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Cotton v. Costco Wholesale Corp. (D. Kan. July 24, 2013)

Cotton v. Costco Wholesale Corp. (D. Kan. July 24, 2013)

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Published by Molly DiBianca
Federal court in Kansas determines that text messages sent and received on employees' personal cell phones are not within the "possession, custody, or control" of the employer and therefore denies the plaintiff-employee's motion to compel discovery of the messages.
Federal court in Kansas determines that text messages sent and received on employees' personal cell phones are not within the "possession, custody, or control" of the employer and therefore denies the plaintiff-employee's motion to compel discovery of the messages.

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Categories:Types, Business/Law
Published by: Molly DiBianca on Aug 12, 2013
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07/09/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS
 WAYNE A. COTTON, ))Plaintiff, ))v. ) Case No. 12-2731-JWL)COSTCO WHOLESALE CORP., ))Defendant. )
MEMORANDUM AND ORDER 
This matter comes before the court upon
Plaintiff Wayne A. Cotton’s Motion to Compel
Defendant to Search for and Produce Electronically Stored Information and Other Documentsand Answer Interrogatories (ECF No. 22). For the reasons stated below, the motion is granted in part and denied in part.Mr. Cotton brings this case against his employer, Costco, alleging that he was subjectedto illegal discrimination on the basis of race, a racially hostile work environment, and wasdisciplined and removed from his position as loss control associate based on his race and inretaliation for filing a charge of discrimination with the Equal Employment OpportunityCommission. He asserts claims under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 24 U.S.C. § 2000e,
et seq.
; and the Kansas Act Against Discrimination, K.S.A. § 44-1001,
et seq
. Mr. Cotton has served on Costco requests for the production of documents andelectronically stored information (ESI) with metadata intact. He has also served Costco withinterrogatories. The court addresses the discovery requests and objections below.
I.
 
Timeliness
As an initial matter, Costco urges the court to deny
Mr. Cotton’s motion on the ground
that it is untimely. D. Kan. Rule 37.1(b) provides that motions to compel discovery must be filed
Case 2:12-cv-02731-JWL-KGS Document 41 Filed 07/24/13 Page 1 of 15
 
2
“within 30 days of the default or service of the response, answer, or objection that is t
he subjectof the motion unless the court extends the time for filing such motion for good cause.
Failure to
file a motion to compel within 30 days means “the objection to the default, response, answer, or objection is waived.”
1
 
D. Kan. Rule 37.1(b) generally “reflects that the triggering event is
service of the response that is the subject of the motion.
2
On April 1, 2013, Costco filed a
certificate of service stating that on April 1, defense counsel had placed in the U.S. mail Costco’s
discovery responses and objections.
3
 
Costco argues that Mr. Cotton’s motion is untimely because
he did not file it within 30 days of April 1. But on April 1, Mr. Cotton had not been served with
Costco’s dis
covery responses and objections
 — 
only notice that Costco had placed the discoveryresponses in the mail. For the purpose of computing time, Fed. R. Civ. P. 6(d) provides an
additional three days when service is made by mail. Therefore, Mr. Cotton’s motion to compel
was timely filed on May 3, 2013.
II. Search Terms for Employee E-mails
 Request No. 1 asks that Costco produce, from the time period of January 1, 2009, to the present, any ESI sent, received or created by Costco employees Tom Sadler, Linda Schwarz,Megan Pace, and/or Dean Eastham that contain any of a list of sixty-four terms that Mr. Cottonhas provided.
4
The list contains racially derogatory words and terms but also contains others
1
D. Kan. Rule 37.1(b).
2
 
 Firestone v. Hawker Beechcraft Int’l Svs. Co.
, No. 10-1404-JWL, 2012 WL 359877, at *4 (D. Kan. Feb. 2, 2012)(quoting
 Hock Foods, Inc. v. William Blair & Co.
, No. 09-2588-KHV, 2011 WL 884446, at *3 (D. Kan. Mar. 11,2011)).
3
Cert. of Service, ECF No. 17.
4
Mr. Cotton originally requested this information as it pertains to Dean McPhearson. He withdraws that request
 based on Costco’s assertion that it has not employed an individual by this name at the Overland Park warehouse.Mem. in Supp. of Pl.’s Mot. to Compel Def. to Search for & Produc. ESI & Othe
r Docs. & Answer CertainInterrogs. at 3, ECF No. 23.
Case 2:12-cv-02731-JWL-KGS Document 41 Filed 07/24/13 Page 2 of 15
 
3race-neutral words such as
“brother,”
 
“cocoa,”
 
“cornbread,”
 
“gun,” “harassment,” “jail,”
 prison
,” and “retaliate.”
5
Request No. 2 seeks the same information as Request No. 1 as it pertains to any member of human resources or Overland Park, Kansas warehouse management.Among other objections, Costco asserts that the requests are overly broad. Both requestsare overly broad on their face in that they could conceivably encompass some information thatmay arguably be relevant to this litigation but would also likely encompass much informationhaving nothing to do with issues in this case.
6
Because the court finds t
hat Mr. Cotton’s requests
are facially objectionable, he bears the burden of convincing the court that his discovery requestsare proper.
7
 Mr. Cotton explains that Mr. Sadler, Ms. Schwartz, Ms. Pace, and Mr. Eastham areindividuals who harassed Mr. Cotton. He argues that a search of their e-mail accounts mayunearth e-mails containing evidence of prejudice toward African-Americans because the list of search terms are words that are not normally used in non-racial ways. The court disagrees withthis assessment. Moreover, a significant number of the sixty-four search terms are notthemselves racially charged. And a number of entries are duplicative. For example, Mr. Cottonasks Costco to search for the terms
“monkey boy
,
” “porch monkey
,
and
welfare monkey
 separately, but these results would presumably be encompassed in the search results for the word
“monke
y,
which he also lists. But for two search terms,
monkey
and
nigger,
Mr. Cotton has
5
 
Def.’s Resp. to Pl.’s First Set of Req. to Produc. at 3
-4, ECF No. 23-1.
6
 
See Linnebur v.United Tel. Ass’n
, No. 10-1379-RDR, 2011 WL 5103300, at *5 (D. Kan. Oct. 27, 2011) (finding arequest for production facially overbroad in that some responsive documents would be relevant but the bulk of 
responsive information would relate to the general happenings at the defendant’s business or other matters not
involving the issues in the case).
7
 
 Allen v. Mil-Tel, Inc.
, 283 F.R.D. 631, 633-64 (D. Kan. Apr. 18, 2013) (stating that if a discovery request is faciallyobjectionable, the party moving to compel bears the burden of demonstrating that the discovery request is notobjectionable) (citing
Goodyear Tire
& Rubber Co. v. Kirk’s Tire & Auto Servicenter of Haverstraw, Inc.
, 211F.R.D. 658, 663 (D. Kan. 2003)).
Case 2:12-cv-02731-JWL-KGS Document 41 Filed 07/24/13 Page 3 of 15

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