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Wagoner v. Lewis Gale Med. Ctr., LLC - 2016 U.S. Dist. LEXIS 91323


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.


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. He filed suit against Lewis Gale alleging that he suffered from dyslexia and that Lewis Gale wrongfully terminated his employment in violation of the Americans with Disabilities Act ("ADA"). Wagoner asserted 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.

Lewis Gale conceded that it did 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. Lewis Gale argued that the discovery Wagoner sought was not proportional because Wagoner only worked for two months as a security guard, and his potential damages were less than the cost to perform the ESI search.


Should the motion to compel be granted?




The court granted Wagoner's motion to compel. Lewis Gale largely conceded at the hearing that Wagoner's request was relevant, and argued only that the keyword searches were too broad. Accordingly, it was found that Wagoner's requested ESI search was relevant to the claims and defenses asserted. Admittedly, Lewis Gale had produced e-mail and other documents maintained by Caballos and Baker, but the scope of the computer search by Lewis Gale had been limited to these individuals' search of their own information for discoverable items. Lewis Gale provided no information showing that the search effort would yield deleted or archived ESI which might be available through a keyword search across the relevant electronic formats.

Lewis Gale argued that the discovery in this case should not be permitted because it was not proportional, considering the high cost of performing the ESI search compared to Wagoner's limited potential recovery. 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. Lewis Gale did not carry its burden to show that the data on the seven computers or exchange server was inaccessible. Instead, Lewis Gale stated that it was not capable of performing the ESI searches requested by plaintiff in-house, and would be required to contract with an expensive outside vendor. Finally, because the ESI sought was reasonably accessible without undue burden or expense, cost-shifting to Wagoner was not appropriate.

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