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Giles v. City of Lincoln

United States District Court, D. Nebraska

September 28, 2018

BRIAN GILES, Plaintiff,
CITY OF LINCOLN, et. al; Defendants.


          Cheryl R. Zwart United States Magistrate Judge

         The following motions are currently pending before me and fully submitted:

Filing No. 45: Defendants' Motion for New Progression Order Allowing for Phased Discovery and Initial Motion to Dismiss and Summary Judgment Deadlines;
Filing No. 48: Plaintiff's Motion to Compel; and
Filing No. 65: Plaintiff's Motion to Amend.

         For the reasons stated below, Defendants' motion will be granted, and Plaintiff's motion to compel and motion to amend will be denied.


         Rule 1 of the Federal Rules of Civil Procedure sets the overarching standard applicable to all federal civil cases.

[The Federal Rules of Civil Procedure] govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Fed. R. Civ. P. 1 (emphasis added). Plaintiff's counsel argues that the December 2015 rule changes did not actually change the scope of discovery; that a proportionality requirement was always imbedded within the Rules. She is correct, but it was not previously emphasized nor consistently enforced by the courts. More importantly, a past tendency to ignore or overlook proportionality when considering discovery disputes does not justify continuing that culture.

         The magistrate judges within the District of Nebraska are working cooperatively with each other and the bar to assure that the aspirations of Rule 1, and the associated 2015 amendments to the civil rules, are fully implemented. The court must actively engage to address broad electronically stored information (ESI) discovery requests that eclipse the merits of the case; where litigating and completing ESI discovery exceeds the value of the entire lawsuit and as such, becomes an impetus to settle irrespective of the merits. Such circumstances are the antithesis of the purpose of Rule 1. They cannot be supported or condoned by the court.

         Against this backdrop, this court is now tasked with sifting through over 1500 pages of documentation on the pending motions; with Plaintiff alone submitting 142 pages of briefing and over 1100 pages of evidence. Ironically, Plaintiff filed a 76-page brief and over 800 pages of evidence in support of an order compelling discovery of ESI “proportional” to the needs of the case.[1] As stated by Defendants, Plaintiff's extensive filings are “the most persuasive evidence of the necessity to control discovery in this case.” (Filing No. 55 at CM/ECF p. 1). The City argues staging discovery is a first step in that process. As explained below, the court agrees.


         Plaintiff's complaint alleges Plaintiff was retaliated against “for reporting sexual and national origin harassment/discrimination; for reporting retaliation regarding other firefighters who had engaged in protected activity; and for participating as a witness in connection with EEO investigations conducted by the City of Lincoln.” (Filing No. 1 at CM/ECF p. 1). Plaintiff alleges that after he supported claims made by female firefighters, and a claim by Troy Hurd that Hurd was retaliated against for supporting female firefighters, Plaintiff himself became the target and victim of retaliation. Specifically, Plaintiff claims that in September of 2014, he applied to be placed on a promotions list for Battalion Chief. He alleges that two such openings occurred in the Spring of 2015, and despite his superior ranking, experience, and qualifications within the applicant pool, the promotions were awarded to two other individuals; one on August 13, 2015 and the other on November 30, 2015. Plaintiff alleges he was not promoted in retaliation for supporting those subjected to discriminatory treatment. He asserts claims against the City of Lincoln, Nebraska, Tom Casady, Tim Linke, Patrick Borer, and Eric Jones for recovery under 42 U.S.C § 1983 for violation of rights secured under the Equal Protection Clause and the First Amendment; Conspiracy under 42 U.S.C. § 1985, Title VII of the Civil Rights Act of 1964, as amended, and parallel Nebraska employment law. (Filing No. 1).

         Linke, as Interim Chief of Lincoln Fire and Rescue Department (LF&R), made the Battalion Chief hiring decisions. (Filing No. 54-5, at CM/ECF p. 2-3). Linke was appointed as Interim Chief in June of 2015. Id. Before making the Battalion Chief promotion decisions, Linke received information from the chief officers or command staff of LF&R. While there appears to be a factual issue as to precisely who Linke spoke to before making the decisions, (Filing No. 54-5, at CM/ECF p. 2; 54-2, 54-3, 54-4, 54-6, and 54-7), it is undisputed that Linke chose someone other than Plaintiff for the August position, and Plaintiff withdrew his name from consideration for the November opening. (Filing Nos. 53-1, at CM/ECF p. 5; 54-5, at CM/ECF pp. 2-3: 55 at CM/ECF p. 23).


         A. Motion to Stage ...

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