United States District Court, D. Colorado
Nina Y. Wang United States Magistrate Judge
This matter comes before the court on Plaintiff’s Motion to Compel Discovery Against Defendant Exact Staff, Inc. (“Motion to Compel”) [#42, filed February 1, 2016]. The Motion to Compel was referred to the undersigned Magistrate Judge pursuant to the Order of Reference dated July 24, 2015 [#4] and memorandum dated February 2, 2016 [#43]. Exact Staff responded to the Motion to Compel on February 8, 2016 [#44], and Plaintiff Jorge Basulto (“Plaintiff” or “Mr. Basulto”) filed a Reply on February 25, 2016 [#49]. In addition, Exact Staff filed a “Supplemental Response and Objection to Plaintiff’s Motion to Compel Discovery Against Defendnat [sic] Exact Staff, Inc.” that same day, without seeking leave of court. [#51]. The court also held oral argument on this issue on March 4, 2016.
After carefully considering the Motion to Compel and the related briefing, the entire case file, and the applicable case law, the court GRANTS IN PART and DENIES IN PART the Motion to Compel.
The factual background of this case has been discussed in this court’s prior Recommendation, see [#31], and the court’s order compelling co-defendant Electronic Recyclers, Inc. (“ERI”) to respond to discovery. [#65]. Accordingly, it will not be recounted here, other than to discuss what discovery appears to remain after the court’s hearing on this matter. Originally, Mr. Basulto sought to compel Exact Staff to respond to Interrogatory No. 1, which provides:
Identify, in the manner set forth in Paragraph (f), all employees of Exact Staff assigned to work in production or plant positions (e.g., dismantling, sorting, general labor, tube pullers, orderlies) at Defendant Electronic Recyclers plant in Denver, Colorado, from April 9, 2012 through April 8, 2013, and for each such individual, identify the position into which they were placed, the dates they worked at ERI’s Denver location, the reason for their separation, and their gender.
[#42-2 at 2]. Exact Staff responded with the following objection:
Defendant incorporates its General Objections as if fully stated herein and objects to this request on the basis that it is vague, ambiguous, and overly broad, and as such is oppressive, unduly burdensome, unintelligible, and incapable of eliciting a response. Defendant also objects to this request on the grounds that it calls for the disclosure of information that is neither relevant to the claims or defenses at issue in this lawsuit for retaliation, nor likely to lead to the discovery of admissible evidence, as the evidence sought is prior to the time period when Plaintiff was employed by Exact Staff or assigned to ERI and has nothing to do with the position held by the Plaintiff. Defendant further objects to this request because it requests names and/or contact information of Exact Staff or ERI current and/or former employees, thus seeking to unreasonably invade the privacy rights of third parties to an extent that is not justified by Plaintiff’s legitimate discovery needs. Finally, Defendant objects to the request on the grounds that it seeks information that is outside of its control and/or possession.
[Id. at 2-3]. During an informal discovery dispute conference held on December 8, 2015, Exact Staff represented to the court that information responsive to this Interrogatory had already been produced. [#30]. This response was repeated in Exact Staff’s Response and Objection to Plaintiff’s Motion to Compel Discovery Against Defendant Exact Staff, Inc. [#44 at 2]. Plaintiff contends that the hiring data that Exact Staff provided does not reflect Exact Staff employees placed at ERI, but rather simply reflects individuals who worked at ERI, who were never employed or placed by Exact Staff, and may not be hourly employees. [#49 at 3-4]. In its Sur-Reply, Exact Staff conceded that the information it had provided, was in fact, inaccurate, and then produced a subsequent list of Exact Staff employees who were assigned to ERI between April 2012 through April 2013. [#51 at 1-2, #53]. At the hearing, Plaintiff and Exact Staff agreed that Exact Staff had, in fact, produced the information requested by Interrogatory No. 1, except each individual’s gender and contact information.
I. Discovery Supplementation
The recent amendment to Federal Rule of Civil Procedure 26(b)(1), effective December 1, 2015, reads “[u]nless otherwise limited by court order, the scope of discovery is as follows:
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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015, the amendment governs all civil cases commenced after December 1, 2015 and “insofar as just and practicable, all proceedings then pending.” Although this case was initiated prior to December 1, 2015, this court applies the principles of proportionality as discussed above because they are the same principles that would have applied through the former Rule 26(b)(2)(C)(iii). See Fed. R. Civ. P. 26(b)(1) advisory ...