Brinckerhoff v. Town of Paradise

Filing 52

ORDER signed by Magistrate Judge Gregory G. Hollows on 5/16/11 ORDERING that Plaintiff's MOTION FOR DISCOVERY AND SANCTIONS, filed 3/31/11 41 is GRANTED in part and DENIED in part. The parties' Requests for Sanctions are DENIED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MELISSA BRINCKERHOFF,

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Plaintiff,
v.

NO. CIV. S-10-0023 MCE GGH

TOWN OF PARADISE,

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Defendants.

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ORDER
/

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On May 12, 2011, the parties, by and through their counsel, were heard in

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connection with plaintiff Brinckerhoff’s amended motion for discovery orders and sanctions,

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filed May 5, 2011. Lisa Mak appeared on behalf of plaintiff. Douglas Thorn appeared for

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defendant. After hearing, the court issues the following order.

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DISCUSSION

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Plaintiff has filed the instant motion as a follow-up to a previous motion decided

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by the undersigned on November 18, 2010. Still at issue, according to plaintiff, are personnel

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files of other probationary firefighters. The undersigned had declined to address the previous

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request because it was too vague. Order, filed November 18, 2010, at 18:18-20. (Dkt. # 35.)

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Also at issue are requests for documents to which defendant has responded either that the Town

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has produced all documents, or that defendant does not know whether such documents exist.

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This group consists of plaintiff’s performance evaluations from September 26 and December 19,
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2008; shift assignment sheets and shift notes; emails to or from Chuck Rough, Town Manager;

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documents authored by the Town Attorney. Plaintiff seeks a formal statement explaining why

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the documents no longer exist. Each request will be addressed in turn.

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Request No. 90 - Personnel Files of Third Parties - files of all firefighters hired in the same

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probationary class as plaintiff.

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Defendant shall produce personnel files for those firefighters identified by

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plaintiff: Brian Vaniderstine, Josh Fisher, Keith Albertson, Dustin Topp, Eric Bryant, Shane

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Hollstrom, and Sean Kelly. Such files shall include performance evaluations, discipline and/or

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mistakes on the job, extensions of probation, and all leave time consisting of ten days or longer at

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a time.

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Defendant may produce personnel files of three firefighters who were released
from probation based on performance issues.1

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Plaintiff shall draft a protective order to cover these files according to the

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guidelines set out at hearing.

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Request No. 31 - Plaintiff’s Evaluations - all documents reflecting plaintiff’s performance.

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Defendant represented at hearing that it would produce the missing page(s) from

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plaintiff’s December 19, 2008 evaluation. See Knisbacher Decl., Ex. D. Defendant shall

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produce these page(s) within ten days of the hearing or file a declaration outlining the efforts

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made to locate the document and why, to the best of its knowledge, it could not be located.

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In regard to a September 26, 2008 evaluation, defendant represents that this

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evaluation was never done and does not exist. Defendant shall file a declaration to this effect by

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plaintiff’s supervising Captain at the time.

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Defendant requested that these files be included with the personnel files requested by

plaintiff.
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Request No. 35 - Chuck Rough Correspondence - All correspondence regarding plaintiff written

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by or to Chuck Rough, Town Manager.

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Defendant shall produce all responsive documents within ten days of the hearing,

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or file a declaration outlining the efforts made to locate the document and why, to the best of its

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knowledge, it could not be located.

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Request No. 91 - Shift Assignments and Shift Notes - All documents reflecting plaintiff’s

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assignments while working for the Town of Paradise.

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Defendant represents that it has already produced all requested payroll records.

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As the likelihood of any relevant information being uncovered is very remote, the undersigned

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finds that the burden of searching for shift notes far outweighs the potential relevance of these

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documents. Therefore, any shift notes are not required to be produced.

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Documents from Town Attorney

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Defendant will be taken at its word that there are no such documents. A

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declaration is not required to be filed for this request.

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Sanctions

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Both parties seek sanctions under Rule 37. As this motion was merely a cleanup

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motion rather than a contentious discovery dispute, no sanctions will awarded.

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Requests Not at Issue

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At the hearing, defendant raised problems with respect to new requests which

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were not at issue in plaintiff’s motion. Defendant agreed to produce the photo attachments to

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emails already produced.

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CONCLUSION

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Accordingly, IT IS ORDERED that: plaintiff’s motion for discovery and

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sanctions, filed March 31, 2011, (dkt. # 41), is granted in part and denied in part for the reasons

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set forth above. The parties’ requests for sanctions are denied.

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DATED: 05/16/2011

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/s/ Gregory G. Hollows

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GREGORY G. HOLLOWS
U. S. MAGISTRATE JUDGE

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GGH/076
Brinckerhoff0023.mtns.wpd

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