Cobb v. Metro North Railroad Co

Filing 35

ORDER denying without prejudice 25 Motion to Compel. Signed by Judge Donna F. Martinez on 5/28/13. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALPHUS COBB,

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Plaintiff,
v.
METRO NORTH RAILROAD CO,
Defendant.

CASE NO. 3:12CV661(AWT)

RULING ON MOTION TO COMPEL
Plaintiff Alphus Cobb brings this action under the Federal
Employers Liability Act to recover damages for an injury he
sustained while in the employ of defendant Metro North Railroad
Co.

Pending before the court is plaintiff's Motion to Compel

Discovery.1

(Doc. #62.)

by agreement.

Two of the disputed items were resolved

The remaining dispute concerns defendant's

obligation to preserve evidence.

See Fujitsu Ltd. v. Fed.

Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) ("The obligation
to preserve evidence arises when the party has notice that the
evidence is relevant to litigation or when a party should have
known that the evidence may be relevant to future litigation.");
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.
2003).

1

The Honorable Alvin W. Thompson, Chief Judge of the United
States District Court for the District of Connecticut, referred
the motion to the undersigned. (Doc. #27.)

Plaintiff alleges that he was injured on May 16, 2009.
(Doc. #1.)

On November 24, 2009, plaintiff's counsel sent a

letter to the director of defendant's claims department advising
that plaintiff would make a claim for damages and that defendant
should retain all relevant evidence.

(Doc. #26-12.)

commenced this lawsuit on May 2, 2012.

Plaintiff

(Doc. #1.)

At their Rule 26(f) planning conference in July 2012,
counsel were unable to agree on the scope of electronically
stored information that should be preserved and/or disclosed
during the pendency of the litigation.

(Doc. #11.)

Thompson referred the dispute to the undersigned.

Chief Judge

(Doc. #12.)

On December 20, 2012, the court held a brief telephone
conference during which defendant agreed to produce its email
retention policies from 2009 to 2012 as well as preservation
letters.

The court memorialized the agreement and ordered

defendant to complete the disclosure by January 15, 2013.
#19.)

(Doc.

Defendant produced the policies but no preservation

letters.2

Subsequently, defendant agreed to search the email

accounts of certain employees using designated search terms.
provided the results of this search to plaintiff.

2

At oral argument on May 22, 2013, defendant's counsel
clarified that he understood the court's order to refer to
preservation letters generated by defendant's employees. He
found none.
2

It

On February 1, 2013, plaintiff served discovery requests
seeking, inter alia, identification and production of all
communications to defendant's employees to preserve emails
concerning plaintiff's accident or injuries.

(Doc. #26-2.)

Defendant's counsel represents that only one responsive document
exists, namely, a litigation hold letter sent from his firm to
defendant after the lawsuit was filed.

Defendant objects to

disclosure of the letter on grounds of work product privilege
but has not produced a privilege log as required under Fed. R.
Civ. P. 26(b)(5) and D. Conn. L. Civ. R. 26(e).
After hearing argument on May 22, 2013, the court rules as
follows.

The motion to compel responses to Interrogatory 2 and

Request for Production 3 is DENIED WITHOUT PREJUDICE.

Plaintiff

may conduct further discovery on defendant's efforts to comply
with its obligation to preserve evidence.

By June 11, defendant

shall serve a privilege log in conformity with Local Rule 26(e)
describing any and all documents responsive to Interrogatory 2
and Request for Production 3 that defendant has withheld.
SO ORDERED at Hartford, Connecticut this 28th day of May,
2013.
____________/s/______________
Donna F. Martinez
United States Magistrate Judge

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