Summary
In Zhou v. Pittsburg State University, No. 01-2493-KHV, 2003 WL 1905988 (D. Kan. Feb. 5, 2003), the plaintiff requested information regarding the salaries of the defendant's music department faculty members.
Summary of this case from SEED RESEARCH EQUIPMENT SOLUTIONS, LLC v. GARY W. CLEMOpinion
No. 01-2493-KHV
February 5, 2003
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's Motion to Compel (doc. 106). More specifically, Plaintiff seeks to compel Defendant to produce computer generated documents — instead of typewritten documents compiled by hand already produced — reflecting the salaries of faculty working within Defendant's music department from Fall semester 1997 through Spring semester 2000.
Relevant Background
Plaintiff worked for Defendant as an Assistant Music Professor from Fall semester 1997 through Spring semester 2000. In this lawsuit, Plaintiff alleges Defendant discriminated against him in the terms and conditions of his employment.
During the course of discovery, Plaintiff propounded an interrogatory to Defendant requesting information from 1996 to 2002 with respect to salaries of faculty working within Defendant's music department. On November 4, 2002, Defendant responded to this interrogatory by compiling a typewritten document setting forth the information requested in table format. Defendant asserts the salary information provided to Plaintiff was pulled from the Pittsburg State University Human Resource computer system, which allegedly is the most accurate payroll system available to Defendant.
On November 29, 2002, Plaintiff filed a Motion to Compel seeking the underlying computer-generated data used to compile the salary table provided to Plaintiff on November 4, 2002. On December 12, 2002, the Court ruled on Plaintiff's Motion to Compel and ordered Defendant to "produce copies of any original documents showing faculty salary information during the time period in which Plaintiff was employed by PSU, to the extent any such original documents exist."
December 12, 2002 Court Order at ¶ 2(b) (doc. 90).
In response to the Court Order, Defendant produced two documents entitled "Departmental Budget Recommendations," which reflect computer generated salary information for fiscal years 1998-1999 and handwritten recommendations from the Vice-President for Academic Affairs to the Human Resources department regarding salary adjustments for the succeeding years. Defendant asserts it did not provide 1997 "Departmental Budget Recommendations" because Defendant only maintains documents for a period of five years.
On January 3, 2003, Plaintiff filed another Motion to Compel, this time seeking not only the computer-generated data used by Defendant to compile the salary table provided to Plaintiff on November 4, 2002, but also the computer-generated data reflecting whether or not the handwritten salary adjustment recommendations were implemented. In response to this current Motion to Compel,
Defendant states
Defendant has provided all information relating to the salaries of the Pittsburg State University and complied with the Court Order relating to the salary information. The Court stated that the Defendant shall produce copies of any original documents that exist. The Defendant has complied with this Order, and cannot produce copies of documents that do not exist.
Defendant's Response to Plaintiff's Motion to Compel at p. 2 (doc. 109).
Discussion
Fed.R.Civ.P. 34 describes both the scope of documentary discovery and the procedure by which litigants may obtain that discovery. Rule 34(a) allows any party to serve on any other party a request
to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served[.]
The Notes to the 1970 Amendment to Rule 34 include the following explanation with regard to the definition of "document":
The inclusive description of "documents" is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when that data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use [its] devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. . . . Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of [its] records, confidentiality of nondiscoverable matters, and costs.
As used by the advisory committee, "computerized data and other electronically-recorded information" includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information." Simply put, the disclosing party must take reasonable steps to ensure that it discloses any back-up copies of files or archival tapes that will provide information about any "deleted" electronic data.
Kleiner v. Burns, No. 00-2160-JWL, 2000 WL 1909470 (D.Kan. Dec. 15, 2000) (citing Hon. Shira A. Scheindlin and Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L. Rev. 327, 333 (2000) and noting that the Court does not intend this list to be exhaustive.)
Adhering to these directives, the Court hereby grants Plaintiff's Motion to Compel to the extent that Defendant shall, within ten (10) days from the date of this Order, disclose all data compilations, computerized data and other electronically-recorded information as specifically defined in this Order that reflect the salaries of faculty working within Defendant's music department from Fall semester 1997 through Spring semester 2000, including but not limited to the computerized data and other electronically-recorded information used by Defendant to compile the salary table provided to Plaintiff on November 4, 2002 (reflecting information from FY 1997 through FY 2000) and the handwritten salary adjustment recommendations provided to Plaintiff in December 2002. If Defendant does not disclose, or believes it is unable to disclose, this information to Plaintiff, then Defendant shall show cause to the Court within ten (10) days of this Order why it did not comply with this Order and shall specifically describe the efforts it made to comply with this Order;
It is further ordered that the parties shall preserve evidence that they know, or should know, is relevant to the ongoing litigation, including preservation of all data compilations, computerized data and other electronically-recorded information as specifically defined in this Order.
IT IS SO ORDERED.