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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NADIA BAZZI, 

Plaintiff, 

v. 

YP ADVERTISING & PUBLISHING,

LLC, 

Defendant. 

Case No. 15-10741 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

ANTHONY P. PATTI

 / 

ORDER OVERRULING PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER 

[22] AND DENYING AS MOOT PLAINTIFF’S MOTION TO STAY [23] 

 Plaintiff is suing Defendant for employment discrimination. At her 

deposition on December 11, 2014, she disclosed, for the first time, the existence of 

handwritten notes concerning the subject matter of her claims and a USB drive 

onto which she had downloaded documents from one of Defendant’s computers 

during her employment. Although Plaintiff was willing to allow Defendant to 

copy the documents from the USB drive, she refused to allow forensic imaging of 

the USB drive (for the purpose of preserving metadata) or the reopening of her 

deposition for questioning concerning her notes and downloading activity. 

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 On December 31, 2015, Defendant filed a Motion to Compel [Dkt. #14]. 

Plaintiff filed a Response [17] on January 14, 2016. Defendant filed a Reply [18] 

on January 21, 2016. The parties filed a Statement of Resolved and Unresolved 

Issues [19] on January 22, 2016. The Magistrate Judge held a hearing on the 

motion on January 26, 2016.1

 At the conclusion of the hearing, the Magistrate 

Judge granted the motion and directed the parties to submit a stipulated proposed 

order memorializing his ruling. After the parties did so, the Magistrate Judge 

issued the Order Granting Defendant’s Motion to Compel [21] on January 27, 

2016. Pursuant to the Order, the forensic imaging will take place—at Defendant’s 

expense, and by a third party the parties have agreed on—no later than February 5, 

2016. Plaintiff’s reopened deposition will take place after the forensic imaging but 

no later than March 1, 2016. 

 On February 1, 2016, Plaintiff filed an Objection [22] to the Magistrate 

Judge’s Order and a Motion to Stay the Magistrate Judge’s Order Pending Review 

of the Objection [23]. Defendant filed a Response to the Motion to Stay [24] on 

February 2, 2016. 

 A district court may set aside a magistrate judge’s order on a nondispositive 

pretrial matter if it is clearly erroneous or contrary to law. See 28 U.S.C. § 

636(b)(1)(A); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). As 

 

1

 The Court has reviewed an audio recording of the hearing. 

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explained below, Plaintiff has not shown that the Magistrate Judge’s ruling on 

Defendant’s motion to compel is clearly erroneous or contrary to law. The Court 

therefore overrules Plaintiff’s objection and denies, as moot, his motion to stay the 

Magistrate Judge’s order pending review of his objection. 

 Plaintiff argues that the Magistrate Judge erred in ordering the disclosure of 

metadata that is neither relevant nor likely to lead to the discovery of admissible 

evidence. The Magistrate Judge reasoned that the metadata may lead to evidence 

of conduct in violation of company policy that could be relevant to Defendant’s 

after-acquired evidence defense (raised as the fifteenth affirmative defense in 

Defendant’s Answer). See, e.g., Jones v. Nissan North America, Inc., 438 F. 

App’x 388, 405 (6th Cir. 2011) (recognizing that the Supreme Court has 

established an after-acquired evidence defense to employment discrimination 

claims that “generally bars the employee from obtaining front pay and 

reinstatement, and limits backpay” where the defendant shows that the plaintiff 

“would have been terminated [even absent discrimination] had the employer 

known of wrongful conduct by the employee plaintiff”) (citing McKennon v. 

Nashville Banner Publ’g Co., 513 U.S. 352, 362 (1995); Thurman v. Yellow 

Freight Sys., Inc., 90 F.3d 1160, 1168 (6th Cir. 1996)). Plaintiff does not 

challenge this legal conclusion. Instead, Plaintiff argues that the Magistrate Judge 

erred by accepting the possibility of such a defense without insisting that 

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Defendant produce a written policy under which Plaintiff’s copying of Defendant’s 

documents could be considered misconduct. Plaintiff did not raise this issue in the 

parties’ joint statement of unresolved issues. Nevertheless, after Plaintiff’s counsel 

raised it at the hearing, Defendant’s counsel stated as follows: “The policy that 

we’ve provided do[es] state that all YP-generated documents ... including e-mails, 

files, office systems, equipment, [and] materials owned by YP are considered sole 

property of the company and as such may not be copied or removed from the 

premises unless such items are to be used for company business.” Plaintiff’s 

counsel did not (and does not) dispute that such a policy had been provided or that 

Plaintiff’s copying of Defendant’s documents might have been in violation of it. 

The Court is therefore unconvinced that the Magistrate Judge clearly erred or 

violated the law by ordering disclosure of the metadata. 

 Plaintiff also argues that the Magistrate Judge failed to apply Federal Rule of 

Civil Procedure 26(b)(3)(A)(ii)’s requirement that a requesting party show “that it 

has a substantial need for the materials to prepare its case and cannot, without 

undue hardship, obtain their substantial equivalent by other means.” Plaintiff 

reasons that since she copied Defendant’s documents from one of Defendant’s 

computers, Defendant can obtain the information about Plaintiff’s downloading by 

other means—specifically, by analyzing data on its own computer. Plaintiff does 

not attempt to explain why this would not impose an undue hardship on Defendant. 

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More importantly, however, Plaintiff ignores the fact that Rule 26(b)(3)(A)(ii)’s 

requirement applies only when a party requests “documents and tangible things 

that are prepared in anticipation of litigation or for trial by or for another party or 

its representative.” The requested metadata does not fall within this category. 

 Plaintiff also argues that the Magistrate Judge erred by ordering the 

reopening of her deposition, since Defendant failed to adequately explain why it 

could not have examined Plaintiff regarding her handwritten notes in the time 

allotted for the original deposition. However, Plaintiff failed to disclose the 

existence of the notes to Defendant prior to the original deposition. The Magistrate 

Judge reasonably concluded that, given the volume of notes, Defendant’s counsel 

could not realistically review them and conduct a competent examination within 

the time allotted for the original deposition. 

 Finally, Plaintiff argues that the Magistrate Judge failed to properly consider 

Defendant’s alleged delaying tactics. Plaintiff notes that Defendant deposed her 

five months after it received Plaintiff’s responses to Defendant’s discovery 

requests, characterizing Defendant’s failure to depose her earlier as “improperly 

delay[ing] her deposition until the end of discovery.” But the Magistrate Judge 

correctly noted that Defendant took Plaintiff’s deposition within the time provided 

by the Court’s scheduling order, as it had a right to do. Plaintiff also faults 

Defendant for failing to file a motion challenging Plaintiff’s responses to ninety2:15-cv-10741-AJT-APP Doc # 25 Filed 02/03/16 Pg 5 of 6 Pg ID 417
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nine requests for production. However, Defendant challenged Plaintiff’s failure to 

disclose the existence of the USB and handwritten notes soon after it became 

aware of their existence. Plaintiff has not shown improper delaying tactics on 

Defendant’s part, let alone a failure by the Magistrate Judge to properly consider 

such tactics. 

 In sum, Plaintiff has not convinced the Court that the Magistrate Judge’s 

Order Granting Defendant’s Motion to Compel [21] is clearly erroneous or 

contrary to law. Accordingly, 

IT IS ORDERED that Plaintiff’s Objection [22] is OVERRULED. 

IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Magistrate 

Judge’s Order Pending Review of Objection [23] is DENIED AS MOOT. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: February 3, 2016 Senior United States District Judge 

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