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Wagoner v. Lewis Gale Medical Center, LLC

United States District Court, W.D. Virginia, Roanoke Division

July 14, 2016




         Plaintiff, Jim David Wagoner (“Wagoner”) seeks to compel defendant Lewis Gale Medical Center, LLC (“Lewis Gale”) to conduct a search of its computer systems for certain electronically stored information (“ESI”).[1] Lewis Gale objects because of the “difficulty and unreasonable expense in performing plaintiff’s requested searches.” Alternatively, Lewis Gale asks that Wagoner pay for the related costs of conducting this search. The motion to compel is GRANTED.

         I. Background

         Wagoner worked as a security guard for Lewis Gale from April 4, 2014 until he was terminated on June 12, 2014. He worked approximately 16 hours per week and earned $12.49 per hour. Compl. ¶¶ 3, 13, Dkt. No. 1. He filed suit against Lewis Gale on October 23, 2015, alleging that he suffered from dyslexia and that Lewis Gale wrongfully terminated his employment in violation of the Americans with Disabilities Act (“ADA”). Wagoner asserts claims related to discrimination, retaliation, and failure to accommodate in violation of the ADA.

         Wagoner propounded requests for production of documents to Lewis Gale seeking production of ESI maintained by two custodians, Frank Caballos and Bobby Baker, who were Wagoner’s supervisors. Wagoner limited the dates for any ESI search to only four months and requested the following search terms:

Jim OR Wagoner AND dyslexia OR dyslexic OR read OR reading OR slow OR ADA OR disabled OR disability OR security OR schedule OR copy OR copying.

Dkt. No. 15-2; Dkt. No. 17 at 2. Lewis Gale conceded that it does not have the capability to perform this global search and obtained an estimate of $21, 570 from a third-party vendor to collect the requested ESI, with an additional $24, 000 estimated to review the documents retrieved. The ESI search would involve seven computers that the two custodians had access to and an exchange server located in Tennessee.[2] Lewis Gale argues that the discovery plaintiff seeks is not proportional because Wagoner only worked for two months as a security guard, and his potential damages are less than the cost to perform the ESI search. Lewis Gale further asserts that it has produced considerable ESI in the form of “e-mails gathered manually from the computers of key custodians.”[3] D’s Br. at 3, 5, Dkt. No. 17.

         II. Analysis

         A. Relevance

         Rule 26 of the Federal Rules of Civil Procedure provides that a party “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 . . . .” Fed.R.Civ.P. 26(b). Thus, as a threshold matter, I must determine whether Wagoner’s discovery requests are relevant under Rule 26.

         Wagoner contends that his dyslexia caused him to have difficulty reading and copying his posted work schedule, that Lewis Gale denied his request for a written copy of the schedule, and that his termination violated the ADA. Compl. ¶¶ 21-23. E-mails or other memoranda written by Wagoner’s supervisors, Frank Caballos and Bobby Baker, between April and July 2014 and containing the search terms listed above are relevant to Wagoner’s claim. Indeed, Lewis Gale largely conceded at the hearing that Wagoner’s request was relevant, arguing only that the keyword searches were too broad. Accordingly, I find that Wagoner’s requested ESI search is relevant to the claims and defenses asserted in this case. Admittedly, Lewis Gale has produced email and other documents maintained by Caballos and Baker, but the scope of the computer search by Lewis Gale has been limited to these individuals’ search of their own information for discoverable items.[4] Lewis Gale has provided no information showing that this search effort would yield deleted or archived ESI which may be available through a keyword search across the relevant electronic formats.

         B. Reasonable Accessibility

         Lewis Gale argues that the discovery in this case should not be permitted because is not proportional, considering the high cost of performing the ESI search compared to Wagoner’s limited potential recovery. Lewis Gale further states that, if the court does order it to obtain the requested discovery, the court should shift the cost of the ESI search to Wagoner. Relevant ESI may still not be discoverable under Rule 26 if the party can show that the information is “not reasonably accessible because of undue burden or cost.”

A party need not provide discovery of electronically stored information [“ESI”] from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery . . . the party from whom discovery is sought must show that the ...

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