The opinion
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEFAN COOOPER, )
)
Plaintiff, )
)
v. ) 2:24cv798
) Electronic Filing
UNIVERSAL STAINLESS AND )
ALLOY PRODUCTS, INC. , )
)
Defendant. )
OPINION
Presently before the court is plaintiff's discovery motion to compel electronically stored
information ("ESI") from defendant. ECF No. 22. For the reasons set forth below, plaintiff's
motion will be denied.
Stefan Cooper ("plaintiff" or "Cooper") commenced this action against his former
employer, Universal Stainless and Alloy Products, Inc. ("defendant" or "Universal Stainless"),
seeking redress for alleged disparate treatment discrimination and retaliation on the basis of race,
in violation of 42 U.S.C. § 1981(a), Title VII of the Civil Rights Act of 1964 ("Title VII"), and
the Pennsylvania Human Relations Act ("PHRA"). See ECF No. 19 at 1–15. Cooper was
employed by Universal Stainless between September of 2022 and February of 2024. Id. ¶¶ 12,
59.
In his first amended complaint, Cooper, an African American, alleges that his supervisors
at Universal Stainless subjected him to hyper-scrutiny and disparate treatment compared to his
white counterparts. Id. ¶¶ 21, 27, 36. He further asserts that on December 21, 2022, he made a
complaint to his union representative, grievance officer, and defendant's human resources
department regarding his supervisor's "discriminatory scheduling practices." Id. ¶ 28.
Afterwards, Cooper was reportedly subjected to further discriminatory and retaliatory treatment
followed in an attempt to silence him. Id. ¶¶ 33–38.
As part of pretrial development, counsel for both parties conferred to, inter alia, develop
a proposed discovery plan pursuant to Rule 26(f) of the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 26(f)(2) (outlining the topics that the parties must cover during the Rule 26(f)
conference); see also Fed. R. Civ. P. 26(f)(3) (specifying the issues that should be included in the
parties' proposed discovery plan). On the same day, plaintiff's counsel served upon defense
counsel a request for an "ESI search" pursuant to Rule 34(a). Relevant here, plaintiff's first
request directed defendant to search and produce all documents containing various search terms
for the period between September 1, 2022 and the "present date" (i.e., "the date that the ESI
resource person begins the technologically assisted search"). See ECF No. 25 at 2. Nearly
eighty search terms are contained in this request, including, inter alia, political figures,
organizations, and movements; and hate groups; as well as derogatory epithets and slurs targeted
at not just African Americans, but other minorities, nationalities, and religious groups outside of
Cooper's protected class.
As reflected in the parties' Rule 26(f) report, plaintiff's ESI requests were a source of
contention from the outset. In response to the question regarding the parties' "current need for
dispute resolution," they wrote:
The parties have discussed but have yet to resolve Defendant's objections to the
scope and nature of Plaintiff's proposed ESI search terms – Defendant specifically
objects (1) based on relevance to the inclusion of certain search terms that do not
relate to Plaintiff's allegations in the Complaint and because the request is only for
an ESI search and related production of the listed terms without any reference to
any specific request for production of documents, interrogatory, or the claims in
the Complaint (2) based on undue burden as to the remaining terms because the
57 undisputed search terms are not limited by coupling with Plaintiff's name or in
any other manner. Plaintiff's counsel has indicated an intention to file a motion to
compel in relation to certain search terms to which Defendant's counsel has
objected.
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Moreover, in formulating an ESI discovery plan, the parties could not agree on a "meet
and confer protocol" for "scope objections." Id. at 10–11. Plaintiff requested that defendant
agree to a "standard three-step protocol" to address objections regarding the scope of ESI
requests: (1) run plaintiff's "search terms as originally drafted;" (2) generate "a hit report before
pulling data for review;" and (3) "confer with plaintiff's counsel to refine terms and minimize
irrelevant or voluminous hits." ECF No. 22 at 2. And defendant seemingly agreed to this
procedure only in instances when "there are objections/issues by either party based on undue
burden," such as "voluminous false hits." ECF No. 9 at 11.
Predictably, in response to plaintiff's ESI requests, defendant objected to the following
search terms as irrelevant and lacking a basis in the pleadings:
“black face”, “muslim”, “islam”, “jim crow”, “civil war”, “spook”, “mexic!”,
“beaner”, “beener”, “wet back”, “south America”, “immigrants”, “illegal
immigrants”, “illegals”, “jew!”, “asian!”, “gook”, “slant”, “slope”, “towel heads”,
“camel”, “terroris!”, “uncle tom”, “porch monkey”, “black lives”, “BLM”,
“B.L.M.”, “NAACP”, “KKK”, “ku klux”, “clan”, “Obama”, “protest!”, “Biden”,
“Trump”, “Kamala”, “Harris”
ECF No. 25 at 3. Shortly thereafter, plaintiff filed the present motion requesting that the court
compel defendant to: (1) produce a hit report generated from the above terms, then meet and
confer with plaintiff regarding potential measures to refine those results; (2) "produce the '5 up
and 5 down' surrounding text messages and email chains for all communications identified as
relevant during the ESI search;" (3) adhere to the "temporal scope or date range" of plaintiff's
ESI requests; and (4) "identify all relevant sources and custodians for the requested ESI
discovery." See ECF No. 22-1.
In support of his motion, plaintiff argues that defendant's "decision to exclude" the
disputed terms "obstructs [his] ability to fully explore its internal communications for evidence
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with respect to the search terms that relate to groups outside of Cooper's protected class, plaintiff
argues that "[e]vidence of derogatory terms targeting other races, religions, or political
affiliations is highly relevant to proving a pattern and practice of discrimination and provides
important context for Defendant's treatment of Plaintiff." Id. at 15. Plaintiff's position in support
of compelling defendant to adhere to his "requested temporal scope" of ESI discovery is based
on similar arguments of asserted relevance. See id. at 20–22. Lastly, plaintiff asserts that
defendant has "consistently refused to identify a single source or custodian" of ESI discovery in
violation of Local Rule 26.2.C. Id. at 6.
In response, defendant contends that the disputed search terms "have no basis in the
pleadings, are irrelevant, and serve as an attempt to abuse the discovery process." Id. at 8.
Moreover, defendant asserts that plaintiff "never requested or participated in any meet and
confer" regarding a request for "information relating to custodians and sources of information or
the time frame utilized for the ESI search." Id. at 4. And defendant further maintains that
plaintiff "never requested surrounding '5 up and 5 down' texts or email messages or requested or
participated in any meet and confer on this issue." Id. Accordingly, from defendant's
perspective "the only issue even arguably rightfully before this Court is whether or not
Defendant must search its ESI using search terms that have no relevance to Plaintiff's allegations
and which are not rooted in the claims." Id. at 2.
Plaintiff's arguments are unavailing. In regards to the disputed search terms, he has failed
to show that these keyword searches are relevant to his race-based employment discrimination
claims. Therefore, his motion will be denied to the extent he seeks a hit report for these terms.
And because plaintiff's motion is devoid of any indication that his other requests are properly
before the court, the remainder of his motion will be denied without prejudice.
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conferred or attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action," as required by Rule 37 of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 37(a)(1). Nor did it include "a verbatim recitation of each . . .
request, answer, response, and objection which is the subject of the motion or a copy of the
actual discovery document which is the subject of the motion," as required by the district's Local
Rules. LCvR 37.2. Courts have found such failures to be a sufficient basis to deny a motion to
compel. See, e.g., A.G. Cullen Constr., Inc. v. Travelers Cas. & Sur. Co. of Am., No. 07-765,
2009 WL 10689837, at *2 (W.D. Pa. Oct. 20, 2009) (denying motion to compel for failing to
comply with Rule 37(a)(1)); Pletcher v. Giant Eagle Inc., No. CV 2:20-754, 2022 WL 3700912,
at *5 (W.D. Pa. Aug. 26, 2022) ("Giant Eagle's Motions must be denied because the record
before the Court demonstrates that it failed to meet and confer as to all of the discovery disputes
raised in its motions and to submit corresponding certificates of conferral . . . ."); Coulter v. Paul
Laurence Dunbar Cmty. Ctr., No. 16CV0125, 2020 WL 13469785, at *3 (W.D. Pa. May 13,
2020) ("Based upon these failures to comply with the applicable rules of civil procedure, the
Court could deny Plaintiff's Motion to Compel Discovery.").
Here, plaintiff's failure to comply with the foregoing rules warrants denying the parts of
his motion that seek to compel adherence to his requested timeframe, identification of ESI
custodians and sources, and production of the "5 up and 5 down" messages. Defendant claims
that plaintiff never sought or participated in a conferral regarding these issues prior to filing the
present motion. See ECF No. 25 at 2. And beyond that, it asserts that plaintiff never even
included the "5 up and 5 down" requirement in his ESI requests for production. See id. at 4.
Indeed, other than asking this court to compel defendant to produce the "5 up and 5 down"
messages, his motion is devoid of any discussion regarding this issue. Moreover, plaintiff admits
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motion. ECF No. 22 at 20. To order a party to produce discovery that was never sought or to
comply with the temporal scope of a request that has not been contested would be an "arbitrary,
fanciful, or clearly unreasonable" decision—or, in other words, an abuse of discretion. Palmer v.
Nassan, 454 F. App'x 123, 125 (3d Cir. 2011). The court declines plaintiff's invitation to commit
such errors.
Furthermore, despite plaintiff's claim that defendant has "consistently refused" to identify
prospective sources or custodians of potentially relevant ESI, he did acknowledge in the Rule
26(f) report that defense counsel "has and will comply" with this requirement "in response to a
discovery request for such information." ECF No. 9 at 9. Without more insight into plaintiff's
requests or defendant's responses thereto, the court "cannot further consider the adequacy" of
defendant's responses "in the absence of a more specific articulation as to what those responses
are and why they are inadequate." Paoli v. Stetser, No. CIV.A. 12-66-GMS-CJB, 2013 WL
2154393, at *8 (D. Del. May 16, 2013). Accordingly, plaintiff's motion to compel information
concerning potential custodians and sources of ESI will be denied.
To the extent plaintiff's motion seeks relief related to the timeframe, custodians and
sources, or the "5 up and 5 down" demand, his motion will be denied without prejudice to pursue
appropriate follow-up discovery and conferral with opposing counsel.
Even though plaintiff's failure to attach a certificate pursuant to Rule 37(a)(1) infects his
entire motion, the parties have provided enough information regarding the disputed search terms
to permit the court to resolve this aspect of their disagreement. To the end, it should be noted
that defendant has presented evidence that plaintiff's counsel did not actually engage in a
meaningful meet and confer on this issue. See ECF No. 25 at 3 (describing defense counsel's
unanswered requests to meet and confer). Nevertheless, it also recognizes that it is the only
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information to decide this issue and the court's resolution will not be in plaintiff's favor, the court
will proceed in the interests of judicial economy.
In short, plaintiff has not met his burden to demonstrate that the requested discovery is
"relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ.
P. 26(b)(1). Rule 37 governs motions to compel discovery. When deciding a motion to compel,
"[t]he moving party bears the initial burden to prove that the requested discovery falls within the
scope of discovery as defined by Rule 26(b)(1)."1 Atkinson v. Luitpold Pharms., Inc., 414 F.
Supp. 3d 742, 744 (E.D. Pa. 2019). "If the moving party meets this initial burden, the burden
then shifts to the opposing party to demonstrate that the requested discovery (i) does not fall
within the scope of discovery contemplated by Rule 26(b)(1), or (ii) is not sufficiently relevant to
justify the burden of producing the information." Id.
"While generally liberal, permissible discovery is not without limitations," meaning it
"should not serve as a fishing expedition." Upshaw v. Janssen Rsch. & Dev., LLC, No. CIV.A.
11-7574, 2014 WL 1244047, at *3 (E.D. Pa. Mar. 26, 2014). Likewise, "discovery requests are
not relevant simply because there is a possibility that the information may be relevant to the
general subject matter of the action." Cole's Wexford Hotel, Inc. v. Highmark Inc., 209 F. Supp.
3d 810, 812 (W.D. Pa. 2016). And in the context of Title VII cases, the scope of discovery must
1 See Fed. R. Civ. P. 26(b)(1) ("[T]he scope of discovery is as follows: Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.").
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F.R.D. 186, 191 (D.N.J. 2010).
As for plaintiff's claims, he alleges disparate treatment in violation of Title VII, Section
1981, and the PHRA. "Claims of race-based employment discrimination" under these three
statutes "are analyzed coextensively." McKinney v. Supreme Mid-Atl. Corp., No. 1:17-CV-
2024, 2018 WL 6182058, at *3 (M.D. Pa. Nov. 27, 2018). To establish a prima facie case of
disparate treatment discrimination, plaintiff must show that: (1) "he is a member of a protected
class;" (2) he was qualified for his position; (3) "he suffered an adverse employment action;" and
(4) "the action occurred under circumstances that could give rise to an inference of intentional
discrimination." Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Once plaintiff
establishes a prima facie case, "the burden shifts to defendant 'to articulate some legitimate,
nondiscriminatory reason'" for the adverse employment action. Jones v. Sch. Dist. of
Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999) (quoting McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)). "Finally, should the defendant carry this burden, the plaintiff then must
have an opportunity to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for discrimination." Id.
Plaintiff also alleges retaliation in violation of the foregoing statutes. "To establish a
prima facie case of retaliation in violation of Title VII, the PHRA . . . and § 1981," plaintiff must
demonstrate that: (1) "he engaged in protected activity;" (2) defendant "took an adverse
employment action against him during or after the protected activity;" and (3) "there was a causal
link between the protected activity and the adverse employment action." Tomaszewski v. City of
Philadelphia, 460 F. Supp. 3d 577, 599 (E.D. Pa. 2020).
Plaintiff's argument that excluding the disputed search terms "risks suppressing evidence
that could reveal racially charged communications and discriminatory practices within
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expedition." Plastipak Packaging, Inc. v. DePasquale, 363 F. App'x 188, 192 (3d Cir. 2010).
Such broad and speculative assertions do not demonstrate the relevance of these communications
to the parties' claims or defenses—let alone, establish that such material even exists. See Claude
P. Bamberger Int'l, Inc. v. Rohm & Haas Co., No. CIV. 96-1041 (WGB), 1998 WL 684263, at
*4 (D.N.J. Apr. 1, 1998) (denying motion to compel where movant "not only sought to engage in
a fishing expedition," but also "drain the pond and collect the fish from the bottom . . . without
knowing whether there were even any fish in the pond."). Plaintiff's complaint and the claims
made therein "circumscribe the scope of discovery." McClendon v. Pearson, No. 2:10-CV-1339,
2011 WL 2014816, at *2 (W.D. Pa. May 23, 2011). And plaintiff's amended complaint fails to
allege actual facts related to the use of "racially charged" language or remarks against him, his
protected class, or any other protected class/members thereof.
Although plaintiff's motion references a "hostile work environment," it is important to
note that he did not bring a standalone hostile work environment claim in his amended
complaint. Even if he did, plaintiff "cannot rely on a nebulous 'overarching culture' of
harassment to piece together a hostile work environment claim with vague, isolated incidents
involving other employees." Felder v. Dep't of Corr., No. CV 21-1556, 2022 WL 329205, at *12
(E.D. Pa. Feb. 3, 2022). To the extent he seeks discovery based on a generalized theory of
relevance concerning a "broader culture of racial discrimination" in defendant's workplace, this
position is too tenuous to establish adequately the relevancy of the information sought. See
MacDermid Printing Sols., L.L.C. v. E.I. du Pont de Nemours & Co., No. CIVA07-4325(MLC),
2008 WL 323764, at *1 (D.N.J. Feb. 5, 2008) ("[T]he fact that the discovery sought might
uncover evidence showing that a plaintiff has a legitimate claim does not justify the discovery
request." (internal quotation marks and citation omitted)).
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the review process, not in the initial search or production of a hit report," (ECF No. 22 at 7), the
court agrees with Judge Hardy that it "seems backwards and inappropriate" to insist that
defendant run a hit report "on all of his search terms before assessing whether each of those
search terms are relevant." Wilbert v. Pyramid Healthcare, Inc., No. CV 24-331, 2025 WL
873947, at *7 (W.D. Pa. Mar. 20, 2025). Thus, a hit report of the disputed search terms is not
"proportional to the needs of the case" because its "likely benefit" is speculative and outweighed
by the burden and expense of its production. Fed. R. Civ. P. 26(b)(1). Accordingly, plaintiff's
motion to compel the production of a hit report for the disputed search terms will be denied.
Based on the foregoing, plaintiff's motion to compel the production of a hit report for the
disputed search terms will be denied. Plaintiff's motion will be denied without prejudice in all
other aspects to engage in appropriate follow-up discovery and consultation. An appropriate
order will follow.
Date: May 27, 2025
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc: Joshua P. Ward, Esquire
Justin Michael Bahorich, Esquire
Lisa Lynne Garrett, Esquire
Samantha Leigh Cook, Esquire
Lindsay M. Buchanan, Esquire
(Via CM/ECF Electronic Mail)
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