Rivera v. Affineco LLC

Filing 63

RULING granting in part and denying in part 41 Motion to Compel. Signed by Judge Joan G. Margolis on 2/26/18. (Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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:
LOURDES RIVERA
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:
v.
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:
AFFINECO, LLC
:
:
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16 CV 1666 (JBA)

DATE: FEBRUARY 26, 2018

RULING ON DEFENDANT’S MOTION TO COMPEL
Familiarity is presumed with the factual and procedural history behind this
employment litigation. Under an electronic scheduling order filed by U.S. District Judge Janet
Bond Arterton on December 18, 2017, all discovery was to be completed by January 11,
2018. (Dkts. ##39-40).1 On January 11, 2018, the deadline for completing discovery,
defendant filed the pending Motion to Compel Plaintiff to Comply with its July 6, 2017
Discovery Requests,2 with brief and affidavit of counsel [“Aff’t”] attached.3 (Dkt. #41).
Twelve days later, plaintiff filed her brief in opposition (Dkt. #44), as to which defendant

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Starting on late Friday night near midnight and continuously throughout the weekend
through late Sunday night, February 23-25, 2018, defendant filed its Motion for Summary
Judgment, brief in support, exhibits, and Local Rule 56(a) Statement. (Dkts. ##54-61).
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Ten exhibits were attached and superseded by amended exhibits filed the next day (Dkt.
#42): copy of Defendant’s First Set of Interrogatories and Requests for Production, dated July 6,
2017, wiht two subexhibits (Exh. A); copy of Plaintiff’s Responses to Defendant’s First Set of
Interrogatories and Requests for Production of Documents, dated August 29, 2017 (Exh. B); copy
of Plaintiff’s Supplemental Responses to Defendant’s First Set of Interrogatories and Requests for
Production of Documents, dated January 3, 2018 (Exh. C); copy of Plaintiff’s Amended Responses
to Defendant’s First Set of Interrogatories and Requests for Production of Documents, dated
January 10, 2018 (Exh. D); copy of plaintiff’s paycheck from ACMT Inc., dated December 29, 2017
(Exh. E); copies of case law (Exhs. F, G, and J); copy of Plaintiff’s Initial Discovery Responses,
dated December 20, 2016, with Bates Numbers P00029-31 (Exh. H); and copy of Plaintiff’s Initial
Discovery Responses, dated December 20, 2016, with Bates Numbers P00032-33 (Exh. I).
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Six exhibits were attached: emails and correspondence between counsel, dated November
28 and December 11 & 21, 2017, January 3 (with attachment), 10 (with attachment) & 11, 2018
(Exhs. 1-6).

filed its reply brief on February 6, 2018 (Dkt. #50).4 On January 16, 2018, Judge Arterton
referred this motion to this Magistrate Judge. (Dkt. #43; see also Dkts. ##33-36).5
For the reasons stated below, defendant’s Motion to Compel (Dkt. #41) is granted
in part and denied in part.
I. DISCOVERY AT ISSUE
Defendant served plaintiff with its First Set of Interrogatories and Requests for
Production on July 6, 2017 (Dkt. #42, Exh. A), as to which plaintiff first responded on
August 29, 2017 [“Plaintiff’s Response”](id., Exh. B), and again with Supplemental Responses
on January 3, 2018 (id., Exh. C) and Amended Responses on January 10, 2108 (id., Exh. D).
In its pending motion, defendant argues that plaintiff “has interposed inappropriate
objections and failed or otherwise refused to provide full and fair responses to [defendant’s]
[d]iscovery [r]equests[,]” (Dkt. #41, Brief at 3) and her noncompliance “has [obstructed] and
continues to obstruct [defendant’s] ability to secure necessary relevant discovery on material
elements of this case and to evaluate and prepare its defense thereof.” (Id. at 2). Defendant
moves to compel full and fair responses to five categories of discovery requests:
1. discovery requests relating to damages claimed by plaintiff, mitigation of
any such damages, and Affineco’s defense thereof: Interrogatory [“Int.”] Nos.
4, 5, 6, 32; Request [“Req.”] Nos. 3, 4, 7, 16, 22;
2. discovery requests relating to facts, claims, and witnesses: Int. Nos. 8, 13,
14, 17, 18, 21, 27, 30; Req. Nos. 6, 26, 28;

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The following five exhibits were attached: copies of additional court decisions (Exhs. K, M,
O); excerpts from plaintiff’s deposition, taken on January 9, 2018 (Exh. L); and copy of Plaintiff’s
Amended Responses, dated January 19, 2018 (Exh. N).
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Pending before Judge Arterton is defendant’s Motion to Amend/Correct Docket Sheet re
Jury Demand. (Dkts. ##47-48).
A settlement conference is scheduled before U.S. Magistrate Judge Robert A. Richardson
on March 16, 2018. (Dkts. ##49, 52-53).

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3. discovery requests to which plaintiff’s response is incomplete and relies on
or otherwise refers to, in whole or in part, the Complaint: Int. Nos. 14, 16,
22, 23, 28, 29;
4. discovery requests to which plaintiff has failed to produce all responsive
documents in her possession, custody, or control: Req. Nos. 1, 2, 5, 6, 8, 9,
10, 11, 12, 13, 18, 19, 24, 29; and
5. discovery requests to which plaintiff’s responses are incomplete as she fails
to state whether there are any responsive documents in her possession,
custody, or control: Req. Nos. 14, 17, 20, 21, 23, 25, 27.
(Dkt. #41, ¶¶ 1-5; Dkt. #41, Brief at 1-2). Defendant argues that plaintiff has “interposed
inappropriate objections and failed or otherwise refused to provide full and fair responses to
[defendant’s] Discovery Requests.” (Dkt. #41, Brief at 3). Each of defendant’s five categories
of discovery requests will be discussed separately.
II. DISCUSSION
A. DISCOVERY RELATED TO PLAINTIFF’S CLAIMS FOR DAMAGES AND DEFENDANT’S
DEFENSE THEREOF
Defendant seeks a court order that plaintiff fully and fairly respond to discovery
requests relating to her damages claims, any mitigation of those damages, and defendant’s
related defenses, as sought in Int. Nos. 4, 5, 6, and 32, and Req. Nos. 3, 4, 7, 16, and 22.
(Dkt. #41, Brief at 3).
1. INTERROGATORIES NOS. 4 AND 5
Defendant’s Int. No. 4 asks plaintiff to:
[s]tate [her] gross income for the calendar years 2012, 2013, 2014, and for
the period commencing January 1, 2015, up until the time of trial, including
any unemployment compensation, workers’ compensation, welfare, disability
and/or social security benefits received during these time periods, and
hereafter on an annual basis up to and through the time of the trial. . . .
(Id. at 3-4; Dkt. #42, Exh. A at 3-4). For each calendar year, plaintiff is asked to state her
gross income, the source of her income, the amount of income received from each source,

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the business address and telephone number of each source of income, and the date the
income was earned. (Id.). Defendant’s Int. No. 5 asks plaintiff to “[i]dentify and describe all
work for compensation [she] ha[s] performed since January 1, 2012, including all
employment, consulting work and self-employment.” (Dkt. #41, Brief at 5; Dkt. #42, Exh.
A at 4). For all work performed, it further asks plaintiff to state the dates that she worked;
the name of any employer for whom she worked; the name, address, telephone numbers,
and job title of her immediate supervisor; whether she was paid on an hourly or salary basis,
the compensation rate or salary, and the amount earned from each income source during
the calendar year; whether her work was full-time or part-time; the number of hours she
worked each week; and, if she left any work, the reason for leaving. (Id.).
Plaintiff objected that Int. Nos. 4 and 5 are overbroad, unduly burdensome,
oppressive, and not reasonably calculated to lead to the discovery of admissible evidence,
and specifically that they seek information for the time period preceding plaintiff’s
employment at defendant, which is irrelevant to this action. (Dkt. #41, Brief at 4; Dkt. #42,
Exh. B at 5-6). In her brief, plaintiff further argues that the time period before her
employment with defendant is irrelevant because “there is no claim for front pay[.]” (Dkt.
#44, at 1-2). As defendant points out in its reply brief, however, “front pay” continues to be
listed in the Prayer for Relief in the Amended Complaint. (Dkt. #50, at 1, citing Dkt. #19-1,
at 11, ¶2).
In its reply brief, defendant has agreed that, upon proper stipulation, it would “no
longer seek the disclosure of information and/or documents relating to [p]laintiff’s income
and employment that pre-date her employment with [defendant,]” (Dkt. #50, at 1-2), thus
narrowing the requests in Int. Nos. 4 and 5, and Req. Nos. 3, 4, and 22, all of which include

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the time period preceding plaintiff’s employment with defendant. Thus, defendant’s Motion
to Compel with respect to the pre-employent time period in Int. Nos. 4 and 5, and Req. Nos.
3, 4, and 22 is denied without prejudice to renew, only in the event that the parties are
unable to agree upon the anticipated stipulation. 6
With respect to the time period beginning with her employment at defendant, plaintiff
answered that she was employed with defendant from 2013 through November 11, 2015;
that she received approximately $3,380 in unemployment; and that as of March 3, 2017, she
began working for ACMT Technologies “through JobPro making more than she did with the
[d]efendant.” (Dkt. #42, Exh. B at 5-6). Plaintiff’s counsel has represented that plaintiff had
already provided her tax returns for 2014 and 2015, and had no income in 2016, but agreed
to produce her “most recent pay stub for 2017.” (Dkt. #41, Brief at 4; Aff’t, Exh. 3; see also
Dkt. #42, Exh. E).
With respect to Int. No. 4, defendant argues that plaintiff fails to identify her gross
income for 2013, 2014, 2015, 2016, and 2017; identify all sources of income from 2013
through the present; identify the amount of income received from each source; and identify
the business address and telephone number of each source of income. (Dkt. #41, Brief at
9). Defendant asserts that plaintiff also fails to provide any information about compensation
received after her separation with defendant in November 2015 through March 3, 2017,
when she began working for ACMT Technologies, as well as information about income for
work at ACMT Technologies between March 3, 2017 and August 14, 2017. (Id. at 9-10). With
respect to Int. No. 5, defendant argues that plaintiff fails to provide any responsive
information about any employer for whom she worked, and the work that she performed,
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This same conclusion is reached with respect to any and all discovery requests for the
time period prior to plaintiff’s employment with defendant, and shall not be discussed further.

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from 2012 through 2014, and 2015 through March 2017; and fails to provide any responsive
information about her separation from any identified employer for whom she worked. (Id.
at 10).
Plaintiff argues that she “disclosed her income following her termination, to the best
of her recollection[]”; she disclosed that she received approximately $3,380 in unemployment
benefits; she stated that she began working for ACMT Technologies, where she made more
money, as of March 2017; and she provided her 2014 and 2015 tax returns reflecting all
income from those years. (Dkt. #44, at 1-2). Plaintiff acknowledges that at her deposition,
she revealed she had been employed by Advantage Maintenance in 2016, about which
plaintiff previously forgot, but argued that her failure to provide information related to this
employment did not prejudice defendant because “[d]efendant was in possession of
[p]laintiff’s personnel file, application and payroll records for [p]laintiff’s brief employment
with Advantage Maintenance.” (Id. at 2).
“An answer to an interrogatory must be completed within itself and, it should be in
a form that may be used at trial.” Trueman v. New York State Canal Corp., No. 1:09-CV049(LEK/RFT), 2010 WL 681341, at *2 (N.D.N.Y. Feb. 24, 2010)(citation omitted).
Accordingly, defendant should not be required to attempt to answer its own interrogatories
based on the documents plaintiff has produced, especially in light of the fact that defendant
has already found one employer plaintiff “forgot” to previously include. Plaintiff shall
supplement her responses to Int. Nos. 4 & 5 on or before March 9, 2018.
2. INTERROGATORY NO. 32
Defendant’s Int. No. 32 asks plaintiff to “[i]dentify and describe with specificity the
type(s) and amount(s) of all damages and/or compensation [she] claim[s] [d]efendant owes

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[her], including the factual basis therefor and how each category of damages and/or
compensation was calculated.” (Dkt. #41, Brief at 6; Dkt. #42, Exh. A at 18). Plaintiff’s
response was “See Damage Analysis previously provided[.]” (Dkt. #41, Brief at 6; Dkt. #42,
Exh. B at 22). Defendant argues that plaintiff’s reliance on a damages analysis “previously
provided” is improper and should be supplemented with a full and fair response. (Dkt. #41,
Brief at 11, citing Trueman, 2010 WL 681341, at *3). Plaintiff argues that the damages
analysis she has provided outlines her damages and includes how each was calculated, and
that she subsequently provided an updated damages calculation including her income from
an employer she “previously did not recall.” (Dkt. #44, at 2). Because answers to
interrogatories referring to other documents are disfavored, Trueman, 2010 WL 681341, at
*3, plaintiff is ordered to supplement her response to Int. No. 32 on or before March 9,
2018. To the extent that plaintiff’s updated damages analysis is fully responsive to Int. No.
32, answering it will impose no additional burden on plaintiff.
3. REQUESTS NOS. 3 AND 4
Defendant’s Req. No. 3 asks plaintiff to “[p]roduce any and all documents, including,
but not limited to, all federal and state income tax returns, including all statements,
schedules, attachments and amendments thereto, filed and/or prepared by [her] or on [her]
behalf since calendar year 2012, and for each year thereafter up to the time of trial.” (Dkt.
#41, Brief at 6; Dkt. #42, Exh. A at 19). Defendant’s Req. No. 4 asks plaintiff to “[p]roduce
any and all other documents that reflect any income, wages or other compensation earned
or received by [her], from any source, since January 1, 2012, up to the time of trial.” (Dkt.
#41, Brief at 6-7; Dkt. #42, Exh. A at 19). In addition to her objections, plaintiff initially
referred to her “provided tax documents” for 2014 and 2015. (Dkt. #41, Brief at 6; Dkt. #42,

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Exh. B at 7-8). Plaintiff’s counsel has represented that plaintiff had no income in 2016 and
so there was no 2016 tax return, and similarly offered to provide her most recent pay stub
to reflect her income in 2017. (Aff’t, Exh. 3).
Defendant argues that plaintiff has failed to produce any documentation reflecting
income, wages, or other compensation earned from her work at ACMT Technologies between
March 3, 2017 and August 14, 2017. (Dkt. #41, Brief at 11-12). Plaintiff, however, contends
that “[a]s of March 2017[,] [p]laintiff’s back pay is cut off.” (Dkt. #44).

On or before

March 9, 2018, plaintiff shall supplement her responses to include this representation, and
shall provide additional responsive documents, if they exist, up to March 2017.
4. REQUEST NO. 7
Defendant’s Req. No. 7 asks plaintiff to “[p]roduce any and all documents relating to
any claim by [her] for social security, disability and/or welfare benefits at any time.” (Dkt.
#41, Brief at 7; Dkt. #42, Exh. A at 20). Plaintiff responded that she “has not made any
application for Social Security Disability.” (Dkt. #41, Brief at 7; Dkt. #42, Exh. B at 24).
Defendant argues that this response does not fully address Req. No. 7. (Dkt. #41, Brief at
12). Plaintiff has since supplemented her response to Req. No. 7 “to include whether or not
she has received welfare benefits.” (Dkt. #44, at 3). However, as defendant observes,
plaintiff has still not fully addressed the request for any and all documents related to a claim
for social security benefits, disability benefits, and/or welfare benefits. (Dkt. #41 at 12).
Plaintiff is ordered to fully and fairly respond to Req. No. 7 on or before March 9, 2018.
5. REQUEST NO. 22
Defendant’s Req. No. 22 asks plaintiff to “[p]roduce any and all documents
concerning wages, salary, earnings, compensation, employee benefits or any other financial

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benefits received by [her] from any source other than [d]efendant since January 1, 2012.”
(Dkt. #41, Brief at 7; Dkt. #42, Exh. A at 23). Plaintiff objected to the extent that this
request sought “documents for a period of time that [is] irrelevant to the claims of this action
and is overly burdensome.” (Dkt. #41, Brief at 7; Dkt. #42, Exh. B at 28-29). Subject to this
objection, plaintiff referred to “provided tax documents.” (Dkt. #42, Exh. B at 29).
Defendant argues that “documentation that reflects employee benefits or any other financial
benefits received by [p]laintiff from any source other than defendant since 2012[]” is relevant
to plaintiff’s claim for monetary damages. (Dkt. #41, Brief at 12-13)(emphasis in original).
Defendant argues that plaintiff has not responded to the request with respect to any “wages,
salary, earnings, compensation, employee benefits or any other financial benefits” from a
source other than defendant, but during the same time period that she was employed parttime with defendant. (Dkt. #50, at 2). To the extent that plaintiff has produced her tax
documents for the years requested, plaintiff has adequately responded to defendant’s
requests.
6. INTERROGATORY NO. 6 AND REQUEST NO. 16
Defendant’s Int. No. 6 asks plaintiff to “[i]dentify and describe fully every effort
undertaken by [her] to find employment or work from any other person or entity other than
[d]efendant, including self-employment, since November 1, 2015, including, but not limited
to,” the name and contact information for any person, entity, or place to whom she applied
for employment and the date of the application; the response, if any, to each application,
and the date of the response; and the name and address of each person, entity, or place
that offered her employment. (Dkt. #41, Brief at 13; Dkt. #42, Exh. A at 4-5). Plaintiff’s
initial response stated simply: “See documents previously provided, [p]laintiff obtained

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subsequent employment in March 2017.” (Dkt. #41, Brief at 13; Dkt. #42, Exh. B at 6).
Defendant’s Req. No. 16 asks plaintiff to “[p]roduce each document that evidences or reflects
any effort made by [her] to find or to secure employment since November 1, 2015, to the
present and for any period hereafter up to and through the time of trial, and each document
received by [her] from anyone in response to such effort to find or to secure employment.”
(Dkt. #41, Brief at 14; Dkt. #42, Exh. A at 22). Plaintiff’s initial response similarly stated:
“See documents previously provided with [p]laintiff’s initial disclosures. Plaintiff obtained
subsequent employment.” (Dkt. #41, Brief at 14; Dkt. #42, Exh. B at 27).
Defendant argues that because it bears “the evidentiary burden of demonstrating at
trial that a plaintiff has failed to satisfy” her duty to mitigate damages, plaintiff’s failure to
provide information about her efforts to seek subsequent employment are inadequate, and
wholly lacking responsive information from December 20, 2016 through March 2017. (Dkt.
#41, Brief at 14-15)(citations omitted). Plaintiff argues that she has provided all documents
and information in her possession to the best of her recollection, including a “list of jobs that
she applied to[.]” (Dkt. #44, at 4). However, a “list of jobs that she applied to[]” is an
inadequate response to Int. No. 6 and Req. No. 16. As defendant points out in its reply brief,
this fails to include, inter alia, any dates of when she applied to these jobs, which is relevant
to whether plaintiff pursued new employment with reasonable diligence. (Dkt. #50, at 3).
Accordingly, on or before March 9, 2018, plaintiff is ordered to fully and fairly respond
to Int. No. 6 and Req. No. 16, including each subpart; should plaintiff be unable to recall the
answer to any part of these requests, she should so state in her answer.
B. DISCOVERY RELATED TO FACTS, CLAIMS, AND WITNESSES
Defendant moves the Court to order plaintiff to respond fully and fairly to discovery

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requests relating to “facts, claims, and/or witnesses in the present case[,]” specifically: Int.
Nos. 8, 13, 14, 17, 18, 21, 27, and 30, and Req. Nos. 6, 26, and 28. (Dkt. #41, at 1, ¶ 2).7
1. INTERROGATORY NO. 8
Defendant’s Int. No. 8 requests plaintiff to
[i]dentify and describe in detail the job duties [she] performed during [her]
employment with [d]efendant, including, but not limited to: (i) the number
of hours per week spent performing each job duty; (ii) the percentage of
[her] time per week spent performing each job duty; (iii) and the amount of
discretion, if any, that [she] had in performing each duty.
(Dkt. #41, Brief at 16; Dkt. #42, Exh. A at 5). Plaintiff objected that the interrogatory seeks
“information that is already in the [d]efendant’s possession or more easily accessible to the
[d]efendant.” (Dkt. #41, Brief at 16; Dkt. #42, Exh. B at 7). Plaintiff further responded that
when she first started working for defendant, she “was cleaning a private school, she was
then moved to cleaning private offices. Plaintiff’s duties included cleaning everything
bathrooms, windows, vacuum, dusting, etc.” (Id.). While presumably defendant does have
some information about plaintiff’s job duties while under its employ, this knowledge does not
excuse plaintiff from answering Int. No. 4. “[O]ne of the purposes of discovery . . . is to
ascertain the position of the adverse party on the controverted issues.” S.E.C. v. Cymaticolor
Corp., 106 F.R.D. 545, 549 (S.D.N.Y. 1985). Accordingly, “it is irrelevant that the party
seeking discovery already knows the facts as to which he seeks discovery.” Id. To the extent
that plaintiff’s detailed description of her job duties could narrow and define the issues,
plaintiff shall supplement her responses to Int. No. 8 on or before March 9, 2018.

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Defendant’s brief challenges plaintiff’s response to Int. No. 31 (Dkt. #41, Brief at 15, 23,
27), and plaintiff responded in her brief in opposition that she has amended her response to
provide “correct information.” (Dkt. #44, at 6). Defendant does not address Int. No. 31 in its
reply brief, nor was it listed in defendant’s Motion to Compel (Dkt. #41), but it appears that any
issue regarding it is now moot.

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2. INTERROGATORY NO. 13
Defendant’s Int. No. 13 requests plaintiff to “[i]dentify and describe with specificity
the ‘complaints’ made by [her] about: (i) [her] ‘foot problems,’ as alleged in Paragraph 11
of the Complaint; and (ii) [her] ‘foot,’ as alleged in Paragraph 17 of the Complaint.” (Dkt.
#41, Brief at 16; Dkt. #42, Exh. A at 8-9). For each medical complaint, Int. No. 13 asks
plaintiff to state the date and time, substance and method of each complaint, the contact
information of any witnesses to her complaints, and the substance of each response to her
complaints. (Id.). In her Response, plaintiff stated:
Plaintiff made repeated complaints to her supervisor that her foot was
swollen, she also complained that there was supposed to be [two] employees
per floor but because she was placed on a floor all alone it was causing her
increased pain and swelling in her foot which caused her to need to take
frequent breaks.
There was no response other than if she didn’t like the way it was she could
find another job.
(Dkt. #41, Brief at 16-17; Dkt. #42, Exh. B at 11). Plaintiff does not provide the requested
information about what she describes as “repeated” complaints to her supervisor, including
the date and time of these complaints, the method by which she made these complaints, and
the witnesses, if any. Although plaintiff objects that she “cannot recall the exact date and
time of each complaint[,]” (Dkt. #44, at 5), unverified statements made in an opposition to
a motion to compel by plaintiff’s counsel are not proper responses to interrogatories. On or
before March 9, 2018, plaintiff shall supplement her response to specifically state what,
if anything, she can recall; her answers should include dates, times, and witnesses, as well
as the method by which she conveyed her complaints, and an elaboration, if applicable, of
the substance of each complaint.

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3. INTERROGATORY NO. 14
Defendant’s Int. No. 14 addresses plaintiff’s claim in Paragraph 17 of the Complaint
that “Hyman constantly harassed [her] about her not being able to work fast enough after
her work injury,” and asks her to identify and describe with specificity: each date and time
she claims Hyman harassed her; the method by which Hyman harassed her; the substance
of each communication made by Hyman in which plaintiff claims he harassed her; plaintiff’s
response, if any, to each communication made by Hyman in which she claims he harassed
her; the contact information of any person who witnessed a communication in which Hyman
harassed her; and whether plaintiff notified or otherwise communicated to any employee,
agent, or representative of defendant that Hyman harassed her, and if there were any such
instances, address six sub-questions about each communication. (Dkt. #41, Brief at 17; Dkt.
#42, Exh. A at 9-10). In her initial response, plaintiff stated:
See facts in Complaint. The supervisor harassed [p]laintiff in person about not
working fast enough ever since [p]laintiff injured her foot until the end of her
employment. The supervisor would tell [p]laintiff that the doctors and nurses
who worked at the offices [p]laintiff cleaned were complaining that she wasn’t
fast enough. Plaintiff asked one of the nurses herself who told [p]laintiff that
they did not complain.
(Dkt. #41, Brief at 18; Dkt. #42, Exh. B at 11-12). Claims by plaintiff’s counsel in opposition
to the pending motion that, “[p]laintiff cannot recall the exact date and time of each
communication[,]” (Dkt. #44, at 5) are not proper interrogatory responses. Plaintiff’s
response ignores defendant’s request for the date and time of any harassment, the name
and contact information of any witnesses to these communications, and, importantly,
whether she notified or communicated anything about this harassment to defendant’s agents
or representative, as asked in Int. No. 14(g)(i)-(vi). Plaintiff shall supplement her response,
and if she does not recall responsive information or there is nothing more to add to her

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response, she shall so state on or before March 9, 2018.
4. INTERROGATORIES NOS. 17 AND 21
Defendant’s Int. No. 17 asks, with respect to plaintiff’s allegation related to seeking
a leave of absence to care for her father, that plaintiff identify and describe each date on
which she requested this leave, whether the request was oral or written, the substance of
each such request, the contact information of any representative of defendant to whom she
made the request, the substance of each response, the contact information of any witnesses
to any requests, all documents concerning each request, and all documents used,
considered, or relied upon by her in responding to this interrogatory. (Dkt. #41, Brief at 18;
Dkt. #42, Exh. A at 11-12). Plaintiff responded that, “[i]n a letter dated October 30, 2015
[p]laintiff requested [two] weeks off starting November 12, 2015 until November 23, 2015
in order to deal with a family emergency in Puerto Rico. Plaintiff gave the request to Santino
(last name unknown).” (Dkt. #41, Brief at 18; Dkt. #42, Exh. B at 14-15).
Defendant’s Int. No. 21 asks, with respect to the allegation in the complaint that
“Santino told the plaintiff that she would be okay for her leave,” to identify and describe each
date “Santino told the plaintiff that she would be okay for her leave”; the methods by which
Santino communicated this to plaintiff; the substance of each such communication made by
Santino, including the exact words; the contact information of any witnesses to such
communication by Santino to plaintiff; all documents concerning any such communication;
and all documents used, considered or relied upon by plaintiff in responding to this
interrogatory. (Dkt. #41, Brief at 19; Dkt. #42, Exh. A at 12-13). Plaintiff responded that
“Santino told [p]laintiff it would be okay to take the time off at some point after [p]laintiff
provided her letter dated October 30, 2015, this was told to [p]laintiff in person.” (Dkt. #41,
Brief at 19; Dkt. #42, Exh. B at 16).

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Plaintiff has adequately responded to Int. Nos. 17 and 21, but plaintiff also objects
on the grounds that “[she] gave further information during her sworn testimony at her
deposition.” (Dkt. #44, at 5). “An answer to an interrogatory must be completed within itself
and, it should be in a form that may be used at trial. . . . Reference to depositions, other
answers to the interrogatories, other document production, the complaint itself, or any other
documents are improper and unresponsive.” Trueman, 2010 WL 681341, at *2-3 (citations
omitted). To the extent that plaintiff provided any additional responsive information in her
deposition, on or before March 9, 2018, plaintiff shall supplement her answers to Int.
Nos. 17 and 21 such that it fully responds to these interrogatories and includes any additional
or corrective responsive information, about which she testified at her deposition.
5. INTERROGATORY NO. 18
Defendant’s Int. No. 18 asks plaintiff to:
[i]dentify and describe the complete factual basis for the allegation contained
in Paragraph 30 of the Second Count and Third Count of the Complaint, that
[p]laintiff was (i) “an eligible employee under FMLA”; and (ii) “entitled to jobprotected leave under the FMLA.” In responding . . ., state whether [she]
contend[s] that [her] need for “job-protected leave under FMLA” was
foreseeable.
(Dkt. #41, Brief at 19; Dkt. #42, Exh. A at 12). Plaintiff responded that she had been
employed by defendant for more than twelve months; she “believes she worked at least
1250 hours in the prior [twelve] months[;]” and the defendant “has [fifty] or more
employees within a [seventy-five] mile radius.” (Dkt. #41, Brief at 19; Dkt. #42, Exh. B at
15). Plaintiff further responded that she “informed . . . her supervisor she needed [two]
weeks off because her father had cancer, [d]efendant, was on notice of [p]laintiff’s need for
FMLA.” (Id.). Defendant argues that plaintiff has not fully responded to the extent that she
does not state whether her need for job-protected leave under FMLA was foreseeable. (Dkt.

15

#41, Brief at 25). However, as plaintiff states in her response, defendant “was on notice of
[plaintiff’s] need for FMLA[,]” (Dkt. #42, Exh. B at 15), so that plaintiff argues that defendant
knew the FLMA leave was foreseeable. (Dkt. #44, at 5). Thus, plaintiff has adequately
responded to this discovery request.
6. INTERROGATORY NO. 27
Defendant’s Int. No. 27 asks plaintiff to identify and describe the complete factual
basis for the allegation in paragraph 31(c) of the Fifth Count and the Sixth Count of the
Complaint, that defendant “discriminated against [p]laintiff for requiring a reasonable
accommodation[,]” and to specifically state each “reasonable accommodation” she required,
whether such a “reasonable accommodation” existed at the time of plaintiff’s alleged “real
or perceived” disability; each essential function of plaintiff’s job that such a “reasonable
accommodation” would have allowed her to perform; and whether she communicated to
defendant that she needed or otherwise required any such “reasonable accommodation” and,
if so, answer six sub-questions about any such communication. (Dkt. #41, Brief at 20; Dkt.
#42, Exh. A at 14-15). Plaintiff responded that she “needed to sit frequently during [her]
shift, her supervisor was aware of this. Defendant terminated [p]laintiff.” (Dkt. #41, Brief at
20; Dkt. #42, Exh. B at 18). Plaintiff has failed to respond to a majority of Int. No. 27. For
example, plaintiff does not describe “[e]ach essential function of [her] job that such a
‘reasonable accommodation’ would have allowed [her] to perform[,]” and, given she claims
her supervisor was aware that she needed such a “reasonable accommodation,” plaintiff is
required to answer Int. No. 27(d)(i)-(d)(v), which relate to communications plaintiff had with
defendant about this “reasonable accommodation.” Plaintiff shall supplement her response
to Int. No. 27 on or before March 9, 2018.

16

7. INTERROGATORY NO. 30
Defendant’s Int. No. 30 asks plaintiff to identify and describe the reasons for her
absence on thirty-nine specific days from her scheduled shift with defendant. (Dkt. #41, Brief
at 21-22; Dkt. #42, Exh. A at 16-17). Plaintiff’s response states that “it may be impossible
for [her] to recall each and every instance of when she was absent and why,” but she “has
a present recollection” of “particulars” for eleven of those days; for eleven dates, plaintiff
specified that she attended a doctor’s appointment related to her workers’ compensation
injury, “had a doctor’s note[,]” or received a steroid injection. (Dkt. #41, Brief at 22-23; Dkt.
# 42, Exh. B, at 19-21). Defendant’s brief specifies seven particular dates for which
defendant seeks explanations of plaintiff’s absences. (Dkt. #41, Brief at 26-27). It is
sufficient to state, under oath, lack of knowledge as an answer, under oath, when a party
does not have the knowledge or information necessary to answer an interrogatory.
Nicholson v. United Techs. Corp., 697 F. Supp. 598, 608 (D. Conn. 1988). Accordingly,
plaintiff’s had adequately responded to Int. No. 30.
8. REQUEST NO. 68
Defendant’s Req. No. 6 asks plaintiff to “[p]roduce any and all documents relating to
any claim by [her] for workers’ compensation benefits since January 1, 2012.” (Dkt. #42,
Exh. A at 20). Plaintiff’s Response objected to the extent that Req. No. 6 sought documents
from an irrelevant time period and is overly burdensome, and otherwise responded that “[a]ll
unemployment documents in [p]laintiff’s possession were provided in response to [p]laintiff’s
Initial Disclosures[,]” (Dkt. #42, Exh. B at 24), and plaintiff produced the Notice of Claim filed
with the State of Connecticut’s Workers’ Compensation Commission, and “provided a copy

8

This request is not addressed in the body of defendant’s brief, but is included in both lists
of discovery requests at issue.

17

of the full and final stipulation of her workers’ compensation claim which is the only benefits
[p]laintiff received.” (Dkt. #44, at 7). Plaintiff has adequately responded to Req. No. 6.
9. REQUEST NO. 26
Defendant’s Req. No. 26 asks plaintiff to produce “any and all telephone records”
from August 1, 2014 through December 1, 2015, “for each telephone number used by [her]
to communicate with any employee, representative or agent of [d]efendant concerning
and/or relating to [her] employment with [d]efendant, or for which [she was] an account
holder and/or subscriber, including, but not limited to” three particular phone numbers. (Dkt.
#41, Brief at 23; Dkt. #42, Exh. A at 24-25). Plaintiff’s Response, provided under oath,
stated that she “contacted her phone company and was told records this far back would not
be available.” (Dkt. #41, Brief at 23; Dkt. #42, Exh. B at 29-30). Plaintiff has provided a
sufficient answer.
10. REQUEST NO. 28
Defendant’s Req. No. 28 asks plaintiff to produce “any and all documents concerning
and/or relating to [her] ‘trip to take care of [her] father,’ as alleged in Paragraph 25 of the
Complaint.” (Dkt. #41, Brief at 23; Dkt. #42, Exh. A at 25). Plaintiff responded simply: “See
flight information previously provided with [p]laintiff’s initial disclosures.” (Dkt. #41, Brief at
23; Dkt. #42, Exh. B at 30). Defendant argues that the information plaintiff provided
demonstrates that she booked travel to San Juan, Puerto Rico from November 13, 2015
through November 23, 2015, but fails to demonstrate that she actually traveled on those
dates and was in Puerto Rico during that time period. (Dkt. #41, Brief at 27). Defendant
argues that plaintiff must “supplement her production . . . to include documents that
demonstrate that she did, in fact, travel in conformity with the Expedia itinerary produced
by her.” (Id. at 27-28). On or before March 9, 2018, plaintiff shall supplement her

18

response to Req. No. 28 to the extent that she has additional documents confirming her
travel to and from Puerto Rico.
C. DISCOVERY TO WHICH PLAINTIFF’S RESPONSE IS INCOMPLETE AND RELIES ON
OR REFERS TO THE COMPLAINT
Defendant moves the Court to order plaintiff to respond fully and fairly to Int. Nos.
14,9 16, 22, 23, 28, and 29, because “[p]laintiff’s response is incomplete and relies on or
otherwise refers to, in whole or in part, the ‘Complaint.’” (Dkt. #41, Brief at 29-32). Answers
to interrogatories that reference depositions, other answers to interrogatories, other
document production, the complaint itself, or any other documents are improper and thus
unresponsive. Trueman, 2010 WL 681341, at *3, citing Poulio v. Paul Arpin Van Lines, Inc.,
No. 3:02 CV 1302 (DJS), 2004 WL 1368869, at *2 (D. Conn. June 14, 2004)(noting that
other courts have held that a party may not incorporate deposition testimony or rely upon
future depositions in lieu of complete responses to interrogatories)(additional citations
omitted). “Because Rule 33(b)(1) requires a party to answer each interrogatory ‘fully,’ it is
technically improper and unresponsive for an answer to an interrogatory to refer to outside
material, such as pleadings, depositions, or other interrogatories.” Equal Rights Ctr. v. Post
Props., Inc., 246 F.R.D. 29, 35 (D.D.C. 2007), citing 7-33 MOORE’S FEDERAL PRACTICE-CIVIL §
33.103 (additional citations omitted); see also Williams v. Johanns, 235 F.R.D. 116, 123
(D.D.C. 2006)(answers to interrogatories seeking specific facts underlying a claim were
inadequate where party referred to their original and amended complaint).
Plaintiff’s response to Int. No. 16 is adequate, and plaintiff has supplemented her
responses to Int. Nos. 28-29. (See Dkt. #50, Exh. N at 4). However, plaintiff shall provide
supplemental responses to Int. Nos. 22 and 23 on or before March 9, 2018.

9

Interrogatory No. 14 already has been addressed in Section II.B.3 supra.

19

D. DISCOVERY TO WHICH PLAINTIFF HAS FAILED TO PRODUCE ALL RESPONSIVE
DOCUMENTS IN HER POSSESSION, CUSTODY, OR CONTROL
Defendant moves the Court to order plaintiff to respond fully and fairly to Req. Nos.
1-2, 5-6,10 8-13, 18-19, 24, and 29, for which plaintiff has “failed to produce all responsive
documents in her possession, custody, or control.” (Dkt. #41, Brief at 32-36). For Nos. 1, 2,
5, 8, 13, 18-19, and 29, plaintiff responded that all responsive documents in her possession
have already been provided, and for Nos. 10-12, and 24, she answered that no responsive
documents are in her possession. (Dkt. #42, Exh. B at 23-30). Defendant rightfully notes
that some of these answers are not fully responsive; plaintiff’s obligation is to produce
responsive items in her possession, custody or control. FED. R. CIV. P. 34(a)(1). “That a party
does not possess documents is simply immaterial if those documents remain in that party’s
custody or control.” Scott v. Arex, Inc., 124 F.R.D. 39, 41 (D. Conn. Jan. 23, 1989)(citations
& internal quotations omitted)(Smith, M.J.). Further, the word “control” is to be broadly
construed such that “[a] party controls documents that it has the right, authority, or ability
to obtain upon demand.” Id. (internal citations omitted).
Requests Nos. 10-12 concern all documents in plaintiff’s possession regarding her job
responsibilities, conduct at defendant that she characterizes as discrimination or retaliation,
and all “complaints” by her regarding her foot. Accordingly, on or before March 9, 2018,
plaintiff is directed to produce the documents in question, or to provide defendant’s counsel
with an affidavit detailing whether any such documents are in the possession of people or
entries other than defendant, and if so, what attempts plaintiff has made to obtain these
documents, when she made them, and to whom her demands were addressed. Plaintiff,
however, need not produce any of her deceased father’s medical records, as requested in

10

Req. No. 6 already has been addressed in Section II.B.8 supra.

20

No. 24.
E. DISCOVERY TO WHICH PLAINTIFF’S RESPONSE IS INCOMPLETE BECAUSE SHE
FAILS TO STATE WHETHER THERE ARE ANY RESPONSIVE DOCUMENTS IN HER
POSSESSION, CUSTODY, OR CONTROL
Defendant moves the Court to order plaintiff to respond fully and fairly to Req. Nos.
14, 17, 20-21, 23, 25, and 27, to each of which plaintiff only answered “N/A.” Defendant
argues that plaintiff’s response “is incomplete as she fails to state whether there are any
responsive documents in her possession, custody, or control.” (Dkt. #41, Brief at 38-40).
Plaintiff objects that for each request that she answered “N/A,” she so responded because
“there are no responsive documents. . . .” (Dkt. #44, at 8).

Consistent with Section II.D

supra, on or before March 9, 2018, plaintiff is directed to file supplemental responses to
these discovery requests, in which she provides, under oath, that there are no responsive
documents, instead of just writing “N/A,” and plaintiff is to provide defendant’s counsel with
an affidavit detailing whether any such documents are in the possession of people or entities
other than defendant, and if so, what attempts plaintiff has made to obtain these documents,
when she made them, and to whom her demands were addressed.
F. DEFENDANT’S REQUEST FOR ATTORNEY’S FEES
Defendant further moves the Court for reimbursement of its costs and reasonable
attorney’s fees incurred in making this motion, pursuant to FED. R. CIV. P. 37(a)(5) and Local
Rule 37(d), and offered to provide “an affidavit setting forth the cost and attorney’s fees
incurred . . . in preparing this [m]otion upon request.” (Dk t. #41, Brief at 40, n. 10).
When a motion to compel discovery is granted, the Court must, after providing an
opportunity to be heard, require the party whose conduct necessitated the motion to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees. FED.
R. CIV. P. 37(a)(5)(A). Because this Rule seeks to deter abusive conduct in the discovery

21

process, there is a presumption in favor of imposing expense-shifting sanctions against a
party who unsuccessfully litigates a motion to compel. Saliga v. Chemtura Corp., No. 3:12
CV 832 (VAB), 2016 WL 3093355, at *1 (D. Conn. June 1, 2016)(citations omitted)(Martinez,
MJ). An award of expenses is mandatory unless “‘(i) the movant filed the motion before
attempting in good faith to obtain the disclosure or discovery without court action; (ii) the
opposing party’s nondisclosure, response, or objection was substantially justified; or (iii)
other circumstances make an award of expenses unjust.’” Mirlis v. Greer, No. 3:16 CV 678
(MPS), 2016 WL 7013452, at *1 (D. Conn. Nov. 30, 2016)(Martinez, MJ), quoting FED. R. CIV.
P. 37(a)(5)(A). Rule 37(a)(5)(C) provides that if a motion for an order compelling discovery
is granted in part and denied in part, the court may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion. Defendant previously attempted to
resolve these discovery disputes without court intervention, and plaintiff has not set forth
other circumstances, which would make an award of expenses unjust. Where defendant’s
motion was granted, plaintiff’s nondisclosures were not substantially justified. As this ruling
grants in part defendant’s motion, defendant is entitled to attorney’s fees associated with the
parts of the motion that are granted. However, the Magistrate Judge holds in abeyance all
further filings regarding the amount of fees until after Judge Arterton has ruled upon the
pending Motion for Summary Judgment.11
III. CONCLUSION
Accordingly, for the reasons stated above, defendant’s Motion to Compel (Dkt. #41)
is granted in part and denied in part, as follows:

11

See note 1 supra.

Any renewed Motion for Attorney’s Fees will be addressed either by Judge Arterton or the
next U.S. Magistrate Judge to be assigned this file.

22

on or before March 9, 2018, plaintiff shall supplement her responses to:
(1) Interrogatories Nos. 4-5 and Requests Nos. 3-4; 12
(2) Interrogatory No. 32;
(3) Request No. 7;
(4) Interrogatory No. 6 and Request No. 16;
(5) Interrogatories Nos. 8, 13, 14, 17, 21, and 27 and Request No. 28;
(6) Interrogatories Nos. 22 13-23;
(7) Request Nos. 10-12, with respect to all responsive documents she has in her
possession, custody or control, or to provide defendant’s counsel with an affidavit detailing
what whether any persons or entities other than defendant has them in their possession, and
if so, attempts plaintiff made to obtain those documents, when she made them, and to
whom her demands were addressed, in accordance with F ED. R. CIV. P. 34(a)(1);
(8) Request Nos. 14, 17, 20-21, 23, 25 and 27, by filing a supplemental response that
specifically indicates there are no responsive documents, instead of simply answering “N/A,”
and plaintiff shall provide defendant’s counsel with an affidavit detailing whether any such
documents are in the possession of people or entries other than defendant, and if so, what
attempts plaintiff has made to obtain these documents, when she made them, and to whom
her demands were addressed.
Defendant’s Motion is denied with respect to:
(1) Request Nos. 1, 2, 5, 6, 8, 13, 18-19, 22, 24, 26 and 29; and,
(2) Interrogatory Nos. 16, 18, 28, 29 and 30.

12

See note 6 supra, which applies to all requests for a time period prior to plaintiff’s
employment with defendant.
13

See note 6 supra.

23

Defendant’s request for attorney’s fees and costs for having brought this motion is
granted in part with respect to the discovery requests upon which it prevailed in this motion,
consistent with Rule 37(a)(5)(C), with all further filings held in abeyance until after Judge
Arterton rules on the pending Motion for Summary Judgment.14
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a) & 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) & 72; Rule 72.2 of
the Local Rules for United States Magistrate Judges, United States District Court for the
District of Connecticut; Impala v. United States Dept. of Justice, 670 F. App’x 32 (2d Cir.
2016)(failure to file timely objection to Magistrate Judge’s recommended ruling will preclude
further appeal to Second Circuit); cf. Small v. Sec'y, 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).
Dated at New Haven, Connecticut, this 26th day of February, 2018.

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

14

See note 11 supra.

24

____