Green v. Potter

Filing 91

MINUTE ENTRY for proceedings held before Magistrate Judge Kathleen M. Tafoya: Motion Hearing held on 11/20/2012, granting in part and denying in part 73 Motion for Sanctions. Final Pretrial Conference set for 3/7/2013 09:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. FTR: Courtroom C-201. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10-cv-02201-LTB-KMT

FTR - Courtroom C-201

Date: November 20, 2012

Deputy Clerk, Nick Richards

MARVIN GREEN,

Elisa Julie Moran
John Edward Mosby

Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General,
United States Postal Service,

Nathalie Erin Cohen

Defendant.
COURTROOM MINUTES / MINUTE ORDER
MOTION HEARING
Court in session: 9:39 a.m.
Court calls case. Appearances of counsel. Plaintiff Marvin Green present with counsel.
Motion Hearing is called regarding Plaintiff’s Third Motion to Compel Discovery or for
Sanctions Based Upon Defendant’s Failure to Comply with the Court’s June 20, 2012
Order [Doc. No. 73, filed September 20, 2012].
Oral argument from Plaintiff.
Oral argument from Defendant.
It is ORDERED:

Plaintiff’s Third Motion to Compel Discovery [73] is GRANTED IN
PART AND DENIED IN PART as stated on the record.
The motion is DENIED as to documents pertaining to Laura Avila,
Nicholas Morgan, and Mike Wheeler.
The motion is GRANTED as to the destroyed disciplinary file of Mr.
Kenneth Price. The court finds it likely that most of the documents
which would have been in the disciplinary file for Mr. Price will be in
the possession of or available to the attorneys representing the
Postal Service in the MSPB/Price matter. Therefore, all nonprivileged documents the legal department has in their possession
pertaining to Mr. Price’s original investigation, interviews, discipline,

demotion, his MSPB appeal of his demotion, reinstatement and
destruction of any documents as well as any documents which
placed him back in his previous status (or a higher status) shall be
produced on or before December 4, 2012. A privilege log shall be
prepared and submitted for any documents withheld on the basis of
privilege. This Order grants Plaintiff access to ALL non-privileged
documents, not just those technically compliant with the court’s
June 20, 2012 Order.
The Court notes this is production shall act as a sanction for Ms.
Charmaine Ehrenshaft destroying the disciplinary file pertaining to
Mr. Price sometime in 2012, long after the litigation hold was placed
in this case and with full knowledge of the likely relevance of Mr.
Price as a potential comparator to Plaintiff.
The deposition of David Knight may be re-opened ONLY pertaining
to new documents produced in this matter. Plaintiff’s counsel shall
determine if he wishes to re-depose Mr. Knight for this limited
purpose on or before December 6, 2012. The Court leaves open a
ruling on who shall be required to pay for the deposition; the
showing which will be required from Plaintiff in order to obtain
payment of the deposition by Defendant is whether the late
transmittal of the documents caused Plaintiff to be unable to inquire
on a particular topic at the original deposition and that the inquiry
topic(s) is both relevant and necessary to the prosecution of the
case. If such a showing is made costs will be borne by Defendant.
If the parties disagree regarding whether further deposition of Mr.
Knight is warranted, the parties are instructed to conduct a
conference call and contact chambers at [phone] and
advise of the need for a forthwith hearing.
It is ORDERED:

Defense counsel shall submit a stipulation to Plaintiff that the letter
sent to Mr. Price advising him of the original investigation and
stating that Mr. Price was to be placed on administrative leave with
pay while the investigation continued did exist at one time in the
files of the Postal Service, but now longer exists and that the
Defendant stipulates that Mr. Price was advised that he would be
placed on leave with pay.

It is ORDERED:

Plaintiff’s deadline to respond to Defendant’s Motion for Summary
Judgment [Doc. No. 90, filed November 12, 2012] is extended to
December 18, 2012. Plaintiff’s Reply to Response to Motion for
Summary Judgment [90] shall be due on or before January 7,
2013.
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It is ORDERED:

The court views the requests made by the Plaintiff with respect to
Harry Soo and Abel Maes as a separate issue of spoliation not fully
addressed at this time. Documents which have been found and are
responsive to the court’s June 20, 2012 order have been produced
Defendants, however the parties do not dispute that the disciplinary
files of both Soo and Maes have been destroyed pursuant to a twoyear retention policy implemented by Charmaine Ehrenshaft. The
Plaintiff’s position is that this personal policy decision by Ms.
Ehrenshaft violates the written retention policies of the Defendant
and that such a policy has resulted in the willful spoliation of
evidence. The Plaintiff has until December 3, 2012 to file a motion
for sanctions for spoliation concerning the files of Soo and Maes
based on the document retention policy implemented by Ms.
Ehrenshaft. Defendant may respond on or before December 10,
2012 and Plaintiff may reply on or before December 14, 2012.
Should Plaintiff decide against pursuing sanctions as defined
herein, Plaintiff shall inform the court and opposing counsel on or
before December 3, 2012.

It is ORDERED:

The Final Pretrial Conference currently set for January 8, 2013 at
9:45 a.m. is VACATED and reset to March 7, 2013 at 9:45 a.m.
The parties shall file their Proposed Final Pretrial Order on or
before February 28, 2013. The parties are directed to submit a
Word or Word Perfect copy of the Final Pretrial Order to chambers
at [e-mail].

Court in Recess: 11:18 a.m.
Hearing concluded.
Total In-Court Time 01:39
*To obtain a transcript of this proceeding, please contact Avery Woods Reporting at [phone].

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