Litchhult v. Ustrive2, Inc.

Filing 33

ORDER re 32 : See attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 10/9/2012. c/ecf (Johnston, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARY LITCHHULT,
Plaintiff,

ORDER
CV 10-3311 (JFB)(ARL)

-againstUSTRIVE2, INC.,
Defendant.
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LINDSAY, Magistrate Judge:
Before the court is the defendant’s letter application dated September 22, 2012, seeking to
compel the pro se plaintiff to (1) comply with the court’s Order, dated May 30, 2012, which
directed plaintiff to “review her personal cellular phone and e-mail account and advise counsel
whether they contain anything pertinent to the issues in the case,” and (2) produce to defense
counsel a true and correct copy of the documents that plaintiff brought to her deposition that were
marked Exhibits 6, 9 and 12. The plaintiff opposes the application. Defendant’s motion is
granted, in part.
In her opposition, plaintiff states that in “preparation” for her subsequent deposition on
July 9, 2012, she “did indeed review her e-mail accounts as well as her cellular records and
reported the results of that review at the deposition” that they did not contain anything pertinent to
the case. A review of her testimony at that deposition, however, indicates that plaintiff could not
attest that the records she had represented her complete personal cell phone records for the period
September 15, 2008 to September 15, 2010 or that she had conducted a thorough and diligent
search of her cellular telephone records:
Q:

You said you glanced over [the personal cellular phone numbers] when you
scanned over them?
Correct.
This point – I’m not trying to put words in your mouth. If I understand you
correctly, you can’t tell me, as you sit here today at the deposition, whether you
even have a complete set of records for that time period, September 2008 to April
2009; true?
I’m not sure. I need to double check at home.

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Did you sit down with your cell phone and any printouts and go through them for
2008 and 2009?
No. Can I ask you a question? Do you know long this is going to take? How
many hours we’re going to be?
As I understand it, your efforts at complying with the Court regarding review of the
cell phone records essentially meant scanning some set of documents that you have
at home, you’re not sure if it’s the entirety of the time you worked at Ustrive and

kind of doing it from memory; is that a fair way of putting it?
Yes.

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Just to make this as simple as possible, in the records that you found there were
records of calls made to and received from Ustrive offices that’s in the documents?
Yes.

(Anderson Letter, dated September 22, 2012, Ex. A, at 15, 24-26.) Likewise, a review of
plaintiff’s deposition testimony on July 9, 2012 indicates that she conducted only a cursory review
of her personal e-mail accounts. (Id. at 28-50.)
In her opposition papers, plaintiff represents that she:
again did a thorough search of her email accounts and cell phone records, spending
five hours on Sunday, September 23, 2012 and spending five hours Monday,
September 24, 2012, reviewing each of the email accounts as well as the cell phone
records. Particular attention was paid to the Court prescribed time period of
September 15, 2008 through September 15, 2010. Plaintiff will state again at the
risk of sounding repetitive that none of my personal emails or cell phone records
are material and necessary, not relevant to the causes of action nor will they be
used in the defense or prosecution of any claim.
(Litchhult Letter, dated September 24, 2012, at 3.) Plaintiff’s deposition testimony indicates that
her initial search of her email accounts and cell phone records was cursory. Plaintiff represents
that she has since conducted a thorough search of the records and that they do not contain
anything relevant to the issues in this case. Plaintiff is cautioned, however, that any contact
during the relevant period, even friendly contact, with the defendant or with employees she
contends engaged in hostile actions or contact with other persons she claims were similarly
situated may be relevant to the defense and should be disclosed. Guided by this criteria, plaintiff
is directed to advise defense counsel in writing as to whether the records reflect any such contact
on or before October 23, 2012.
Defendant’s motion to compel Exhibits 6, 9 and 12 is denied. According to plaintiff,
Exhibit 6 is a folder containing copies of this court’s Orders and the originals of correspondence
from defense counsel. Exhibit 9 is a copy of Defendant’s First Set of Interrogatories and a copy of
plaintiff’s response to the same and accompanying exhibits. Exhibit 12 is a copy of the Answer.
Each of these documents is already in the possession of defense counsel or is readily available
from the docket report in this case. Defendant is directed to serve a copy of this Order on plaintiff
forthwith.
Dated: Central Islip, New York
October 9, 2012

SO ORDERED:
_________/s/_____________________
ARLENE R. LINDSAY
2

United States Magistrate Judge

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