Mirmina v. Genpact LLC

Filing 58

RULING. For the reasons set forth in the attached Ruling, the Court DENIES, in part, plaintiff's 41 Motion to Compel, and DENIES defendant's 51 Motion to Strike 50 Reply to Response to Motion. Signed by Judge Sarah A. L. Merriam on 6/13/2017. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
SCOTT MIRMINA
:
:
v.
:
:
GENPACT LLC
:
:
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Civil No. 3:16CV00614(AWT)

June 13, 2017

RULING ON PLAINTIFF’S MOTION TO COMPEL [DOC. #41] AND
DEFENDANT’S MOTION TO STRIKE [DOC. #51]
Pending before the Court is a Motion to Compel filed by
plaintiff Scott Mirmina (“plaintiff”) seeking additional
responses to certain interrogatories and requests for production
served by plaintiff. [Doc. #41]. Defendant Genpact LLC
(“defendant”) has filed a Memorandum in Opposition to
plaintiff’s motion. [Doc. #48]. Plaintiff has filed a reply.
[Doc. #50]. Defendant has also filed a Motion to Strike
plaintiff’s reply as untimely. [Doc. #51]. Plaintiff has filed a
Memorandum in Opposition to defendant’s motion, [Doc. #53], and
defendant has filed a reply. [Doc. #55]. For the reasons set
forth herein, the Court DENIES, in part, plaintiff’s Motion to
Compel [Doc. #41], and DENIES defendant’s Motion to Strike [Doc.
#51].
I.

Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets

forth the scope and limitations of permissible discovery:

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. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009).
II.

Discussion
On May 4, 2017, plaintiff filed the instant Motion to

Compel. [Doc. #41]. Plaintiff’s motion seeks supplemental
interrogatory responses and additional production of documents
in response to plaintiff’s First Set of Interrogatories and
Requests for Production.1 See Doc. #41. Plaintiff specifically

Plaintiff does not attach his original discovery requests to
his Motion to Compel, nor does plaintiff’s Motion to Compel
indicate when the requests were served. Only in plaintiff’s
opposition to defendant’s Motion to Strike does plaintiff state
that the requests were served on December 6, 2016. See Doc. #53
at 2. Defendant attests that it timely responded to plaintiff’s
requests on January 5, 2017. See Doc. #48 at 6. Counsel for
plaintiff certifies that discussions to resolve the disputes at
issue commenced on March 16, 2017. See id. at 1. The Court notes
that plaintiff waited over two months to confer with opposing
counsel regarding this discovery, and then waited until the eve
of the May 30, 2017, discovery deadline -- four months after the
receipt of defendant’s responses -- to bring this discovery
1

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moves to compel additional responses to Interrogatories 9, 10,
11, 12, 13, and 14; and to Requests for Production 4, 7, 8, 9,
10, 11, 13, and 14. See Doc. #41-1 at 1.
On May 8, 2017, Judge Alvin W. Thompson referred
plaintiff’s Motion to Compel to the undersigned. [Doc. #42]. On
May 9, 2017, the undersigned issued an Order requiring any
response to plaintiff’s Motion to Compel to be filed on or
before May 22, 2017, and for reply briefing, if any, to be filed
on or before May 25, 2017. See Doc. #43. On May 22, 2017,
defendant filed a response to plaintiff’s Motion to Compel.
[Doc. #48]. Defendant contends that on May 8, 2017, it served
supplemental written responses and produced additional documents
in response to plaintiff’s requests, thereby obviating much of
the dispute before the Court. See Doc. #48 at 1.
On June 1, 2017, plaintiff filed a reply, indicating that,
of the interrogatories and requests for production discussed in
his original motion, only three requests for production remain
at issue. See Doc. #50 at 2-3. All other disputes had been
resolved. On June 2, 2017, defendant filed a Motion to Strike
plaintiff’s reply, arguing that the Court should not consider
the reply as it was filed late. See Doc. #52 at 1-3. On June 5,
2017, plaintiff filed an opposition to defendant’s Motion to

dispute to the Court’s attention. The reason for these delays is
not apparent.
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Strike, arguing, inter alia, that good cause exists for the
untimely filing. See Doc. #53 at 1. On June 8, 2017, defendant
submitted a reply. See Doc. #55. The Court will address the
requests for production still at issue, as grouped by plaintiff,
but will first address defendant’s pending Motion to Strike
plaintiff’s reply.
A.

Defendant’s Motion to Strike Plaintiff’s Reply

Defendant has moved to strike plaintiff’s reply, arguing
that plaintiff filed the reply beyond the Court-imposed deadline
of May 25, 2017. See Doc. #52 at 1. Defendant argues that
plaintiff has provided no justification for filing the reply
late, and sought no extension of the deadline. See id. at 2-4.
Thus, defendant argues, the Court should not consider
plaintiff’s reply. See id. Plaintiff opposes defendant’s motion,
arguing that counsel simply committed an administrative error in
calendaring the deadline incorrectly, and thus good cause exists
for the untimely filing. See Doc. #53 at 1. Plaintiff also
argues that no prejudice resulted from the delay. See id. at 2.2

Plaintiff’s response to defendant’s motion also makes an
additional argument regarding the timing of plaintiff’s
requests, defendant’s supplemental responses, and the parties’
meet-and-confer process. See Doc. #53 at 2. Counsel for
plaintiff accuses counsel for defendant of “not exactly acting
in good faith in the discovery process” and “deliberately
delay[ing]” the supplemental disclosure. Doc. #53 at 2. Counsel
for defendant vehemently denies these inflammatory accusations
in its reply and attaches correspondence between the two
attorneys to evince his good faith dealings throughout the
2

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Plaintiff’s reply to the Motion to Compel was filed one
week late, without a request for an extension. The Court agrees
with defendant that deadlines are important; indeed, the Court
expended resources in connection with considering and drafting a
ruling resolving a number of discovery requests it believed were
still at issue, before receiving belated indication that such a
ruling was not necessary, from plaintiff’s reply.
However, the Court finds no compelling reason to strike
plaintiff’s reply. In large part, plaintiff’s reply serves to
confirm that much of the discovery dispute before the Court was
resolved to plaintiff’s satisfaction while his motion was
pending. See Doc. #50 at 1. While plaintiff does bring some
factual disagreements to the Court’s attention, the reply raises
no new substantive arguments as to the specific requests still
at issue. Instead, it offers further limitations on their scope.
The Court does not see any prejudice that would result from
consideration of plaintiff’s representations as to the narrowing

discovery process. See generally Doc. ##55, 56. The Court notes
that plaintiff’s arguments regarding timing were not raised in
plaintiff’s Motion to Compel, nor in his reply. Certainly, this
information is not relevant to the Motion to Strike, where the
Court is asked to determine only whether plaintiff’s
(admittedly) late reply should be considered. The Court requests
that counsel refrain, in the future, from this sort of
discourse, as it is not helpful to the Court and not pertinent
to the issues at hand.
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of the requests at issue, and defendant does not raise any
argument in this regard.
Accordingly, defendant’s Motion to Strike [Doc. #51] is
DENIED.
B.

Requests for Production 4; 7; and 14

Request for Production 4: Please produce any and all
documents referring to or regarding Plaintiff in any
manner.
Request for Production 7: Please produce all documents
which relate to, concern or reflect the decision to
terminate Plaintiff’s employment with Defendant.
Request for Production 14: Please produce all documents,
including but not limited to emails, sent by or to Sarika
Saxena and/or by or to Greg Meyers, which concern, refer
to, or relate to Plaintiff.
Doc. #41-3 at 10, 11, 13.3 Defendant objects to Requests for
Production 4 and 14 on the grounds that they are overbroad, and
that searching for any document that concerns, refers to,
regards or relates to plaintiff in any way would be unduly
burdensome. See Doc. #48 at 19. Defendant also argues that the
requests fail to comport with Rule 34 of the Federal Rules of
Civil Procedure, which requires that each request “describe with

As noted above, plaintiff’s original discovery requests are not
attached to plaintiff’s motion. However, each party attached
Defendant’s Response to Plaintiff’s First Set of Interrogatories
and Requests for Production of Documents, dated January 5, 2017,
as an exhibit to its submission. See Doc. #41-3; Doc. #48-2.
Defendant’s January 5, 2017, Response contains plaintiff’s
requests, and defendant’s response to each. The Court will
therefore rely on defendant’s Response to assess each of
plaintiff’s requests.
3

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reasonable particularity each item or category of items to be
inspected[.]” Fed. R. Civ. P. 34(b)(1)(A). Finally, defendant
argues that these two requests “plainly fail the proportionality
test[.]” Doc. #48 at 20. As to Request for Production 7,
defendant represents that it has produced all responsive
documents. See id.
Plaintiff argues that the information sought by these three
requests for production is relevant and is “anticipated to
provide explicit evidence of exactly who said what, when and to
whom concerning Plaintiff’s work and the circumstances and
events that led to his termination.” Doc. #41-1 at 15. In reply,
plaintiff states that the relevant timeframe for Requests 4 and
14 would be from 2014 to April 2015. See Doc. #50 at 3.
Plaintiff further states that he is willing to cooperate with
defendant to narrow the scope of Request 4, and asks that
defendant be required to “work with Plaintiff’s counsel to
identify mutually agreeable search terms and custodians for the
relevant time period for a comprehensive and complete email
search.” Doc. #50 at 3; see also Doc. #41-1 at 16.
The Court agrees with the defendant that Requests for
Production 4 and 14 are overbroad, as originally framed. The
requests are unlimited in subject matter and in time, and
therefore would sweep in numerous documents that bear no
relevance to the claims or defenses raised in this matter. See
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Franzon v. Massena Mem’l Hosp., 189 F.R.D. 220, 222 (N.D.N.Y.
1999) (finding a request that seeks “‘any and all documents’ and
provides no meaningful limitations” is overbroad); Badr v.
Liberty Mut. Grp., Inc., No. 3:06CV1208(AHN), 2007 WL 2904210,
at *3 (D. Conn. Sept. 28, 2007) (same, as it pertains to a
subpoena). Further, the requests do not comply with Rule 34, in
that they do not “describe with reasonable particularity each
item or category of items to be inspected.” Fed. R. Civ. P.
34(b)(1)(A). See Robbins v. Camden City Bd. of Educ., 105 F.R.D.
49, 60 (D.N.J. 1985) (finding a request for all documents that
“refer or relate” to plaintiff too “broad and ambiguous to meet
the ‘reasonable particularity’ standard of Rule 34,” because all
documents possessed by plaintiff’s employer “could conceivably
‘refer or relate’ to plaintiff’s employment”). Accordingly,
plaintiff’s Motion to Compel supplemental responses to Requests
for Production 4 and 14 is DENIED.
The Court notes, however, that this case is subject to the
Initial Discovery Protocols for Employment Cases Alleging
Adverse Action (“Initial Discovery Protocols”), see Doc. #5,4

The Court’s order requires that if the parties believe the
Protocols do not apply in a given case, a form be filed to that
effect. See Doc. #5. No such form was filed in this case, so the
Court assumes the parties are in agreement that the Protocols
apply.
4

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which require that defendant produce to plaintiff, among other
things:
a.
All
communications
concerning
the
factual
allegations or claims at issue in this lawsuit among or
between:
i.
the plaintiff and the defendant, and
ii. the
plaintiff’s
manager(s),
and/or
supervisor(s),
and/or
the
defendant’s
human
resources representative(s).
....
d.
The plaintiff’s personnel file, in any form,
maintained by the defendant, including files concerning
the
plaintiff
maintained
by
the
plaintiff’s
supervisor(s), manager(s), or the defendant’s human
resources
representative(s),
irrespective
of
the
relevant time period.
e.
The plaintiff’s performance evaluations and formal
discipline.
f.
Documents relied upon to make the employment
decision(s) at issue in this lawsuit.
....
l.
Documents concerning investigation(s) of any
complaint(s) about the plaintiff or made by the
plaintiff, if relevant to the plaintiff’s factual
allegations or claims at issue in this lawsuit and not
otherwise privileged.
D. Conn. L. R., Disc. Protocols IV(2).5
The requirements of the Protocols sufficiently address the
relevant discovery plaintiff seeks by Requests 4 and 14, but are
more appropriately tailored to the claims at issue. Accordingly,
to the extent that defendant has not provided the materials

Available at
ctd.uscourts.gov/sites/default/files/forms/discoveryProtoc.pdf
5

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required by the Initial Discovery Protocols, including the
materials described above, defendant shall do so immediately.6
Finally, defendant asserts that it has produced all
responsive documents to Request for Production 7. The
representation by counsel for the defendant that all documents
have been produced in response to Request for Production 7
constitutes an “answer” which, pursuant to Rule 33 of the
Federal Rules of Civil Procedure, requires a signature under
oath by defendant. See Napolitano v. Synthes USA, LLC, 297
F.R.D. 194, 200 (D. Conn. 2014) (supplemental response to
request for production, which stated that all documents had been
produced, was “an answer” that required attestation).
Accordingly, on or before June 21, 2017, defendant shall provide
a sworn verification of this response.

The parties should have come to an agreement concerning
electronically stored information (“ESI”) search terms and
custodians long ago. On August 23, 2016, the parties asserted in
their Report of the Parties’ 26(f) Planning Meeting that they
had “discussed the disclosure and preservation of electronically
stored information, including, but not limited to ... search
terms to be applied in connection with the retrieval and
production of such information, [and] the location and format of
electronically stored information, appropriate steps to preserve
electronically stored information[.]” Doc. #12 at 6. This issue,
thus, should be closed. Nevertheless, the Court is confident
that any remaining issues regarding ESI can be resolved between
the parties as “the best solution in the entire area of
electronic discovery is cooperation among counsel.” William A.
Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256
F.R.D. 134, 136 (S.D.N.Y. 2009).
6

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III. Conclusion
For the reasons set forth above, the Court DENIES, in part,
plaintiff’s Motion to Compel. [Doc. #41].
Plaintiff’s Motion to Compel a supplemental response to
Requests for Production 4 and 14 is DENIED, except to the extent
it requests materials described in the Initial Discovery
Protocols that have not yet been disclosed.
Plaintiff’s Motion to Compel a supplemental response to
Interrogatories 9, 10, 11, 12, 13, and 14; and to Requests for
Production 8, 9, 10, 11, and 13 is DENIED as moot. Defendant
shall provide a sworn verification of its supplemental response
to Request for Production 7 on or before June 21, 2017.
To the extent that defendant has not complied in full with
the Initial Discovery Protocols, it shall do so immediately, and
in any event no later than June 21, 2017.
Defendant’s Motion to Strike [Doc. #51] is DENIED.
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.

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SO ORDERED at New Haven, Connecticut, this 13th day of
June, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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