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requiring defendants to "secure the assistance of a forensic expert to determine whether the remaining audio may be recovered from [an individual defendant's] phone"
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No. 18cv01755 (RA) (DF)
07-09-2019
SHANELL PUGH-OUZA, Plaintiff, v. SPRINGHILL SUITES aka SPRINGHILL SUITES MARRIOTT, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE RONNIE ABRAMS, U.S.D.J.:
This employment-discrimination case has been referred to this Court for general pretrial supervision, and, in the course of that supervision, an issue has arisen regarding the propriety of Plaintiff's continued maintenance of her claims against one of the defendants, Arberie Karacica (sued herein as Aubrey Karacia) ("Karacica"). For the reasons set out below, I respectfully recommend that the Court enter an order dismissing Plaintiff's claims against Karacica, without conditions and without prejudice, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.
BACKGROUND
The background of this issue and the context in which it arose are described in detail in a discovery Order issued by this Court on March 26, 2019 (see Dkt. 89, at 2-18), a copy of which is attached hereto. Ultimately, after discussing the seeming lack of a factual basis for Plaintiff's claims against Karacica - either as pleaded in Plaintiff's Complaint or as developed, as of that time, through discovery (see id., at 15) - and after noting "the continuing obligation of counsel to make reasonable inquiry to assure herself that there is a good-faith basis for the maintenance of her client's pleaded claim" (id., at 17 (citing Fed. R. Civ. P. 11(b)), this Court directed the following:
This Court inadvertently failed to date its March 26 Order, but the Docket reflects its date of issuance.
If, after further consideration, Plaintiff decides that she does not wish to proceed with her claims against Karacica, then, no later than two weeks from the completion of Karacica's deposition, Plaintiff is directed either to file a stipulation of dismissal of Plaintiff's claims against Karacica, pursuant [to] Rule 41(a)(1)(A)(ii), on terms agreed to by all parties, or, if the parties cannot agree on the terms of a stipulation, then to file a motion, pursuant to Rule 41(a)(2), for the Court to order a dismissal of the claims against Karacica on such terms as Plaintiff believes would be just. If, on the other hand, Plaintiff decides that she still does wish to proceed with her claims against Karacica, then, no later than two weeks from the completion of Karacica's deposition, Plaintiff is directed to show cause why this Court should not recommend to Judge Abrams that those claims be dismissed for the reasons discussed herein.(id., at 17-18; see also id., at 28).
The Karacica deposition was apparently completed on April 29, 2019 (see Letter to the Court from Brian D. Murphy, Esq., dated May 17, 2019 ("Def. 5/17/19 Ltr. Mtn.") (Dkt. 96), at 1), which means that Plaintiff's submission in response to this Court's Order was due on May 13, 2019. Plaintiff, however, did not comply with the Order by that date or request an extension. Rather, one day past the specified deadline, Plaintiff's counsel merely filed a one-page letter (Letter to the Court from Laurie E. Morrison, Esq., dated May 14, 2019 ("Pl. 5/14/19 Ltr.") (Dkt. 95)), stating that Plaintiff had "agree[d] to voluntarily dismiss Arberie Karacica as a Defendant in this case," but further stating that Plaintiff would not withdraw either her "claims and/or remedies" against Karacica for the alleged spoliation of evidence, or her pending motion to compel Karacica to produce outstanding discovery. According to Plaintiff, Defendants had "declined to enter into a Stipulation that preserved [such] claims/remedies," and thus Plaintiff did not present a signed stipulation of dismissal with her submission. (Id.) Nor, in connection with her submission, did Plaintiff provide any briefing or other support for the terms that she "believe[d] would be just" for a Court-ordered dismissal. In other words, even belatedly, Plaintiff submitted neither a signed stipulation of dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), nor a properly filed motion for dismissal pursuant to Fed. R. Civ. P. 41(a)(2). Certainly, she did not show cause why, in light of this Court's "grave concern regarding Plaintiff's justification for maintaining her claims against Karacica" (Dkt. 89, at 17), this Court should not recommend that Plaintiff's claims against Karacica simply be dismissed without any conditions.
By letter motion dated May 17, 2019, Defendants requested that the Court either compel Plaintiff to sign an unconditional stipulation of dismissal with prejudice of her claims against Karacica, or, alternatively, issue an order dismissing all of Plaintiff's claims against Karacica with prejudice on an involuntary basis, pursuant to Fed. R. Civ. P. 41(b). (Def. 5/17/19 Ltr. Mtn.) Plaintiff responded to Defendants' letter motion on May 29, 2019 (Letter to the Court from Laurie E. Morrison, Esq., dated May 29, 2019 ("Pl. 5/29/19 Ltr.") (Dkt. 97)), asserting that: (1) under the Court's Local Civil Rules, Defendant's "motion to dismiss" was improperly filed as a letter motion (id., at 1 (citing Local Civ. R. 7.1(d))); and (2) for various reasons, an unconditional stipulation of dismissal of the claims against Karacica would be inappropriate (id., at 1-3). To date, Defendants have filed no reply.
Thus, at this point, the parties are in agreement that Plaintiff's claims against Karacica should be dismissed. The only outstanding questions are whether (a) there should be any conditions attached to the dismissal, and (b) whether the dismissal should be with prejudice.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Voluntary Dismissal Under Rule 41(a)
Rule 41(a) of the Federal Rules of Civil Procedure permits a plaintiff to dismiss an action (or particular claims asserted in an action) voluntarily, by submitting a stipulation of dismissal signed by all parties. Fed. R. Civ. P. 41(a)(1)(A)(ii). When such a stipulation cannot be obtained, however, a plaintiff may also seek a court order for voluntary dismissal "on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). The district court should weigh a number of factors in determining whether a court-ordered dismissal under Rule 41(a)(2) is appropriate, including: "(1) the plaintiff's diligence in bringing the motion; (2) any 'undue vexatiousness' on plaintiff's part; (3) the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; (4) the duplicative expense of relitigation; and (5) the adequacy of plaintiff's explanation for the need to dismiss." Pac. Elec. Wire & Cable Co., Ltd. v. Set Top Int'l, Inc., No. 03cv9623 (JFK), 2005 WL 578916, at *5 (S.D.N.Y. Mar. 11, 2005) (quoting Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990)). A dismissal under Rule 41(a)(2) should be granted only "if the defendant will not be prejudiced thereby." Wakefield v. N. Telecom, Inc., 769 F.2d 109, 114 (2d Cir. 1985).
Where the court finds it appropriate to order dismissal under Rule 41(a)(2), the dismissal should ordinarily - and presumptively - be without prejudice. Fed R. Civ. P. 41(a)(2) ("Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice."); see also Am. Federation of State, Cnty. & Mun. Employees District Council 37 Health & Sec. Plan v. Pfizer, Inc., No. 12cv2237 (JPO), 2013 WL 3328219, at *2 (S.D.N.Y. July 2, 2013) (holding that Rule 41(a)(2) "creates a presumption in favor of dismissal without prejudice"). Nonetheless, in light of the fact that Rule 41(a)(2) permits a court to dismiss claims "on terms that the court considers proper," Fed. R. Civ. P. 41(a)(2), it has been held that "a district judge may convert a dismissal sought to be entered without prejudice [under Rule 41(a)(2)] to one with prejudice." Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d Cir. 1988). If the court elects to do so, however, it must afford the plaintiff an opportunity to withdraw the voluntary dismissal motion before the dismissal order takes effect. Id.; see e.g., Bosco v. United States, No. 14cv3525 (JFK), 2016 WL 5376205, at *15 (S.D.N.Y. Sept. 26, 2016) Moreover, in applying Gravatt, courts have indicated that there is a high standard for converting a Rule 41(a)(2) dismissal without prejudice to a dismissal with prejudice; specifically, the court must find that "the plaintiff [is] unwilling, or unable, to submit the claims at issue to the factfinder." Pac. Elec. Wire & Cable, 2005 WL 578916, at *7 (declining to convert Rule 41(a)(2) motion and dismiss with prejudice where "[p]laintiffs ha[d] not manifested anything resembling a complete unwillingness or inability to pursue their claims at trial" (emphasis in original)); Bosco, 2016 WL 5376205, at *15 (converting Rule 41(a)(2) motion and dismissing with prejudice where plaintiff, "[b]y seeking to withdraw these claims in opposition to summary judgment, . . . ha[d] evinced his judgment that he c[ould] [not] prove the claims").
B. Involuntary Dismissal Under Rule 41(b)
In contrast to Rule 41(a)(2), dismissal under Rule 41(b) is involuntary and may be requested by a defendant as a sanction, when a plaintiff "fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." Fed R. Civ. P. 41(b). Dismissal under Rule 41(b) is ordinarily with prejudice, and, in deciding whether the motion should be granted as the result of a plaintiff's failure to comply with a court order, the court should consider the following five factors: "(1) the duration of the plaintiff's failure to comply . . ., (2) whether [the] plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal." Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (internal quotation marks and citation omitted).
II. PLAINTIFF'S CLAIMS AGAINST KARACICA SHOULD BE DISMISSED UNDER RULE 41(a)(2) WITHOUT CONDITIONS AND WITHOUT PREJUDICE.
At the outset, this Court notes the defective nature of both Plaintiff's and Defendants' submissions. Plaintiff was instructed by this Court that, if she opted against maintaining her claims against Karacica, then, within two weeks of the completion of Karacica's deposition, she should either file a stipulation of voluntarily dismissal or "a motion, pursuant to Rule 41(a)(2), for the Court to order a dismissal of the claims against Karacica on such terms as Plaintiff believes would be just." (Dkt. 89, at 17-18.) Plaintiff did neither; rather, outside the specified time frame, she submitted a letter stating merely that she "agree[d]" to dismiss Karacica as a defendant, although only with conditions. (Pl. 5/14/19 Ltr.) Plaintiff's submission was certainly not a stipulation, and, to the extent she intended it to constitute a motion, it was not in compliance with Local Civil Rule 7.1. See Local Civ. R. 7.1(a) (requiring dismissal motion to include, inter alia, a memorandum of law). Moreover, even apart from its formal defects, Plaintiff's submission failed even to cite Rule 41(a)(2), much less to address the standards that govern dismissal under that Rule.
As for the "letter motion" by Defendants that followed Plaintiff's submission, while this Court finds it ironic that Plaintiff has been quick to point out that Defendants' motion failed to comply with Local Civil Rule 7.1 (when Plaintiff's own submission evidenced an identical failure), Plaintiff is at least correct that Defendants' purported Rule 41(b) motion was (like hers) formally improper. Further, in seeking dismissal with prejudice as a sanction for violation of a court order, Defendants addressed none of the five factors set out above, arguing only that Plaintiff had failed to comply with this Court's March 26 Order by making an untimely submission. (See Def. 5/17/19 Ltr. Mtn., at 1-2.)
Yet, despite the flaws in the parties' submissions, it is manifestly clear to this Court that Karacica should not remain as a defendant in this action. Accordingly, in the interests of expedience and justice, it will overlook those flaws and recommend a substantive resolution of the limited issues presented.
First, on the question of whether the dismissal of Plaintiff's claims against Karacica should include any conditions, I recommend that it not. As noted above, when an action is voluntarily dismissed by court order, the terms of dismissal are within the court's discretion, see Fed R. Civ. P. 41(a)(2), but, in this instance, there are simply no reasons to include, as terms, the conditions Plaintiff seeks. Plaintiff specifically seeks to have the dismissal of her claims against Karacica conditioned on the survival of (1) Plaintiff's anticipated motion for sanctions for Karacica's purported spoliation of evidence, and (2) Plaintiff's prior applications to compel Karacica to produce additional discovery in this action. With respect to the former, there is no need for Karacica's dismissal to be "conditioned" upon the survival of any motion for discovery sanctions, given that such a motion would, in any event, survive dismissal as a matter of law. See Heinrichs v. Marshall & Stevens Inc., 921 F.2d 418, 420-21 (2d Cir. 1990) ("The Court's reasoning [in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)] that the determination of Rule 11 sanctions is a collateral issue that can be considered after an action is voluntarily dismissed under Rule 41(a)(1)(i) applies with no less force to discovery sanctions imposed under Rule 37 following a dismissal . . . ."). With respect to the latter, this Court has already resolved Plaintiff's various motions to compel (see Dkts. 99, 102), and, as discovery is now closed (see Dkt. 91), no further discovery motions should be forthcoming.
Second, on the question of whether the dismissal of Plaintiff's claims against Karacica should be with or without prejudice, I recommend that the dismissal be without prejudice. As an initial matter, this Court finds wholly unpersuasive Defendants' argument that dismissal is warranted under Rule 41(b) as a sanction for Plaintiff's failure to comply with the submission deadline set by this Court's March 26 Order. As noted above, while it is true that Plaintiff's submission was filed late, it was late by only a single day, which is insufficient to warrant the harsh sanction of involuntary dismissal. Further, this Court had not previously warned Plaintiff that her failure to adhere to the deadline set by this Court could result in an involuntary dismissal. In addition, provided Plaintiff's claims against Karacica are dismissed in some manner - which both sides agree should occur - Karacica would not be prejudiced by any further delay in these proceedings. Finally, as involuntary dismissal with prejudice is an "extreme sanction," Jewelers Vigilance Comm., Inc. v. Vitale Inc., No. 90cv1476 (MJL), 1997 WL 582823, at *4 (S.D.N.Y. Sept. 19, 1997), and as Plaintiff has stated that she is willing to dismiss Karacica voluntarily from this action, imposing an order of involuntary dismissal would be excessive.
Accordingly, I recommend that the Court order the voluntary dismissal of Plaintiff's claims against Karacica, pursuant to Rule 41(a)(2). While at least certain of the factors relevant to such a determination would seem to weigh against the issuance of any order of dismissal at all, Karacica does not oppose dismissal here, and dismissal would seem particularly just in this case, given that Plaintiff has not only stated that she does not wish to maintain her claims against Karacica (see supra, at n.2), but also has never articulated, either in her pleadings or any other submissions to this Court, how Karacica participated in any discriminatory treatment toward her in the workplace or engaged in any retaliatory conduct that led to the termination of Plaintiff's employment.
For example, Plaintiff can hardly be said to have been "diligent" in seeking a voluntary order of dismissal, see Pac. Elec. Wire & Cable, 2005 WL 578916, at *5, given that, as far back as October 2018, Plaintiff's counsel acknowledged to opposing counsel that Karacica had been named in the action "by mistake" (see Dkt. 89, at 2 (citing Dkt. 77, Ex. A)), and, in November 2018, Plaintiff herself testified at her deposition that she no longer wanted to sue Karacica (see id., at 15 (citing Dkt. 87-2, at 98)). Further, the conduct of Plaintiff's counsel in questioning Karacica at her deposition regarding whether she should nonetheless remain a defendant in this action (see id., at 3-4 (describing questioning)) could fairly be characterized as "vexatious," Pac. Elec. Wire & Cable, 2005 WL 578916, at *5, and, while no trial date in the action has yet been set, Plaintiff's refusal to enter into an unconditional stipulation of dismissal has forced Karacica to defend this action through the entire pretrial discovery period, suggesting that any relitigation would result in prejudicial "duplicative expense," id.
The last question presented is whether, in this case, the Court should find that justice requires a voluntary dismissal order - which would ordinarily be without prejudice under Rule 41(a)(2) - be converted to a dismissal with prejudice. On this question, although this Court does not necessarily agree that Plaintiff has any viable claims against Karacica (and, indeed, suspects that she may not), the Court has never been called upon to rule directly on the merits of the claims as asserted, and Plaintiff has repeatedly stated that, in her view, there is a basis for the claims. Under the circumstances, it is difficult to find that Plaintiff is "unwilling, or unable" to try the claims at issue. Pac. Elec. Wire & Cable, 2005 WL 578916, at *7. Certainly, this Court cannot find that Plaintiff has conceded any lack of merit to those claims, even if she has decided that she does not wish to pursue them. See Bosco, 2016 WL 5376205, at *15. As there is a presumption that a voluntary dismissal should be without prejudice, Am. Federation of State, Cnty. & Mun. Employees District Council 37 Health & Sec. Plan, 2013 WL 3328219, at *2, and as the high bar to converting a voluntary dismissal to one with prejudice has not been met, I recommend that the Court's dismissal of Plaintiff's claims against Karacica be without prejudice.
CONCLUSION
For all of the forgoing reasons, I respectfully recommend that, in response to Plaintiff's letter (Dkt. 95) and pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, the Court order the voluntary dismissal of all of Plaintiff's claims against defendant Karacica, without conditions and without prejudice. I further recommend that Defendants' motion for involuntary dismissal of those claims with prejudice, pursuant to Rule 41(b) (Dkt. 96), be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Ronnie Abrams, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Abrams. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
July 9, 2019
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to: All counsel (via ECF)
ORDER
In this employment-discrimination action, which has been referred to this Court by the Honorable Ronnie Abrams, U.S.D.J., for general pretrial supervision, plaintiff Shanell Pugh-Ouza ("Plaintiff"), has filed two letter motions with the Court, seeking to compel discovery and/or the imposition of discovery sanctions, and an extension of the discovery period. In the first of these motions (Dkt. 75), Plaintiff has raised a substantial number of discovery issues, and, on reply, she has proceeded to raise even more. In her second motion (Dkt. 81), Plaintiff has sought to compel third-party witness Gisela Ramirez-Hichez ("Ramirez") to comply with a deposition subpoena. In some instances, defendants SpringHill Suites, a/k/a SpringHill Suites Marriott ("SpringHill Suites"), Marriott Hotel Services, Inc.; Marriott Worldwide Reservation Services, LLC, Mariott Resorts Hospitality Corporation, Marriott Resorts, Travel Company, Inc. (collectively, "Marriott"), Carrie Carpenter ("Carpenter"), Gina Ngeau, and Arberie Karacica (sued herein as Aubrey Karacia) ("Karacica") (all, collectively, "Defendants") have opposed Plaintiff's requests, and, in their opposition submissions, they have also cross-moved for certain relief, including sanctions against Plaintiff and/or her counsel. In addition, Defendants' counsel, representing non-party Ramirez, has sought on her behalf to quash the subpoena directed to her.
Plaintiff's motions, the issues raised therein, and Defendants' responses are addressed below. I. PLAINTIFF'S MOTION TO COMPEL DISCOVERY , FOR SANCTIONS, AND FOR A DISCOVERY EXTENSION (Dkt. 75)
A. Request To Compel the Completion of Karacica's Deposition and the Production of an Audio Recording in Karacica's Possession
1. The Karacica Deposition
After this Court chastised the parties for being unable to agree to a deposition schedule (see Dkt. 70), the parties finally submitted a proposed deposition schedule (Dkt. 72), which this Court "so ordered" (Dkt. 73). As part of that schedule, defendant Karacica was to be deposed from 10:00 a.m. to 1:00 p.m., on January 28 and 31, 2019, with the deposition then to be continued "on such dates thereafter as necessary to complete the deposition to accommodate Ms. Karacica's child care concerns." (Dkt. 73 ¶ 2.) The deposition duly commenced on January 28, 2019, but after an extended line of questioning by Plaintiff's counsel that Defendants' counsel has referred to as "troubling" (Dkt. 77, at 2), a dispute arose regarding the parameters under which the deposition should be continued. The first item of relief sought in Plaintiff's pending motion to compel is an order simply requiring Karacica to appear for further deposition questioning. (See Dkt. 75, at 1-2.)
The background of the parties' dispute is as follows. In October 2018, after Karacica had already filed an Answer to the Complaint (see Dkt. 36), Plaintiff's counsel, Laurie E. Morrison, Esq. ("Morrison"), sent Defendants' counsel, Brian D. Murphy, Esq. ("Murphy"), an email stating that Morrison had "joined Karaci[c]a as a defendant by mistake." (Dkt. 77, Ex. A.) Morrison attached to that email a proposed stipulation of dismissal of Plaintiff's claims against Karacica. (Id.) The proposed stipulation, however, contained certain conditions for dismissal, including that the remaining defendants would not oppose Karacica's being rejoined in the action, if later circumstances warranted it, and that the statute of limitations on Plaintiff's claims against Karacica would be considered tolled until the date of any potential rejoinder. (See id.) Upon receiving the proposed stipulation, Murphy sent Morrison an email response, indicating that he would have to confer with Karacica regarding the proposal, as the stipulation "contain[ed] more than a simple dismissal without prejudice." (Dkt. 77, Ex. B.) After privileged consultation with Murphy, Karacica did not agree to a dismissal that would include the stated conditions (see Dkt. 77, at 2), and no stipulation of dismissal as to Karacica was ever filed. Nor - despite Morrison's representation that Karacica had been named "by mistake" - did Plaintiff move for voluntary dismissal of the claims against Karacica pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.
At Karacica's deposition on January 28, 2019, Morrison then proceeded to ask Karacica a series of questions - often repetitively, and ultimately taking up more than 40 pages of the deposition transcript - as to why she had not agreed to the proposed stipulation of dismissal. (See Dkt. 82-1 (transcript of Jan. 28, 2019 Karacica deposition), at 14-56.) In the course of that questioning, Morrison asked Karacica whether she was aware that she had been named as a defendant by mistake (id., at 15); whether she knew that her counsel had been sent a proposed stipulation to remove her as a defendant from the case (id., at 15, 23, 24); whether she understood that, if the stipulation had been signed, she would have no longer been a defendant in the case (id., at 18, 24); and why she wanted to remain a defendant in the case (id., at 14-15, 17, 18).
When Karacica testified, in essence, that she had not authorized the proposed stipulation because it contained conditions (see, e.g., id., at 19-20, 33), Morrison shifted to asking Karacica whether she was aware that the corporate defendants who had been dismissed from the action had agreed to such conditions (see id., at 27-28, 32-33), and then further shifted to a line of questioning that included the explicit suggestion that, by neglecting to pursue a negotiated stipulation for Karacica's dismissal that did not include conditions, Murphy had failed to act in Karacica's best interests (see generally id., at 36-55; see also id., at 44 ("[If] there were a chance to get one of my clients out of a case, I'd jump on that chance"); id., at 54-55 ("And do you understand that generally in a client's best interest when they're named a defendant in a case, pursuing it to get them out of the case and doing everything you can to get them out of the case would have been in your best interest? Do you understand?")). In connection with questioning, Morrison also asked Karacica if she was aware that, if there were a judgment against her in the case, her "personal assets - a home, car, whatever - could be attached" (id., at 49); and insinuated not just that Murphy had a conflict of interest in representing both Karacica and other remaining defendants, but that this conflict might well have affected any advice he gave to Karacica regarding her potential dismissal, if it was in the interest of those other defendants to keep Karacica in the case (see id., at 37-47, 48 ("Do you understand that [your dismissal without conditions] might not have been in the best interest of the other defendants in this case? Do you understand that?")). Further, after Murphy instructed Karacica not to reveal her privileged communications with him, Morrison informed Karacica that the privilege belonged to her, rather than to counsel, and no-so-implicitly suggested that Karacica consider waiving privilege. (See id., at 55-56.)
This line of questioning was entirely inappropriate, and, indeed, outrageous. It bore no relevance to the claims and defenses asserted in the case; sought to drive a wedge between an opposing party and her attorney; appealed directly to the deponent to waive her attorney-client privilege, while seeking to carve her attorney out of the discussion; not only suggested that opposing counsel had a conflict of interest, but, in front of his client, effectively accused counsel of acting, as a result of the alleged conflict, to his client's detriment; and sought to scare Karacica regarding the potential personal consequences (including the attachment of her home) that she could face from her attorney's supposed neglect of her interests.
After dealing with this abusive questioning for what was apparently close to an hour (see Dkt. 77, at 2), Murphy suggested that he might not be prepared to produce Karacica again on January 31, 2019, for the scheduled continuation of her deposition (see Dkt. 82-1, at 53). To his credit, though, Murphy did not stand on that position at the end of the January 28 session, although he did reserve the right to make an application to this Court to limit Karacica's further questioning. (Dkt. 82-1, at 165, 171.) In fact, in opposition to Plaintiff's motion to compel the continuation of the deposition, Defendants have not requested that the deposition be terminated outright. (See Dkt. 77, at 3 ("[W]e are prepared to produce Ms. Karacica on January 31 . . . .").) Defendants have, however, requested the following relief:
(i) Counsel to Plaintiff should be required to dismiss Ms. Karacica as a defendant in this case without any conditions imposed; (ii) Counsel to Plaintiff should be admonished not to renew efforts to inquire into communications between Ms. Karacica and Counsel; (iii) Counsel to Plaintiff should be prohibited from reexamining Ms. Karacica concerning matters discussed during the first portion of her deposition; and (iv) Counsel to Plaintiff should notify the Court and Defense Counsel of the areas of inquiry she intends to cover with Ms. Karacica in advance of the deposition as a demonstration of the good faith purpose for which the continued deposition is sought.(Id., at 5.)
Plaintiff's motion to compel (Dkt. 75) was filed on January 29, 2019, and Defendants' opposition (Dkt. 77) was filed on that same date. On January 30, Plaintiff then filed a letter, indicating that time constraints would make it difficult for Plaintiff to file a prompt reply. (See Dkt. 78.) Upon receipt of that letter, and out of concern for the conduct that, according to Defendants, had been displayed by Morrison at the January 28 session of Karacica's deposition, this Court issued a Text Order on January 30 (Dkt. 79), deferring ruling on the motion, and stating:
This Court will not resolve the various discovery issues raised by Plaintiff's motion and Defendants' opposition until it receives Plaintiff's anticipated reply. Nonetheless, as, by virtue of this Court's prior Order (Dkt. 73), defendant Karacica's continued deposition is scheduled for tomorrow (January 31, 2019), it is hereby ordered that this particular deposition shall not be continued until the parties have submitted to this Court a copy of the transcript of the first portion of this defendant's deposition (as conducted on January 28, 2019), and this Court has had the opportunity to review that transcript. If this Court then determines that the deposition should be continued, either with or without restrictions, it will set a new date for that to occur.
Accordingly, even though Defendants were prepared to produce Karacica on January 31 for the continuation of her deposition, that deposition, by this Court's Order, was not continued on that date. This Court notes that Plaintiff's recent assertion that this Court temporarily stayed Karacica's continued deposition "only because defense counsel refused to produce her" (Dkt. 88, at 1 (emphasis omitted)) is completely incorrect.
The question of whether Karacica should be dismissed as a defendant in this case is addressed further below. Given that Karacica is, in any event, a witness in this action, she should appear for the continuation of her deposition on a date to be mutually agreed, not later than April 30, 2019. Defendants' second request for relief is granted, and Morrison is hereby admonished that, during the continued deposition, she should not seek to elicit privileged communications. For that matter, Morrison is directed to refrain from any further questioning of Karacica regarding the proposed stipulation of dismissal. Morrison is cautioned that, if this Court sees any further questioning along the lines of what has been summarized above, this Court will impose sanctions on her. Defendants' final two requests, which this Court construes as having been made under Rule 26(c), are denied, but, in light of the serious issues identified above with the first part of Karacica's deposition, this Court, in its discretion, will limit the continuation of Karacica's deposition to not more than one additional, three-hour session. See Fed. R. Civ. P. 26(b)(2)(A).
2. The Audio Recording
At her deposition, Karacica testified that she was present, as Plaintiff's union delegate, at the meeting in which Plaintiff was informed of the termination of her employment. (Dkt. 82-1, at 82.) The parties do not dispute that Karacica used her smartphone to audio-record both that meeting and a conversation that she had with Plaintiff immediately thereafter. (See Dkt. 75, at 3; Dkt. 77, at 4.) Prior to her deposition, Karacica, through counsel, produced to Plaintiff a copy of a portion of that audio recording. The produced portion apparently included the entire termination meeting, but, based on what seems, from Karacica's testimony, to have been a misunderstanding as to what she was required to produce, it omitted what Karacica described at her deposition as "the last few minutes" of the recording, which was of her subsequent conversation with Plaintiff. (See Dkt. 82-1, at 102-03 ("I just gave you the meeting portion of the recording. . . . I thought that's what you need to hear." "And then the last few minutes was just me and [Plaintiff] speaking, so I just cut the part for the meeting out for you guys and sent it.").)
Karacica went on to testify that, upon learning that she needed to produce the full recording, she later "went back to try to get the full thing so [she] could resend it," but that she was unable "to open the folder recording," and that there was "no way for [her] to do so." (Id., at 103.) More specifically, she testified as follows regarding her attempt to produce the entire recording, once she became aware of her need to do so:
Q. . . . So you actually were trying to get the full recording?
A. Yeah. So I could give it to you so you could hear the whole thing because I didn't think the conversation with me and [Plaintiff] was necessary, but -(Id., at 103-05.) Karacica further testified that she had not "erased" the whole recording (id., at 105), and, in response to an inquiry by Plaintiff's counsel, she agreed to contact the Marriott "corporate line," to see if they might be able to connect her with a person with IT expertise, who could assist her in covering the rest of the recording (id., at 106).
Q. So at some point . . . you understood that you actually needed to provide the entire recording?
A. Yes. Yes.
Q. Okay.
A. . . . So I tried and I can't - I can't open it. . . .
. . .
Q. . . . And you communicated that to - you let people know that this was not the full recording?
A. I advised counsel, yes.
Q. Okay. Is the recording still on your phone?
A. That piece? Yeah, it is. The one that I sent to you.
Q. How about the larger expanded version?
A. That's the one that I cannot pull up. There's no way for me - once I clipped it out for some strange reason, I can't pull anything back. I don't know if there's a way to do it. I've tried looking.
When asked at her deposition to describe the underlying events that she had recorded, Karacica testified that, after the termination meeting, Plaintiff was crying, and that Karacica left the meeting with Plaintiff and "consoled her." (Id., at 91.) She also testified that Plaintiff "kept saying that she felt [she was let go] because her son was in the hospital." (Id., at 92-93.) Karacica described, in this way, what she said to Plaintiff, in the portion of the audio recording that had not been produced:
And I told her, you know, 'Let's go to the union. Do you want me to help you with this? Just let me know.' She was crying. She was, like, 'That's it.' You know, 'I lost my job.' And I'm, like, you know, 'Let's go. Let's go fight this. Take it to the union. Do you want me to help you as your delegate?' And she said - she was just crying a lot. You can't really, you know, make out what she says, but that was it. She just cried. And then I said, you know, 'Don't worry. I recorded everything. You'll be fine,' and that was it.(Id., at 91; see also id., at 100 (". . . in the end it was me just telling [Plaintiff], you know, 'Don't worry. It's going to be okay. We're going to fight this. We'll go to the union.'").)
This testimony is generally consistent with what is reflected on the produced audio recording, which apparently was not cut off immediately after the termination meeting, but rather includes the first part of Karacica's conversation with Plaintiff. (See Dkt. 86-3 (transcript submitted by Plaintiff).) Specifically, the recording includes the following, before it ends:
Karacica: Come with me. Don't cry. I'm going to walk with you. Is there anything you wanted me to say that I didn't say? Huh?(Dkt. 86-3, at 10-12.)
Plaintiff: No.
Karacica: Are you sure? Are you upset with me?
Plaintiff: No.
Karacica: Okay. Come here. Let's just talk really quick. Look at me. Come here.
Plaintiff: This shit hurts because I knew this was what they were
Karacica: Stop, listen to me. Before you go I want you to listen to me.
Plaintiff: [UNINTEL PHRASE] before. I could've went to the union days ago.
Karacica: Okay, relax, relax. First of all, all the issues that I addressed today - listen to me
Plaintiff: Mm hmm.
Karacica: You're going to get paid for like, four days that you were out because they put Paul on overtime, [UNINTEL] on overtime on the shift. They put Delaney - Matt gave him overtime. So you're getting paid for all those days. Look at me, okay? Listen to me. Come here, give me a hug.
Plaintiff: I was trying to hard not to cry. This is embarrassing.
Karacica: You did a great job. Are you stupid? Stop crying. Listen . . .
In her initial submission on her motion to compel, Plaintiff asserted that the missing part of the recording would reveal more than this - specifically, that it would show that Karacica had agreed with Plaintiff that Plaintiff had been subjected to unlawful discrimination, harassment and retaliation. (Dkt. 75, at 3.) Plaintiff further contended that, "months after knowing that Karacica had produced a truncated recording[,] Defendants have made limited, if any, effort to retrieve and produce the complete version," and requested that Defendants be compelled to produce the complete version. (Id., at 4.) In addition (presumably if the missing portion of the recording could not be recovered and produced), Plaintiff sought leave to "submit a formal motion for spoliation of evidence, for an adverse inference against Defendants related to Karacica's edited recording, and for such further remedies that the Court finds just and proper under the circumstances." (Id., at 5.)
Defendants responded by arguing that Karacica had acted in good faith in providing the recording of the meeting as soon as she discovered that she had it on her phone, and that, at her deposition, she "was fully forthcoming regarding her ignorance of discovery rules and evidenced nothing but a willingness to assist." (Dkt. 77, at 4.) In their opposition, Defendants also urged this Court to resist finding that Karacica's failure to produce the last portion of the recording was "evidence of some nefarious plot to destroy evidence," warranting a spoliation inference (id.), represented that Karacica would "continue her efforts to retrieve the full recording" (id., at 6), and requested that, if she were unable to do so, then the Court entertain full briefing on Plaintiff's request for an adverse inference (id.).
After having eventually received a copy of the transcript of Karacica's January 28, 2019 testimony, Plaintiff used that transcript, on reply, as a basis to expand the arguments she had initially raised in her motion regarding the audio recording, and to seek substantial additional relief. First, on reply, Plaintiff cited the transcript in purported support of a wide range of accusations against Defendants and their counsel - including that Karacica and/or her co-defendants deliberately removed "incriminating discussion" from the produced audio (Dkt. 86, at 5-6); that Karacica knowingly disregarded her discovery obligations (id., at 6-7); that Karacica had actually turned over the entire audio recording to Defendants' counsel, but made a separate, edited, version for production to Plaintiff (see id., at 7); that Defendants' counsel, Murphy, had mischaracterized the produced audio as complete, when he knew that it was truncated (id., at 7-8); that Murphy had misrepresented the missing audio as involving a discussion between Karacica and Plaintiff of "personal matters" when he knew that was not the case (id., at 8); and that, despite the passage of time, Defendants and Murphy had still made no effort to recover the unproduced portion of the audio recording (id., at 9).
Second, Plaintiff argued on reply that she would need to retain a forensics specialist to recover the unproduced audio, and she sought to augment the relief originally requested on her motion with entirely new requests to compel the production of (a) "Karacica's smartphone," (b) "the log-in and password to open/access the phone," (c) "any and all [i]Cloud [p]asswords," (d) log-in and passwords to access Karacica's other cloud storage areas," (e) "log-in information and passwords needed to open applications (apps) used to record and/or to save the audio recording," and (f) "all other information relevant to the audio recording, and to any information related to Plaintiff and/or to this case." (Id., at 10.) Third, Plaintiff reiterated her request for an adverse inference sanction, adding a section of legal briefing on the subject. (Id.)
Not surprisingly, in light of the accusations of improper conduct that Plaintiff had proceeded to level against them and against Defendants' counsel, personally, Defendants filed a sur-reply, taking issue with those allegations. (See Dkt. 87, at 2-3.) Among other things, Defendants characterized as demonstrably untrue and "reckless" Plaintiff's accusation that Murphy was in possession of the full audio recording and deliberately did not produce it. (Id., at 2.) As to Plaintiff's allegation that Defendants have made no further effort to recover the unproduced audio, Defendants clarified that both Karacica (though contact with her service provider) and Murphy (through consultation with an IT professional) have, in fact, made such efforts, but that they had not been successful. (Id., at 3.) As this Court understands Defendants' current position, they have essentially agreed that only a forensic expert might be able to recover the audio, but they argue that, in the totality of the circumstances presented, the cost of a forensic expert would not be justified. (Id.) Finally, in their sur-reply, Defendants have now responded, with their own legal briefing, to Plaintiff's discussion of the law regarding spoliation sanctions. (Id., at 4.)
Remarkably, while asserting that Defendants had no authority to file sur-reply and that this Court should disregard Defendants' sur-reply in its entirety, Plaintiff filed a lengthy sur-sur-reply. (Dkt. 88.) In her final submission, Plaintiff reiterates many of her earlier points, but ramps up her accusatory rhetoric even further, charging both Karacica and Murphy with "culpable conduct" in purportedly deliberately removing a "harmful" portion of the audio recording, in allegedly denying that it was edited, and in allegedly making no effort "whatsoever" to recover the missing portion. (See id., at 4.)
Having reviewed all of the parties' submissions, including the transcript of Karacica's deposition on January 28 (Dkt. 82-1), the transcript of the portion of the audio recording at issue that has been produced by Plaintiff (Dkt. 86-3), and all of the parties' motion papers, including both the sur-reply and sur-sur-reply, the Court finds that Plaintiff has largely mischaracterized the testimony and the record in accusing Karacica, her co-defendants, and/or Murphy of deliberate misconduct, and that, on the current record, the imposition of sanctions for such purported misconduct would be wholly unwarranted. Nothing about Karacica's testimony supports Plaintiff's speculation that she edited out a portion of the audio recording because it was harmful to Defendants' position in this case, and, certainly, this Court sees no support for Plaintiff's assertion that counsel was given a copy of the full recording, and then deliberately withheld it from production.
Nonetheless, this Court does find that the unproduced portion of the recording is relevant to Plaintiff's claims in this case, or at least to Plaintiff's and Karacica's credibility, and further finds that the obligation to make all reasonable attempts to produce that evidence falls on Karacica. Karacica, through counsel, is therefore directed to secure the assistance of a forensic expert to determine whether the remaining audio may be recovered from Karacica's phone. As the task of seeking to recover one particular audio recording is quite limited, and as Defendants have made no showing that the retention of an expert for this purpose would be cost prohibitive, this Court is not persuaded that requiring Defendants to take this step would be disproportionate to the needs of the case. Accordingly, no later than April 30, 2019 (and prior to the continuation of Karacica's deposition, if feasible), Defendants are directed to provide Plaintiff with either (a) a copy of the recovered audio, or (b) if the audio could not be recovered, then a report by the forensic expert setting forth the steps taken in the attempt to recover it. Plaintiff's request for an order compelling production of the phone and Karacica's various passwords is denied.
Defendants have stated that the phone on which Karacica made the recording "is a personal phone that is not administered by Defendants and/or their IT Departments," and that Defendant therefore "bear no responsibility or authority over her phone." (Dkt. 87, at 3.) Plaintiff has produced no evidence to suggest the contrary, despite consistently maintaining that "Defendants" failed to produce the full audio recording, and that "Defendants" should be sanctioned for that failure. (See Dkt. 75, at 4; Dkt. 86, at 9-11.)
Plaintiff's premature request for sanctions for Karacica's failure to preserve the full audio recording is denied without prejudice to renew. This Court cautions Plaintiff, however, that, even if the remainder of the audio recording cannot be recovered, the standard for demonstrating the propriety of an adverse inference charge, as a sanction for a party's failure to preserve electronically stored information, is a difficult one to meet. See Fed. R. Civ. P. 37(e)(2)(B) (providing that the sanction of an adverse inference charge for a failure to preserve electronically stored information may be granted "only upon [a court's] finding that the party acted with the intent to deprive another party of the information's use in the litigation"). On the record as it currently stands, this Court, as stated above, sees no basis for finding that Karacica acted with the requisite intent.
3. Whether Karacica Should Be Dismissed as a Defendant
At Karacica's deposition, when Morrison kept asking Karacica why she had not authorized the stipulation of dismissal, Murphy suggested, on the record, that Morrison agree, right then, to an unconditional dismissal of Plaintiff's claims against Karacica, but Morrison refused to entertain such discussion. (See Dkt. 82-1, at 42-43, 51-53.)
In response to Plaintiff's motion, Defendants have now turned to the Court to request that, in light of Morrison's representation that she named Karacica as a defendant by mistake, the Court dismiss Karacica from this action, without conditions. (Dkt. 77, at 5.) In addition to noting Morrison's statement regarding her error in naming Karacica, Defendants also point out that, at her own deposition, Plaintiff testified that she did not want to continue this action against Karacica. When asked directly if she still wanted to sue Karacica, Plaintiff answered, "No." (Dkt. 87-2 (excerpts of Plaintiff's deposition), at 98.) Further, when asked, "Did [Karacica] do anything bad to you that you're aware of while you worked at SpringHill [Suites]," Plaintiff responded, "Nothing that I'm aware of." (Id., at 111.) Indeed, the only allegations contained in Plaintiff's Complaint that relate specifically to any involvement by Karacica in the underlying events are that (1) at one point, when Plaintiff contacted Karacica to ask whether another named defendant, Carpenter, had posted a work schedule for the following week, Karacica informed Plaintiff that Plaintiff had not been scheduled to work that week (Complaint, dated Feb. 25, 2018 ("Compl.") (Dkt. 1) ¶¶ 80, 82-83), and that (2) Karacica was present at the meeting at which Plaintiff's employment was terminated (id. ¶ 102); neither of these allegations, without more, would suggest actionable conduct by Karacica. Moreover, although Plaintiff claimed, in her Complaint, to have the right to sue Karacica as an "employer" under the New York State and New York City Human Rights Laws, based on Karacica's supposed supervisory level of authority (see Compl. ¶¶ 197, 260), Plaintiff has since backed away from her pleaded allegation that Karacica "was one of [her] direct or indirect supervisors" (Compl. ¶ 81; see Dkt. 87-2, at 98 ("So your testimony is now that defendant Karacica was not one of your direct or indirect supervisors?" A. "Yeah." (emphasis added)).
Despite all of this, Plaintiff has now become insistent that Karacica remain a defendant in this case, apparently based on suspicions that Karacica's unwillingness to agree to the proposed stipulation of dismissal or to press that issue, and her failure to produce the full audio recording discussed above, are indicative of underlying culpability, even if Plaintiff is not currently aware of what Karacica may have done to make her liable.
At Karacica's deposition on January 28, Morrison explicitly explained this to Karacica,
[J]ust so you know, Ms. Karacica, the only reason that you're a defendant in this case is because your attorneys did not communicate anything related to what you're saying today to me [i.e., that Karacica did not authorize the proposed stipulation of dismissal because it contained conditions]. Therefore, you were kept in this case because I guess there's - because it seemed like - since they didn't communicate your wishes - it seemed like you apparently were in this case and you stayed in this case because maybe you did do something wrong.(Dkt. 82-1, at 50 (emphasis added).) Morrison made the same point again, at the close of that first deposition session: "[T]he fact that it took your attorneys five months to even discuss [the stipulation of dismissal] with me or send me emails about any of it raised high concern. Okay. So it certainly made [P]laintiff and me question, Well maybe we're wrong. Maybe there is a reason what she was named here." (Id., at 169-70 (emphasis added).)
Then, in her motion to compel, Plaintiff stated, "[I]f Defendants do not agree to remove Karacica from this case, then clearly there is a good reason." (Dkt. 75, at 3.) Further, in her reply submission, although Plaintiff now states that "Karacica's liability in this case was never in question" (Dkt. 86, at 2), Plaintiff has not referenced a single specific allegation or a single piece of evidence to suggest that Karacica had actually engaged in discriminatory, harassing, or retaliatory conduct. Rather, Plaintiff has only pointed to Karacica's litigation conduct - particularly her supposed "intentional[]" editing of the audio recording to remove "portions . . . that Defendants knew were unfavorable to Karacica and to her co-[d]efendants" - as evidence that purportedly "reinforce[s] her standing as a [d]efendant." (Id.)
On Plaintiff's behalf, Morrison has stated, on reply, that her initial offer to dismiss Plaintiff's claims against Karacica was made for "personal" and "case/litigation" reasons that are subject to attorney-client privilege and attorney work product, but which she would explain to the Court in camera, if necessary. (Id.) At this point, however, this Court is not interested in any privileged and confidential reasons why Morrison offered to dismiss Karacica from this case, as much as it is interested in the reasons why - in light of Plaintiff's own testimony that she is not aware that Karacica "[did] anything bad to [her]" - Plaintiff currently believes she has a valid discrimination or retaliation claim against Karacica, and Morrison currently believes she can continue to represent Plaintiff on such a claim against Karacica, consistent with the requirements of Rule 11.
In these circumstances, this Court has grave concern regarding Plaintiff's justification for maintaining her claims against Karacica. Nonetheless, as noted above, Karacica is at least a witness to material events; this Court has already held that Plaintiff may complete Karacica's deposition; and this Court notes that it is possible that testimony will be elicited at the continuation of that deposition that might at least be capable of giving rise to an inference that Karacica engaged in conduct proscribed by the New York State and New York City Human Rights Laws under which Plaintiff is suing. Accordingly, this Court will take no action at this time regarding Defendants' request that Karacica be dismissed from the action. In light of the issues addressed herein, however, this Court urges both Plaintiff and Morrison to give further consideration to their position on this issue, taking into account, of course, the developed discovery record, but also the continuing obligation of counsel to make reasonable inquiry to assure herself that there is a good-faith basis for the maintenance of her client's pleaded claims. See Fed. R. Civ. P. 11(b).
If, after further consideration, Plaintiff decides that she does not wish to proceed with her claims against Karacica, then, no later than two weeks from the completion of Karacica's deposition, Plaintiff is directed either to file a stipulation of dismissal of Plaintiff's claims against Karacica, pursuant Rule 41(a)(1)(A)(ii), on terms agreed to by all parties, or, if the parties cannot agree on the terms of a stipulation, then to file a motion, pursuant to Rule 41(a)(2), for the Court to order a dismissal of the claims against Karacica on such terms as Plaintiff believes would be just. If, on the other hand, Plaintiff decides that she still does wish to proceed with her claims against Karacica, then, no later than two weeks from the completion of Karacica's deposition, Plaintiff is directed to show cause why this Court should not recommend to Judge Abrams that those claims be dismissed for the reasons discussed herein.
B. Request To Compel the Production of Other Documents or Information
1. Karacica's Cellphone Call Records
Plaintiff has sought to compel the production of Karacica's cellphone call records, asserting, repeatedly, that Karacica's position that she cannot retrieve those records from her service provider is "highly questionable." (Dkt. 75, at 5; see also Dkt. 86, at 14.) Defendants have responded by informing this Court that, "[a]s has been represented to Plaintiff multiple times, Ms. Karacica stated that her telephone provider cannot produce text messages or call logs more than sixteen months old." (Dkt. 77, at 4.) Plaintiff, unwilling to accept this representation, requests that, at a minimum, Defendants be compelled to "provide a written declaration stating any and all of Karacica's efforts to retrieve her phone call records, and any and all responses received from phone providers and other relevant persons regarding the matter." (Dkt. 86, at 14.)
On this topic, Plaintiff's motion to compel production of documents and/or a declaration is denied, as the only basis for Plaintiff's seeming disbelief in Karacica's representation that the documents sought are not within her possession, custody or control is the fact that a different defendant, Carpenter, who may well have had a different service provider, was able to obtain and produce her own call records for the same period. (See Dkt. 75, at 5; Dkt. 86, at 14.) This is insufficient to justify an order compelling Karacica either to produce documents that she states are not in her control, or a declaration - beyond any response required by the Federal Rules - detailing her efforts to obtain them. Plaintiff's application on this issue is therefore denied.
2. Plaintiff's Termination Letter and Related Documents
Plaintiff has also sought to compel Defendants to produce certain documents relating to the termination of her employment that were apparently referenced by defendant Carpenter both at her deposition and at the meeting, attended by Carpenter, at which Plaintiff was given notice of her termination. (See Dkt. 75, at 5-6.) These documents include a termination letter that Carpenter testified that she had drafted, and documentation regarding Plaintiff's job performance that, according to Carpenter, supported the termination decision. (See id.) According to Plaintiff, these documents would have been responsive to her document requests. (See id., at 6.) Further, after Carpenter's deposition (which was conducted on Friday, January 25, 2019), Plaintiff's counsel sent an email to Defendants, requesting production of the "termination" letter and stating: "If Defendant already produced that document, then please identify the specific bates-number." (Dkt. 75-4.)
In response, Defendants have noted that this alleged deficiency in their production was raised by Plaintiff only shortly before Plaintiff filed her motion to compel (on Tuesday, January 29), and state:
Defendants have not intentionally withheld any termination documents regarding Plaintiff, have produced her personnel file and all other files related to her in their entirety, and have not located the specific termination letter to which Plaintiff (and Ms. Carpenter) refers). Defendants suspect that Ms. Carpenter is simply misremembering events from three years ago, but notwithstanding, have not located any responsive documents in the two business days (one of which was consumed by two depositions) since the issue first arose.(Dkt. 77, at 4.)
On reply, Plaintiff has clarified that Carpenter testified that "she gave documents that purportedly supported Plaintiff's firing to human resources" (Dkt. 86, at 15), and that, prior to filing her motion to compel, Plaintiff's counsel had asked Defendants' counsel for either (a) a clear and definitive statement that those documents did not exist, or (b) the Bates numbers of the documents, if they had already been produced, or (c) the immediate production of the documents, if they existed, but had not yet been produced (id.).
It is apparent from the timeline of events, and from Defendants' response to the motion, that Plaintiff did not engage in full, good-faith conference with opposing counsel prior to bringing this issue to this Court's attention. Nonetheless, Plaintiff's motion is granted to the following limited extent: Defendants' counsel is directed to provide a letter to Plaintiff's counsel, no later than April 12, 2019, stating the Bates-number range(s) of any and all produced documents that were obtained from the corporate defendants' Human Resources ("HR") department(s), and to confirm that a diligent search of HR files has been made for the termination letter and supporting documents referenced by Carpenter at her deposition. If additional documents relating to Plaintiff's job performance or termination are located, then, no later than April 12, 2019, Defendants are directed to supplement their production.
3. Identification of "Third Person" Present at Meeting Where Plaitniff Was Given a Disciplinary Write-Up
According to Plaintiff, defendant Carpenter testified at her January 25, 2019 deposition that three people were present at a meeting at which Carpenter gave Plaintiff a disciplinary write-up: Carpenter, Plaintiff, and a third person whose identity Carpenter could not recall. (See Dkt. 75-4.) By email following Carpenter's deposition, Plaintiff's counsel sent Defendant's counsel an email in which she requested the identity of the third person at the meeting. (Id.) Plaintiff has not shown, however, that Plaintiff had ever previously requested this information, through an interrogatory or otherwise.
Defendants have responded to Plaintiff's January 29 motion to compel production of this information by stating:
Both Plaintiff and Ms. Carpenter have testified that they cannot recall who this third person is. That is, Plaintiff has already questioned the two participants who might know the answer to this open question. While Plaintiff suggests that Defendants are under an independent obligation to provide this information - and vaguely references her (untimely) document requests - there is no interrogatory calling for Defendants to identify the participants in a meeting during which Plaintiff was issued a disciplinary warning. Plaintiff can, and presumably will, question the remaining witnesses about this topic. In any event, it is improper to characterized this as a discovery delay or abuse when the issue first arose on Friday and the parties were in deposition on Monday.(Dkt. 77, at 5.)
Defendants have the better argument here, as, absent a prior interrogatory to which Defendants failed to respond, this Court perceives no failure to meet a discovery obligation. Further, Plaintiff has not demonstrated that there is anyone present within the defendant companies who is likely to know the answer to the question posed. Nonetheless, Plaintiff's motion is granted to the following limited extent: In the letter that this Court is requiring Defendants' counsel to provide to Plaintiff's counsel by April 12, 2019, counsel should also confirm that a diligent search of HR files has been made for any documents memorializing or referring to the disciplinary meeting at issue, and, if any additional documents regarding that meeting are located, then Defendants should again supplement their production by April 12.
4. Additional Documents or Information Sought by Plaintiff on Reply
In her reply submission (which was filed on February 19, 2019, well after the February 8 close of discovery to which the parties had stipulated, and which this Court had ordered (Dkt. 73)), Plaintiff has identified several additional categories of documents, outside the scope of her pending motion, that she now also seeks to compel Defendants to produce. These categories, as described by Plaintiff, include: (a) Karacica's emails and email attachments; (b) emails and information related to Plaintiff's "call-outs"; (c) information related to former staff member Michael Barreno ("Barreno"); (d) personnel files, disciplinary records, and related information regarding the other seven front desk agents in Plaintiff's department; (e) documents related to and/or referencing the 10 to 12 employees whose firing was purportedly discussed by supervisors, according to witness David Behar ("Behar"); and (f) any and all information related to defendants' purported low occupancy/slowed business relied on to give Plaintiff reduced work schedules. (Dkt. 86, at 15-17.)
The first two of these categories (relating to emails) were presumably covered by an earlier ruling by this Court. Specifically, by letter dated November 30, 2019, Plaintiff had moved for an order compelling Defendants to produce communications, including text messages and emails, regarding "Plaintiff's infant son's emergency hospitalization and surgery, and Defendants' charged unlawful firing." (Dkt. 56, at 2-3.) On December 5, 2018, this Court made rulings on the record regarding all of the issues that were before it at that time. (See Dkt. 61.) Subsequently, addressing Plaintiff's continuing complaints regarding Defendants' purportedly deficient production of emails, this Court ruled by Text Order, dated December 26, 2018, as follows:
As, despite being invited to provide input as to a protocol for Defendants' production of emails, Plaintiff did not do so, Defendants are directed to make their production based on their own determination as to appropriate search terms and custodians; such production shall be made no later than 1/8/19.(Dkt. 70.) Defendants have stated that they complied with that Order and that they have produced to Plaintiff all emails retrieved through their electronic searches, including any of Karacica's emails located through a search of her work account, and any emails regarding Plaintiff's "call-outs" located through a search of the accounts of the selected custodians. (Dkt. 87, at 6-7.) This Court will not revisit these issues.
On the other hand, with respect to the production of emails from Karacica's personal account, Defendants have noted only that Karacica testified at her deposition that she had searched for responsive emails, but did not locate any. (Id., at 7.) This statement by Defendants suggests that counsel may not have supervised the search of Karacica's personal email account, so as to ensure the application of appropriate search terms. For this reason, Defendants' counsel is directed to oversee a further search of Karacica's personal email account, and, if any responsive emails are thereby located, to produce them no later than April 12, 2019.
As Defendants have agreed to produce documents related to Barreno's employment (see id.), Defendants are directed to do so, no later than April 12, 2019.
As to the remainder of the new document categories identified by Plaintiff - including records regarding seven front desk agents, documents regarding the 10 to12 employees whose firings were purportedly discussed by supervisors, and documents regarding Defendants' purported low occupancy rates or slowed business - Plaintiff has not identified, in her motion, any outstanding document requests, made pursuant to Rule 34, that specifically sought these documents. Nonetheless, Defendants are directed to review the deposition transcripts, to give reasonable consideration to any requests for such documents that were made by Plaintiff on the record at any depositions, and, no later than April 12, 2019, to produce the requested documents (based on the requests as framed on the record) or to set forth, by letter to Plaintiff's counsel, the nature of any objections.
C. Request for an Extension of the Discovery Period
Except as expressly set forth herein (and also for the purpose of conducting the deposition of Nathan Gullo ("Gullo") on a mutually agreed date no later than April 30, 2019, if that deposition has not yet been taken), the request for an extension of the discovery period is denied.
D. Request for Fees and Costs
Plaintiff seeks an award of the attorneys' fees and costs that she incurred in bringing her motion to compel discovery (Dkt. 75, at 2, 4-5), and Defendants, for their part, ask to be awarded their attorneys' fees and costs incurred in responding to what they characterize as an "inaccurate and, frankly, unnecessary 'emergency motion'" (Dkt. 77, at 6). Given that this Court has granted in part and denied in part the applications of both Plaintiff and Defendants, and in light of the circumstances described above and "the history of discovery disputes in which neither side has consistently prevailed," this Court, in its discretion, will not award fees or costs to any party. Schanfield v. Sojitz Corp. of Am., 258 F.R.D. 211, 217 (S.D.N.Y. 2009); see Fed. R. Civ. P. 37(a)(5)(C), (b)(2)(C).
II. PLAINTIFF'S MOTION TO ENFORCE SUBPOENA FOR RAMIREZ TESTIMONY (Dkt. 81)
In her second discovery motion, Plaintiff has sought enforcement of a deposition subpoena served on non-party Ramirez. Prior to the filing of that motion, Defendants' counsel, who is now representing Ramirez in connection with the subpoena (see Dkt. 77, at 5), had made an application on her behalf to quash the subpoena, as non-compliant with Rule 45, although that application was not filed as a stand-alone motion, but rather was made in the context of Defendants' opposition to Plaintiff's motion to compel discovery (see id.).
As to the parties' dispute regarding the Ramirez subpoena, it should first be noted that Ramirez was originally a party witness, as she was employed by defendant SpringHill Suites until sometime in late December 2018. (Dkt. 77, at 3.) On November 26, 2018, prior to Ramirez's departure from SpringHill Suites, Plaintiff duly noticed her deposition for December 7, 2019. (See Dkt. 75-6.) For whatever reason, the deposition did not proceed as noticed, and, on January 3, 2019, Defendants informed Plaintiff that Ramirez was no longer working for the company; Defendants further informed Plaintiff that Ramirez would be starting at a new job on January 7, but that "she ha[d] agreed to appear without the need for subpoena on January 21, which [was] [Martin Luther King] Day[,] as she [was] not scheduled to work" on that day. (Dkt. 83-5, at 2; see also Dkt. 75, at 6; Dkt. 83, at 2.) Apparently, that date was not acceptable to Plaintiff, and, on January 4, 2019, the parties filed a Stipulation and proposed Order stating, in relevant part, that Ramirez's deposition would be scheduled "once Defendants provide Ms. Ramirez's last known home and business addresses and phone numbers so that her deposition [could] be scheduled directly." (Dkt. 72.) The parties' Stipulation further states that they would "propose mutually agreeable dates for [Ramirez's] deposition that [would] not unreasonably interfere with her new employment." (Id.) This Court "so ordered" the parties' stipulation on January 7, 2019. (Dkt. 73.)
Plaintiff represents that, despite the Stipulation and Order, Defendants did not provide Ramirez's contact information until January 17, 2019 (see Dkt. 75, at 6), leaving little time for Plaintiff to arrange for the deposition to be conducted before the February 8, 2019 discovery cut-off. Plaintiff's counsel states that "[g]iven the short timing, Plaintiff attempted to contact Ms. Ramirez to schedule her deposition ASAP, but Ms. Ramirez did not respond" (id.; see also Dkt. 83, at 3), leading Plaintiff to attempt to obtain Ramirez's testimony by way of a subpoena. Plaintiff represents that a subpoena was served on Ramirez on January 27, 2019, with Ramirez's deposition testimony scheduled for January 31, 2019 (see Dkt. 75, at 6; see also Dkt. 81-1.) Defendants' counsel has clarified that January 31 was a Sunday, and that the subpoena was served on that day, by questionable means, at 9:00 p.m. (Dkt. 77, at 3.)
Defendants' counsel states: "[Ramirez] contacted my office and complained that the process server threatened her repeatedly while attempting to open her door nearly prompting her to contact the police before he 'threw' the subpoena at her door and told her to 'consider [herself] served.'" (Dkt. 77, at 3 n.7.)
Given Plaintiff's earlier attempt to notice Ramirez's deposition, and the fairly late provision of Ramirez's contact information by Defendants, this Court will allow Plaintiff additional time to secure Ramirez's testimony. As the subpoena in question was defective, however, and as it did not afford a reasonable time for compliance, the subpoena must be quashed. First, the subpoena itself, a copy of which has been submitted by Plaintiff (Dkt. 81-1), evidently did not comply with Rule 45 of the Federal Rules of Civil Procedure in two respects: (1) it did not set out the text of Rule 45(d) and (e), as required by Rule 45(a)(1)(A)(iv), and (2) it did not state the method to be used by Plaintiff for recording the witness's testimony, as required by Rule 45(a)(1)(B). Second, from the time of service (even assuming service was properly made), the subpoena afforded Ramirez barely more than three days to appear to give testimony, which was insufficient. See, e.g., Brown v. Hendler, No. 09cv4486 (RLE), 2011 WL 321139, at *2 (S.D.N.Y. Jan 31, 2011) ("Although Rule 45 does not define 'reasonable time' [to comply], many courts have found fourteen days from the date of service as presumptively reasonable." (citations omitted)).
Accordingly, if Plaintiff still wishes to depose Ramirez, then Plaintiff's counsel should prepare a new subpoena that is compliant with Rule 45. No later than March 29, 2019, Defendants' counsel shall inform Plaintiff's counsel if he will accept service of the new subpoena on Ramirez's behalf. If counsel does not agree to accept service, then Plaintiff shall make arrangements to effect proper service of the new subpoena on Ramirez. As for the date for Ramirez's deposition, counsel are directed to submit to this Court, no later than April 5, 2019, a mutually agreeable deposition date, within the month of April, that is convenient for the witness, and the Court will "so order" the parties' proposal.
Plaintiff's request for sanctions in connection with her motion to enforce the subpoena (Dkt. 83, at 4; Dkt. 88, at 2-3) is denied, given the subpoena's obvious defects. Defendants' request to deny Plaintiff the opportunity to depose Ramirez at all (Dkt. 77, at 6) is also denied, given that Plaintiff has apparently been seeking this deposition for some time. Defendants' further request that the deposition, should it be held, be conducted before this Court, "given the potential for Counsel imposing an undue burden on, or harassing, [Ramirez][,] as evidenced by her approach in prior depositions and given that [Ramirez] is a third-party witness as to whom protections are particularly appropriate" (id.), is also denied. This Court expects Plaintiff's counsel to conduct herself professionally at the Ramirez deposition. If, during the deposition, any serious issue arises regarding the conduct of either counsel, counsel may either place a telephone call to my Chambers at that time, or may make a concise record and then present the issue to this Court thereafter.
CONCLUSION
For all of the foregoing reasons, Plaintiff's motion to compel discovery, for discovery-related sanctions against Defendants, and for an extension of the discovery period (Dkt. 75), and Defendants' cross-motion to set restrictions on discovery and for sanctions against Plaintiff (Dkt. 77), are each granted in part, as specifically set out below, and otherwise denied, except that Plaintiff's application for spoliation sanctions is denied without prejudice to renew if the electronic recording at issue cannot be recovered. In addition, Gisela Ramirez-Hichez's ("Ramirez") request (included in Dkt. 77) to quash the subpoena served on her by Plaintiff is granted, and Plaintiff's motion to enforce the subpoena (Dkt. 81) is denied.
(1) On a mutually agreeable date, but no later than April 30, 2019, Defendant Karacica shall appear for the continuation of her deposition. Plaintiff's counsel shall not seek to elicit privileged communications or engage in any questioning regarding Plaintiff's proposed stipulation of dismissal of Karacica from this action.
(2) Karacica shall, through her counsel, secure the assistance of a forensic expert to determine whether the missing portions of the audio recording may be recovered. By April 30, 2019 (and prior to the continuation of Karacica's deposition, if feasible), Defendants shall then provide to Plaintiffs either (a) a copy of the recovered audio, or (b) if the audio could not be recovered, then a report by the forensic expert setting forth the steps taken in the attempt to recover it.
(3) No later than two weeks from the completion of Karacica's deposition, Plaintiff shall either (a) file a stipulation of dismissal against Karacica on terms agreed to by all parties, (b) file a motion for the Court to order a dismissal against Karacica on such terms as Plaintiff believes would be just, or (c) show cause why this Court should not recommend that Plaintiff's claims against Karacica be dismissed.
(4) By April 12, 2019, Defendants' counsel shall (a) provide the Bates-number range(s) of produced documents obtained from the corporate defendants' HR department(s) and (b) confirm that a diligent search of HR files has been made for
the termination letter and supporting documents referenced by Carpenter, and for any documents regarding the disciplinary meeting referred to by Plaintiff. If additional documents relating to Plaintiff's job performance, the disciplinary meeting, or Plaintiff's termination are located, then, also no later than April 12, 2019, Defendants shall supplement their production.
(5) Defendants' counsel shall oversee a further search of Karacica's personal email account for responsive documents, and, if any are found, produce them no later than April 12, 2019.
(6) By April 12, 2019, Defendants shall produce documents related to the employment of Michael Barreno.
(7) With respect to Plaintiff's requests for documents regarding (a) the seven front desk agents, (b) the 10 to12 employees whose firings were purportedly discussed by supervisors, and (c) Defendants' purported low occupancy rates or slowed business, Defendants shall review the deposition transcripts, and, no later than April 12, 2019, produce the requested documents (based on the requests as framed on the record) or set forth, by letter to Plaintiff's counsel, the nature of any objections.
(8) By March 29, 2019, Defendants' counsel shall inform Plaintiff's counsel if he will accept service of a Rule 45-compliant subpoena on Ramirez's behalf. Otherwise, Plaintiff shall arrange to effect proper service on Ramirez. By April 5, 2019, counsel shall submit to this Court an agreed upon date, within the month of April, for the Ramirez deposition to occur.
(9) The discovery period is extended to April 30, 2019, but only for the purposes set out above, and for the depositions of Ramirez and Nathan Gullo (if his deposition has not already been taken).
Based on the above rulings, the Clerk of Court is directed to close the motions filed at Dkts. 75 and 81 on the Docket of this action.
SO ORDERED
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to:
All counsel (via ECF)