Thompson v. Workmen's Circle Multicare Center
Filing
19
OPINION AND ORDER. Accordingly, for all the foregoing reasons, I grant in part and deny in part plaintiff's motion for forensic examination. If the electronic files of the dietary aide job descriptions show changes made from April 27, 2010 to the date of the filing of this lawsuit, and the dates on which those changes were made, defendant is to produce those electronic files within fourteen days of the date of this Order. If the electronic files of the dietary aide job descriptions do not show such changes and dates, defendant is to produce the dietary aide work assignments in paper format within fourteen days of the date of this Order, and indicate the dates that the various versions were applicable, if known. I also grant defendant 's motion to strike plaintiff's errata sheets with respect to her objections, without prejudice to plaintiff's right to object to any portions of her deposition that may be offered in connection with a summary judgment motion or offere d at trial, and I deny defendant's motion to strike plaintiff's errata sheets with respect to her changes. Lastly, I deny plaintiff's motion for sanctions. (Signed by Magistrate Judge Henry B. Pitman on 6/9/2015) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
NADINE THOMPSON,
:
Plaintiff,
11 Civ. 6885 (DAB)(HBP)
:
-against-
:
OPINION
AND ORDER
WORKMEN'S CIRCLE MULTICARE CENTER, :
Defendant.
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
I write to resolve three pending discovery disputes:
(1) plaintiff's application to conduct a forensic examination of
defendant's computers, (2) defendant's motion to strike the
errata sheets to plaintiff's deposition, and (3) plaintiff's
motion for sanctions.
For the reasons set forth below, (1) plaintiff's
application for forensic examination is granted in part and
denied in part, (2) defendant's motion to strike plaintiff's
errata sheets is granted in part and denied in part, and (3)
plaintiff's motion for sanctions is denied.
II.
Facts
Plaintiff Nadine Thompson commenced this action pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 1211117, alleging discrimination by defendant Workmen's Circle Multicare Center ("Workmen's Circle") on the basis of disability
(Complaint, dated September 27, 2011 (Docket Item 2) ("Compl.")
at 1),1 and that she was constructively terminated (see Compl. at
8; Nadine Thompson's Letter to the Undersigned dated October 6,
2012 at 4).2
Plaintiff is proceeding pro se.
Plaintiff was employed as a dietary aide at Workmen's
Circle (Compl. at 5).
She was injured on the job in April 2010
(Compl. at 5) and alleges that, on July 19, 2010, defendant
failed to accommodate her resulting disability (see Compl. at 23).
Specifically, she alleges that although she was able to
return to work in a limited capacity, Workmen's Circle failed to
accommodate her disability by requiring that she be fully recovered before returning to work (Compl. at 5).
In addition,
plaintiff contends that Workmen's Circle failed to engage in an
interactive process to determine whether it reasonably could have
1
Because plaintiff's Complaint is not serially paginated, I
use the page numbers assigned by the Court's ECF system.
2
This letter has not been filed on the Court's ECF system.
It will be filed simultaneously with this Order.
2
accommodated her disability (Compl. at 5).
It is not clear
whether plaintiff contends that she was terminated on July 19,
2010 (see Compl. at 3 ("It is my best recollection that the
alleged discriminatory acts occurred on:
7/19/2010."); Compl. at
6 (attached Equal Employment Opportunity Commission ("EEOC")
letter finding that plaintiff submitted doctor's notes to defendant in March 2011)).
Plaintiff does not clearly state when she
was terminated.
III.
The Remaining
Discovery Disputes
A.
Plaintiff's Application
for Forensic Examination
Plaintiff requests forensic examination of defendant's
computers and other electronic equipment in order to obtain (1)
verification of the authenticity of an email that was produced in
paper form and (2) information regarding the chronology of edits
made to her work assignments.3
3
Plaintiff includes in her letters in support of her application the text of her discovery Requests 1, 2 and 3 that she
submitted to defendant after a September 2012 conference in this
matter. Nevertheless, it appears that plaintiff's motion is
seeking only forensic examination and that these Requests are
part of her application for forensic examination. They appear to
list various equipment that plaintiff would like defendant to
turn over for examination by a forensic technician.
3
1.
Forensic Examination
Regarding the Email
Plaintiff contests the authenticity of an email produced during discovery.
The email purports to have been for-
warded by Arthur Cooperberg, Chief Financial Officer of Workmen's
Circle, to Elena Zaretsky, Workmen Circle's Director of Human
Resources, on April 14, 2011, re-transmitting an email he sent
her on July 19, 2010.
In the email, Mr. Cooperberg states that
he met with plaintiff on July 19, 2010, and that plaintiff had
produced a doctor's note stating that she could return to work in
a limited capacity.
Mr. Cooperberg states in the email that he
told plaintiff that the note was inconsistent with earlier notes
from her doctor, which stated that she was able to return to work
without any limitations.
He also wrote that the most recent note
did not "specify any restrictions or conditions she [sic] can
resume her work" (Email, annexed to Ravindra K. Shaw's Letter to
the Undersigned dated October 15, 2012).4
According to the
email, Mr. Cooperberg sent plaintiff home and did not permit her
to return to work that day.
4
This letter has not been filed on the Court's ECF system.
It will be filed simultaneously with this Order.
4
Plaintiff contends that the hardcopy version of the
email is "an attempt by the Defendant and its counsel to defraud
the court" (Nadine Thompson's Letter to the Undersigned dated
October 6, 2012 at 1) because she never met with Mr. Cooperberg
on July 19, 2010.
She requests access to defendant's computers
in order to verify whether the email was in fact sent by Mr.
Cooperberg on July 19, 2010.
I held two conferences in which this issue was discussed, one on September 10, 2012 and one on October 2, 2012.
At
both conferences I explained that before I could determine
whether to grant plaintiff access to defendant's computers, she
would need to obtain an expert forensic technician and submit a
specific proposal identifying the expert, describing his credentials, and setting forth the precise nature of the inspection he
intended to conduct.
I reiterated that I was expressing no
opinion as to whether I would grant her such access.
In a letter dated October 6, 2012, plaintiff partially
responded to my requests for additional information.
Plaintiff
attached a resume of David S. Capelli, a digital forensic examiner, to her letter, but plaintiff did not include any information regarding what tests Mr. Capelli would perform.
In addi-
tion, plaintiff explicitly stated in her cover letter that she
5
had not yet decided which expert, if any, she would use for a
forensic examination.5
Defendant, in its letter dated October 15, 2012, argued
that plaintiff should not be granted access to defendant's
computers because she did not identify the forensic examiner with
certainty and did not describe the nature of the examination that
would be performed.
Defendant also argued that a forensic
examination of its computers is not warranted because there is no
reason to believe the email at issue is not authentic.
Defendant
also noted that plaintiff questioned Mr. Cooperberg about the
events discussed in the email at his deposition and could have
cross-examined Ms. Zaretsky, had she chosen to do so.
Defendant
argued that forensic examination of defendant's computers would
place an undue burden on defendant's privacy and confidentiality
rights, and the electronic version of the email was deleted from
both Mr. Cooperberg's and Ms. Zaretsky's mailboxes, meaning that
it is no longer easily accessible.6
5
Plaintiff further contends that any such decision would be
confidential and subject to the work-product privilege. This is
not a correct statement of the law. Disclosure of the identity
of expert witnesses is required under the Federal Rules of Civil
Procedure. See Fed.R.Civ.P. 26(a)(2).
6
Defendant states that after the email was printed but
before plaintiff filed her complaint, Mr. Cooperberg and Ms.
Zaretsky deleted all electronic correspondence between them
because of a personal matter and inadvertently deleted this email
in the process.
6
I deny plaintiff's application for forensic examination
with respect to Mr. Cooperberg's email.
Despite ample opportu-
nity, plaintiff has not complied with the requirements that I set
forth at both conferences concerning this issue.
Although
plaintiff submitted another letter to me concerning this issue in
2015, it remains unclear whether plaintiff has selected an expert
forensic technician, and plaintiff has not provided a statement
of what tests the expert would perform in the event that her
application is granted.
As I stated previously, without this
threshold information, it is inappropriate to grant plaintiff
access to defendant's computers.
See Loving v. N'Namdi, 05 Civ.
7966 (JGK)(MHD), 2006 WL 3456311 at *1 (S.D.N.Y. Nov. 29, 2006)
(Dolinger, M.J.) ("We are not inclined in any event to approve
testing without a specification of purpose, methodology and
time-frame.").
Even without the electronic information that she
seeks, plaintiff remains free to testify to her version of the
facts and to argue that she did not meet with Mr. Cooperberg on
July 19, 2010.
While plaintiff did not question Mr. Cooperberg
about the email at his deposition on August 30, 2012, plaintiff
did question Mr. Cooperberg about the events that were documented
in the email.
deposition.
She was also asked about those events at her
Whether the meeting with Mr. Cooperberg occurred is
7
a factual matter that is properly resolved by a jury, if the case
goes on to trial.
I note further that plaintiff does not appear
to dispute that an employee of Workmen's Circle did meet with her
on July 19, 2010 and, at Mr. Cooperberg's direction, sent her
home because her doctor's note stated that she could only perform
light duty (Transcript of Plaintiff's Deposition, annexed to
Ravindra K. Shaw's Letter to the Undersigned dated February 17,
2015,7 at 124; Plaintiff's Errata Sheets, annexed to Ravindra K.
Shaw's Letter to the Undersigned dated February 17, 2015).
Whether it was Mr. Cooperberg or another individual from Workmen's Circle who met with plaintiff on July 19, 2010 does not
appear to be a critical question of fact in this case.
As agents
of Workmen's Circle, the action and statement of either Mr.
Cooperberg or another employee are attributable to defendant.
Accordingly, I deny plaintiff's application for forensic examination with respect to Mr. Cooperberg's email.
2.
Chronology of Edits to
Plaintiff's Job Description
Plaintiff also seeks forensic examination of defendant's computers in order to obtain information about modifica-
7
This letter has not previously been filed on the Court's
ECF system. It will be filed simultaneously with this Order.
8
tions to the dietary aide's job description.
In discovery,
defendant produced printouts of documents that contain descriptions of a dietary aide's job duties.
Plaintiff argues that
these descriptions demonstrate that, at some point, the job
duties of the dietary aide position changed.
Plaintiff contends
that defendant altered the job duties with the intention of
rendering her unable to perform the job because of her injury.
Plaintiff seeks forensic examination of the electronic versions
of the documents in order to determine the dates on which these
changes were made.
She argues that the dates of these changes
would show that the revisions to the dietary aide job assignments
occurred after she requested "reasonable accommodation on July
19, 2010," although it is not clear whether she also seeks
documentation of any revisions after her injury on April 27, 2010
(Nadine Thompson's Letter to the Undersigned dated October 6,
2012 at 4-5).
Plaintiff believes that the timing of the changes
will show Workmen Circle's discriminatory intent.
Plaintiff does
not describe the nature of the changes in job duties and offers
no specifics showing that the requirements of her job became more
rigorous such that she was unable to perform them.
As discussed above, plaintiff has not met the threshold
requirements for forensic examination of defendant's computers or
other equipment because it is not clear that she has selected an
9
expert, and she has not specified what tests her expert would
perform.
Nevertheless, the information plaintiff is seeking -dates on which changes were made to her work assignments -- might
be available without resorting to forensic testing.
Defendant
contends that it produced sixteen written job assignments in
paper format during discovery.
Based on defendant's submissions,
it appears that defendant used Microsoft Word during the relevant
time period, and my understanding is that if the "Track Changes"
setting is engaged in that application, edits and the dates on
which they are made are saved.
If the electronic files of the
documents produced that describe plaintiff's duties will disclose
any edits to the job description and the dates on which they were
made, from April 27, 2010 to the commencement of this lawsuit,
defendant is to produce those electronic files within fourteen
days of the date of this Order.
If the electronic files do not
contain such information, defendant is to produce the job descriptions in paper format, indicating the dates on which changes
were made, from April 27, 2010 to the commencement of this
lawsuit, if known, within fourteen days of the date of this
Order.
While the relevance of these dates that plaintiff seeks
is thin -- whether discriminatory intent can be inferred from the
timing of the changes to plaintiff's job description alone is
10
problematic -- the burden of producing the documents is de
minimis.
B.
See Fed.R.Civ.P. 26(b)(2)(C).
Errata Sheets
Defendant has moved to strike the errata sheets plaintiff submitted concerning her deposition.
On September 10, 2012, plaintiff filed a motion seeking
to exclude her deposition testimony, claiming that her deposition
was improperly conducted.
Among other things, she argued that
defendant's counsel intimidated her and ridiculed her.
On
September 10, 2012, I held a conference in which this issue was
discussed.
Plaintiff had not requested a copy of her deposition
transcript prior to the conclusion of her deposition, as required
by Fed.R.Civ.P. 30(e) as a prerequisite to making changes to
deposition testimony.
I nevertheless directed defendant to
provide plaintiff with a copy of her deposition and directed
plaintiff to make her changes within fifteen days thereafter.
Defendant contends that it received plaintiff's errata
sheets one week after they were due.
Plaintiff made over two
hundred changes and objections to her deposition testimony on her
errata sheets.
By letter dated November 2, 2012, defendant
argues that these objections are waived and that the errata
sheets should be excluded because the changes plaintiff made are
11
untimely and substantively improper.
By letter dated November
20, 2012, plaintiff explained that she did not include weekends
in her calculation of the fifteen days and asks that her changes
and objections not be stricken.
As a preliminary matter, I find that plaintiff's
failure to comply with the fifteen-day deadline that I set does
not result in waiver of the objections or preclusion of the
changes in her errata sheets.
While plaintiff's errata sheets
were late, they were only one week late.
Plaintiff is proceeding
pro se, and her lateness has not resulted in any prejudice to
defendant.
1.
Objections
Defendant next argues that plaintiff waived the objections in her errata sheets because they were raised after conclusion of her deposition.
Defendant also contends that these
objections were not authorized by my order of September 10, 2012.
Most of plaintiff's supplemental objections read as
follows:
Objection - Defendant attempting to submit into evidence a document regarding activities that are outside
of the scope of the July 19, 2010 ADA discrimination
case involving a constructive termination of the plaintiff from her employment with the Defendant. Document
being submitted is not admissible evidence calculated
to lead to discovery relating to the July 19, 2010 ADA
12
discrimination case involving a constructive termination. Activities following July 19, 2010 termination
are outside the timeframe of discrimination which
occurred on July 19, 2010. This objection should be
noted and subsequent lines should be edited accordingly. August 29, 2011 is outside the timeframe for
case at hand.
*
*
*
Objection - Defendant attempting to ask questions to
the plaintiff witness regarding activities that are
outside the scope of the July 19, 2010 ADA case . . . .
*
*
*
Objection - This question is related to Page 200 - Line
14 to 25 and Page 202 - Line 4 which was responded to
with an objection. This objection should be noted and
subsequent lines should be edited accordingly.
(Plaintiff's Errata Sheets, annexed to Ravindra K. Shaw's Letter
to the Undersigned, dated February 17, 2015).
Similarly, plain-
tiff also objects at points because she claims defendant was
asking about items that were not "in evidence," asking questions
that were not supported by any items "submitted into evidence,"
and asking about a document that was "not available" at the time
plaintiff claims defendant discriminated against her.
Under Federal Rule of Civil Procedure 30, "[t]he
examination and cross-examination of a deponent proceed as they
would at trial under the Federal Rules of Evidence, except Rules
103 and 615."
Fed.R.Civ.P. 30(c).
Plaintiff's supplemental
objections are not cognizable objections under the Federal Rules
13
of Evidence.
To the extent that plaintiff's objections are
objections to the admissibility or relevancy of testimony, these
issues are not ripe for decision.
The relevancy and admissibil-
ity of deposition testimony will be determined by Judge Batts if
the case goes to trial and if the testimony in issue is offered;
plaintiff can assert her objections to admissibility at that
time.
Plaintiff's remaining objections are that defense
counsel badgered her, that certain questions were broad and
unclear, and that certain questions defendant posed had previously been asked and answered.
The latter objection is not
cognizable under the Federal Rules of Evidence either.
In any
event, it is too late now to remedy any impropriety in the form
of defendant's questions.
See Fed.R.Civ.P. 32(d)(3)(B).
Accordingly, I grant defendant's motion to strike
plaintiff's objections in her errata sheets without prejudice to
plaintiff's right to object to any portions of her deposition
that may be offered in connection with a summary judgment motion
or offered at trial.
14
2.
Changes in
Plaintiff's Testimony
Defendant next argues that plaintiff's changes to her
deposition testimony are substantively improper and that they
should be stricken.
Defendant argues that plaintiff's changes to
her deposition testimony should not be permitted because plaintiff used the errata sheets to create a factual issue that was
not present in her deposition testimony.
Specifically, defendant
contends that while plaintiff initially stated at her deposition
that she met with Arthur Cooperberg on July 19, 2010, in her
changes to her deposition testimony she stated that she did not
meet with him on that date.8
I do not find this change to be a basis to exclude
plaintiff's errata sheets.
Rule 30(e) of the Federal Rules of
Civil Procedure permits a deponent to make changes to the form or
substance of her deposition testimony.
See Podell v. Citicorp
Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); In re
8
Plaintiff's deposition testimony is ambiguous on this
point. Plaintiff did identify Mr. Cooperberg as having discriminated against her because he told her not to return to work until
she was fully recovered (Transcript of Plaintiff's Deposition,
annexed to Ravindra K. Shaw's Letter to the Undersigned dated
February 17, 2015, at 84). However, she also testified that she
never saw Mr. Cooperberg (Transcript of Plaintiff's Deposition,
annexed to Ravindra K. Shaw's Letter to the Undersigned dated
February 17, 2015, at 130).
15
Weatherford Int'l Sec. Litig., 11 Civ. 1646 (LAK)(JCF), 2013 WL
4505259 at *4 (S.D.N.Y. Aug. 23, 2013) (Francis, M.J.) ("'Courts
in the Second Circuit construe Rule 30(e) broadly, permitting any
changes to the deposition to be considered as part of the record,
even where they contradict the original answers.'"), quoting
Samad Bros., Inc. v. Bokara Rug Co., 09 Civ. 5843, 2012 WL 43613
at *8 (S.D.N.Y. Jan. 9, 2012) (Keenan, D.J.).
I further note that the changes plaintiff made on her
errata sheets will not have the effect of replacing or deleting
any of her deposition testimony.
As the Second Circuit has
stated:
[W]hen a party amends h[er] testimony under Rule 30(e),
"[t]he original answer to the deposition questions will
remain part of the record and can be read at the
trial."• Id. (citing, inter alia, Usiak v. New York
Tank Barge Co., 299 F.2d 808 (2d Cir. 1962)). "Nothing
in the language of Rule 30(e) requires or implies that
the original answers are to be stricken when changes
are made."• Id. at 641-642. This Court has recognized
that because "[a]ny out-of-court statement by a party
is an admission," a deponent's "original answer should
[be] admitted [into evidence]" even when he amends his
deposition testimony -- with the deponent "[o]f course
. . . free to introduce the amended answer and explain
the reasons for the change."• Usiak, 299 F.2d at 810.
Podell v. Citicorp Diners Club, Inc., supra, 112 F.3d at 103
(first and second alteration added); see Toland v. Forest Labs.,
Inc., 00 Civ. 4179 (LAK), 2001 WL 30617 at *1 (S.D.N.Y. Jan. 11,
2001) (Kaplan, D.J.) ("Both the original and corrected answers
16
remain part of the record."); see also Holland v. Cedar Creek
Mining, Inc., 198 F.R.D. 651, 653 (S.D. W. Va. 2001); Metayer v.
PFL Life Ins. Co., No. CIV. 98-177-P-C, 1999 WL 33117063 at *3
(D. Me. July 15, 1999); Innovative Mktg. & Tech. v. Norm Thompson
Outfitters, Inc., 171 F.R.D. 203, 205 (W.D. Tex. 1997).
Thus,
defendant remains free to submit plaintiff's original deposition
testimony into evidence; however, whether the deposition transcript or the errata sheets are controlling will be an issue for
the fact finder and is not a basis for striking plaintiff's
errata sheets.
Defendant also contends that plaintiff's changes should
not be permitted because the reasons she provides for changing
her testimony are not valid.
Specifically, defendant finds the
following language to be inadequate:
"Reason for change - I did
not get a chance to provide clarification during deposition" (see
Plaintiff's Errata Sheets, annexed to Ravindra K. Shaw's Letter
to the Undersigned, dated February 17, 2015).
While Rule 30(e) requires an explanation for changes to
deposition testimony, it does not require or contemplate judicial
scrutiny of the reasonableness of that explanation.
A deponent invoking this [Rule 30(e)] privilege must
"sign a statement reciting [any] changes and the reasons given . . . for making them," id., but "[t]he
language of the Rule places no limitations on the type
of changes that may be made[,] . . . nor does the Rule
17
require a judge to examine
ness, or legitimacy of the
even if those reasons "are
Thomas, 89 F.R.D. 639, 641
omitted).
the sufficiency, reasonablereasons for the changes"•-unconvincing."• Lugtig v.
(N.D. Ill. 1981) (citations
Podell v. Citicorp Diners Club, Inc., supra, 112 F.3d at 103
(first and second alterations added).
Therefore, plaintiff's
changes may not be excluded based on defendant's dissatisfaction
with the reasons she provided for her changes.
Accordingly, I deny defendant's motion to strike the
changes plaintiff made to her deposition testimony.
C.
Plaintiff's
Motion for Sanctions
By letter dated March 10, 2015, plaintiff seeks sanctions against defendant for failing to retain a surveillance
video.
Plaintiff contends that defendant was under an obligation
to retain a surveillance tape made on July 19, 2010, the day that
Mr. Cooperberg claims he met with plaintiff.
She believes that
the video will show that she did not meet with Mr. Cooperberg on
that day.
"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for
another's use as evidence in pending or reasonably foreseeable
litigation."
West v. Goodyear Tire & Rubber, Co., 167 F.3d 776,
18
779 (2d Cir. 1999).
A party who seeks sanctions based on the
spoliation of evidence must show:
"(1) that the party having
control over the evidence had an obligation to preserve it at the
time it was destroyed; (2) that the records were destroyed with a
culpable state of mind and (3) that the destroyed evidence was
relevant to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or
defense."
Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 430
(S.D.N.Y. 2004) (Scheindlin, D.J.) (internal quotation marks
omitted); see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d
135, 162 (2d Cir. 2012).
"A litigant has the 'duty to preserve what it knows, or
reasonably should know, is relevant in the action, is reasonably
calculated to lead to the discovery of admissible evidence, is
reasonably likely to be requested during discovery and/or is the
subject of a pending discovery request.'"• Passlogix, Inc. v. 2FA
Tech., LLC, 708 F. Supp. 2d 378, 409 (S.D.N.Y. 2010) (Leisure,
D.J.), quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D.
68, 72 (S.D.N.Y. 1991) (Francis, M.J.).
The "'[o]bligation to
preserve evidence arises when the party has notice that the
evidence is relevant to litigation . . . for example when a party
should have known that the evidence may be relevant to future
litigation.'"• Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem.
19
Co., 769 F. Supp. 2d 269, 289 (S.D.N.Y. 2011) (Francis, M.J.)
(second alteration in original), quoting Kronisch v. United
States, 150 F.3d 112, 126 (2d Cir. 1998), overruled on other
grounds, Rotella v. Wood, 528 U.S. 549 (2000).
"The duty to
preserve arises, not when litigation is certain, but rather when
it is 'reasonably foreseeable.'"
Alter v. Rocky Point Sch.
Dist., 13-1100 (JS)(AKT), 2014 WL 4966119 at *8 (E.D.N.Y. Sept.
30, 2014), quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243
F.3d 93, 107 (2d Cir. 2001).
Production of the surveillance tape was discussed in a
conference I held on October 2, 2012.
Defendant stated, as it
had in its interrogatory responses, that it no longer had the
surveillance tape because its system automatically overwrites
recordings after four months.
Plaintiff contended that Mr.
Cooperberg, at his deposition, testified to the contrary, stating
that the surveillance video was backed up on disks.
At that time
I told plaintiff that I needed to review the deposition testimony
before rendering a decision on this issue.
Plaintiff submitted the transcript of her deposition of
Mr. Coopenberg with her March 2015 letter.
At his deposition,
Mr. Cooperberg stated that the surveillance video no longer
existed because the cameras overwrite the tape after three
months.
Plaintiff asked him what would happen if a person
20
injured themselves in front of one of the cameras.
Mr.
Cooperberg stated that in that situation, defendant would put the
video onto a disk and store the disk.
Here, while defendant may have been on notice that
litigation was reasonably foreseeable when plaintiff filed a
claim with the EEOC, and while it appears that the surveillance
tape was still available at that time,9 thus triggering its duty
to retain potential evidence for litigation, the connection
between the surveillance video and plaintiff's claim is simply
too attenuated to permit a finding that defendant had a duty to
preserve the tape.
"'[A] litigant is under no duty to keep or retain every
document in its possession.'"
Zubulake v. UBS Warburg LLC,
supra, 220 F.R.D. at 217, quoting Turner v. Hudson Transit Lines,
Inc., supra, 142 F.R.D. at 72.
Plaintiff appears to seek a
surveillance tape of the area of the building where Mr. Cooperberg claims he met with her on July 19, 2010 in order to prove
that she was not in that location on that date.
9
Plaintiff's
Neither side's letters identify the date that plaintiff
submitted a claim to the EEOC or the date that the EEOC notified
defendant that plaintiff had submitted a claim. Plaintiff
contends that defendant had notice of her EEOC complaint between
September 2010 and December 2010, and her Complaint states that
she filed a charge with the EEOC on October 22, 2010 (Compl. at
3).
21
allegations in this case are based on defendant's failure to
accommodate her disability by offering her a position that she
was physically capable of performing.
She has provided no
explanation why such allegations would put defendant on notice
that it should retain a surveillance tape of the day plaintiff
claims she was told that there were no light duty jobs at Workmen's Circle for which she was qualified.
Plaintiff has not
alleged that she was involved in an altercation, an accident or
similar occurrence on that date.
Plaintiff also does not appear
to contend that she was terminated on that date.
Workmen's Circle simply could not have foreseen that
such surveillance tape was "'reasonably likely to be requested
during discovery.'"
Passlogix, Inc. v. 2FA Tech., LLC, supra,
708 F. Supp. 2d at 409, quoting Turner v. Hudson Transit Lines,
Inc., supra, 142 F.R.D. at 72.
Given that plaintiff's discrimi-
nation claim, as stated in her EEOC charge, appears to rest
largely on various doctor's notes, conversations with staff at
Workmen's Circle, and available job positions, there is nothing
that would have led defendant to believe it was important to
retain the surveillance tape that plaintiff seeks.
Again,
whether plaintiff met with Mr. Cooperberg on July 19, 2010 does
not appear to be a critical issue in this case.
22
I also note that plaintiff did not commence this
lawsuit until September 27, 2011, and, therefore, defendant could
not have been put on notice to retain the surveillance video
pursuant to a specific discovery request for the tape.
Further, contrary to plaintiff's contention, Mr.
Cooperberg's deposition testimony does not suggest that the
surveillance tape that plaintiff seeks was retained on a disk.10
Plaintiff does not seek video of her injury.
Plaintiff appears
to seek a surveillance tape that essentially shows an empty
hallway or conference room.
Accordingly, I deny plaintiff's motion for sanctions.
IV.
Conclusion
Accordingly, for all the foregoing reasons, I grant in
part and deny in part plaintiff's motion for forensic examination.
If the electronic files of the dietary aide job descrip-
tions show changes made from April 27, 2010 to the date of the
filing of this lawsuit, and the dates on which those changes were
made, defendant is to produce those electronic files within
fourteen days of the date of this Order.
10
If the electronic files
Plaintiff also contends that defendant lied because Mr.
Cooperberg stated that the video was retained for three months
while defendant's counsel stated that the video was retained for
four months. This one month difference is immaterial.
23
of the dietary aide job descriptions do not show such changes and
dates, defendant is to produce the dietary aide work assignments
in paper format within fourteen days of the date of this Order,
and indicate the dates that the various versions were applicable,
if known.
I also grant defendant's motion to strike plaintiff's
errata sheets with respect to her objections, without prejudice
to plaintiff's right to object to any portions of her deposition
that may be offered in connection with a summary judgment motion
or offered at trial, and I deny defendant's motion to strike
plaintiff's errata sheets with respect to her changes.
Lastly, I deny plaintiff's motion for sanctions.
Dated:
New York, New York
June 9, 2015
SO ORDERED
United States Magistrate Judge
Copies mailed to:
Ms. Nadine Thompson
137 Beechwood Avenue
Mount Vernon, New York 10553
24
Eric P. Simon/ Esq.
Ravindra K. Shaw, Esq.
Jackson Lewis LLP
666 Third Avenue/ 29th Floor
New York/ New York 10017
25
Representing Management Exclusively in Workplace law and Related Litigation
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Ravindra K. Shaw
Nadine Thompson v. Workmen's Circle MultiCare Center
S.D.N.Y. Case No. 11 CV 6885 (DAB) (HBP)
October 15, 2012
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October 15, 2012
VIA FACSIMILE (212) 805-6111
Honorable Henry B. Pitman
United States District Court
Southern District ofNew York
United States Courthouse
500 Pearl Street
New York, New York 10007-1312
Re:
Nadine Thompson v. Workmen's Circle MultiCare Center
S.D.N.Y. Case No. 11 CV 6885 (DAB) (HBP)
Dear Judge Pitman:
We represent Defendant Workmen's Circle MultiCare Center in the above-referenced
employment discrimination case. Please note that Plaintiff is proceeding prose. We submit this
letter in opposition to Plaintiff's twenty-page "Motion for CoUl1 Order to Compel Defendant
Workmen's Circle to Produce Evidence As Requested By Plaintiff Under the Conditions Of
Which Were Set By the Court 9/10/2012 and 10/02/2012/' which we are advised was faxed to
the Court on Monday, October 8, 2012.
Based on our understanding of the issues that have been inartfully presented, 1 we
respectfully submit that Plaintiffs Motion should be denied in its entirety for the reasons
described below.
I.
Plaintiff Has Not Complied With The Cou1·t's Prior Discovery Rulings and
Mischaracterizes The Rulings.
Plaintiff claims that during the September 10, 2012 and October 2, 2012 discovery
conferences, the Court ruled that Defendant should comply with her requests to subpoena certain
electronic equipment and that the Court granted her permission to conduct a forensic
investigation. The Cout1 did no such thing. At both conferences, the Court explained to Plaintiff
that requiring a forensic examination is not an undertaking to be taken lightly and it directed
Plaintiff to provide a written submission explaining the identity of her proposed forensic
examiner, his or her qualifications, and the nature and scope of the forensic examination, all of
which the CoUtt would duly consider after receiving Defendant's response to her submission.
We note, for example, that portions of Plaintiff's Motion appear to be cut-and-pasted from other discovery
documents incorrectly.
jackson Ilewis
Attorne)'S at Law
Honorable Henry B. Pitman
United States District Court
Southern District ofNew York
October 15,2012
Page2
Plaintiff has failed to comply with the Court's ruling. Plaintiff has submitted a blank
wtsigned agreement for computer forensic services with Placido Verna Ltd. Even assuming that
Plaintiff has formally engaged this forensic examiner, Plaintiff has not explained what precisely
the examiner proposes to do with Defendant's computers and electronic equipment (i.e., what
methodologies, tests, and equipment will be utilized) and what precautions will be taken.
Instead, Plaintiff has submitted a blank Preliminary Examination Checklist. Accordingly,
Plaintiffs Motion should be denied for failing to provide sufficient information.
II.
Plaintiff Has Not Demonstrated That A Forensic Examination Is Warranted.
Plaintiff apparently seeks to conduct an extensive forensic review of Defendant's
computers, storage media, servers, and other electronic equipment. However, the Advisory
Committee on the 2006 Amendment to Fed. R. Civ. P. 34(a) has stated that:
Inspection or testing of certain types of electronically stored
information or of a responding patty's electronic information
system may raise issues of confidentiality or privacy. The addition
of testing and sampling to Rule 34(a) with regard to documents
and electronically stored information is not meant to create a
routine right of direct access to a party's electronic information
system, although such access might be justified in some ·
circumstances. Courts should guard against undue intrusiveness
resulting from inspecting or testing such systems.
Rule 26(b)(2)(C) authorizes a court to cwtail discovery where (i) "the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive''; (ii) "the party seeking discovery has had ample
opportunity to obtain the information by discovery in the action'' or (iii) uthe burden or expense
of the proposed discovery outweighs its likely benefit, taking into account the needs of the case,
the amount in controversy, the parties' resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues." Fed. R. Civ. P.
26(b)(2)(C).
Plaintiff apparently seeks a forensic review to investigate the circumstances surrounding
the preparation of an April 14, 2011 e-mail and the preparation of written job assignments for
Plaintiff's dietary aide position. Plaintiff has not shown that a forensic examination is necessary
in either case.
A. The April14, 2011 E-mail Printout
Plaintiff claims she needs a forensic review because a printout of an April 14, 2011 email from Defendant's Chief Financial Officer Arthw· Cooperberg to its Human Resources
Director Elena Zaretsky "could be an attempt by the Defendant and its counsel to defraud the
court." The printout was produced in discovery and Bates-numbered 0000287-288. A true and
jackson Ilewis
Attorne)'S at Law
Honorable Henry B. Pitman
United States District Court
Southern District of New York
October 15, 2012
Page 3
correct copy is attached hereto. The April 14, 2011 e-mail re-sends a prior July 19, 2010 e-mail
that Mr. Cooperberg sent to Ms. Zaretsky detailing what occun·ed and what was said during a
meeting he had with Plaintiff on July 19, 2010 when she attempted to return to work after she
suffered an injury on April27, 2010.
Plaintiff has not provided the Court with any reason to believe that the April 14, 2011 email printout is fraudulent. The mere fact that the document "could have been created
fraudulently" does not give Plaintiff a license to rummage through Defendant's computer
equipment and systems in the hope that she may uncover fraud. Plaintiff has offered no reason
to believe that Defendant altered or tampered with the April 14, 2011 and July 19, 2010 e-mails
before the printout was made. Nor has Plaintiff explained how a forensic examination will
reveal that the e-mails are not "real" or that the date and time stamps on the e-mails are
unreliable.
Defendant is fully prepared to proffer evidence of the printout's authenticity. Mr.
Cooperberg will testify under oath that he created and sent the April14, 2011 and July 19, 2010
e-rnails to Ms. Zaretsky. Ms. Zaretsky will testify under oath that she received these e-mails.
Both individuals will futther testifY that the printout fairly and accurately represents thee-mails
that Mr. Cooperberg sent to Ms. Zaretsky. That is all that is required to authenticate the contents
of the printout. See Fed. R. Evid. 901(b)(l); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534,
545, 554 (D. Md. 2007).
Plaintiff apparently seeks to obtain electronic versions of the April 14, 2011 and July 19,
2010 e-mails but does not explain how or why she needs to do so. It is well settled that an
accurate printout of data stored on a computet· is an "original." See Fed. R. Evid. lOOl(d).
Regardless, the printout is of limited importance with respect to the broader issue of whether
Defendant violated the Americans With Disabilities Act. Neither the preparation of the e-mails
nor their contents are direct evidence of discriminatory or illegal conduct. Mr. Cooperberg and
Ms. Zaretsky's computer-related activities are not directly in issue, as would be the case where
an employee improperly accessed, copied, and/or transmitted trade secrets from a computer.
Employers frequently document employee issues contemporaneously, lest a court deem
explanations of their decisions after the fact self-serving and unworthy of belief Here, the emails reflect contemporaneous documentation of an already completed event- namely, the July
19, 2010 conversation between Plaintiff and Mr. Cooperberg. Plaintiff fully explored the
substance of the printout- the July 19, 2010 conversation- during Mr. Cooperberg's deposition.
Consistent with the content of his July 19, 2010 e-mail, Mr. Cooperberg testified as to what was
said between Plaintiff and him on July 19th. The April 14, 2011 e-mail printout merely
corroborates Mr. Cooperberg's testimonial evidence. If Plaintiffs motion for a forensic review
is denied, she remains free to dispute Mt·. Cooperberg's testimonial and documented version of
events. Given the availability of the printout and Mr. Cooperberg's deposition testimony,
Plaintiff's request for a forensic review should be deemed unreasonably cumulative or
duplicative under Fed. R. Civ. P. 26(b)(2)(C)(i) because it is unlikely to have any evidentiary
value.
jackson !lewis
Attorneys at Law
Honorable Henry B. Pitman
United States District Court
Southern District ofNew York
October 15, 2012
Page4
Plaintiff had ample opportunity to cross-examine Mr. Cooperberg and Ms. Zaretsky
about any concerns she may have had about the authenticity of the printout. She failed to do so.
In response to the Court's questions at the September 10, 2012 discovery conference, Plaintiff
acknowledged that she had informed me that she no longer needed Ms. Zaretsky's deposition
and she conceded that she did not ask Mr. Cooperberg about the printout when she took his
deposition on August 30, 2012. Accordingly, Plaintiff's request for a forensic review should be
denied under Fed. R. Civ. P. 26(b)(2)(C)(ii) because she failed to avail herself of the most
practical means of obtaining information about the April 14, 2011 and July 19, 20 I 0 e-mails.
Plaintiff's request for a forensic review is also an undue burden on Defendant's
confidentiality and privacy rights. Defendant operates a nursing home and its computers contain
health information protected by HIP AA as well as attorney-client privileged communications.
Granting Plaintiff's forensic examiner carte blanche access to Defendant's computer systems
would be extraordinary intrusive relief when no need for a forensic review has been
demonstrated. The amount in controversy is relatively low, given that Plaintiff earned an hourly
wage rate of $17.34 per hour for a thirty-five hour workweek (i.e., roughly $32,000 per year).
Accordingly, Plaintiff's request for a forensic review should be denied under Fed. R. Civ. P.
26(b)(2)(C)(iii) because the burden of the forensic review outweighs its likely benefit given the
needs of the case and the amount in issue.
Finally, the Comt should know that permitting a forensic review is likely to be a fruitless
endeavor. I am advised that the electronic versions of the April 14, 2011 and July 19, 2010 emails from Mr. Cooperberg to Ms. Zaretsky are no longer reasonably accessible. I am further
advised that after Mr. Cooperberg's April 14, 2011 e-mail was printed but before Plaintiff's
filing of her Complaint in this case, Mr. Cooperberg and Ms. Zaretsky, who are friends as well as
colleagues, deleted all of the e-mails that they had sent to or received from each other because
many of them concerned a personal issue wholly unrelated to Plaintiff's allegations.
Unfortunately, the electronic versions of the Apri114, 2011 and July 19, 2010 e-mails from Mr.
Cooperberg to Ms. Zaretsky regarding Plaintiff were among the e-mails that were inadvertently
lost. Nonetheless, as discussed above, Defendant respectfully submits that the electronic
versions of the e-mails would be unreasonably cumulative, given the availability of the printout
and Mr. Cooperberg,s testimonial evidence.
B. Tile Job Assignments for the Dietary Aide Position
Plaintiff apparently claims she needs a forensic review because of revisions that were
made to job assigmnents for her dietary aide position. I am advised that in or about February or
March 2010, Defendant implemented a new system of serving food to nursing home residents.
Dietary aides' job assignments were rewritten for the new system. There are sixteen (16) written
job assignments identifying particular tasks that an assigned dietary aide is required to perform
during a particular time interval ~. punch in wearing uniform at 11:30 a.m.). Defendant
provided each dietary aide (including Plaintiff) with a written description of his or her job
assignment when it implemented the new system and informed. Defendant also informed the
dietary aides that job assignments may change after evaluating how the new system was
Honorable Henry B. Pitman
United States District Court
Southern District ofNew York
October 15,2012
PageS
jackson Ilewis
Attorneys at Law
working. During the first half of 2010, Defendant revised its written job assignments. In some
cases, Defendant revised the description of tasks that the dietary aide is required to perform.
Defendant also added a "Duties and Responsibilities" and 11Physical Demands" section to each
and every one of the sixteen (16) written job assignments. The job tasks and functions
performed by Plaintiff before her April 27, 2010 injury are set forth in a document entitled
1
' Assignment 4 11 :30am"7:30pm," a true and correct copy of which is attached hereto.
Defendant is not in possession of any prior versions of this document because they were
overwritten. Hard copies of all of the sixteen (16) written job assignments were produced in
discovery.
Plaintiff apparently seeks a forensic review to obtain electronic versions of the job
assignments because she believes they ~·would contain at least the time and date stamps for when
a document was created and modified[.]" I am advised by Defendant that the electronic versions
of the sixteen (16) written job assignments are each located in a separate Microsoft Word file and
that when each file is viewed in Windows Explorer, the "Date Modified" field for each file
reflects a date in 2012, which was apparently the last date the document was modified. Based on
my brief discussion with a forensic consultant, I wtderstand that if an individual using Microsoft
Word does not use the "Track Changes" feature in the program or save different versions of the
document as it is being revised, a forensic examination of the file will only reveal the "last
accessed" date, "last modified" date, and "last saved" date. In short, a forensic examination in
this case will not reveal every date that the Microsoft Word document was modified and what
specific changes were made on each date. Indeed, Plaintiff has made no showing that a forensic
examination will yield that information, which is apparently the information she seeks.
Plaintiff claims she needs a forensic review to "prove that the Defendant willfully
changed the assignments in order to implement essential functions that were not a part of the
assignments prior to the Plaintiff's request for reasonable accommodation on July 19, 2010, so
that Defendant could make the argument that the Plaintiff was not qualified under the ADA of
1990." Defendant denies making any changes to its job assignments based on Plaintiff's
circumstances. Regardless, Plaintiff fails to explain how a forensic examination of Defendant's
computers, storage media, servers, and other electronic equipment will reveal what changes were
made to the written job assignments and when they were made. Such a forensic review amounts
to an unchruied fishing expedition. Moreover, Plaintiff has made virtually no effort to explore
any issues regarding the job assignments through less intrusive means, such as depositions.
Although Defendant opposes a wide"ranging forensic examination of its computers,
Defendant is willing to produce electronic copies of the Microsoft Word files containing the
written job assignments for Plaintiff to examine forensically, provided that Plaintiff makes a
showing that her proposed forensic review will yield information regarding what particular
changes were made to the written job assignments and when they were made.
*
*
Thank you for your attention to this matter.
*
Honorable Hemy B. Pitman
United States District Court
Southern District ofNew York
October 15, 2012
Page6
jackson !lewis
Attorneys at Law
Very truly yours,
JA7:lllL
Ravindra K. Shaw
Attachments
cc:
Nadine Thompson (via e-mail and overnight mail)
Eric P. Simon, Esq. (via e-mail)
4829-4864-1809, v. 1
?~gel
oi 2
Elena Zaretsky
From:
Arthur Cooperberg
Thursday, Aprl114, 2011 4:26PM
To:
Elena Zaretsky
Subject: FW: Nadine
Sent:
Please see below and attached email
Thank you,
:·
Arthur Cooperberg
Chief Financial Officer
Workmen's Circle MultiCare Center
3155 Grace Ave.
Bronx, New York 10~69
718-379·8100 ext. ~50
718-379-0825 Fax
This email may contain confidential information. If you are not the Intended recipient (or have received this In
error) please destroy this email and notify the sender Immediately.
~--~~----~-----------~--~~~~.~~~~~~~~~----~~--------~--~--~--._~~~~----~~~-.
From: Arthur Cooperberg
Sent: Monday 1 July 19 1 2010 4:09 PM
To: Elena Zaretsky
Subject: Nadine
Elena, In your absence I met with Nadine Thompson today, she presented me with a doctors
note to return to work( light duty ). I sent her home and told her the doctors note Is
Inconsistent with her previous medical notes, as the others stated she can come back to work
full -duty. I mentioned to her that this note, which totally differs from the other medical
notes, does not specify any restrictions or conditions she can resume her work.
Arthur Cooperberg
Chief Financial Officer
Workmen's Circle Multlcare Center
3155 Grace Ave,
Bronx, New York 10469
718·379-8100 ext. 450
718-379·0825 Fax
This email may contain confidential Information. If you are not the Intended recipient (or have received this In
error) please destroy this email and notify the sender Immediately.
· D000287
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TRANSMISSION VERIFICATION REPORT
TIME
NAME
FAX
TEL
SER.#
DATE, TIME
FAX NO./NAME
DURATION
PAGE{S)
RESULT
MODE
18/15 16:41
912128056111
00: en:57
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10/15/2012 16:43
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CHAMf>ERS OF
HENRY PITMAN
U.S.M.J.
'
Nadine Thompson
137 Beechwood Avenue
Mount Vernon, NY 10553
646-387-4580
VIA FACSIMILE (212) 805-6111
Honorable Henry B. Pitman
United States District Comt
Southern District ofNew York
United States Courthouse
500 Pearl Street
New York, New York 10007-1312
Re:
Nadine Thompson v. Workmen's Circle MultiCare Center
S.D.N.Y. Case No. 11 CV 6885 (DAB)
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