Court Responds to ‘Fishing Expedition’ by Strictly Limiting Discovery

Tingle v. Hebert, No. 15-626-JWD-EWD, 2017 U.S. Dist. LEXIS 88936 (M.D. La. June 8, 2017).

In this wrongful termination case, the court partially granted the defendant’s motion to compel the production of the plaintiff’s personal emails and texts, adding date and subject limitations. In partially denying the motion, the court also denied the defendant’s request for attorneys’ fees associated with the motion.

The plaintiff, Brette Tingle, sued his former employer, Troy Hebert, the commissioner of the Louisiana Office of Alcohol and Tobacco Control (“ATC”). Tingle alleged that Hebert wrongfully fired him in retaliation for his role as a witness in a race discrimination charge.

Hebert filed this motion to compel Tingle to produce all texts and emails he exchanged with “any former or current ATC employee.” That request included emails from “any email accounts” that Tingle “maintained or accessed.” Hebert also requested “all text messages sent or received” from Tingle’s work-issued cell phone. Finally, he requested “any emails, text messages, data, information or documents” that Tingle deleted before returning the phone to ATC.

Tingle provided some of the requested production and responded completely with objections to what he did not produce. He “asserted that he did not use his personal cell phone or personal email addresses for ATC business.” He also testified that he deleted only private information, such as passwords and family communications, before returning his ATC phone.

Under Federal Rule of Civil Procedure 26(b), “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.” However, the court “must additionally limit” discovery that is “unreasonably cumulative or duplicative.”

Applying that standard here, the court concluded that Hebert’s discovery requests for Tingle’s emails and texts were not proportional and therefore not in scope. The wide date range Hebert requested “encompasses a large array of communications, not all of which are likely to be relevant.” The court therefore restricted discovery “to the pertinent time period of the period of retaliation alleged” and to conversations that “reference or discuss Hebert or allegations of race discrimination.”

The court then turned to Hebert’s request for information that Tingle deleted from his ATC phone. It concluded that Hebert failed to show that Tingle’s passwords or family communications were relevant. Nor did Hebert provide “any evidence to suggest” that Tingle deleted additional information. The court advised Tingle that if he had deleted any relevant communications before returning the phone, he must produce them. Otherwise, the court denied Hebert’s request as “a fishing expedition.”

The court asked Tingle to designate any communications that he believed contained confidential information according to the previously entered protective order.

Finally, the court denied Hebert’s request for expenses and attorneys’ fees associated with the motion to compel since that motion was “only granted in part.”

Takeaways on proportionality and Rule 26(b)

Hebert could have avoided the partial denial of the motion by limiting his requests for production to potentially relevant information. When crafting your own requests, be prepared to justify the date range for the request. Also, either limit your requests to obviously relevant subjects or explain how “all” communications relate to a claim or defense.

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