Trusz v. USB Rlty Investors LLC et al

Filing 277

RULING: denying 265 Motion for Leave to Serve Subpoena on Foot Locker. Signed by Judge Joan G. Margolis on 8/10/2011. (Rodko, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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:
RICHARD TRUSZ
:
:
:
V.
:
:
UBS REALTY INVESTORS LLC, AND
:
UBS, AG
:
:
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3:09 CV 268 (DJS)

DATE: AUGUST 10, 2011

RULING ON DEFENDANTS’ MOTION FOR LEAVE TO SERVE SUBPOENA DUCES TECUM
ON FOOT LOCKER RETAIL, INC.
The factual and procedural history behind this employment action is set forth in
considerable detail in this Magistrate Judge’s Ruling on Plaintiff’s First Motion to Compel, filed
December 1, 2009 (Dkts. ##61-62), Ruling on Defendants’ Motion to Quash, filed December
10, 2009 (Dkt. #65), Ruling Following Partial In Camera Review, filed December 21, 2009
(Dkt. #72), Ruling on Plaintiff’s Motion for Extension of Time, filed January 4, 2010 (Dkt.
#77), Ruling Regarding Potential In Camera Review of European Personnel Records, filed
January 22, 2010 (Dkt. #85), Ruling on Plaintiff’s Second Motion to Compel, filed September
7, 2010 (Dkt. #124), 2010 WL 3583064, Ruling on Plaintiff’s Motion for Telephonic Discovery
Conference, filed January 13, 2011 (Dkt. #166), Ruling on Defendants’ Motion for
Reconsideration, filed January 13, 2011 (Dkt. #167), 2011 WL 124504, Ruling on Plaintiff’s
Motion for Reconsideration, filed January 13, 2011 (Dkt. #168), 2011 WL 121651, Ruling
Regarding Plaintiff’s Desire to Depose Several Employees Who Reside and Are Employed in
Europe, filed February 8, 2011 (Dkt. #179), 2011 WL 577331, Ruling on Defendants’ Motion
for Rule 35 Examination, filed February 14, 2011 (Dkt. #180), 2011 WL 572318, Ruling on
Plaintiff’s Third Motion to Compel, filed April 27, 2011 (Dkt. #203), 2011 WL 1628805, Ruling

on Defendants’ Motion to Quash Six Third Party Subpoenas, filed June 21, 2011 (Dkt. #232),
2011 WL 2471735, Ruling on Defendants’ Motion for Protective Order, filed June 23, 2011
(Dkt. #233), 2011 WL 2530999, Ruling on Plaintiff’s Emergency Motion for In Camera
Review, filed June 27, 2011 (Dkt. #240), 2011 WL 2550625, Ruling on Defendants’ Motion
to Quash Deposition Subpoena Directed to Karl Koch of IPERS, also filed June 27, 2011 (Dkt.
#241), 2011 WL 2533694, Ruling Following In Camera Review, filed July 8, 2011 (Dkt.
#254), and Ruling on Defendants’ Motion to Compel Responses to Subpoena Directed to
Plaintiff’s Expert, William J. Pastuszek, filed August 9, 2011 (Dkt. #270)[“August 9, 2011
Ruling”], familiarity with which is presumed. (See also Dkts. ##79, 122, 131, 250, 258).
U.S. District Judge Janet Bond Arterton referred this file to this Magistrate Judge for
discovery purposes on November 3 and December 4, 2009, and again on June 8, 2010.
(Dkts. ##55, 63, 106). The file was transferred to Senior U.S. District Judge Dominic J.
Squatrito on September 17, 2010. (Dkt. #126). Except to the limited extent set forth in
Memorandum of Discovery Conference, filed June 30, 2011 (Dkt. #250), under the latest
scheduling order, all fact discovery has been completed; except to the limited extent set forth
in the August 9, 2011 Ruling, all expert discovery is to be completed by August 12, 2011;
and all dispositive motions are to be filed by September 9, 2011. (Dkt. #219).
On August 4, 2011, defendants filed the pending Motion for Leave to Serve Subpoena
Duces Tecum on Foot Locker Retail, Inc. (Dkt. #265),1 as to which plaintiff filed his brief in

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The following five exhibits are attached: copy of Expert Report of Ginger S. McRae, dated
April 15, 2011, in this case (Exh. A); copy of Expert Report of Ginger S. McRae in EEOC v. Foot
Locker Retail Inc., dated December 18, 2007 (Exh. B); copy of excerpts of deposition of Ginger S.
McRae, taken on July 20, 2011 [“McRae Depo.”](Exh. C); copy of McMae’s Objections and
Response to Subpoena to Produce Documents, dated August 1, 2011 (Exh. D); and copy of
Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a
Civil Action directed to Foot Locker Retail, Inc., dated August 4, 2011 (Exh. E).

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opposition four days later (Dkt. #269; see also Dkt. #266).2

On August 10, 2011,

defendants filed their reply brief (Dkt. #273)3; that same day, plaintiff filed his sur-reply
brief. (Dkt. #276; see also Dkts. ##274-75).
In their motion, defendants argue that one of plaintiff’s experts, Ginger S. McRae,
opined that defendant UBS Realty did not comply with “generally accepted human resources
practices” in its investigation of plaintiff’s allegations of retaliation, in that defendant UBS
Realty should have conducted an internal investigation, including a formal interview of
plaintiff, even though plaintiff had retained counsel, filed charges of discrimination with the
EEOC and CHRO, and notified defendants of his intention to file a lawsuit against them.
(Dkt. #265, at 1-2 & Exh. A, at 16-17). According to defendants, Attorney McRae took a
contradictory position in EEOC and Jeleana Jones v. Foot Locker Retail, Inc., Case No. 2:07CV–01109-JS (E.D. Pa.), in which she served as an expert for the employer, Foot Locker, in
that she found Foot Locker had acted in accordance with the general practice among
employers to transfer the investigative process from its internal human resources department
to outside legal counsel once an employee has filed a charge with the EEOC. (Id. at 2-3 &
Exh. B, at 18). When defense counsel inquired of Attorney McRae about these “apparent
inconsistencies between her opinions in the present case and the Foot Locker case[,]” she
responded that defendants’ situation differed from that of Foot Locker because defendant

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The following five exhibits are attached: copies of e-mails between the parties, dated June
13 and 16, 2008 (Exh. 1); copies of excerpts from the deposition of Mario Cueni, taken on March
23, 2011 (Exh. 2)[“Cueni Depo.”]; copies of excerpts from the deposition of Matthew Lynch, taken
on October 28, 2010 [“Lynch Depo.”](Exh. 3); copies of excerpts from the deposition of Ana Ibis
Seebrath, taken on April 6, 2011 [“Seebrath Depo.”](Exh. 4); and additional excerpts from the
McRae deposition (Exh. 5).
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Two exhibits are attached: excerpts from the deposition of Christine Menard, taken on
November 23, 2010 [“Menard Depo.”](Exh. A), and additional excerpts from the Seebrath
deposition (Exh. B).

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UBS Realty’s written anti-retaliation policies required an internal investigation whereas Foot
Locker’s policies did not. (Id. at 3 & McRae Depo. at 131-33). Defense counsel was not
satisfied with Attorney McRae’s responses, in that Attorney McRae’s expert report indicated
that Foot Locker’s Policy and Procedure Reference Guide “provide[d] that allegations will be
investigated and appropriate action taken.” (Id. at 3 & Exh. B, at 5 (emphasis added).
Subsequent to the McRae deposition, defendants were able to obtain “through another
source” a copy of Foot Locker’s Non-Retaliation Policy, also referenced in Attorney McRae’s
expert report, but has been unable to procure a copy of Foot Locker’s Policy and Procedure
Reference Guide. (Id. at 3-4 & Exh. D). Thus, defendants seek permission to serve a
subpoena upon Foot Locker, seeking a copy of its Policy and Procedure Reference Guide, in
order to “verify” or discredit Attorney McRae’s deposition testimony. (Id. at 4-5 & Exh. E).
In his brief in opposition, plaintiff argues that defendants are “distorting the record
in a disingenuous attempt to create a justification for this subpoena[,]” in that “[t]hroughout
this entire litigation, defendants “have consistently asserted” that they conducted a thorough
investigation of plaintiff’s complaints and not that they “suspend[ed their] internal
investigation and refer[red] the matter to outside counsel upon being informed that [p]laintiff
had retained counsel.” (Dkt. #269, at 1-2 (internal citations omitted); Cueni Depo. at 35,
37, 62-63, 74-76, 129-33; Lynch Depo. at 79; Seebrath Depo. at 63-66, 73-74, 77-82).
Plaintiff argues that defendants “should not be permitted to adopt a completely new position
– after the close of fact discovery – as a means of trying to create an inconsistency that does
not exist as a basis for this proposed subpoena.” (Id. at 2-3). Plaintiff further argues that
Attorney McRae’s position is not inconsistent, in that “she testified that referral of the matter
to outside counsel can be appropriate, but if a company’s policies promise an investigation,

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the claims should be investigated – either internally or externally.” (Id. at 3 & McRae Depo.
at 21-22, 58-61, 98, 137-39).

Plaintiff also has characterized defendants’ request as a

“fishing expedition” because there is “no reason to believe that the [Foot Locker] Policy and
Procedure Reference Guide will contain any information that is inconsistent with [Attorney]
McRae’s report or testimony in this case.”

(Id. at 3-4).

Lastly, plaintiff argues that

defendants’ proposed subpoena exceeds the scope of permissible expert discovery and would
instead grant all litigants a “license to serve subpoenas on former clients of any expert
witness in search of documents that a party would like to review, in the hopes that they may
find something useful[,]” turning experts’ trial testimony into “mini-trials regarding the
opinions offered by experts in unrelated cases. . . .” (Id. at 4-5).
Defendants respond in their reply brief that defendants have not “distorted” the
record, because both Christine Sailer Menard and Ana Ibis Seebrath of defendants’ Human
Resources Department testified that once plaintiff had engaged counsel and informed
defendant UBS Realty that he intended to file discrimination charges with the EEOC and
CHRO, defendants “shifted” the “handling” of the situation to outside counsel. (Dkt. #273,
at 1-2; Menard Depo. at 82-83, 124-26, 130; Seebrath Depo. at 52-54, 67, 118, 158).
Defendants further reiterate that Attorney McRae’s opinions in this case and in the Foot
Locker cases are “inconsistent[,]” so that the sole document sought from Foot Locker is
relevant. (Id. at 2-4). In his sur-reply brief, plaintiff argues that the Menard and Seebrath
deposition testimony indicate that defendants “consult[ed] with counsel” as opposed to
having “suspend[ed] an investigation into claims of retaliation and [having] referr[ed] the
matter to outside counsel . . . .” (Dkt. #274, at 1).
Defense counsel is quite correct that in the August 9, 2011 Ruling, this Magistrate
Judge cited with approval Truck Ins. Exchange v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th
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Cir. 2004), for the proposition that “The district court noted that [plaintiff’s expert’s] opinion
did not meet the standards [plaintiff’s expert] himself professed he adhered to.” However,
in this motion, defendants do not seek documents from the expert herself, Attorney McRae,
but rather from a client of Attorney McRae, Foot Locker. This Magistrate Judge shares
plaintiff’s concern that if defendants’ pending motion were granted, the Court would be
granting all litigants a “license to serve subpoenas on former clients of any expert witness
in search of documents that a party would like to review, in the hopes that they may find
something useful[,]” turning experts’ trial testimony into “mini-trials regarding the opinions
offered by experts in unrelated cases. . . .” (Dkt. #269, at 4-5). As defendant concedes,
they already have in their possession a copy of Foot Locker’s Non-Retaliation Policy, one of
two internal documents referenced in Attorney McRae’s expert report in the Foot Locker case,
which should be sufficient under the circumstances. (Dkt. #265, at 3-4 & Exh. B).
Accordingly, for the reasons stated above, defendants’ Motion for Leave to Serve
Subpoena Duces Tecum on Foot Locker Retail, Inc. (Dkt. #265) is denied.
This is not a Recommended Ruling but a Ruling on discovery, the standard of review
of which is specified in 28 U.S.C. § 636; FED . R. CIV . P. 6(a), 6(e) & 72; and Rule 72.2 of the
Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless
reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED . R. CIV . P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude
further appeal to Second Circuit); Caidor v. Onondaga County, 517 F.3d 601, 603-05 (2d
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Cir. 20008)(failure to file timely objection to Magistrate Judge’s discovery ruling
will preclude further appeal to Second Circuit).
Dated at New Haven, Connecticut, this 10th day of August, 2011.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

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