Wang v. API Technologies Corporation

Filing 71

Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: For the reasons stated above, plaintiff's Motion to Compel Disclosure and For Appropriate Sanctions to Defendant is allowed to the extent that it seeks (i) "the name and , if known, the address and telephone number" of the former Quality Manager and the 2019 Quality Manager," and (ii) all "notes, emails, memorandums and writings" relating to the 2019 Quality Manager's applications and interviews. Defendant shall produce all discovery ordered by no later than November 17, 2023. Plaintiff's motion, including his request for sanctions and fees, is otherwise DENIED. Please see attached order. (Vieira, Leonardo)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

WEIXING V. WANG,
Plaintiff,
v.

CIVIL ACTION NO. 1:22-12002-PBS

API TECHNOLOGIES CORPORATION,
Defendant.

MEMORANDUM AND ORDER
ON PLAINTIFF WEIXING V. WANG’S MOTION TO COMPEL DISCLOSURE
AND FOR APPROPRIATE SANCTIONS TO DEFENDANT (#65)
KELLEY, U.S.M.J.
In this employment discrimination lawsuit, plaintiff Weixing Wang, proceeding pro se,
alleges that defendant API Technologies Corporation (“API”) did not hire him for an open quality
manager position because of his national origin, race, and age in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment
Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), and Mass. Gen. Laws ch. 151B § 4. (#1-1); (#24).
Plaintiff now moves the court to compel defendant to supplement its initial disclosures and
responses to plaintiff’s interrogatories and requests for production (“RFPs”), and to award plaintiff
$2,000 in fees. (#65). Defendant opposed. (#68.) For the following reasons, plaintiff’s motion
is ALLOWED in part and DENIED in part.

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I.

Background.
In 2019, plaintiff applied for an open quality manager position at the API Marlborough
location. (#1-1 at 3); (#68 at 1). He alleges that he completed two telephone interviews in August
2019, after which he expected to be invited on-site for an in-person interview. (#1-1 at 4.) Instead
of an in-person interview, however, API requested plaintiff complete a third telephone interview,
after which he was informed that he was not selected for the position. Id. at 4-5. Plaintiff claims
that API hired a less-qualified Caucasian man who is eight years younger than plaintiff (the “2019
Quality Manager”). Id. at 11-12.
During his interviews with API, plaintiff claims that he was subjected to discriminatory
questioning regarding his education and qualifications because he completed his bachelor’s and
master’s degrees in China, before completing a PhD at McGill University in Montreal, Canada.
Id. at 6-7. Moreover, he alleges that the open quality manager position materialized only after API
terminated its previous quality manager (the “Former Quality Manager”), who was allegedly, like
plaintiff, from China. Id.
Following API’s decision not to hire him, plaintiff filed a complaint with the Massachusetts
Commission Against Discrimination (“MCAD”), claiming he had been discriminated against
based on his national origin, race, and age. (#1-2.) In August 2022, he filed suit in Massachusetts
Superior Court asserting largely the same claims. (#1-1 at 3.) On November 22, 2022, API
removed to this court. (#1.)

II.

Plaintiff’s Motion to Compel (#65).
Plaintiff moves the court to compel defendant to supplement its initial disclosures and
produce certain information in response to his interrogatories and RFPs. (#65.) He asserts that
defendant has been “hiding” information and “playing. . . game[s]” in violation of Fed. R. Civ. P.

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26(a)(1)(A), 33, and 34. Id. ¶¶ 3, 7, 9. Specifically, plaintiff claims that defendant’s responses are
deficient as to (i) “the name and, if known, the address and telephone number” of the former
Quality Manager, the 2019 Quality Manager, and the individuals who participated in the decision
not to hire plaintiff, id. ¶ 1; and (ii) “notes, emails, memorandums [sic] and writings relating to all
the interviews,” id. ¶ 2. Plaintiff also asserts that defendant has not responded fully to his
deficiency letter, which identifies twenty deficiencies in defendant’s responses to plaintiff’s RFPs
and eighteen deficiencies in its responses to plaintiff’s interrogatories, see id. ¶¶ 4-5; however,
plaintiff neither identified the particular issues in his motion nor attached the letter to his moving
papers. In sum, plaintiff requests that the court compel defendant to “disclose all the information
requested by plaintiff in the Discovery of this case,” and pay plaintiff $2,000 in sanctions to
compensate him for “the extra time spent on preparing” this motion. Id. at 5 & ¶ 8.
Defendant asserts that it has completed at least two full searches of its records and that it
has produced all relevant, non-privileged information that exists in response to plaintiff’s requests.
See #68 at 4-5. It also argues that plaintiff has failed to show that the requested discovery is
relevant or that API’s responses are incomplete, as required by Fed. R. Civ. P. 37. (#68 at 6-7.)
In addition, defendant explained that, around two weeks after plaintiff served his first set
of interrogatories and RFPs, plaintiff served “revised” copies to “replace” the set that he originally
served on August 9, id. at 2-3. Both parties seem to agree that plaintiff’s second set of discovery
requests were meant to add clarity and address typos, and that the second version was “largely
duplicative” of the first set and “did not materially change the substance of any of Plaintiff’s
requests.” Id. at 3; see #68-4. Accordingly, the court will consider purported deficiencies in
relation to defendant’s responses to plaintiff’s second set of RFPs and interrogatories, see #68-7,
and defendant’s supplemental responses to it, see #68-9.

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III.

Relevant Law.
Federal Rule of Civil Procedure 26(b)(1) permits a party to obtain discovery that is
“‘relevant to any party’s claim or defense.’” Gardner v. Cape Cod Healthcare, Inc., 344 F.R.D.
127, 132 (D. Mass. 2023) (quoting Fed. R. Civ. P. 26(b)(1)). “[B]ecause ‘discovery itself is
designed to help define and clarify the issues, the limits set forth in Rule 26 must be construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matters that
could bear on, any issue that is or may be in the case.’” Martin v. Evans, No. 16-cv-11362-PBS,
2018 WL 10247394, at *1 (D. Mass. Feb. 6, 2018) (quoting Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 (1978)).
“Without awaiting a discovery request,” Rule 26(a)(1) requires parties to disclose, among
other things, “the name and, if known, the address and telephone number of each individual likely
to have discoverable information—along with the subjects of that information—that the disclosing
party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1). Rule 33 permits parties
to serve twenty-five written interrogatories that “relate to any matter that may be inquired into
under Rule 26(b),” Fed. R. Civ. P. 33(a), and Rule 34 governs requests for production of documents
and electronically stored information, which are allowed “within the scope of Rule 26(b),” Fed. R.
Civ. P. 34. “If a party fails to make a disclosure required by Rule 26(a),” “fails to answer an
interrogatory submitted under Rule 33,” or “fails to produce documents . . . as requested under
Rule 34,” the requesting party may move to compel disclosure and for appropriate sanctions. Fed.
R. Civ. P. 37(a).

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IV.

Discussion.
A. Plaintiff’s Reply (#69).
As an initial matter, plaintiff filed a reply, see #69, without requesting leave to do so. This
violates Local Rule 7.1(b)(3). Because plaintiff did not request leave to file his reply, the court
does not have to consider it, and the court may strike it from the record. See Gauthier v. United
States, No. 4:10-cv-40116-FDS, 2011 WL 3902770, at *11 (D. Mass. Sept. 2, 2011) (“Plaintiffs
did not seek leave to file additional briefings. . . so the submission clearly violates [Local Rule
7.1(b)(3)]. Ostensibly, this error provides a basis for the Court to strike the briefs in their
entirety.”). In the interest of efficiency, however, the court has considered plaintiff’s reply in
deciding this order. See id. (recognizing district courts have “‘great leeway in the application and
enforcement of its local rules,’” and declining to strike the brief under the particular circumstances
of the case (quoting United States v. Roberts, 978 F.2d 17, 20 (1st Cir. 1992)). That said, the court
did not consider arguments that plaintiff did not include in his initial motion and raised for the first
time in his reply brief. Such arguments “are considered waived.” Gov't Emps. Ins. Co. v. Barron
Chiropractic & Rehab., P.C., No. 1:16-CV-10642-ADB, 2017 WL 3526255, at *15 n.13 (D. Mass.
Aug. 16, 2017); see Doe v. Lahey Health Sys., Inc., No. 19-cv-11014-PBS, 2020 WL 13561720,
at *5 n.4 (D. Mass. Aug. 12, 2020) (“A reply brief is not an opportunity to raise new arguments.”).
With respect to all future filings, if either party would like to file a reply or sur-reply in
support of their motion or opposition, they must request leave before doing so; if they do not, the
court will not consider the filing. L.R. 7.1(b)(3).
B. This Motion (#65).
To begin, plaintiff failed to comply with Local Rule 37.1 because he did not “state with
particularity” “[e]ach interrogatory . . . request for production . . . or other discovery matter raising

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an issue to be decided by the court, and the response thereto.” Plaintiff did not quote the RFPs or
interrogatories to which plaintiff claims defendant did not respond fully; he did not quote
defendant’s responses that he claims are deficient; and he did not attach the information to his
motion. Therefore, the court will address only the two issues that plaintiff clearly outlined in his
motion. 1
First, plaintiff seeks “the name and, if known, the address and telephone number” of the
Former Quality Manager, the 2019 Quality Manager, and the individuals who participated in the
decision not to hire plaintiff, #65 ¶ 1. Defendant seems to have already produced the information
requested as to the individuals who participated in the decision not to hire plaintiff, see #68 at 7;
#68-9; #68-10, so plaintiff’s motion is denied as moot as to this information.
Defendant argues that the Former Quality Manager and the 2019 Quality Manager do not
have any discoverable information and therefore were not included in defendant’s initial
disclosures. (#68 at 7.) The court disagrees with defendant’s relevancy argument. Plaintiff claims,
in part, that he was not hired for the Quality Manager position due to his race and national origin.
He further alleges that defendant terminated the Former Quality Manager who had the same race
and national origin as plaintiff, which purportedly demonstrates that defendant held a general

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Plaintiff references in his reply a “MEMORANDUM OF LAW IN SUPPORT OF PLAITIFF’S
[sic] MOTION TO COMPEL DISCLOSURE AND APPROPRAITE SANCTIONS TO
DEFENDANT” that was not filed with plaintiff’s original motion (or at any other time). See #69
at 2. The court assumes that plaintiff inadvertently filed a duplicate copy of his motion instead of
his memorandum of law. See #67 (duplicate motion). To the extent this order does not address
issues raised in plaintiff’s memorandum of law, plaintiff may re-raise such issues in a separate
filing, assuming the issues are not already addressed in plaintiff’s recently filed motion for
sanctions, see #70. Plaintiff is cautioned, however, that he cannot seek to compel “all the
information” that he has requested in discovery “of this case.” He must specify what discovery
has not been produced and why he believes that specific discovery must be produced in compliance
with Local Rule 37.1. Moreover, when plaintiff seeks to file a memorandum of law in support of
a motion, he must ensure that he has filed the memorandum on the docket.
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animus toward individuals from China. The Former Quality Manager thus may have discoverable
information pertaining to, for example, his treatment by defendant while employed at API and the
cause for his termination. Plaintiff also alleges that the 2019 Quality Manager was a younger,
Caucasian male who was less qualified for the role than plaintiff. The 2019 Quality Manager may
have discoverable information pertaining to, for example, his qualifications for the position, and
his experience and treatment by defendant during the application and interview process. Either
may tend to show that plaintiff was treated differently by API than more successful candidates.
Such discovery is relevant under the liberal standard of Fed. R. Civ. P. 26(b).
Nevertheless, if defendant does not intend to call either witness in support of its defenses,
it need not include their names and contact information in its initial disclosures under Fed. R. Civ.
P. 26(a)(1)(A)(i). See AnywhereCommerce, Inc. v. Ingenico, Inc., No. 19-cv-11457-IT, 2021 WL
2256273, at *3 (D. Mass. June 3, 2021) (noting “initial disclosures are primarily a tool for a party
to share the factual and legal contentions underlying their own cases, not witnesses or material that
may be helpful to the opposing party” (emphasis in original)). So, the court denies plaintiff’s
motion to the extent it seeks to compel defendant to supplement its Rule 26(a)(1) initial disclosures
to include this information.
Plaintiff has, however, requested this information pursuant to Fed. R. Civ. P. 33 and 34.
Plaintiff’s RFP Nos. 12 and 13 request the personnel files for the Former Quality Manager and the
2019 Quality Manager, respectively. See #68-2 at 3. To the extent the files contain such basic
information as the individuals’ names and last known telephone numbers and addresses, that
information must be produced. 2 Similarly, plaintiff’s Interrogatory Nos. 15 and 16 request, inter

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In his motion, plaintiff did not seek, and the court is not requiring defendant to produce, the nonparties’ complete personnel files, to which those individuals have a strong personal privacy
interest. See Whittingham v. Amherst Coll., 164 F.R.D. 124, 127-28 (D. Mass. 1995) (“[P]ersonnel
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alia, “the name, address, telephone number, age gender, race, color and origin of nationality on
the date of hire” of the Former Quality Manager and the 2019 Quality Manager, respectively. See
id. at 11. 3 Plaintiff’s motion is allowed as to the information listed here, as this information is
relevant to his claims.
Second, plaintiff seeks “notes, emails, memorandums and writings relating to all the
interviews.” (#65 ¶ 2.) Defendant claims that it has responded fully to plaintiff’s request by
producing “thirty-five pages of documents relating to Plaintiff’s three phone interviews.” (#68 at
8.) However, plaintiff requested documents related to “all the interviews,” not only his own. The
court interprets plaintiff’s request to include “notes, emails, memorandums and writings” related
to the 2019 Quality Manager’s hiring process, which plaintiff requested in RFP No. 5. See #86-7
at 6 (RFP No. 5 requesting documents “relating to all the interviews conducted to the new hired
Quality Manager in 2019 by Defendant”). Such information is clearly relevant under Fed. R. Civ.
P. 26(b) as it may show, for instance, the 2019 Quality Manager’s qualifications for the position,
and his treatment by defendant during the application and interview process. Plaintiff’s motion is
thus ALLOWED to the extent that defendant has not produced to plaintiff all “notes, emails,
memorandums and writings” relating to the 2019 Quality Manager’s applications and interviews.
Finally, although plaintiff did not raise the issue directly, the court is concerned by
defendant’s apparent interpretation of “discrete subparts” in some of its responses to plaintiff’s
files contain perhaps the most private information about an employee within the possession of an
employer. Nonetheless, Plaintiff requests the Court to order the Defendant to hand over entire files
of employees without any particularized showing that any, let alone all, of the information therein
is relevant to his claims. Again, while discovery is usually broad, Plaintiff has not demonstrated
that the files he seeks, even if marginally relevant, outweigh the privacy interests of these
individuals.”).
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Although plaintiff’s interrogatories are somewhat ambiguous as to whether plaintiff is requesting
the individuals’ names, addresses, and telephone numbers at the date of hire or presently, the court
finds that the information plaintiff requests in this motion fairly falls under these requests as well.
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interrogatories. See ## 68-3, 68-7. See United States ex rel. Long v. Janssen Biotech, Inc., No.
16-cv-12182-FDS, 2022 WL 4124018, at *3-4 (D. Mass. Sept. 9, 2022). To the extent defendant
has withheld discoverable information on the basis that plaintiff’s first twenty-five enumerated
interrogatories violate the twenty-five-interrogatory limit set forth in Fed. R. Civ. P. 33(a), it is
encouraged to re-review its responses and supplement where it deems necessary.
V.

Conclusion.
For the reasons stated above, plaintiff’s Motion to Compel Disclosure and For Appropriate
Sanctions to Defendant is allowed to the extent that it seeks (i) “the name and, if known, the address
and telephone number” of the former Quality Manager and the 2019 Quality Manager,” and (ii)
all “notes, emails, memorandums and writings” relating to the 2019 Quality Manager’s
applications and interviews. Defendant shall produce all discovery ordered by no later than
November 17, 2023.
Plaintiff’s motion, including his request for sanctions and fees, is otherwise DENIED.

November 13, 2023

/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge

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