United States District Court, D. Minnesota
Rochel, Esq., Teske, Katz, Kitzer & Rochel for plaintiff.
Brinkman. Esq. and Kristin Emmons, Esq., Briggs & Morgan,
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
lawsuit alleging age-based employment discrimination,
Plaintiff Julie McKey (“McKey”) seeks (1) to
compel the production of personnel files for similarly
situated employees and (2) leave to continue the depositions
of relevant witnesses based upon such
production. For the reasons addressed below, the
Motion to Compel is GRANTED IN PART and DENIED IN PART.
worked for Defendant U.S. Bank National Association
(“U.S. Bank”) for 41 years. Compl. ¶ 7,
Docket No. 1. In May 2016, McKey was placed on a sixty-day
performance improvement plan (“PIP”). Compl. at
¶ 27. After being placed on the PIP, McKey informed
human resources personnel she believed she was being
subjected to age discrimination. Compl. at ¶ 28. In
October 2016, McKey's employment was terminated by U.S.
Bank. Compl. at ¶ 7, Docket No. 1. McKey alleges her
termination was based upon her age or her report to human
resources. Compl. ¶¶ 48, 52. U.S. Bank maintains
that McKey was terminated for performance-based issues. Def.
Mem. Opp. to Mot. to Compel and for Sanctions 2-3, Docket No.
15, 2018, McKey brought this Motion to Compel. The remaining
discovery dispute is based on McKey's April 2, 2018
request that U.S. Bank produce the complete personnel records
of each employee who reported directly to Yvonne Mehsikomer
from January 1, 2013 to present. Rochel Decl. Ex. K, at 1
(Pl.'s Req. Prod. No. 29), Docket No. 30. Two days later,
McKey proposed to narrow the scope of the requested documents
to those pertaining to discipline, termination, performance
conduct, or performance evaluation and limited the time
period from January 1, 2015 to present. Pl.'s Second Am.
Meet and Confer Statement ¶ 9, Docket No. 39. This
narrowed the number of individuals whose records would be
subject to the request to nineteen. Def. Mem. Opp. 6, Docket
No. 27. U.S. Bank objected to the personnel record request
made on April 2, 2018 on multiple grounds. Rochel Decl. Ex.
L, at 3, Docket No. 30. U.S. Bank maintains the proposed
April 4th narrowing of the scope of documents is still
disproportionate to the needs of the case.
of the Federal Rules of Civil Procedure allows a party to
“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)(1). Generally, Rule 26 “is to be construed
broadly and thus encompasses ‘any matter that bears on,
or that reasonably could lead to other matters that could
bear on, any issues that is or may be in the
case.'” In re Mild Prods. Antitrust
Litig., 84 F.Supp.2d 1016, 1027 (D. Minn. 1997) (quoting
Oppenheimer Fund Inc., v. Sanders, 437 U.S. 340, 351
(1978)). However, courts must balance the interests of the
case with the burdens discovery may impose. Amador v.
U.S. Bank Nat'l Assoc., 2017 WL 5151680, at *5 (D.
Minn. Nov. 6, 2017) (stating that the new proportionality
language requires “giving due consideration to the
importance of the information, issues of access, and the
balance between the burden of production and expense and the
benefit of the information”).
McKey's record request
Bank argues that McKey's motion to compel should be
denied because the requested discovery is disproportionate to
the needs of the case. Def. Mem. Opp. 13, Docket No. 27. U.S.
Bank contends that 2015 Amendments to Rule 26(b)(1),
specifically the addition of the word
“proportional”, alter the Court's analysis of
discovery requests. Id. However, the concept of
proportionality has been enshrined within 26(b) since the
1983 Amendments. See Fed. R. Civ. P. 26(b)(1)
advisory committee's note to 2015 amendment. Furthermore,
“restoring the proportionality calculation to Rule 26
does not change the existing responsibilities of the
court.” Id. Most of the proportionality
factors set forth in 26(b)(1) have been part of the discovery
rules since the 1983 and 1993 Amendments. Id. In