de Oliveira v. Cairo-Durham Central School District et al

Filing 68

DISCOVERY DECISION AND ORDER. Defendants are to comply w/this Order by 10/4/2013. The dispositive motion deadline is extended to 11/8/2013. Signed by Magistrate Judge Randolph F. Treece on 8/30/2013. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DONNA SCARPINATI DE OLIVEIRA,
Plaintiff,
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Civ. No. 1:11-CV-393
(NAM/RFT)

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CAIRO-DURHAM CENTRAL SCHOOL DISTRICT;
CAIRO-DURHAM BOARD OF EDUCATION;
CAIRO DURHAM TEACHER’S ASSOCIATION;
SALLY SHARKEY, Individually and as Superintendent
of School as aider and abettor; SUSAN KUSMINSKY,
Individually and as President of the Board of Education
as aider and abettor; JUSTIN KARKER, Indivdually
and as President of Cairo Durham Teachers Association
as aider and abettor,
Defendants.

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RANDOLPH F. TREECE
United States Magistrate Judge
DISCOVERY DECISION and ORDER
Presently before the Court are Plaintiff’s discovery disagreements with the
Responses and production of documents made by both groups of Defendants.1 Prior
to the matter being presented to the Court, the parties had conferred with regard to the

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Defendants’ Responses and disclosures to Plaintiff’s Demands for Interrogatories and
Production. Those conferences produced various modifications to the initial Demands

Defendants are categorized into two discrete groups: (1) Cairo-Durham School District
Defendants, which include the School District, the Board of Education, Sally Sharkey and Susan
Kusminki; and (2) Cairo-Durham Teacher’s Association and Justin Karker. For our purposes, the
Court shall refer to these groups as the School District Defendants and the Teacher’s Association
Defendants respectively.
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and Supplemental Responses by the Defendants. And yet, the Plaintiff remains
unsatisfied with those Responses.
Plaintiff’s dissatisfaction prompted a Letter-Motion for a telephone conference
to discuss these discovery issues, Dkt. No. 57, and the Defendants filed Responses
thereto, Dkt. Nos. 59, 60, & 61. On July 25, 2013, a telephonic Hearing was held on
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the record with the expectation of resolving the discovery issues. Because so many
discovery issues were being raised by all parties for the first time, the Court was
unable to resolve these matters without further briefing. The Court suggested that the
parties meet and confer further in order to narrow the issues, and if they were unable
to either resolve or narrow the issues, they may re-submit the matter to the Court.

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Dkt. No. 63, Text Order, dated July 25, 2013.
With no resolution or contraction of the discovery issues forthcoming, pursuant
to the Text Order, on July 31, 2013, Plaintiff filed her Letter Brief moving to compel
discovery, Dkt. No. 65, to which the respective Defendants responded, Dkt. Nos. 66
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& 67. As mentioned above, there has been a series of modifications to Plaintiff’s
Demands prompting various Supplemental Responses. Rather than comprehensively
discuss these historical exchanges between the parties, the Court will address only the
most recent Demands and Supplemental Responses. The Court will address the issues
percolating between the Plaintiff and the School District Defendants first and then
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those issues noted between the Plaintiff and the Teacher’s Association Defendants.
A. School District Defendants Discovery Issues
Plaintiff argues that the School District Defendants have failed to adequately
respond to her last iteration of Interrogatories designated as numbers 4, 7, 10, and 17,
as well as Document Demand number 5. Dkt. No. 65, Pl.’s Lt.-Br., at p. 1. The
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School District Defendants obviously disagree. Dkt. No. 66, Sch. Dist. Defs.’ Lt.-Br.
The Court address these issues seriatim.
Revised Interrogatory No. 4: Identify each current employee, former employee, agent,
trustee, or representative of defendants with whom you have communicated, either in
person, by telephone, or in writing, regarding any of plaintiff’s allegations in the
amended complaint in this case, and identify all documents concerning such
communication.

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Plaintiff identifies two specific bases as to why the School District Defendants’
Supplemental Response is inadequate. First, these Defendants failed to identify all
communications as requested. And, second, Plaintiff contends that these Defendants
are relying upon the advice of counsel and accordingly have waived all attorney-client
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privileged communications.

Because these Defendants “voluntarily produced

communications of counsel[,] . . . they cannot selectively produce those
communications[.]” Dkt. No. 65 at p. 3.
The School District Defendants acknowledge that they had relied upon the
advice of counsel from Kristine Lanchantin, Esq., which they received during the
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spring of 2010 regarding the determination of teachers’ seniority. Dkt. No. 66 at p.
4. In essence, these Defendants argue that those communications - relying upon the
advice the School District’s Legal Counsel - were revealed were for a limited duration
and for a circumscribed topic. Subsequent to those communications relative to
seniority, the School District Defendants’ current trial attorneys have represented them
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on a sundry of actions that pertain to the Plaintiff’s complaints and grievances. Id.
Although the School District Defendants did not seek protection of those documents
or communications regarding seniority, they challenge the proposition that such
disclosure is a wholesale waiver of the attorney-client privilege with respect to all
other litigation matters. Id. at p. 10.

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When there is a reliance upon the advice of counsel, it is accurate to note that
there is a subject matter waiver of attorney-client privileged communications that may
reach all related privileged conversations regarding that particular subject. In re von
Bulow, 828 F.2d 94, 103 (2d Cir. 1987). Yet, “[t]his waiver, however, does not grant
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carte blanche the [plaintiff’s] ability to rummage through all of the attorneys’ files or
to have unfettered access to the defense litigation strategies,” and communications.
NewRiver, Inc. v. Newkirk Prods., Inc., 2008 WL 5115244, at *2 (N.D.N.Y. Dec. 4,
2008) (citing In re EchoStar Commc’n Corp., 448 F.3d 1294, 1303 (Fed. Cir. 2006));
In re von Bulow, 828 F.2d at p. 103 (“There exists no reason in logic or equity to
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broaden the waiver beyond those matters actually revealed.”).
Turning to the facts in this case, the Court agrees with the School District
Defendants that they have waived neither the attorney-client privilege nor the work
product doctrine with respect to those communications that pertain to the New York
State Article 78 proceeding, grievances and appeals before the Commissioner of
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Education of the State of New York and Public Employment Relations Board, and this
federal action. However, with that being said, the School District Defendants still
have a discovery obligation relative to the communications between the litigation
attorneys and their clients that they assert are privileged.

When withholding

information because of the claims of privilege or protection, the responding party is
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required to prepare a list expressing the claim and describing the nature of the
documents, communications, and the like as to why it is not being disclosed. FED. R.
CIV. P. 26(b)(5)(A)(i) & (ii). There is no mention of a privilege log in this discourse.
Assuming that there is no privilege log, the School District Defendants are directed
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to serve such a log upon the Plaintiff.
Further, after reviewing the School District Defendants’ Supplemental
Response to Interrogatory 4, the Court finds that it is fundamentally adequate and they
have reasonably identified the previously disclosed, relevant corresponding
documents consistent with FED. R. CIV. P. 33(d). With the exception of the privileged
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log, no further response nor disclosure is warranted as to this Interrogatory.
In terms of Interrogatory No. 7, Plaintiff indicates that she is satisfied with the
Defendants’ First Supplemental Response. Dkt. No. 65 at p. 5.
Revised Interrogatory No. 10: Identify all teachers within the District, irrespective of
tenure classification, who have actually used accrued paid time without having a
certified disability or beyond the period of his or her certified disability between the
period of July 1, 2006 to July 1, 2009.
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Plaintiff’s objection to the School District Defendants’ Response is narrowly
tailored to a specific issue. She argues that these Defendants failed to produce
documents corresponding to the list of names provided.

In responding to this

Interrogatory, these Defendants have listed over eighty teachers who may fall within
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this category, even though these Defendants protest that the Interrogatory is
meaningless as well as it encompasses a period prior to the Plaintiff’s employment
with the School District and beyond the relevant collective bargaining agreement.
Considering that the extended discovery deadline of July 30, 2013, has elapsed,
and this Court announced that no further extensions would be considered, Dkt. No.

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56, to now seek the “documentary information on all persona who were allowed to
take paid FMLA leave for any purpose in order to judge whether females forced to
take unpaid child care leave were mistreated in comparison,” Dkt. No. 65 at p. 6,
seems unreasonable. Moreover, unlike other Interrogatories, there is no specific

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request for documentation and Document Request No. 1,2 may not serve as a failsafe
demand, but rather may have stirred some ambiguity as to what and when documents
were required. Setting all of that aside, the Court will permit a limited audit of such
documents, if they have not already been served. Considering that the Plaintiff
postulates that male teachers were allowed to take paid leave without a certified
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disability for child care and FMLA purpose, the Court will permit the Plaintiff to
inspect or to receive copies of records of fifteen males and ten females who requested,
received, and used accrued time without having a certificate of disability but only for
the relevant period of the Plaintiff’s employment term.

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Revised Interrogatory No. 17: Identify each person, excluding attorneys, with whom
you have discussed any aspect of this action, state the dates and describe the
substance of the statement or discussion.
Here, the Plaintiff asserts that the School District Defendants failed to identify
all documents concerning such communications, although there is not a specific or
clear request for such documents. Conversely, these Defendants contend that seeking

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“any aspect of this action” is “absurdly overbroad and is not sufficiently tailored to
be reasonable.” Dkt. No. 66 at p. 9. Moreover, they contend that despite the
overbroad Interrogatory, their Supplemental Response is very detailed and complies

“Provide any and all documents responsive to the above interrogatories and which will be
relied upon by the defendant to support the answer set forth in response to the above
interrogatories.” Dkt. No. 65 at p. 3, n.1.
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with their obligation. Id.
“A responding party need not provide all evidentiary proof or every shred of
evidence he possesses, but his response must be particular as to relevant facts of the
case.” Bartnick v. CSX Transp., Inc., 2012 WL 1565057, at *4 (Apr. 27, 2012)
(citations omitted). Demands and interrogatories must be reasonably tailored and not
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seek all that a party may have with regard to its view of the case and yet, an answer
to such an interrogatory must be adequate to be a complete response and as specific
as possible, and not evasive. In re Savitt/Adler Litig., 176 F.R.D. 44, 49 (N.D.N.Y.
1997).
In reviewing the Supplemental Response, the Court finds that the School

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District Defendants have adequately responded to this Interrogatory and have
adequately identified the previously disclosed and relevant corresponding documents.
Document Request No. 5: Provide any records, documents, memoranda, letters, or
emails related to classifications of teachers’ tenure areas during the period between
January 1, 2010 and October 1, 2010.
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Actually, this Demand stands co-joined with Interrogatory No. 4. Once again,
the Plaintiff seeks every communication, including those with the current litigation
counsel, arguing that the subject matter has been waived. But as discussed above, the
waiver pertains to a limited subject matter and does not extend to every
communication between present counsel and his clients. These Defendants stated that
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they have produced all of the documents reflecting communications related to
classification of teachers’ tenure, which Plaintiff does not dispute except with regard
to not receiving the communications between trial counsel and the Defendants.
Accordingly, the Court finds that the Response and Production are adequate.
B. Teachers’s Association Defendants Discovery Issues
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In terms of the Teacher’s Association Defendants, Plaintiff posits that they
failed to properly respond to nearly all of the Interrogatories in rather profound ways.
Yet, and for our purpose, she raises that these Defendants only failed to adequately
and properly respond to Interrogatories numbered 4, 6, 7, “misnumbered” 7, and 8,
and Request for Document No. 1. Dkt. No. 65 at pp. 8-13. In addressing these four

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Interrogatories and one Document Demand, the Teacher’s Association Defendants
provide Second Supplemental Responses to these Interrogatories, while arguing that
their Response to Interrogatory number 6 is adequate and that there is no document
that would satisfy Document Demand No. 1.
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Interrogatory No. 4: Identify each current employee, former employee, agent, trustee,
or representative of defendants with whom you have communicated, either in person,
by telephone, or in writing, regarding any plaintiff’s claims in this case, and identify
all documents concerning such communications.
In their First Response to this Interrogatory, the Teacher’s Association
Defendants listed twelve employees without providing documents. With the Second
Supplemental Response, these Defendants identify the previously disclosed, relevant
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and corresponding documents, consistent with FED. R. CIV. P. 33(d). Therefore, it
appears that these Defendants have adequately satisfied this Interrogatory.

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Interrogatory No. 6: State and describe in detail all evidence including documents,
affidavits and/or statements upon which defendants intend to rely at trial in support
of defendant’s assertion in response to paragraphs “26,” “27,” and “28" of the
amended complaint that “plaintiff’s taking [unpaid FMLA leave], enjoying such
leave, or return from such leave” did not violate: a. The Family and Medical Leave
Act (FMLA); b. The Fourteenth Amendment of the United States Constitution; c.
Title VII of the Civil Rights Act of 1964; [and] d. The New York State Human Rights
Law.
The Teacher’s Association Defendants argue that they are not required to
provide every stitch of evidence in their possession when responding to this
Interrogatory. Therefore, they argue that this demand is overbroad and burdensome.

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For the reasons stated above, the Court agrees with the Teacher’s Association
Defendants that they are not obligated to disclose all evidence relative to this Demand.
Bartnick v. CSX Transp., Inc., 2012 WL 1565057, at *4. The production of
documents should be more than an idea as to what the defenses may be, but it should
not be an intrusion into the wheelhouse of work product and/or attorney-client

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privileged communications. The Plaintiff cannot use an “any and all” type of
interrogatory or demand as a battering ram pursuing discovery. The rules of demand
require specifically tailored requests. Moreover, these Defendants state that all
documents that could conceivably respond to this request have been provided
throughout the discovery process. If that is true, then these Defendants’ only
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shortcoming is not listing those appropriate documents in their Response as directed
by Rule 33(d). Without identifying those documents, the Plaintiff has not been put
on notice as to what documents would be applicable to these four causes of action.
Accordingly, the Teacher Association’s Defendants shall list, to the best of their
ability, those documents that they have already disclosed that correspond to their
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Response. To facilitate such disclosure, providing the identity of the document or the
bate stamp number shall suffice. In listing these documents, the Defendants cannot
rely upon incorporating by reference other documents or responses, if so, it would be
unresponsive and improper. Trueman v. New York State Canal Corp., 2010 WL
681341, at *3 (N.D.N.Y. Feb. 24, 2010) (citing Poulio v. Paul Arpin Van Lines, Inc.,

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2004 WL 1368869, at *2 (D.Conn. June 14, 2004)).
Interrogatory No. 7: State and Describe in detail all evidence including documents,
affidavits and/or statements upon which defendants intend to rely at trial in support
of defendant’s assertion in response to paragraph 32 of the amended complaint.
Regarding this Interrogatory, the Plaintiff is seeking whether an attorney’s
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investigation occurred relative to her grievances. She notes that these Defendants
already admitted to the existence of such an investigation but did not provide any
information regarding it. In their Second Supplemental Response, the Teacher’s
Association Defendants not only confirm that an investigation of Plaintiff’s
complaints had occurred and shared its determination, but they also identify two
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documents that were also considered in that investigation. Accordingly, these
Defendants have adequately responded to this Interrogatory.
Interrogatory No. 7 (Misnumbered): Provide the following information regarding
defendants’ response to paragraph 32 of the amended complaint: subparts a-i.
Apparently the parties met and conferred on the Teacher’s Association
Defendants Responses and it is intimated that the Defendants agreed to further
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supplement their Response. Essentially, Plaintiff seeks information regarding the
steps that the Defendants took to investigate Plaintiff’s concerns. In their Second
Supplemental Response, the Teacher’s Association Defendants state, “ [s]ee Second
Supplemental Answer to Interrogatory No. 7 above.” Dkt. No. 67-2, Teacher’s Assoc.

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Defs.’ Second Supplemental Responses at p. 4. Here these Defendants have merely
incorporated an earlier response, which could very well be misleading. For the
reasons stated above, incorporation by reference to other interrogatories is improper.
Trueman v. New York State Canal Corp., 2010 WL 681341, at *3. Therefore, if the
Response is the same as the previous response, the content and context should be fully

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stated, even if it repeats verbatim the text of the previous response.
Interrogatory No. 8: Provide the following information regarding defendants’
response to paragraph 34 of the amended complaint: subparts a and b.
In reference to this Interrogatory, Plaintiff argues that these Defendants failed
to provide any information regarding their investigation.
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In their Second

Supplemental Response, these Defendants merely refer to their Responses to
Interrogatories 7 and 8. As noted above, this is improper. Therefore, the Teacher’s
Association Defendants shall fully reprise those Responses so that there is no
confusion as to appropriate and corresponding answer.
Document Demand No. 1: Provide any and all documents responsive to the above
interrogatories and which will be relied upon by the defendants to support the
answers set forth in response to the above interrogatories.
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All of the previous rulings above should satisfy this Demand as to producing
documents responsive to the Interrogatories 4, 6, 7(misnumbered), and 8. And, as to
the “Association’s Seniority Questionnaire,” the Teacher’s Association Defendants
state that no such relevant documents exists.
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C. Scheduling Deadlines
The discovery deadline has passed and no extension of this deadline will be
considered with the exception of the Defendants fulfilling the discovery directives set
forth in this Discovery Decision and Order. No other discovery is allowed. The
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Defendants shall comply with this Discovery Decision and Order by October 4, 2013.
The Scheduling Order is amended to extend only the final day to file dispositive
motions to November 8, 2013.3

Presently, a Motion for Partial Summary Judgment, Dkt. No. 39, and a Cross-Motion for
Summary Judgment, Dkt. No. 49, are pending. Further dispositive motions may not be warranted.
And, if that is the case, and after these motions are decided, this litigation will be trial ready.
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IT IS SO ORDERED.
August 30, 2013
Albany, New York

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