Arnold v. Independent Health Corp

Filing 34

DECISION AND ORDER RE 27 Motion to Compel; 28 Motion to Compel. Signed by Hon. Jeremiah J. McCarthy on 8/22/19. (Court has mailed a copy of this order to plaintiff). (DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
ELIZABETH ARNOLD,
DECISION AND ORDER
Plaintiff,
17-CV-01260-FPG-JJM
v.
INDEPENDENT HEALTH ASSOCIATION, INC.,
Defendant.
_______________________________________
Acting pro se, plaintiff, Elizabeth Arnold, commenced this action pro se, alleging
employment discrimination based on race, gender, and national origin in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. against defendant
Independent Health Association, Inc. (incorrectly sued as Independent Health Corp aka
Independent Health Assoc. aka Subsidiary Reliance Rx). Complaint [1].1 Plaintiff, a caucasian
female and United States citizen, alleges that she applied for various information technology
positions with Independent Health from October 2016 through October 2017, but was not hired
because of her race, gender and national origin. Complaint [1], ¶14.
Before the court are the parties’ cross-motions to compel discovery [27, 28],
which have been referred to me by District Judge Frank P. Geraci, Jr. [5]. Having considered the
parties’ submissions [27, 28, 30-32], and heard oral argument on June 4, 2019 [33], plaintiff’s
motion is denied, and Independent Health’s motion is granted in part and denied in part.

1

Bracketed references are to the CM/ECF docket entries. Unless otherwise indicated, page
references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.

DISCUSSION
“Courts have wide discretion to manage discovery.” Smith v. Haag, 2009 WL
3073976, *3 (W.D.N.Y. 2009). “Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party=s claim or defense and proportional to the needs of the
case . . . . Information within the scope of discovery need not be admissible in evidence to be
discoverable”. Fed. R. Civ. P. (“Rule”) 26(b)(1). Whereas “[t]he burden of demonstrating
relevance is on the party seeking discovery . . . general and conclusory objections as to
relevance, overbreadth, or burden are insufficient to exclude discovery of requested
information.” US Bank National Association v. PHL Variable Insurance Co., 2012 WL 5395249,
*3 (S.D.N.Y. 2012). “[I]t is established law that pro se litigants, like those represented by
attorneys, are equally obliged to comply with discovery requirements under the Federal Rules of
Civil Procedures”. Swinton v. Livingston County, 2016 WL 6248675, *2 (W.D.N.Y. 2016); In
re Robinson, 2019 WL 2342324, *4 (Bankr. S.D.N.Y. 2019) (the plaintiff’s “status as a pro se
litigant does not excuse her from meeting her discovery obligations”).

A.

Plaintiff’s Motion to Compel
On or about September 13, 2018, plaintiff served her First Set of Interrogatories

on Independent Health. DeLuca Affidavit [31], ¶3. After obtaining an extension from plaintiff,
Independent Health served its response on November 5, 2018, which included 29 pages of
responsive documents. Id., ¶4; First Set of Interrogatories [31-1]. It then twice supplemented its
initial Response on March 22 and April 4, 2019, with an additional 237 pages of responsive
documents. DeLuca Affidavit [31], ¶¶5-6; First Supplemental Response [31-2]; Second

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Supplemental Response [31-3]. Plaintiff seeks to compel further responses from Independent
Health to interrogatory request nos. 15, 19, 20, and 25.

1.

Interrogatory Request no. 15
Plaintiff requested “copies of all documents and any emails, texts, Instant

messaging, webex, chats, sent to and from hiring managers and directors regarding the nonemployment of Plaintiff and human resources. i.e Matt Watson, J. Fuller.” [31-1], p. 18 of 42
(CM/ECF). In addition to relying on its General Objections, Independent Health
objected to this interrogatory request “on the ground that it requests production of documents,
which is not a proper request for an interrogatory”. Id. Without waiving those objections,
Independent Health produced responsive documents (DEF-00008 - 00016). Id., pp. 19, 34-42 of
42.
According to Independent Health, during a November 27, 2018 conference
plaintiff asked it to again search its electronic files for responsive documents. DeLuca Affidavit
[31], ¶12. Because the second search did not reveal any additional responsive documents,
Independent Health confirmed in its First Supplemental Response that “its investigation and
review of electronically stored information has not identified any additional documents,
information or materials responsive to this request (other than the documents previously
produced).” [31-2], pp. 9-10 of 14 (CM/ECF).
Plaintiff states that she has “received only a few emails” from Independent
Health and believes that there are others. Plaintiff’s Affidavit [27], p. 3 of 38 (CM/ECF). In
response, Independent Health’s counsel, Scott DeLuca, Esq., reasserts that “[s]earches of
electronic databases have been performed by Defendant, and the pertinent employees have been

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asked to search various sources of electronically stored information (such as e-mail accounts,
text message accounts, and the like). These searches did not reveal any further responsive
information or documents.” DeLuca Affidavit [31], ¶17.
“It is basic that in responding to a document production request . . .‘a party is not
required to create documents meeting the document requests, only to produce documents already
in existence.’” Hallmark v. Cohen & Slamowitz, Midland Funding LLC, 302 F.R.D. 295, 299
(W.D.N.Y. 2014); Gainer v. United Automobile Aerospace Agricultural Implement Workers
(UAW), 2016 WL 9455264, *3 (W.D.N.Y. 2016) (“[p]arties are not required to produce
[materials] . . . which do not exist”). It is also “well-established that a responding party cannot be
required to produce a document which no longer exists”. Woodward v. Holtzman, 2018 WL
5112406, *3 (W.D.N.Y. 2018). Therefore, “a party's good faith averment that the items sought
simply do not exist, or are not in his possession, custody, or control, [generally] should resolve
the issue of failure of production since one cannot be required to produce the impossible.” Mason
Tenders District Council of Greater New York v. Phase Construction Services, Inc., 318 F.R.D.
28, 42 (S.D.N.Y. 2016).
Where a party states that it is not in possession, custody or control of responsive
documents, “the discovering party must make an adequate showing to overcome this assertion . .
. . In other words, Plaintiffs must cite to specific evidence to challenge Defendants' assertions
that no additional responsive documents exist.” Id. (emphasis added). If that showing is met,
“the burden . . . shifts to Defendants to show specifically where they have searched and why
these documents are not, in fact, within their custody, possession, or control”.
Id. at 43 (emphasis omitted).

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Plaintiff argues that Independent Health “has not shown proof of how and what
was discovered . . . through electronic means”. Plaintiff’s Affidavit [27], p. 3 of 38 (CM/ECF).
Plaintiff remains free to use other discovery means, including depositions, to test Independent
Health’s representations concerning the existence of the requested records. However, absent
specific evidence at this time raising doubt as to the veracity of its representations, the burden
does not shift to Independent Health to make a specific showing of the searches it performed and
the results.
Plaintiff also believes that Independent Health’s limited production is attributable
to the fact that “proper steps were not done in order to preserve records in anticipation of
litigation”. Plaintiff’s Affidavit [27], p. 6 of 38 (CM/ECF). While it is true that a litigant “is
under a 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”, Zubulake v.
UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003), nothing suggests that Independent
Health has not complied with its obligations. Therefore, this portion of the motion is denied,
without prejudice. See Breedlove v. Mandell, 2008 WL 596864, *2 (W.D.N.Y. 2008) (“[c]ounsel
for defendants has represented ‘there is no record of any such letter.’ . . . Having no reason to
doubt counsel’s representation, plaintiff’s motions to compel is denied”).

2.

Interrogatory Request no. 19
Plaintiff asked Independent Health to “provide and describe in detail the corporate

agreement between Reliance Rx and Specialty Pharmacy Management and IHA since 2012”.
[31-1], p. 23 of 42 (CM/ECF). Independent Health objected “because the document(s) sought in

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this interrogatory are not relevant to any party’s claim or defense in this case”, explaining that
“[a]ny agreement between Defendant and the entities named in this request has absolutely no
bearing on Plaintiff’s discrimination claims . . . or any recovery of damages related to such
claims. Plaintiff has only sued Defendant Independent Health Association in this case and neither
of the entities named in this request are parties to this action or had anything to do with
Plaintiff’s applications for employment. Furthermore, upon information and belief, Plaintiff has
not claimed in this litigation that she was denied employment by any entity other that Defendant
Independent Health.” Id. It further objected on the ground that the discovery sought is “for time
periods that are not relevant to this litigation. Plaintiff did not first apply for employment with
Defendant until October 2016”, and that the “phrase ‘corporate agreement’ is undefined and
without reasonable meaning”. Id.
In support of her motion plaintiff offers no basis as to why these objections are
unfounded. Therefore, she has failed to meet her burden of demonstrating entitlement to the
requested discovery, and deny this portion of the motion.

3.

Interrogatory Request No. 20
Plaintiff sought the “salary for each foreign alien H1B and green card holder from

years 2015-2018 and how said salary is determined and by whom, list title.” [31-1], p. 24 of 42
(CM/ECF). Independent Health objected to this request because:
-- “the information sought . . . is not relevant to any party’s claim or defense in
this case”, explaining that “[p]laintiff only applied for specific positions with Independent
Health; however, this request seeks information concerning all ‘foreign alien H1B and green card
holder’”;

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-- it sought information not “relate[d] to whether Plaintiff was subjected to any
discrimination on the basis of her gender or national origin”, explaining that “[i]nformation
related to individuals employed by Defendant based solely on their immigration status is
completely irrelevant to Plaintiff’s national origin claim, as such information would not shed any
light on whether other individuals were preferred (to Plaintiff’s detriment) based on the country
in which the individual was born or from which their ancestors came.”;
-- “the information sought . . . is for time periods that are not relevant to this
litigation”; and
-- “production of responsive information would make highly confidential
information public for no legitimate reason . . . . Plaintiff has requested production of
information that Independent Health does not make publicly available (to maintain its
competitive standing in the market of employers in Western New York), and information that is
personal, private and confidential for the individuals involved.” Id., pp. 24-25 of 42.
Plaintiff argues that this request “is applicable to the national origin claim as
foreigners are being purposefully selected and trained and given employment with high salaries
by defendants”. Plaintiff’s Affidavit [27], pp. 3-4 of 38 (CM/ECF). I disagree. Since plaintiff
asserts a failure to hire claim, not a claim that she was paid less than similarly situated coworkers, the relevance of plaintiff’s request for the salaries of all foreign alien H1B and green
card holders employed by Independent Health, regardless of position, is difficult to discern, and
vastly overbroad.
Notwithstanding the overbreadth and questionable relevance of this request, I
conclude that Independent Health has sufficiently responded to it by producing the wage
information of the successful candidates to the positions which plaintiff applied. See DeLuca

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Affidavit [31], p. 9 n. 4 (in response to Interrogatory Request nos. 2, 3, 11 and 21, it has
produced the following information concerning the positions for which plaintiff submitted
employment applications to Independent Health: “(a) the names of all applicants for each
position; (b) the experience, education and skills of all such applicants; (c) the salary of the
successful candidate; and (d) the name of the hiring manager for each position”). Therefore, I
deny this portion of the motion, without prejudice.

4.

Interrogatory Request no. 25
This request asked Independent Health to “list and define employment contracts

with any and all companies both local and interstate.” [31-1], p. 30 of 42 (CM/ECF).2 Although
it raised objections to this request, Independent Health responded that “since October 2016, [it]
has not had any employment contract with any company”. Id., pp. 30-31. Plaintiff takes issue
with the veracity of that response, believing that there existed an employment contract between
Computer Task Group and Independent Health. DeLuca Affidavit [31], ¶¶58-60. This prompted
Independent Health to reiterate in its First Supplemental Response that it “does not have any
‘employment contract’ with any company”, including Computer Task Group. [31-2], p. 12 of 14
(CM/ECF).
As Independent Health states, it cannot produce “documentation that simply does
not exist”, and without any evidence from plaintiff raising a question as to the veracity of
Independent Health’s representation, this portion of the motion is denied.

This request also sought a list of “internal and external recruiters for all the named defandants
[sic] during the calendar years of 2015-2018”. Since plaintiff’s motion does not appear to address this
portion of the request, I have not addressed it.
2

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B.

Independent Health’s Motion
Independent Health seeks to compel certain responses to its First Request for

Production of Documents [28-2] and First Set of Interrogatories [28-5].

1.

Did Plaintiff Waive her Objections to Independent Health’s Discovery
Demands?
Independent Health argues that plaintiff’s “responses were untimely and,

therefore Plaintiff . . . waived any and all objections to [its] document requests”. DeLuca
Affidavit [28-1], ¶13. Plaintiff does not respond to this portion of Independent Health’s motion.
Plaintiff had 33 days to respond to Independent Health’s discovery demands (see
Rules 34(b)(2)(A) and 6(d)) which were served on September 4, 2018. DeLuca Affidavit [28-1],
¶7. Whether using the date of the responses (October 9, 2018) or the date they were received by
Independent Health’s counsel (October 22, 2018), the responses were late, and it is undisputed
that plaintiff did not obtain an extension of time for her responses. Id., ¶¶8-9. Plaintiff’s failure
to timely respond to Independent Health’s discovery demands waives any objection which may
have been available to her. See Eldaghar v. City of New York Department of Citywide
Administrative Services, 2003 WL 22455224, *1 (S.D.N.Y. 2003) (“[i]f a party fails to file
timely objections to document requests, such a failure constitutes a waiver of any objections
which a party might have to the requests”). Nevertheless, “waiver of her objections does not
otherwise excuse this Court from its obligation to manage discovery in this case . . . including
limiting its scope as appropriate.” Solman v. Corl, 2016 WL 6433829, *2 (D.Conn. 2016).

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2.

Independent Health’s First Request for Production of Documents
Independent Health seeks to compel responses to document request nos. 2, 4, 6, 7,

9-13, 15, 16, 20-22, 25-27. DeLuca Affidavit [28-1], ¶¶64-72.

a.

Request Nos. 2, 6, 7, 9-13, 15, 16, 20-22, 26, 27

As Independent Health argues, plaintiff’s response [30] fails to address, much
less mention, these requests. DeLuca Reply Affidavit [32], ¶¶8, 13. Based on the lack of any
response, plaintiff’s waiver of objections, and my review of these requests and responses, I
conclude that plaintiff must provide full responses to request nos. 2, 9-13, 15, 16, 20-22, 26, 27.
If she is not currently in possession, custody or control of responsive documents (in paper or
electronic form) she should expressly state that in her response.
However, I conclude that her responses to request nos. 6 and 7 are sufficient:
Those requests stated:
Request No. 6: “Any and all statements, oral or written, of Defendant or any agent, employee,
officer, director, manager, supervisor or other representative of Defendant, concerning any
matter upon which this action is based” [26-2], p. 11 of 20 (CM/ECF); and
Request No. 7: “Any and all documents directly or indirectly relating to any meetings and/or
conversations that Plaintiff had with any agent, employee, officer, director, manager, supervisor
or other representative of Independent Health regarding Plaintiff’s applications for employment,
any job interview, and any other issue involving your applications for employment submitted to
Independent Health”. Id.
In response to each of these requests, plaintiff stated that she was not in
possession of any responsive documents. See Responses to Independent Health’s First Request

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for Production of Documents [28-3], p. 3 of 26 (CM/ECF) (no. 6 - “Plaintiff does not have any
statements of Defendant or [its] agent concerning any matter of complaint”; no. 7 - “Plaintiff
does not have any document directly relating to any employment application with any officer or
employee of Defendant”). Independent Health notes that plaintiff had agreed to re-examine her
materials for responsive documents, but failed to provide any supplemental response. DeLuca
Affidavit [28-1], ¶¶66(b), 67(b).
I trust that if plaintiff had located any responsive documents in her possession,
custody or control (including emails or other electronically stored records) during her renewed
search, that she would have supplemented her response and produced those documents. Yet to
avoid any confusion, plaintiff shall confirm this in a written response to Independent Health.3
At this point, Independent Health does not offer any evidence raising doubt as to
plaintiff’s initial representations that she does not possess responsive documents. Under similar
circumstances, I denied portions of plaintiff’s motion to compel. Plaintiff too cannot be expected
to create what she does not possess. See Mason Tenders District Council of Greater New York,
318 F.R.D. at 42. Therefore, other than directing plaintiff to produce written confirmation that
she has produced all responsive documents (in paper or electronic form) currently in her
possession custody and control, this portion of Independent Health’s motion is denied, without
prejudice.

Both parties are reminded that even without a renewed request, they remain “under a continuing
duty to supplement by providing documents that are responsive to the discovery propounded”. McKinney
v. Connecticut, 2011 WL 166199, *2 (D. Conn. 2011), aff'd, 487 Fed. App'x 605 (2d Cir. 2012)
(Summary Order); Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358
(W.D.N.Y. 2011) (“[t]he duty to supplement continues even after the discovery period has closed”).
3

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b.

Request Nos. 4

This request sought plaintiff to “execute . . . authorization forms” for her
“employment, education, and training [records], as well as [her] receipt of unemployment
insurance benefits”. [28-2], p. 10 of 20 (CM/ECF).4 In response, plaintiff objected to the
request on the grounds that it was “burdensome, oppressive, extraneous and simply ludicrous to
[her] employment discrimination claims” [28-3], p. 3 of 26 (CM/ECF). Thereafter, during the
course of a conversation, Mr. DeLuca advised plaintiff that it was also seeking an authorization
for the release of plaintiff’s tax returns since January 1, 2015, and provided plaintiff with the
authorization to sign. DeLuca Affidavit [28-1], ¶¶45, 46.
In response to Independent Health’s motion, plaintiff does not oppose these
requests, except to the extent that Independent Health seeks authorizations for her tax and
unemployment records. Plaintiff’s Response [30], p. 1 of 3 (CM/ECF). Therefore, Independent
Health’s motion for authorizations for plaintiff’s employment, education, and training records is
granted. Weber v. Fujifilm Medical Systems U.S.A., Inc., 2011 WL 674026, *1 (D. Conn. 2011)
(“[d]efendants can obtain Plaintiff's medical records only by Plaintiff granting his medical
providers permission to disclose records or by the subpoena and deposition process. Courts
recognize that the authorization process is markedly more efficient”); Boyer v. Riverhead
Central School District, 2006 WL 8441510, *2 (E.D.N.Y. 2006) (directing plaintiff to produce
duly executed authorizations for the release of her employment records for all relevant
employers).

The request also sought an authorization for plaintiff’s medical records, but that was withdrawn
after plaintiff confirmed that she was not seeking any damages for emotional distress. See DeLuca
Affidavit [28-1], p. 9 n. 3.
4

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With respect to the authorization for plaintiff’s unemployment insurance records,
she states that she does not “have any unemployment insurance at all for the years relating to this
claim”. Plaintiff’s Response [30], p. 1 of 3 (CM/ECF). However, as Independent Health argues,
it is entitled to “any information in the New York State Department of Labor’s unemployment
system concerning Plaintiff, including any denied applications for unemployment insurance
benefits during the relevant period.” DeLuca Reply Declaration [32], ¶15(i). In any event, even
if plaintiff’s representation that she did not receive unemployment benefits was sufficiently
responsive to the request, this is merely another discovery mechanism available to Independent
Health to test that representation. Therefore, I also grant this portion of Independent Health’s
motion.
However, I reach a different conclusion concerning Independent Health’s motion
for production of an authorization for plaintiff’s tax returns since January 1, 2015. Unlike the
other portions of Independent Health’s motion, the request for an authorization for plaintiff’s tax
returns was not made in a formal written discovery request. See DeLuca Affidavit [28-1], ¶45.
Since “the Federal Rules of Civil Procedure make no provision for oral discovery demands”, this
portion of the motion is denied. Stewartson v. Almstead, 2007 WL 3124838, *1 (N.D.N.Y.
2007); Vigliotti v. Selsky, 2013 WL 3354423, *3 (W.D.N.Y. 2013) (McCarthy, J.) (“[w]hile it
appears that plaintiff may have requested many documents informally, such requests are not
enforceable absent a formal demand”); Wakefield v. City of Pembroke Pines, 2006 WL
8431629, *1 (S.D. Fla. 2006) (“[i]nformal requests for production lie outside the boundaries of
the discovery rules”). However, if Independent Health makes a formal written request for
plaintiff to execute an authorization for her tax records, I expect plaintiff to carefully consider
whether she has a valid basis for opposing that request before responding.

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c.

Request No. 255

This request sought “[a]ny and all documents directly or indirectly relating to any
income received by Plaintiff since January 1, 2015 including checks, payroll stubs, W-2
statements, 1099 statements, or other financial documents concerning the amount of
compensation Plaintiff received since January 1, 2015”. [28-2], p. 14 of 20 (CM/ECF).
In response, plaintiff objected on the grounds that it was “burdensome, oppressive and
overbroad” ([28-3], p. 5 of 26 (CM/ECF)), but later produced two pages of a redacted 2017 tax
return (omitting the name of the employer or income source).
In opposition to Independent Health’s motion to compel, plaintiff states that she
does not “have any tax information for years 2015 and 2016 because [she] did not file taxes for
those years”. Plaintiff’s Response [30], p. 1 of 3 (CM/ECF). However, the fact that she did not
file tax returns for those years does not eliminate the possibility that she may have received
income in those years, and be in possession of responsive documents.
Moreover, plaintiff fails to offer any explanation as to why Independent Health
would not be entitled to a complete and unredacted copy of her 2017 tax return. Therefore, I
grant this portion of Independent Health’s motion, and plaintiff shall use reasonable efforts to
locate any responsive documents in her possession, custody or control (including electronically
stored records) and produce them to Independent Health with a supplemental response.

In Independent Health’s reply, it appears to erroneously refer to this as request no. 24 (see
DeLuca Reply Declaration [32], ¶15(b)) - a request that was not the subject of its motion to compel.
5

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3.

First Set of Interrogatories
Independent Health seeks to compel responses to interrogatory request nos. 8-10,

12-16, 18 and 24. DeLuca Affidavit [28-1], ¶¶75-84.

a.

Request Nos. 8, 10, 12-16.

As Independent Health notes, plaintiff’s opposition does not respond its motion to
compel responses to interrogatory request nos. 8, 10, 12-16. DeLuca Reply Declaration [32],
¶17. While plaintiff’s responses are not entirely deficient and it appears that she has been
attempting to produce at least some of the requested information, in the absence of any
opposition from plaintiff, I conclude that Independent Health has established its entitlement to
more complete responses. Therefore, this portion of Independent Health’s motion is granted, and
plaintiff shall provide complete written responses to these requests.

b.

Request no. 9

The Complaint alleges that Pavitran Permundia, a male foreign national, was
hired by Independent Health as a Solution Architect. Complaint [1], ¶17. Request no. 9 sought
“when Pavitran Permundia was hired for the position of Solution Architect by Defendant . . .
and any information you have about Mr. Permundia’s employment by Independent Health
(including the identity of his supervisor, his education, experience and qualifications for the
position of Solution Architect, whether he ever worked in any other position for Independent
Health, whether he was promoted to the position of Solution Architect, his rate of pay, his
national origin and/or immigration status, and other similar information), as well as the source of
said information”. [28-5], p. 11 of 28 (CM/ECF).

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In response, plaintiff stated that “Pavitran Permundia was hired . . . as ETL
developer and then promoted to solution architect. Plaintiff is unaware of his supervisor and his
qualifications. His immigration status is most likely green card and rate of pay is 90-99,000.”
[28-6] p. 34 of 78 (CM/ECF). Plaintiff also notes that, as indicated in response to interrogatory
request no. 25, the source of her information was various websites, including the Department of
Labor and Google, and states that she produced information regarding Pavitran Permunida to
Independent Health in December 2018. Plaintiff’s Response [30], p. 1 of 3 (CM/ECF). Plaintiff
alleges that she provided “all what I had”. Id.
“An answer to an interrogatory must be completed within itself and, it should be
in a form that may be used at trial . . . . Answers to interrogatories that incorporate other
documents by reference are strongly disfavored. Reference to depositions, other answers to the
interrogatories, other document production, the complaint itself, or any other documents are
improper and thus unresponsive . . . . In order for an answer to be adequate it must be a complete
response to the interrogatory, specific as possible and not evasive . . . . This does not necessarily
mean, however, that the responding party needs to provide all evidentiary proof or every shred of
evidence, but it must be particular as to relevant facts of the case.” Trueman v. New York State
Canal Corp., 2010 WL 681341, *2-3 (N.D.N.Y. 2010).
While it appears that plaintiff has been attempting to respond to this contention
Interrogatory in good faith, under the standard set forth above, Independent Health remains
entitled to a single comprehensive response, encompassing the information produced in
December 2018 concerning Mr. Permunida. Therefore, this portion of the motion is granted. If
there are aspects of the interrogatory request that plaintiff is unable to answer because of a lack

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of discovery, she should so state, and may later supplement her interrogatory response
accordingly. Id., *3.

c.

Request No. 18

This request sought “all factual information upon which you base your allegation
that the positions of Senior Application Developer and Solution Architect were ‘given to H1B
[sic] visa holder[s] or green card [holders]’ and that Plaintiff ‘maintains the same
professional/technical skills’ as the individuals placed in these positions, as alleged in Paragraph
28 of the Complaint.” [28-5], p. 13 of 28 (CM/ECF). In response, plaintiff stated that she
“realized that positions of solution architect and snr application developer were specifically for
many foreign-born aliens. The job description stated a bachelor’s degree and years of work
experience which Plaintiff has accomplished.” [28-6], p. 45 of 78 (CM/ECF).
In response to Independent Health’s motion, plaintiff further points to learning
from websites that Independent Health has hired over 40 individuals with H1B visa holders in its
technology department over the last three years. Plaintiff’s response [30], p. 1 of 3 (CM/ECF).
She further states that in December 2018 she provided it with a “packe[t] of trainings and
certificates regarding my knowledge [of] the positions I had applied and the veracity of my
knowledge for the positions I applied”. Plaintiff’s response [30], p. 1 of 3 (CM/ECF). It is not
clear what was included among the materials plaintiff produced, nor does that production obviate
the need to provide a complete written response to this interrogatory request. See Pouliot v. Paul
Arpin Van Lines, Inc., 2004 WL 1368869, *2 (D. Conn. 2004) (“[d]ocuments . . . are often
subject to interpretation and they do not serve the same purposes as interrogatories. Only a full
response to the interrogatories comports with the requirements of the Federal Rules”).

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Again, plaintiff appears to be attempting in good faith to provide the information
Independent Health seeks. However, Independent Health remains entitled to a complete
response consistent with the standard set forth above, see Trueman, 2010 WL 681341, *2–3.
Since plaintiff’s initial response fell short of meeting that standard, this portion of Independent
Health’s motion is granted.

d.

Request No. 24.

This request stated, “[d]escribe any and all efforts made by you to obtain
employment of any kind since the conclusion of your employment by Catholic Health System (in
approximately October 2015), and identify . . . each person with personal knowledge of the facts
relating to any efforts made by you to obtain employment since October 2015”. [28-5], ¶24.
Plaintiff responded that she “has tried to gain employment from a few local Buffalo employers
such as XXII century and Roswell Park. There is no one with personal knowledge of facts
relating to my job searches”. [28-6], p. 56 of 78 (CM/ECF). In response to Independent Health’s
motion, plaintiff further states, “I do not have any accounts regarding the job sites like Monster,
and I have not used the NYS website either for jobs. I have provided the most recent job
applications to Defendants for positions at Anthem”. Plaintiff’s Response [30], p. 2 of 3
(CM/ECF).
Independent Health is entitled to a complete list of her efforts at locating a job,
not merely examples. See Remy Inc. v. Tecnomatic, S.P.A., 2013 WL 1331002, *2 (S.D. Ind.
2013) (“[t]he requirement is that Tecnomatic needs to be exhaustive, not just provide
examples”). Therefore, this portion of Independent Health’s motion is granted, and plaintiff shall

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provide, to the best of her ability, a complete list of the jobs she applied for since the conclusion
of her employment with the Catholic Health System in 2015.

4.

Request for Attorney’s Fees and Costs
Both in connection with its opposition to plaintiff’s motion to compel and its own

motion to compel, Independent Health seeks its attorney’s fees and costs. See DeLuca Affidavit
[31], ¶¶67-74; Notice of Motion [28], p. 2 of 3, ¶c. Plaintiff does not respond to either request.
Rule 37(a)(5)(B) states that if a motion to compel is denied, “the court . . . must,
after giving an opportunity to be heard, require the movant . . . to pay the party . . . who opposed
the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees”,
unless the court concludes that the “motion was substantially justified or other circumstances
make an award of expenses unjust”. Likewise, Rule 37(a)(5)(c) provides that if a motion to
compel “is granted in part and denied in part, the court . . . may, after giving an opportunity to be
heard, apportion the reasonable expenses for the motion.”
“[O]ne purpose of presumptive expense shifting sanctions is to press counsel and
parties to understand that it is their responsibility to operate the systems for sharing and
generating evidence before trial without substantial intervention by the judiciary.” 7 Moore’s
Federal Practice, §37.23[1]. “The fact that a party is proceeding pro se and/or in forma pauperis
does not insulate her from such a sanction.” Black v. Reynolds, 2015 WL 13545490, *1 (S.D.
Ala. 2015); White v. Golden Corral of Hampton, LLC, 2013 WL 12143951, *1 (E.D. Va. Dec.
20, 2013) (“[p]ro sé parties are not immune from sanction solely as a result of their pro sé
status”). Although plaintiff is acting pro se, she is obligated to “become familiar with, follow,
and comply with the Federal Rules of Civil Procedure and the Local Rules of Civil Procedure”.

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L. R. Civ. P. 5.2(i). “Rule 37 sanctions, including the most severe, may be imposed against a
plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can
result in a sanction.” Robertson v. Dowbenko, 443 Fed. App'x 659, 660 (2d Cir. 2011)
(Summary Order).
Plaintiff has not offered, nor do I see, a legitimate excuse for her failure to fully
respond to some of Independent Health’s requests, even giving her the benefit of the doubt as a
pro se litigant, especially those portions of Independent Health’s motion to which she did not
respond. Having warned the parties at the April 4, 2019 proceeding that I would consider an
award of expenses if a motion to compel was filed, I would have at least expected some
opposition from plaintiff to those portions of the motion. Under these circumstances, I conclude
that an award of some portion of Independent Health’s attorney’s fees and costs is justified.
At the conclusion of all proceedings in the case I will, on application from
Independent Health, consider the amount of attorney's fees that should be awarded. See Williams
v. Swack, 2016 WL 4626575, *2 (W.D.N.Y. 2016) (McCarthy, J.); Green v. St. Vincent’s
Medical Center, 252 F.R.D. 125, 130 (D. Conn. 2008) (granting motion to compel, but deferring
consideration of attorney's fees until the conclusion of the case).

CONCLUSION
For these reasons: (1) plaintiff’s motion to compel [27] and Independent Health’s
corresponding request for attorney’s fees and expenses incurred in connection with responding to
that motion (DeLuca Affidavit [31], ¶¶67-74) are denied; and (2) Independent Health’s motion to
compel [28] is denied to the extent that it seeks to compel responses to request nos. 6 and 7 of its
First Request for Production of Documents (except that plaintiff shall confirm in writing that she

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is not in possession of any responsive documents) and an authorization for plaintiff’s tax returns,
but is otherwise granted, including its request for its attorney’s fees and expenses, the amount of
which will be determined at the conclusion of the case upon application by Independent Health.
Unless a stay is obtained from District Judge Geraci, plaintiff shall serve complete responses to
those portions of Independent Health’s motion I have granted by September 23, 2019.

SO ORDERED.
Dated: August 22, 2019
/s/ Jeremiah J. McCarthy
Jeremiah J. McCarthy
United States Magistrate Judge

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