United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
following motions are currently pending before me and fully
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.
reasons stated below, Defendants' motion will be granted,
and Plaintiff's motion to compel and motion to amend will
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
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.
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. 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.
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).
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.
Motion to Stage ...