Go v. The Rockefeller University, et al
Filing
143
OPINION AND ORDER re: 133 MOTION to Compel. filed by Rosita C. Go.Accordingly, for all the forgoing reasons, it is hereby Ordered that defendants shall complete all Ordered productions within twenty-one days from the date of this Order as set forth in this Opinion and Order. Plaintiff's motion to compel is granted to the extent that it seeks an Order directing defendants' toproduce as set forth herein. In all other respects, plaintiff's motion to compel is denied and the Clerk of the Court is directed to close Docket Items 129 and 133 in 04 Civ. 4008 and Docket Item 95 in 06 Civ. 1825. (Signed by Magistrate Judge Henry B. Pitman on 3/9/2012) Copies Mailed By Chambers. (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
ROSITA C. GO,
:
Plaintiff,
-against-
:
:
ROCKEFELLER UNIVERSITY,
et al.,
04 Civ. 4008 (JSR)(HBP)
:
:
Defendants.
:
-----------------------------------X
ROSITA C. GO,
:
Plaintiff,
-against-
:
:
:
ROBERTA MALONEY,
et al.,
06 Civ. 1825 (JSR)(HBP)
OPINION
AND ORDER
:
Defendants.
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
Plaintiff moves for an Order, pursuant to Rule 37(a)(2)
of the Federal Rules of Civil Procedure, compelling (a) production of additional documents in response to her document requests, and (b) revised responses to her requests for admissions
(Plaintiff's Response to Order Filed October 28, 2010, dated Nov.
19, 2010 ("Plaintiff's Response to Order")(Docket Item 1291) at
11-13).
For the reasons set forth below, plaintiff's motion is
granted in part and denied in part.
II.
Facts
A.
Background
Plaintiff, Rosita Go, proceeding pro se, brings this
action against her former employer, Rockefeller University, and
several of her former co-workers, alleging discrimination on the
bases of race, gender, national origin, disability, and age.
Plaintiff's claims are discussed in detail in my March 2, 2009
Report and Recommendation (Docket Item 62), familiarity with
which is assumed.
On February 16, and May 10, 2010, plaintiff served
discovery requests on the defendants which contained 67 requests
for production of documents and 248 requests for admissions
(Exhibits 9, 15, 17, 18, 19 to Declaration in Response to Court
Order Filed October 28, 2010, filed Nov. 24, 2010 ("Go
Decl.")(Docket Item 130)).
On March 18 and 26, April 22, and
July 12, 2010, defendants served objections and responses to
1
All citations to the docket herein refer to docket entries
for case number 04 Civ. 4008.
2
plaintiff's discovery requests and produced a total of 1,151
pages of documents and a privilege log of documents redacted or
withheld on the basis of privilege (see Exhibits 1 and 2 to Go
Decl.).
Following the dismissal of certain claims and defendants, I issued an Order, dated October 28, 2010 (Docket Item
128), outlining the claims remaining in the cases:
Based on my review of the record in these cases,
it is my understanding that only the following claims
remain: (1) plaintiff's claims against Rockefeller
University for (a) race and national origin-based
discrimination in violation of Title VII, (b) age
discrimination in violation of the ADEA, (c) discrimination and retaliation in violation of the NYSHRL and
NYCHRL, (d) violation of the Rehabilitation Act and (e)
racial discrimination in violation of Section 1981, and
(2) plaintiff's claims against the Individual
Rockefeller Defendants (Roberta Maloney, Kathleen
Cassidy, Michelle Keenan, and Gloria Chang DiGennaro)
(a) for racial discrimination in violation of the
NYSHRL and the NYCHRL, and (b) for racial discrimination in violation of Section 1981.
No later than November 19, 2010, all parties are
to advise whether they disagree with my understanding
of what is left in these cases. The parties are also
to advise me at that time whether there is any reason
why the pretrial order should not be filed by December
31, 2010.
I also directed plaintiff to raise all existing discovery issues with me no later than December 20, 2010.
Plaintiff
and counsel for the remaining defendants responded to my October
28, 2010 Order and concurred with my understanding of the claims
3
remaining in the case (see Order, dated Dec. 2, 2010 (Docket Item
131)).
B.
The Present Dispute
As part of her submission responding to my October 28,
2010 Order, plaintiff requested my "assistance in requiring
defendants['] . . . [p]roduction of [d]ocuments . . . pursuant to
Fed.R.Civ.P. 37(a)(2)" and in obtaining revised responses to her
requests for admissions (Plaintiff's Response to Order at 11 (the
"November 19, 2010 Motion to Compel")).
With respect to her document requests, plaintiff argues
that (a) defendants did not produce all responsive documents; (b)
defendants' "dumping 1,151 documents without identifying which,
if any, of the documents produced are responsive to plaintiff's
specific requests" was improper pursuant to Federal Rule of Civil
Procedure 34; (c) defendants produced many "after-the-fact
'handwritten' documents [that are] clearly fabricat[ed]"; (d)
defendants improperly restricted their responses to a more narrow
time frame than plaintiff sought; (e) defendants erroneously
relied upon claims of privilege and confidentiality "as a shield
from their disclosure"; (f) defendants improperly withheld
documents which were electronically stored; and (g) defendant's
improperly "interposed the familiar litany that the request [is]
4
'irrelevant, burdensome, oppressive, overly broad' and a plethora
of frivolous, unreasonable and groundless objections without
clarifying and explaining their objections and provid[ing]
support thereof" (Plaintiff's Response to Order at 11-12; Plaintiff's Memorandum of Law attached to Go Decl., dated Nov. 19,
2011 ("Plaintiff's Nov. 19 Memo. of Law") at ¶¶ 2-5, 8, 10-12,
15, 18, 20, 23-29, 34-36, 40-45).
With respect to her requests for admissions, plaintiff
contends that it was improper for defendants' attorney to sign
the responses to the requests (Plaintiff's Response to Order at
11-12).
Defendants argue that they have fully responded to
forty-eight of plaintiff's documents requests,2 and represent
that, as to another four of plaintiff's requests,3 "[they] have
diligently searched for responsive documents but have been unable
to locate any" (Defendants' Memorandum of Law in Opposition to
Plaintiff's Motion to Compel Dated November 19, 2010, filed Dec.
20, 2010 ("Defendants' Memo. Of Law")(Docket Item 132) at 3-4).
2
These are Requests 1, 2, 5, 6, 8, 9, 10, 11, 12, 13, 18,
19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 42,
46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62,
63, 64, 65, 66, and 67.
3
These are Requests 3, 4, 33, and 39.
5
As to the remaining fifteen document requests,4 defendants make
individual arguments as to why each is improper, arguing generally that the requests "call for the production of information
that is irrelevant, overly broad . . . unduly burdensome . . .
ha[ve] no probative value to this litigation[, are] personal and
confidential [and the requests amount to a] fishing expedition
that is meant to do nothing more than harass Defendants" (Defendants' Memo. of Law at 5-16).
Additionally, defendants agreed to
provide plaintiff with a reference sheet identifying the specific
requests to which each document is responsive (Defendants' Memo
of Law at 3-4).
With respect to plaintiff's requests for admis-
sion, defendants assert that they have complied with the Federal
Rules of Civil Procedure in replying to plaintiff's requests
(Defendants' Memo. of Law at 2).
By notice of motion dated April 30, 2011, plaintiff
again moved, pursuant to Federal Rule of Civil Procedure
37(a)(2), to compel further production of documents responsive to
her sixty-seven document requests and to compel revised responses
to her requests for admission (Docket Item 133)(the "April 30,
2011 Motion to Compel").
Plaintiff claims that defendants only
provided her with a reference sheet identifying which documents
4
These are Requests 7, 14, 15, 16, 17, 34, 35, 36, 37, 40,
41, 43, 44, 45, and 50.
6
are responsive to each request eight months after defendants
produced those documents (Plaintiff's Affirmation, dated Apr. 30,
2011 (Docket Item 134) at 2; Plaintiffs' Memorandum of Law in
Support of Motion to Compel Production of Document and Request to
Admit, dated Apr. 30, 2011 ("Plaintiff's Apr. 30 Memo. of
Law")(Docket Item 136) at 5).
Additionally, plaintiff reiterates
many of the arguments she articulated in her November 19, 2010
Motion to Compel, and replies to some of the arguments defendants
asserted in opposition to Plaintiff's November 19 Motion to
Compel (see Plaintiff's Apr. 30 Memo. of Law).
Defendants note that plaintiff's April 30, 2011 Motion
to Compel appears to be nothing more than a renewal of plaintiff's November 19, 2010 Motion to Compel as the two submissions
address the same discovery issues and, "to the extent that
Plaintiff's new motion to compel attempts to expand upon arguments laid out in her November [19,] 2010 motion, those arguments
should not be considered as they are untimely" (Letter by Elise
M. Bloom, Esq., counsel to the defendants, dated May 12, 2011 at
1-2).
7
III.
Analysis
A.
Plaintiff's
April 30, 2011
Motion to Compel
Plaintiff's April 30, 2011 Motion to Compel appears to
discuss and, to a large degree, supplement the arguments asserted
in her November 19, 2010 Motion to Compel.
As such, it appears
that plaintiff's April 30, 2011 submission is more in the nature
of a reply to defendants' opposition to her earlier motion,
rather than a new and independent motion, and I construe it as
such.
Although her April 30, 2011 Motion to Compel was filed
more than four months after defendants filed their opposition to
her November 19, 2010 motion, defendants do not take issue with
plaintiff's late filing (Letter by Elise M. Bloom, Esq., counsel
to the defendants, dated May 12, 2011 at 1-2).
Considering
defendants' lack of opposition to plaintiff's late filing, and
plaintiff's pro se status, I shall consider plaintiff's April 30,
2011 submission to the extent it responds to arguments asserted
in opposition to plaintiff's November 19, 2010 Motion to Compel.
However, to the extent that plaintiff's April 30, 2011 submission
raises new arguments or attempts to supplement arguments that
were inadequately asserted in plaintiff's November 19, 2010
Motion to Compel, such material is improper, see Johnson &
8
Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 359 (S.D.N.Y.
2007) (Lynch, then D.J., now Cir. J.) ("[a]rguments first raised
in reply memoranda are not properly considered [and] the same is
true of arguments first raised by letter several months after
reply memoranda and all other motion papers have been filed"
(internal quotation marks and citations omitted)), and untimely
under the deadline for all then existing discovery disputes set
in my October 28, 2010 Order.
I, therefore, do not consider such
material.5
B.
Global
Discovery Disputes
Before addressing the disputes concerning specific
document requests, I shall address three broad arguments plaintiff raises concerning defendants' production.
These are plain-
tiff's claims that defendants have fabricated documents, imposed
improper temporal limits on document discovery, and provided an
insufficient privilege log.6
5
Such new arguments include, inter alia, plaintiff's
objection to defendants' production of duplicate copies, and
defendants' production of documents previously produced by
plaintiff (see Plaintiff's Apr. 30 Memo. of Law at 21-24).
6
Plaintiff also takes issue with defendants use of a litany
of generic objections in their responses to plaintiff's document
requests (Plaintiff's Nov. 19 Memo. of Law ¶¶ 20-22). While the
better course would be to not interpose generic, meaningless
(continued...)
9
1.
Plaintiff's FabricatedDocument Argument
Plaintiff argues that:
Included in the 1,150 [pages of documents] were many
after-the-fact "handwritten" documents[,] clearly
fabrications given the duration it took to produce the
"handwritten["] documents that were supposedly in the
possession and control of defendants since at least
April 29, 2005
(Plaintiff's Response to Order at 12).
Plaintiff's November 19,
2010 submission does not identify the documents she believes to
be fabricated nor does she explain how the alleged fabrication is
evident.
Moreover, plaintiff's arguments in her April 30, 2011
submission illustrate plaintiff's disagreement with the content
of the allegedly fabricated documents, not their putative lack of
authenticity.
For example, plaintiff states, concerning document
D000925, "This [document] is another of Cassidy's unfounded
criticisms . . . ."
Similarly, with regard to document DD000137,
plaintiff claims "The above statements are completely false"
6
(...continued)
objections in response to nearly every document request, I find
that plaintiff has not suffered any prejudice caused by
defendants' assertion of such objections. Where the defendants
merely state generic objections, defendants have also represented
that they have completely complied with the requests and produced
all responsive, nonprivliged documents. In the instances in
which defendants have not produced documents, defendants have
interposed more detailed objections.
10
(Plaintiff's Apr. 30 Memo. of Law at 13, 15).
Thus, plaintiff
has not offered any evidence that defendants produced fabricated
documents.7
2.
Plaintiff's Argument
Concerning the Appropriate
Temporal Limits of Document Discovery
In the vast majority of her document requests, plaintiff does not specify the time period for which she seeks responsive documents.
Defendants, in their General Objection number 6,
object to the Requests to the extent that they are . .
. without proper limit as to their subject matter or
temporal scope and are beyond the relevant time[]frame
in this action which is May 6, 2000, the earliest
relevant date for Plaintiff's remaining claims, through
July 18, 2003, the date of the end of Plaintiff's
internal grievance process [and] the responses to these
Requests are limited accordingly
(Exhibit 1 to Go Decl. at 3-4).
Accordingly, defendants limited
their production in response to each document request to "the
7
Although plaintiff does further develop this claim in her
April 30, 2011 submission (Plaintiff's Apr. 30 Memo. of Law at 621), in light of the limited nature of plaintiff's argument in
this regard in her initial submission, I decline to consider the
additional material plaintiff provided in her April 30, 2011
submission because defendants have not had a fair opportunity to
respond to this argument. Even if I were to consider plaintiff's
additional arguments in her April 30, 2011 submission, plaintiff
fails to make any factual showing that defendants did, in fact,
fabricate documents.
11
time[]frame . . . set forth in the general objections" (Exhibit 1
to Go Decl. at 7-63).
Plaintiff argues that evidence of defendants' conduct
outside of the time period set by defendants may still be "relevant, probative and admissible" (Plaintiff's Nov. 19 Memo. of Law
at ¶ 11(iii)).
While implicitly acknowledging that some of what
she is seeking may be from beyond the applicable limitations
period, plaintiff further argues that "evidence of such conduct
may be admissible to shed light on the motives with which acts
within the limitations period were performed" (Plaintiff's Nov.
19 Memo. of Law at ¶ 11(iii), quoting Arista Records LLC v. Lime
Group LLC, 715 F. Supp. 2d 481, 502 (S.D.N.Y. 2010) (Wood,
D.J.)).
Although plaintiff does not specify the time period for
which she is seeking documents, and does not further elaborate on
how broader temporal limits will "shed light" on defendants'
motives, I find the time period set by defendants to be too
narrow.
"In Title VII cases, courts have imposed restrictions on
discovery as to time period.
However, the scope of discovery is
commonly extended to a reasonable number of years prior to the
defendants' alleged illegal action . . . ."
Miles v. Boeing Co.,
154 F.R.D. 117, 119-20 (E.D. Pa. 1994) (document requests for
period of more than two years from date of alleged discrimination
12
not overly broad); Obiajulu v. City of Rochester Dep't of Law,
166 F.R.D. 293, 296 (W.D.N.Y. 1996) (three year time period
suggested by defendants found reasonable); see also Chang v.
Cavalry Portfolio Servs. LLC, CV-11-1153 (JS)(GRB), 2011 WL
6101952 at *1 (E.D.N.Y. Dec. 1, 2011); Trzeciak v. Apple Computers, Inc., 94 Civ. 1251 (LAK), 1995 WL 20329 at *1 (S.D.N.Y. Jan.
19, 1995) (Dolinger, M.J.).
As I previously noted in my March 2, 2009 Report and
Recommendation (Docket Item 62), plaintiff claims that many of
her problems began with management's promotion of an unqualified
African-American coworker, Cynthia Payne, and its shifting of
many of Payne's responsibilities to plaintiff (Second Consolidated Amended Complaint, filed June 26, 2008 ("June 2008 Complaint")(Docket Item 41), at ¶ 46).
Although it is not exactly
clear when Ms. Payne's promotion occurred, plaintiff has alleged
that "Maloney shifted parts of accounting manager, Ms. Cynthia
Payne's job to Plaintiff in November 1998 and reinforced commitment to advance Plaintiff's career during annual review meetings
in June 1999 and June 2000 by dangling statements, 'you're ready
for seniority'" (June 2008 Complaint ¶ 45).
Given plaintiff's allegations, I conclude that the time
period defendant imposed should be expanded to commence on
November 1, 1998.
At a minimum, I find that documents from as
13
early as November 1998 may provide relevant and admissible
background evidence which plaintiff may utilize to present her
case effectively to a fact finder.
Accordingly, to the extent
they have not already done so, defendants are directed to produce
responsive, nonprivleged documents for the time period from
November 1, 1998 to July 18, 2003, unless the request specifies a
narrower time period.8
This production is to be completed no
later than twenty-one (21) days from the date of this Order.
3.
Sufficiency of
Defendants'
Privilege Log
Defendants, in their General Objection number 5,
object to the Requests to the extent that they seek
information and/or documents that are protected from
disclosure by the attorney-client privilege, the attorney work product doctrine, the self-critical analysis
privilege, or any other applicable privilege or immunity from disclosure
(Exhibit 1 to Go Decl. at 3).
Additionally, in response to nine
requests -- Requests 1, 2, 3, 8, 11, 29, 31, 37, and 38 –defendants "further object to [these requests] to the extent
[they] seek[] information protected by privilege or immunity,
including but not limited to the attorney-client privilege and
8
This ruling applies to the forty-eight requests defendants
represent they have complied with.
14
work product doctrine."
Defendants also provided a privilege
log listing forty-two documents withheld or redacted.
The
privilege log includes the headings "Date," "Author," "Recipient," "Copied," "Type of Document," "General Subject Matter,"
"Type of Privilege," "Redacted or Not Produced," and "Bates
Range," and reflects assertions of the attorney-client privilege
and the work product doctrine (Exhibit 2 to Go Decl.).
Plaintiff argues that:
Descriptions under "General Subject Matter", such as,
"Response to Go's allegations", "Status of Go grievance", "Responses to Go complaint", "Status of Go EEOC
charge", "Investigation of Go allegations", "Investigation of allegations in Go complaint", "Request for
comments regarding answer to Go complaint", "R Go
allegations" "Breakdown of Accounting Services employees ... ", "Go employment chronology", "Draft Position
Statement" "Summary of Go Job description" are
bare-boned and clearly not "mental impressions, opinions, and legal theories prepared by an attorney in
anticipation of litigation." Defendants "Privilege Log"
entries are un-itemized/un-numbered, some are undated,
and most fail to identify the party cc'd. The log is
wholly inadequate, improper and insufficient.
(Plaintiff's Nov. 19 Memo. of Law at ¶ 10).
Plaintiff contends
that defendants should be required to re-submit "a more detailed
privilege log . . . including the identities, titles, and roles
of the authors, recipients, and individuals cc'ed on these
communications, and the purpose of the communications" (Plaintiff's Nov. 19 Memo. of Law at ¶ 10).
15
a.
Legal Principles Applicable
to the Attorney-Client Privilege
and the Work-Product Doctrine
The elements of the attorney-client privilege are well
settled:
"The [attorney-client] privilege applies only if (1)
the asserted holder of the privilege is or sought to
become a client; (2) the person to whom communication
was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by
the client."
Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160
F.R.D. 437, 441 (S.D.N.Y. 1995) (Francis, M.J.), quoting United
States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59 (D.
Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398
(S.D.N.Y. 1990) (Conboy, D.J.).
The privilege "exists to protect
not only the giving of professional advice to those who can act
on it, but also the giving of information to the lawyer to enable
him to give sound and informed advice."
States, 449 U.S. 383, 390 (1981).
Upjohn Co. v. United
Therefore, "[i]t is now [also]
well established that the privilege attaches not only to communications by the client to the attorney, but also to advice ren16
dered by the attorney to the client, at least to the extent that
such advice may reflect confidential information conveyed by the
client."
Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A.,
supra, 160 F.R.D. at 441–42; see also O'Brien v. Board of Educ.,
86 F.R.D. 548, 549 (S.D.N.Y. 1980) (Leval, then D.J., now Cir.
J.); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 520–22 (D. Conn.
1976).
"'[T]he burden is on a party claiming the protection of
a privilege to establish those facts that are the essential
elements of the privileged relationship.'"
von Bulow by
Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), quoting
In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224
(2d Cir. 1984).
Thus, the party seeking to invoke the privilege
must establish all elements of the privilege.
Bowne of NYC, Inc.
v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993) (Dolinger,
M.J.) (collecting cases).
A party asserting work-product protection must prove
three elements:
"[t]he material must (1) be a document or a
tangible thing, (2) that was prepared in anticipation of
litigation, and (3) was prepared by or for a party, or by or for
his representative."
In Re Grand Jury Subpoenas dated Dec. 18,
1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982); see
17
Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 365 (S.D.N.Y. 2008)
(Preska, D.J.).
If the proponent succeeds in establishing these elements, the burden then shifts to the parties seeking discovery of
work-product material to show substantial need for the material
and an inability to obtain its substantial equivalent from
another source without undue hardship.
Weinhold v. Witte Heavy
Lift, Inc., 90 Civ. 2096 (PKL), 1994 WL 132392 at *3 (S.D.N.Y.
Apr. 11, 1994) (Leisure, D.J.); accord Kent Corp. v. N.L.R.B.,
530 F.2d 612, 623-24 (5th Cir. 1976).
However, "while factual
materials falling within the scope of the doctrine may generally
be discovered upon this showing of 'substantial need,' attorney
mental impressions are more rigorously protected from discovery[.]"
In re Leslie Fay Cos. Sec. Litig., 161 F.R.D 274, 279
(S.D.N.Y. 1995) (Conner, D.J.).
The withholding party's initial obligation is to
prepare an index of withheld documents providing the specific
information required by Fed.R.Civ.P. 26(b)(5) and Local Civil
Rule 26.2.
If the assertions of privilege or work-product
protection are not challenged, the withholding party has no
further obligation with respect to its assertions of privilege.
If the assertions of privilege or work-product protection are
challenged and the dispute cannot be resolved informally, the
18
withholding party then has to submit evidence, by way of affidavit, deposition testimony or otherwise, establishing only the
challenged elements of the applicable privilege or protection,
with the ultimate burden of proof resting with the party asserting the privilege or protection.
ECDC Envtl. L.C. v. N.Y. Marine
& Gen. Ins. Co., 96 Civ. 6033 (BSJ)(HBP), 1998 WL 614478 at *3-*4
(S.D.N.Y. June 4, 1998) (Pitman, M.J.); see von Bulow by
Auersperg v. von Bulow, supra, 811 F.2d at 144, citing In re
Grand Jury Subpoena Dated Jan. 4, 1984, supra, 750 F.2d at 224;
Bowne of New York City, Inc. v. AmBase Corp., supra, 150 F.R.D.
at 470 (collecting cases).
The foregoing procedure properly allocates the burden
of proof and saves the Court and the parties from having to
address any elements of a privilege or protection that are not in
dispute.
In addition, the foregoing accurately reflects the
manner in which disputes concerning documents withheld on the
ground of privilege are commonly resolved in this District.
b.
Application of
Legal Principles
Plaintiff claims there are two deficiencies in
defendants' privilege logs: (a) defendants' descriptions under
the "General Subject Matter" heading are "bare-boned" and
19
insufficiently describe the contents of the documents, and (b)
the defendants fail to include the "identities, titles, and roles
of the authors, recipients, and individuals cc'ed on these
communications" (Plaintiff's Nov. 19 Memo. of Law at ¶ 10).
To the extent plaintiff attacks defendants' "General
Subject Matter" descriptions, I find defendants' descriptions to
be adequate.
Federal Rule of Civil Procedure 26(b)(5) requires a
party withholding otherwise discoverable information on the
grounds of privilege to "describe the nature of the documents,
communications, or tangible things not produced or disclosed -and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the
claim."
Additionally, Local Civil Rule 26.2 requires that a
party asserting privilege in response to a document request
provide:
(i) the type of document, e.g., letter or memorandum;
(ii) the general subject matter of the document; (iii)
the date of the document; and (iv) the author of the
document, the addressees of the document, and any other
recipients, and, where not apparent, the relationship
of the author, addressees, and recipients to each
other. . . .
Here, the information provided in the "General Subject
Matter" and "Type of Document" headings, serve to adequately
describe the nature of the documents in a manner consistent with
the provisions of the Federal Rules and the Local Civil Rules.
20
For example, the second entry on the privilege log identifies the
document as a "chart prepared at request of counsel," and the log
describes the document as a "breakdown of accounting services
employees by ethnicity, name, birth date, and job title in
response to request for information" (Exhibit 2 to Go Decl.).
This description provides the reader with enough information to
assess the claim of privilege, without disclosing any privileged
information contained in the document.
The plaintiff here does
not point to any specific entries which she claims are insufficient and I find, overall, that defendants' descriptions of the
documents are sufficient.
However, the privilege log is insufficient the extent
it fails to identify the "identities, titles, and roles of the
authors, recipients, and those CC'ed on these communications."
Bell v. Pfizer, Inc., 03 Civ. 9945 (KMW)(HBP), 2006 WL 2529762 at
*5 (S.D.N.Y. Aug. 31, 2006) (Wood, D.J.); Trudeau v. N.Y.S.
Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006).
Without
this information, the assertions of privilege are difficult to
assess in many instances.
Accordingly, defendants are directed
to provide this information, no later than twenty-one (21) days
from the date of this Order.
Defendants can provide this infor-
mation by either supplementing their existing index or by serving
a separate list of authors and recipients (addressees and cc's)
21
that sets forth their titles and roles.
If plaintiff takes issue
with particular entries in the privilege log after receiving this
information, plaintiff may make an application to this Court,
identifying the entries with which she takes issue and setting
forth her arguments in favor of production, no later than twentyone (21) days from the date defendants serve this supplemental
information.
C.
Specific
Discovery Disputes
1.
Requests Seeking
Documents Stored
On Backup Tapes
Document Request 13 seeks "[a]ny and all documents,
including but not limited to emails concerning [p]laintiff by
individual defendants on active or stored backup tapes, including
Cassidy's emails from stored backup tape on April 3-5, 2002"
(Exhibit 1 to Go Decl. at 17).
Document Requests, 46, 47, 48,
and 49 seek "[a]ny and all work-related emails to and from [each
of the non-entity defendants] concerning plaintiff on active or
stored backup tapes from March 2002 - May 2003" (Exhibit 1 to Go
Decl. at 43-47).
As to each of these requests, defendants have produced
some documents but, at the same time, have objected to the
22
requests to the extent they seek information on backup tapes.
Specifically, defendants objected to the requests "to the extent
[the requests] seek[] 'backup tapes' and/or electronically stored
information that is not reasonably accessible because of the
undue burden and cost associated with retrieving and providing
this information" (Exhibit 1 to Go Decl. at 17-18, 43-47).
Under Federal Rule of Civil Procedure 26, a party must
"conduct a diligent search" for requested electronic documents.
Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006)
(Francis, M.J.).
A party need not provide discovery of electronically stored information from sources that the party
identifies as not reasonably accessible because of
undue burden or cost. On motion to compel discovery or
for a protective order, the party from whom discovery
is sought must show that the information is not reasonably accessible because of undue burden or cost.
Fed.R.Civ.P. 26(b)(2)(B).
"If that showing is made, the burden
shifts to the requesting party to show good cause for the production of the not-reasonably-accessible [electronically stored
information]."
Capitol Records, Inc. v. MP3tunes, LLC,
F.R.D. 44, 51 (S.D.N.Y. 2009) (Mass, M.J.).
261
Information stored
on backup tapes is generally considered "not reasonably accessible."
See Quinby v. WestLB AG, 245 F.R.D. 94, 99 (S.D.N.Y. 2006)
(Pitman, M.J.).
23
I appreciate that a definitive answer to the question
of whether responsive emails reside on defendants' backup tapes
cannot be ascertained without actually restoring and searching
the tapes and that ordering those steps at this time would be
contrary to the Federal Rules of Civil Procedure.
Defendants
should however be able to answer easily and inexpensively whether
the emails of potentially relevant custodians9 from the relevant
time period reside on backup tapes at all.
If all the emails
from the pertinent time period are still on active servers or
other accessible media, there is no issue concerning backup
tapes.
If, however, the emails of potentially relevant custodi-
ans from the pertinent time period have been saved on backup
tapes, plaintiff has the right to attempt to show good cause for
their restoration.
Accordingly, within twenty-one (21) days of the date of
this Order, defendants are to identify the custodians they
9
Identifying potentially relevant custodians is not a
difficult task. I take judicial notice of the fact that
Rockefeller University is a major biomedical research institution
known for advanced research. Its student body consists of Ph.D.
candidates and post-doctoral scholars. Because plaintiff was a
former employee of the controller's office, it is unreasonable to
believe that any custodian outside of either the controller's
office or the human resources department would have emails
concerning plaintiff. For example, there is no reason to believe
that faculty or students would have emails pertinent to
plaintiff's claims.
24
believe may potentially have relevant e-mails, and disclose
whether any e-mails from these custodians, from the period from
November 1, 1998 to July 18, 2003, currently reside on backup
tapes or other inaccessible
media.
If plaintiff wishes to
attempt to show that there is good case to restore and search the
backup tapes or other inaccessible media, she may do so within
forty-two (42) days of the date of this Order.
Plaintiff's
motion to compel documents requested in Requests 13, 46, 47, 48,
and 49 is otherwise denied.
2.
Requests Seeking
Telephone Records
Document Request 14 seeks Rockefeller University's
telephone records for the non-entity defendants from January 2001
to January 2004.
Document Request 15 seeks Rockefeller Univer-
sity's telephone records for all "finance office staff . . .
under custody of Yolanda Alvarez, Accounts Receivable" from
January 2001 to December 2004.
Document Request 16 seeks defen-
dant Cassidy's home and cellular telephone bills from June 2002.
Document Request 17 seeks Rockefeller University's telephone
records for Bindu Patel, from March 1995 to April 1995.
Defendants object to these requests, arguing that they
are overbroad and irrelevant (see Defendants' Memo. of Law at 7-
25
9).
Plaintiff contends that these documents would reveal "whe-
ther supervisors [or coworkers] have contacted [p]laintiff and/or
reported plaintiff to Personnel," whether "Cassidy contacted
Yolanda Alvarez and Bind Patel to spy on [p]laintiff's first day
of return from weeks of leave," and whether "Bind Patel mad[e]
several calls to [p]laintiff's workplace and recruited [p]laintiff with an offer of asst. vice president within (10) years at
Maloney's order" (Plaintiff's Apr. 30 Memo. of Law at 29-31).
I conclude that the documents plaintiff is seeking in
these requests are not relevant to her action.
Generally, a party seeking to assert a claim of lack of
relevance
must satisfy the court that the requested documents either do not come within the broad scope of
relevance defined pursuant to Fed.R.Civ.P.
26(b)(1) or else are of such marginal relevance
that the potential harm occasioned by disclosure
would outweigh the ordinary presumption in favor
of broad disclosure.
Convermat Corp. v. St. Paul Fire and Marine Ins. Co., CV-06-1045
(JFB)(AKT), 2007 WL 2743696 at *3 (E.D.N.Y. Sept. 18, 2007),
quoting Burke v. N.Y.C. Police Dep't, 115 F.R.D. 220, 224
(S.D.N.Y. 1987) (Dolinger, M.J.).
Although some of the underlying occurrences plaintiff
describes in her memorandum of law may be relevant to her case,
the telephone records from the requested time periods would not
26
establish the existence of those occurrences.
What plaintiff
really seeks to prove is the content of the telephone calls;
telephone records, if they exist, will not prove the content of
the calls reflected therein.
Accordingly, plaintiff's motion to
compel the documents requested in Document Requests 14, 15, 16,
and 17 is denied.
3.
Other Document Requests
REQUEST NO.7: Any and all attendance records, including
but not limited to vacation, personal, sick, disability
leave forms submitted by individual defendants and
Controller's Office staff from April 1995 to May 2003.
Defendants object to this request on the grounds that
it is overbroad and calls for the production of irrelevant and
confidential information (Defendants' Memo. of Law at 6).
Plaintiff argues that these documents could be used to prove
disparate treatment between herself and others in the Controller's Office with respect to vacation and time off for seeing
doctors (Plaintiff's Apr. 30 Memo. of Law at 27-29).
Plaintiff has alleged in her June 2008 Complaint, that
half-day charges were imposed against her leave accounts if she
took time off for medical appointments, but that other employees
were not similarly charged (June 2008 Complaint ¶ 46).
Plaintiff
has not otherwise alleged disparate treatment as to vacation or
27
sick leave.
I conclude that plaintiff is entitled to documents
which reflect time off for medical appointments, by employees in
the controller's office, which was not charged to that person's
leave accounts, for the period from November 1, 1998 through July
18, 2003 because such documents might show the disparate treatment plaintiff alleges.
Production of these documents is to be
completed no later than twenty-one (21) days from the date of
this Order.
REQUEST NO. 12: Any and all DOCUMENTS pertaining to
promotion or hiring within Controller's Office to the
level of senior accountant and above from January
1985-present, the following facts about each employee
promoted:
A.
B.
C.
D.
E.
F.
G.
H.
I.
name;
race, national origin, and sex;
date of birth;
years of formal education completed;
years of employment experience and job title;
employee's Performance Evaluations;
criteria of or basis of promotion;
initial hire date, position and job
description; and
date of promotion, level or position promoted
to and job description of promoted position.
Plaintiff has alleged, in her June 2008 Complaint, that
she "was denied promotion to senior accountancy but Maloney
bestowed it to Mr. Vega.
According to Mr. Vega's current super-
visor, [the director of audit] was not impressed with John
[Vega]" ((June 2008 Complaint ¶ 73).
28
Plaintiff makes no other
relevant allegation pertaining to "hiring or promotion within the
Controller's Office to the level of senior accountant and above."
Accordingly, I find that plaintiff is entitled to all responsive
documents as to John Vega only.
Production of these documents is
to be completed no later than twenty-one (21) days from the date
of this Order.
Plaintiff's motion to compel documents responsive
to this request is otherwise denied.
REQUEST NO. 27: Any and all Personnel files from the
following below:
A.
B.
C.
D.
Plaintiff
Plaintiff's replacement
past and present similarly-situated employees
compared to Plaintiff from 1995-present
individuals hired for positions desired and
applied by Plaintiff including but not limited to:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
job posting (including qualification
criteria);
race, national origin, and sex;
date of birth;
years of formal education completed;
year of employment experience and job
title;
employee's Performance Evaluation;
job description and description of actual job performed;
rate of pay & increase;
date of hire and termination or
resignation (if applicable);
immediate supervisor's name, job title
and duties;
annual performance evaluation;
complaints, warnings, disciplinary
actions and / or reason for termination
(if applicable);
29
m.
n.
job application letter; and
promotion (if applicable).
Defendants produced plaintiff's personnel file in
response to this request and objected to the remainder on the
grounds that the request is overbroad and vague.
I find that plaintiff is entitled to the personnel file
of her replacement as well.
The characteristics of a terminated
plaintiff's replacement are relevant at the first step of the
McDonnell Douglas analysis.
Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000) (plaintiff satisfies burden at
initial stage of the McDonnell Douglas framework when "(i) at the
time he was fired, he was a member of the class protected . . .
(ii) he was otherwise qualified for the position . . . (iii) he
was discharged by respondent, and (iv) respondent [hired] persons
[outside of the relevant protected class] to fill petitioner's
position"); see also Burke v. N.Y.C. Police Dep't, supra, 115
F.R.D. at 225-26 ("[F]ederal courts have repeatedly recognized
the necessity for disclosure of such files in a variety of
circumstances.") , citing Weahkee v. Norton, 621 F.2d 1080, 1082
(10th Cir. 1980) (reversing district court denial of access to
EEOC personnel records in Title VII suit), and Fears v. Burris
Mfg. Co., 436 F.2d 1357, 1360-61 (5th Cir. 1971) (requiring
production of records of state employment office in Title VII
30
action).
Accordingly, defendants are directed to produce docu-
ments responsive to Request 27(B), no later than twenty-one (21)
days from the date of this Order.
With respect to Requests 27(C) and (D), plaintiff's
motion to compel is denied.
The information sought is irrelevant
and the requests do not describe the documents sought with
sufficient particularity.
REQUEST NO. 34: Any and all DOCUMENTS or lists of
Equipment Inventory typed by Eileen Harkins the week of
Plaintiff's termination; Excel spreadsheet of Equipment
Inventory prepared for April-May 2002 and Financial
Reporting System (FRS) showing Equipment Inventory
account from April-May 2002.
Plaintiff's motion to compel documents responsive to
this request is denied.
The documents requested by plaintiff are
irrelevant as they have no bearing on plaintiff's discrimination
claims.
REQUEST NO. 35: Any and all DOCUMENTS or lists of
Payroll Advance Reconciliation and Aging Report from
April 2003-present, identifying preparer and date of
submission.
Defendants object to this request on the grounds that
it calls for irrelevant documents and that the documents would be
burdensome to produce given the large time period for which
plaintiff seeks documents (Defendants' Memo. of Law at 10-11).
Plaintiff argues that these documents "are pertinent to prove
31
that . . . Unnat Desai was incapable of the job and never received any adverse consequences whereas [p]laintiff updated it
and was adversely affected" (Plaintiff's Apr. 30 Memo. of Law at
31).
Plaintiff has alleged, in her June 2008 Complaint, that
Desai, a younger male, was promoted to a position which entailed
completing the "payroll advance reconciliation / aging report"
(June 2008 Complaint ¶¶ 37, 77).
However, Desai was unable to
complete this duty, even after receiving assistance from Mr.
Vega, and plaintiff was assigned to assist and complete the job
(June 2008 Complaint ¶¶ 37, 38, 77).
I find that production of the requested documents,
albeit for a shorter period of time than had been requested by
plaintiff, to be appropriate.
Based on plaintiff's allegations,
the documents requested may contain relevant evidence of disparate treatment.
Plaintiff has requested responsive documents for
a period beginning forty-five days prior to her termination.
I
conclude that plaintiff is entitled to responsive documents from
the forty-five day period prior to her termination, as well as
the same interval following her termination.
Accordingly,
defendants are directed to produce the requested report or
reports, for the time period of April 1, 2003 through June 30,
2003, no later than twenty-one (21) days from the date of this
32
Order.
Plaintiff's motion to compel documents responsive to this
request is otherwise denied.
REQUEST NO. 36: Any and all DOCUMENTS as proof of
individual DEFENDANTS home address / residence from
April 1995-present.
Plaintiff's motion to compel production of documents
responsive to this request is denied because the information
sought is irrelevant.
REQUEST NO. 37: Any and all DOCUMENTS of DEFENDANT
witnesses and expert witnesses.
Plaintiff's motion to compel production of documents
responsive to this request is denied because the request is
clearly overbroad.
REQUEST NO. 40: Any and all DOCUMENTS including but not
limited to desk &/or calendar, appointment books,
software programs of appointments by individual DEFENDANTS from January 2002 to December 2004.
Plaintiff's motion to compel production of documents
responsive to this request is denied because the request is
overbroad and seeks irrelevant information.
Defendants' day-to-
day activities over the three-year period identified in this
request does not bear on plaintiff's claims of discrimination.
REQUEST NO. 41: Any and all DOCUMENTS or logbook entries of Controller's Department for accounting en-
33
tries, including but not limited to cash, journal,
budget, payroll from fiscal year 2001-present.
Plaintiff's motion to compel production of documents
responsive to this request is denied because the request is
overbroad and seeks irrelevant information.
The accounting
entries in the Controller's Department logbook do not bear on
plaintiff's claims of discrimination.
REQUEST NO. 43: Any and all DOCUMENTS concerning issuance and disposal of personal computers to Controller's
Office personnel from 1995 to 2003.
To the extent plaintiff seeks documents relating to
computers assigned to her, plaintiff's motion to compel production of documents responsive to this request is granted.
Plain-
tiff has alleged that her "[c]omputer CPU was exchanged with [a]
defective one," her "computer activities were monitored," and
that her computer files were copied by her supervisor (June 2008
Complaint ¶¶ 37, 57, 59).
Accordingly, defendants are directed
to produce documents responsive to this request, limited to
computers assigned to plaintiff, no later than twenty-one (21)
days from the date of this Order.
Plaintiff's motion to compel
is otherwise denied.
REQUEST NO. 44: Any and all DOCUMENTS distributed by
Laboratory Safety Personnel during orientation day to
new hires in April 1995.
34
Plaintiff's motion to compel production of documents
responsive to this request is denied because the request seeks
irrelevant information.
REQUEST NO. 45: Any and all DOCUMENTS on names of
attendees, home phone number and address of attendees
in April 1995 during job orientation held by Lab Safety
Personnel.
Plaintiff's motion to compel production of documents
responsive to this request is denied because the request seeks
irrelevant information.
REQUEST NO. 50: Any and all "July Suspense Report"
cleared in JULY since 1995 up to and including present
time.
Defendants object to this request on the grounds that
it calls for irrelevant documents and that the documents would be
burdensome to produce given the large time period for which
plaintiff seeks documents (Defendants' Memo. of Law at 16).
Plaintiff argues that the reports sought are "necessary proof
that [d]efendant Cassidy['s] sudden demand on July 29, 2002 [for
plaintiff to complete this report] was intended as retribution
[for a complaint plaintiff sent] to the Controller" (Plaintiff's
Apr. 30 Memo. of Law at 34-35).
Plaintiff has alleged that, despite the fact that the
July Suspense Accounts usually get "cleared" in August, plain-
35
tiff's supervisors unreasonably demanded plaintiff complete this
task in an insufficient period of time in order to "set up
[p]laintiff to fail on an assigned job," and, as a result,
plaintiff was reprimanded and ordered to attend counseling
sessions (June 2008 Complaint ¶ 57).
Based on these allegations, I find that the requested
documents are irrelevant.
Comparing multiple July Suspense
Reports will not illuminate the motives of the person assigning
the work to plaintiff, nor will it illuminate why plaintiff
failed to complete the task successfully.
Accordingly, plain-
tiff's motion to compel documents responsive to this request is
denied.
D.
Requests
For Admission
Plaintiff has also moved to compel defendants to
respond more adequately to her requests for admissions (see
Plaintiff's Response to Order at 11-13; Plaintiff's Nov. 19 Memo.
of Law ¶ 49).
Plaintiff argues that:
[E]ach of the individual defendants did not submit a
sworn statement admitting or denying the fact and/or
set forth the reasons why the affiant cannot answer, if
that be so. Instead, each response was signed by Atty.
Elise Bloom, whose signature not only lacked statement
certifying to the best of knowledge, information and
belief formed after reasonable inquiry, that they have
are complete and correct[,] FED.R.CIV.P. 26(g)(1)(A)
36
but also that defendants' counsel do not have any
first-hand knowledge and cannot be cross examine during
trial. Each defendant and not defendant' counsel
should provide a revised answer to the Request for
Admission personally and under oath
(Plaintiff's Response to Order at 12).
lacks merit.
Plaintiff's argument
The Federal Rules of Civil Procedure do not require
that responses to requests for admissions be signed by a party.
Additionally, the certification plaintiff seeks is inherent in
the attorney's signature and need not be expressly written in the
discovery document.
IV.
See Fed.R.Civ.P. 26(g)(1).10
Conclusion
Accordingly, for all the foregoing reasons, it is
hereby Ordered that:
10
Plaintiff also states, concerning her requests for
admission,
When the answer cannot be a succinct yes or no, and a
qualification of the response is indeed necessary.
Under these circumstances, the answering party is
obligated to specify so much of its answer as true and
qualify or deny the remainder of the request."
However, Rockefeller University acts through its
employees and agents as well as its Officers,
qualifying response is inappropriate. Rockefeller
University defendants should submit revised responses
with respect to all request for admission. Henry v.
Champlain Enterprises, Inc., 212 F.R.D. at 77
(see Plaintiff's Nov. 19, 2010 Memo. of Law ¶ 49). Because
plaintiff does not articulate a cognizable discovery dispute
here, I decline to address plaintiff's request.
37
(1) with respect to the forty-eight requests with
which defendants represent they have fully complied, to
the extent they have not already done so, defendants
are directed to produce responsive documents for the
time period from November 1, 1998 through July 18,
2003, unless the request specifies a narrower time
period;
(2) defendants are directed to provide either (a)
a revised privilege log containing the "identities,
titles, and roles of the authors, recipients, and those
CC'ed on the communications" referenced on defendants'
privilege log or (b) a separate list containing this
information;
(3) defendants are directed to identify the custodians they believe may potentially have e-mails responsive to Requests 13, 46, 47, 48, and 49, and disclose
whether any e-mails from these custodians, from the
period from November 1, 1998 to July 18, 2003, currently reside on backup tapes or other inaccessible
media;
(4) plaintiff's motion to compel is granted to the
extent that it seeks an Order directing defendants' to
produce
38
(a) documents responsive to Request 7 reflecting time taken off for medical appointments
by employees of the controller's office between
November 1, 1998 through July 18, 2003 for which
no charge was made to the employees' leave accounts;
(b) documents responsive to Request 12 concerning John Vega only;
(c) documents responsive to Request 27(B);
(d) the report or reports sought in Request
35, for the time period of April 1, 2003 through
June 30, 2003, and
(e) documents responsive to Request 43, limited to computers assigned to plaintiff.
Defendants shall complete all Ordered productions
within twenty-one (21) days from the date of this Order.
In all
other respects, plaintiff's motion to compel is denied and the
39
Clerk of the Court is directed to close Docket Items 129 and 133
in 04 Civ. 4008 and Docket Item 95 in 06 Civ. 1825.
Dated: New York, New York
March 9, 2012
SO ORDERED
United States Magistrate Judge
Copies mailed to:
Ms. Rosita C. Go
61 Bayhill Drive, #3D
Bridgeville, Pennsylvania, 15017
Elise M. Bloom, Esq.
Proskauer Rose, LLP
1585 Broadway
New York, New York 10036
Lisa M. Trocchio, Esq.
Lori D. Bauer, Esq.
Jackson Lewis, LLP
59 Maiden Lane
New York, New York, 10038
Michael J. Gudzy, Esq.
Jenny M. Park, Esq.
Wilson Elser Moskowitz Edelman & Dicker LLP
150 East 42nd Street
New York, New York 10017
Lori R. Semlies, Esq.
Wilson Elser Moskowitz Edelman & Dicker LLP
3 Gannett Drive
White Plains, New York 10604
40
Adam G. Guttell, Esq.
Michael A. Sonkin, Esq.
Martin Clearwater & Bell, LLP
220 East 42nd Street
New York, New York, 10017
41
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