The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL [DOCKET NO. 24]
This matter is pending before the court on plaintiff Terri L. Rosane's complaint alleging under Title VII, 42 U.S.C. §§ 2000e et seq., that she was discriminated and retaliated against on the basis of her race by her former employer, defendant Shannon County School District 65-1 ("District"). See Docket 1. Ms. Rosane has filed a motion seeking the court's order compelling the District to provide documents responsive to certain requests for the production of documents which Ms. Rosane served on the District in July, 2011. See Docket No. 24. The district court, the Honorable Jeffrey L. Viken, referred Ms. Rosane's motion to this magistrate judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A).
The facts which are pertinent to the pending motion are as follows. Ms. Rosane was employed by District as a cook at its school at Batesland, South Dakota, beginning in October, 2007. During her employment with the District, she alleges that she was the only white employee working in the Batesland school kitchen. She alleges that both co-workers and supervisors subjected her to a hostile environment based on racial harassment. After complaining about that harassment, Ms. Rosane alleges that the District retaliated against her for making that complaint. Ms. Rosane filed a charge of discrimination and, after receiving a right to sue letter from the Equal Employment Opportunity Commission, she brought this action in federal court.
In July, 2011, Ms. Rosane served the District with discovery requests that included a request for the personnel files of Pete Plenty Wounds, a co-worker; Bertha Conroy, who Ms. Rosane alleges was her supervisor but who the District asserts was a mere co-worker; Carol Reitz, supervisor of the food service employees; Terry Albers, the Human Resources Director who conducted an investigation of Ms. Rosane's complaint; Connie Kaltenbach, the principal at the Batesland School; and Dan Elwood, superintendent of the District who is alleged to have participated in the investigation of Ms. Rosane's complaint.
Ms. Rosane's original discovery request sought the entire contents of each requested personnel file. However, in subsequent communications with District's counsel in May, 2012, Ms. Rosane's counsel limited her request to evaluations from the personnel files and any type of personnel actions taken as documented in the files. See Docket No. 26-3. Ms. Rosane has specified that she does not seek any information such as telephone numbers, social security numbers, income information, medical information, criminal record, or any other sensitive information that is not related to Ms. Rosane's claims. See Docket No. 25.
District has refused to produce any of the personnel files requested, asserting that the discovery is irrelevant, that it implicates the privacy interests of the employees whose files are being requested, and that it may cause "economic or emotional harm." District seeks to submit all the files requested to the court for in camera review prior to producing any documents to Ms. Rosane. District also seeks a protective order, though it has not specified what terms or documents it wishes that order to encompass.
A. Meet and Confer Requirement
Both the Federal Rules of Civil Procedure and this district's local rules of procedure require that parties meet and confer in an attempt to resolve discovery disputes before filing discovery motions. See Fed. R. Civ. P. 37(a)(1); DSD LR 37.1. The Federal Rule states that the movant must have "conferred or attempted to confer" in good faith "with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." See Fed. R. Civ. P. 37(a)(1). This district's local rule states that "[a] party filing a motion concerning a discovery dispute shall file a separate certification describing the good faith efforts of the parties to resolve the dispute." See DSD L.R. 37.1.
A certification must be part of any discovery motion and the certification must show that a good-faith effort was made to resolve disputes before filing the motion. Id.
Ms. Rosane's counsel certified via affidavit filed with her original brief in support of her motion that her co-counsel had contacted District's counsel by e-mail, requesting District to reconsider its refusal to produce the personnel files and clarifying that Ms. Rosane sought only documents from the personnel files relating to evaluations and any type of personnel actions taken. This e-mail was sent approximately 10 months after the discovery requests were served on District. District never responded to the e-mail from Ms. Rosane's counsel. The instant motion to compel was filed 10 days after Ms. Rosane's counsel sent the e-mail.
Ms. Rosane has complied with the directive of both Federal Rule of Civil Procedure 37 and Local Rule 37.1. Accordingly, the court will address the merits of Ms. Rosane's motion.
B. Scope of Discovery in a Civil Case
The scope of discovery is governed by Fed. R. Civ. P. 26. The scope described by that rule is as follows:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
See Fed. R. Civ. P. 26(b)(1).
This scope of discovery under subsection (b)(1) is limited by subsection (b)(2)(C). That subsection provides that:
On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by ...