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Eastern District Orders Production Of Emails Using Focused Search Term List

Published by on September 24, 2010

On September 15, 2010, the U.S. District Court for the Eastern District of Virginia, Richmond Division, in Marlow v. Chesterfield County School Board (Case NO. 3:10-cv-00018-DWD) granted, in part, plaintiff’s motion to compel emails and personnel files in a discrimination case brought under the Age Discrimination in Employment Act (“ADEA”).  The production of emails and personnel […]

On September 15, 2010, the U.S. District Court for the Eastern District of Virginia, Richmond Division, in Marlow v. Chesterfield County School Board (Case NO. 3:10-cv-00018-DWD) granted, in part, plaintiff’s motion to compel emails and personnel files in a discrimination case brought under the Age Discrimination in Employment Act (“ADEA”).  The production of emails and personnel files was allowed pursuant to certain restrictions to strike a balance between the plaintiff’s need for the discovery and the employees’ legitimate privacy rights.  More after the break.

Plaintiff Debra Marlow, who is 60 years of age, alleges that Defendant Chesterfield County School Board (“CCSB”) discriminated against her on the basis of her age when she was transferred from Director of Community Relations (“DCR”) position to an allegedly less desirable position of Director of Business and Government Relations (“DBGR”).  The DBGR position was ultimately eliminated in Reduction in force in early 2009, resulting in the separation of her employment.  Prior to her separation, Marlow was offered a position that she alleges was a demotion that she refused.  Instead, Marlow demanded that she be reinstated to her previous DCR position.  Her previous DCR position, however, was filled at the time of her transfer by Marlow’s former assistant, a 37 year old male Tim Bullis. 

In discovery, Marlow sought all emails to or from her supervisors, Bullis and Marlow from January 2008 to present.  The court found that the emails sought may, at least, constitute relevant background evidence for discrimination such as attitudes, biases and prejudices.  Thus, the court found that request for emails may be appropriate but that the scope of the request must be addressed.  The court acknowledged CCSB’s objection that the request was “broad” because, for example, the request asks for all emails which would potentially include such irrelevant material as personal emails to and from friends and family, and even mundane emails such as grocery lists.  In addition, due the nature of the positions in question where the employee communicates with students and parents, there was a possibility of privileged emails with unrelated parties and that bear no relevance to the case falling under the request.  To resolve the scope issue, the court ordered Marlow to provide CCSB with a “realistic and focused” list of search terms to narrow the inquiry.  CCSB shall then apply the search terms to the emails of the relevant requested individuals and provide the results.  The court stated, “such a methodology is not foolproof, but it nevertheless strikes a proper balance between Marlow’s need for discover and the burdens to be imposed on CCSB.” 

Marlow also sought the personnel files and performance appraisals for all witnesses listed in CCSB’s Rule 26 disclosures.  In deciding what documents should be produced in response to the request, the court weighed the limited discovery purposes of the personnel files against the employees’ legitimate privacy interests and addressed the request by individual.  First, with respect to Bullis, the court found that because Marlow’s request is based on her claim that she is more qualified that Bullis and that, but for her age, she would have been allowed to return to her position, Marlow made a sufficient showing that the file was relevant.  The court ordered CCSB to produce the file, however, due to the privacy concerns the personnel file was ordered be submitted to the court for in camera review.  After review, the court will allow disclosure of documents related to Bullis’ qualifications only.

The appropriateness of the discovery requests of additional personnel files, including Thomas and Newsome, was decided based on the respective individual’s role in the decision-making process.  The court, citing authority, found that information found in the personnel file of the decision-maker(s) may be relevant to demonstrate prior discrimination, i.e. other complaints against the supervisor.  Thus, the discovery of Newsome’s personnel file was allowed and the discovery of Thomas’ personnel file was allowed “only if she was involved in the decision-making process.”

Finally, Marlow argued that the personnel files of the remaining Rule 26 witnesses should be produced because the contain evidence affecting witness credibility.  Marlow, somewhat remarkably, cited case law in support of this contention.  The court, however, found that the discovering of possible impeachment evidence is not “closely related” to her theory of the case; rather it is only ancillary.  Further, Marlow did not articulate any specific parameters of impeachment evidence sought.  The court therefore denied Plaintiff’s motion to compel the personnel files of the additional witnesses finding that the need for possible impeachment evidence did not outweigh the employees’ legitimate privacy interests. 

The court also granted Marlow’s motion to compel documents relating to the RIF and Bullis’ promotion to the DCR position.

The full text of the opinion can be found at:  http://valawyersweekly.com/fulltext-opinions/2010/09/18/010-3-473-marlow-v-chesterfield-county-school-board/

Contributed by Michael Wilson Stoker

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