than one “matter” and was vague. As the Court explained on the record at the hearing, the RFA was susceptible to more than one interpretation, including Plaintiffs' interpretation that Defendants were asking them to admit that, in addition to there being no “written contract” between the parties, there was also no “agreement” between them. Plaintiffs denied the RFA as written, but acknowledged that “the Parties did not memorialize their agreement into a ‘written contract.’ ” (Id.). Moreover, Plaintiffs clarified their contention that an “agreement” does exist between the parties, which agreement is “reflected in the Parties' course of dealings, the available record, and/or written communications to this effect.” (Id.).[4] Plaintiffs answer thus “fairly respond[s] to the substance of the matter,” Fed. R. Civ. P. 36(a)(4), and Defendants are free to conduct discovery to determine the contours of the “agreement” alleged by Plaintiffs and any evidence Plaintiffs possess that supports that “agreement's” existence. Accordingly, as to RFA Nos. 1-3, Defendants' instant motion is DENIED. RFA Nos. 4-6 essentially mirror RFA Nos. 1-3, except that the RFAs asked Plaintiffs to admit that “there exists” no “written contract or agreement” between the two parties, rather than asking about Plaintiffs' “possession” of any such “written contract or agreement.” (ECF No. 36-2, PageID.529). In each case, Plaintiffs simply referred back to their answer to RFA No. 1. Thus, for the same reasons stated above, Plaintiffs' answer “fairly respond[s] to the substance of the matter,” Fed. R. Civ. P. 36(a)(4), and Defendants are free to conduct discovery to determine the contours of the “agreement” alleged by Plaintiffs and any evidence that supports that “agreement's” existence. Accordingly, as to RFA Nos. 4-6, Defendants' instant motion is DENIED. Relevance of Bloomer's Communications with Jimmy Battles The second remaining dispute concerns the relevance, and therefore discoverability, of Plaintiffs' communications with Jimmy Battles. In short, Defendants contend that after the parties' business relationship broke down, Defendants learned that, many years ago, Bloomer allegedly sexually assaulted Battles when Battles was a minor. Defendants contend that under the “after-acquired evidence” doctrine, they may use this evidence as part of their defense in this case, namely, that they would not have engaged in a business relationship with Bloomer in the first place if he had not lied to them about his past in negotiating their business arrangement. Defendants now ask the Court to compel Plaintiffs to produce “any and all correspondence between [Plaintiffs] and Jimmy Battles.” (ECF No. 36-5, PageID.577). *4 Plaintiffs objected to the request as follows: Plaintiffs object to this request because it seeks irrelevant documentation, and documentation that is also overbroad in temporal scope and subject matter. To the extent any documentation actually exists, there is no discovery concerning, referencing or related to Jimmy Battles and/or Defendants' frivolous and malicious lawsuit against Bishop Bloomer in retaliation to Plaintiffs filing this lawsuit that is relevant here. Rather, this request seeks irrelevant information, and therefore constitutes an impermissible fishing expedition designed to annoy and harass Plaintiffs. Accordingly, Plaintiffs will not produce documents responsive to this request, to the extent any exist. (Id.). Thus, Plaintiffs assert two objections: first, that the requested discovery is irrelevant, and second, that the request, as written, is “overbroad in temporal scope and subject matter.” The Court agrees with Plaintiffs as to the request's overbreadth, but disagrees that the request, in general, seeks irrelevant information. At Least Some Communications between Plaintiffs and Battles are Relevant After Plaintiffs filed this action, Defendant Church of the Word filed a separate action against Bloomer, see Church of the Word v. Bloomer, E.D. Mich. Case No. 22-12687 (“Companion Case”), asserting claims of common law fraud and silent fraud related to the sexual assault allegations against Bloomer. In the Companion Case, Church of the Word seeks “rescission of any and all business arrangements between [itself] and Bloomer.” Defendants in this case moved to consolidate the two cases, but the Honorable Nancy G. Edmunds denied that motion, holding: In order to prevail in the Companion Case, Church of the Word would be required to prove that Bloomer sexually assaulted the minor victims as alleged. Such evidence has potential to be disturbing and a fair-minded juror could have a difficult time separating that evidence from that which supports Plaintiffs' claims of discrimination and harassment. Consolidating the cases and allowing Defendants to present evidence of Bloomer's purported sexual assault to a jury therefore substantially increases the possibility that the jury's decision in the present case would not be based on the merits of Plaintiffs' claims. (ECF No. 29, PageID.487-88). Plaintiffs argue that in light of this reasoning, Bloomer's communications with Battles are not relevant to this case. The Court disagrees. One of Defendants' affirmative defenses to the claims in Plaintiffs' amended complaint is that “Plaintiffs' claims are barred, in whole or in part, based upon the doctrine of after-acquired evidence.” (ECF No. 22, PageID.359).[5] Plaintiffs have not moved to strike that affirmative defense, and nothing in Judge Edmunds' order denying consolidation suggests that that affirmative defense is not available to Defendants in this action. Clearly, at least some subset of Plaintiffs' “correspondence” with Jimmy Battles is relevant to Defendants' affirmative defense.[6] Defendants' Request, As Written, is Impermissibly Overbroad *5 The discovery request in question is clearly overly broad, as Defendants ask Plaintiffs to produce “any and all correspondence between [Plaintiffs] and Jimmy Battles,” without any limitation whatsoever temporally or as to the nature or contents of that correspondence. (ECF No. 36-5, PageID.577). Countless “correspondence” could exist between Plaintiffs and Battles that has nothing to do with the alleged inappropriate conduct by Bloomer, and therefore nothing to do with Defendants' after-acquired evidence affirmative defense. Defendants can get the information they desire – to the extent it exists – by making far more narrow requests of Plaintiffs. For instance, Defendants could ask Plaintiffs to produce any correspondence with Battles that mentions or discusses the alleged sexual assault. Or Defendants could ask for any legal documents that may exist concerning the alleged sexual assault. Accordingly, to the extent Defendants seek an order requiring Plaintiffs to answer the instant request as written, Defendants' motion is DENIED WITHOUT PREJUDICE. Defendants are free to serve more targeted, narrow discovery requests. Use of a Licensed Michigan Forensic Computer Examiner and Investigation Firm The final issue in dispute is Defendants' request that the Court require both parties to use “a licensed Michigan forensic computer examiner and investigation firm ... to extract ESI and conduct ESI discovery.” (ECF No. 51, PageID.882). This request is, at best, premature. Discovery in this case is in its early phases, and Defendants' counsel admitted at the hearing that he has no information to suggest Plaintiffs have destroyed electronic evidence or will be unable to perform a thorough search of their ESI either on their own or by using the vendor of their choice. As the Court explained at the hearing, it is incumbent upon counsel to gain a sufficient enough understanding of their respective clients' ESI to be able to represent to the Court that a reasonable, good-faith search has been performed, and that all responsive, non-privileged documents have been produced. With no present indication that Plaintiffs' counsel will not be able make these representations, or that any such representations would be untrue, there is no basis for requiring Plaintiffs to use any particular ESI vendor, let alone one licensed in Michigan. See, e.g., Lipian v. Univ. of Mich., No. 18-13321, 2019 WL 6339646, at *1-2 (E.D. Mich. Nov. 27, 2019) (permitting forensic examination of plaintiff's cell phone only after finding “gaps in the text message records” produced). Accordingly, to the extent Defendants' motion seeks this relief, it is DENIED WITHOUT PREJUDICE. Conclusion For the foregoing reasons, Defendants' Motion to Deem Defendants' Requests for Admission Admitted and to Compel Discovery (ECF No. 36) is DENIED. IT IS SO ORDERED. Footnotes [1] On August 31, 2023, an Order of Reference was entered referring this motion to the undersigned for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 37). [2] To the extent the parties have resolved the aspects of Defendants' motion to compel not expressly discussed herein, those aspects of the motion are DENIED AS MOOT. [3] RFA Nos. 2 and 3 were similar to RFA No. 1, except they asked about “any written contract or agreement ... that addresses” the sale of Plaintiffs' and Defendants' products, respectively. (ECF No. 36-2, PageID.528. In each case, Defendants simply referred back to their answer to RFA No. 1. Accordingly, the analysis of RFA No. 1 applies equally to RFA Nos. 2 and 3. [4] Similarly, in their response brief, Plaintiffs further clarified, “While it is true that the parties did not sign a written document with the title ‘contract’ at the top (which Plaintiffs acknowledged in their [discovery] response), they nonetheless entered into an agreement ‘containing the terms of the business relationship.’ That agreement was entered into verbally and then reflected in various written documents that have been exchanged in discovery.” (ECF No. 48, PageID.763-64). [5] “In McKennon [v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995)], the Supreme Court established the ‘after-acquired evidence’ defense, which allows a defendant employer to show that an employee would have been terminated anyway had the employer known of wrongful conduct by the employee plaintiff. [ ] If the defense applies, it generally bars the employee from obtaining front pay and reinstatement, and limits backpay.” Jones v. Nissan N. Am., Inc., 438 F. App'x 388, 405 (6th Cir. 2011) (citations omitted). Numerous courts have found that the defense is available to a defendant facing Section 1981 claims like the ones Plaintiffs assert here. See, e.g., Weeks v. Coury, 951 F.Supp. 1264 (S.D. Tex. 1996) (“as to Plaintiff's claims under Section 1981, the Court holds that the after-acquired evidence doctrine applies, just as the rule governs Plaintiff's Title VII claim.... Therefore Plaintiff, even if successful on his Section 1981 claims, may not be awarded front pay and reinstatement, and no back pay is available after April 1, 1993.”) (citing cases) (citations omitted). Although the Court could not find any Sixth Circuit law directly on point, the case of Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1168 (6th Cir. 1996), opinion amended on denial of reh'g, 97 F.3d 833 (6th Cir. 1996), suggests that the after-acquired evidence defense is at least potentially available to Defendants here. In that case, which involved claims for front pay under Title VII and Section 1981, the court rejected the defendant employer's after-acquired evidence defense, but only because the defendant “failed to prove it could have and would have refused to hire [the plaintiff]” had the evidence in question been timely disclosed. Id. at 1168. This suggests that, in the Sixth Circuit, a defendant facing Section 1981 claims like Defendants face here can assert the after-acquired evidence defense, provided the defense is factually supported. Thus, at least at the discovery stage, Defendants should be able to pursue information relevant to that defense. Finally, it is worth noting that, in their amended complaint, Plaintiffs specifically allege, “[a]s a direct and proximate result of Defendants' violation of Section 1981, [they] suffered economic damages including but not limited to, loss of income, back pay, front pay, and other expenses.” (ECF No. 17, PageID.290) (emphasis added). The Court leaves open the question of whether the after-acquired evidence defense would be available to Defendants if Plaintiffs were to drop their claim for front pay, as they suggested at the hearing they might be willing to do. [6] As noted above, at this stage of the litigation, the Court's focus is merely on whether the evidence being sought is relevant, not whether it will be admissible at trial, or whether some procedure, such as a bifurcated trial, may be necessary to protect the validity of the jury's decision as to whether discrimination occurred, as well as Defendants' right to assert the after-acquired evidence affirmative defense.