Opinion
00-CV-0502E(Sc)
June 28, 2002
MEMORANDUM and ORDER
On March 8, 2002 the parties cross-moved for sanctions and attorneys' fees stemming from myriad discovery disputes. For the reasons stated herein, both motions will be denied and the discovery deadline will be extended until August 31, 2002 so that the parties may complete any discovery necessitated by defendant's supplementation as well as any outstanding discovery.
Plaintiff Williams was terminated by defendant Saint-Gobain in May 1998. Williams filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on or about January or February 1999 asserting claims of, inter alia, age-based discrimination. Ultimately, Williams commenced this action. Both parties claim insufficient discovery responses.
Williams contends, inter alia, that Saint-Gobain has not been completely forthcoming with respect to Request No. 4 of Plaintiff's First Request for Production of Documents, which requested, "[a]ny and all documents, plans, notes and the like as included in the definitions above on the reorganization of the Wheatfield operation since its purchase by Saint Gobain to date." In its supplemental response, Saint-Gobain stated:
Dated July 26, 2000. See Pottle Aff. dated Feb. 5, 2002 ("Pottle Aff."), at Ex. 1.
"Defendant hereby submits a supplemental response to Plaintiff's first request for production of documents, Request No. 4, as modified by letter from counsel dated December 5, 2000, as follows: Responsive documents, to the extent they could be located, are annexed as Exhibit A. One document is being withheld due to attorney-client privilege and is described in the privilege log included herein. Despite a diligent search by company representatives, no other document responsive to this demand could be located.
Documentation of the planning for the 1998 reorganization existed primarily in the form of electronic mail communications within the Company. As far as the Company can determine, these communications were not saved in hard copy. A change in the Company's electronic mail software in late 1998 rendered the old e-mails irretrievable and they are therefore not available for production in response to Plaintiff's request." Pottle Aff., at Ex. 10.
At the time Saint-Gobain made this supplemental response, it produced certain documents — but not e-mails concerning the 1998 reorganization (the "1998 e-mails"). Defendant produced additional responsive documents on August 28, 2001, October 25, 2001 and November 19, 2001.
See Pottle Aff., at Ex. 10.
Pottle Aff., at Ex. 11 (obtained from defendant's Worcester, Mass. Human Resources Office).
Pottle Aff., at Ex. 12.
Pottle Aff., at Ex. 13.
On November 21, 2001, five days before trial was scheduled to start, defendant produced the 1998 e-mails as obtained from the personal computer of Gregory Silvestri, defendant's former Vice-President of Coated Abrasives-North America. Saint-Gobain contends that the 1998 e-mails were discovered in the course of preparing Silvestri for trial. Pottle Aff., at Ex. 14. According to defendant, these e-mails were not produced previously because — as noted hereinabove — it had changed e-mail systems in late 1998, rendering all previous e-mails (including the 1998 e-mails) irretrievable. Silvestri was deposed November 26, 2001. At his deposition, Silvestri testified that, in response to Lapoff's inquiry for documents related to the 1998 reorganization, he had informed her that he had copied his computer hard-drive onto a CD-ROM for Saint-Gobain. Silvestri Dep., at 4-33. Consequently, he did not send her the 1998 e-mails because he assumed that all the information on his computer was also in the possession of Saint-Gobain. Ibid. The CD-ROM, however, does not contain the 1998 e-mails and thus Saint-Gobain did not "possess" the 1998 e-mails until it had received them from Silvestri in November 2001. Lapoff Aff., dated Mar. 1, 2002, at ¶¶ 33, 39.
Pottle Aff., at Ex. 14.
Pottle Aff., at Ex. 10. Inasmuch as the 1998 e-mails have been produced (and are contained in Silvestri's laptop), there is no need to address the propriety of Saint-Gobain's change in e-mail software without ensuring the retrievability of old e-mails. Cf. Byers v. Illinois State Police, No. 99 C 8105, 2002 WL 1264004, at *10-12 (N.D.Ill. June 3, 2002) (involving defendant that changed e-mail software but was able to retrieve e-mails from the old system — albeit at great expense, which was to be borne by the plaintiff based on a balancing test).
Pl.'s Mem., at 4. Plaintiff contends that it had been agreed that Silvestri would bring his computer to the deposition. Ibid. No such agreement was reached during the November 21, 2001 teleconference with the undersigned, nor is there a record of any such agreement between the parties. Moreover, despite plaintiff's belief to the contrary, the undersigned never told defendant's attorney, Lucinda Lapoff, Esq., to have Silvestri bring his computer to the deposition. But see id. at 5 ("Lucinda Lapoff was told upon information and belief by Judge Elfvin and also told by the Plaintiff's attorney to have Silvestri bring in his computer on Monday"). If plaintiff wanted Silvestri to bring his computer to the deposition, then he should have issued a subpoena to that effect — absent any court order to such end.
Silvestri did not review the CD-ROM and thus does not know whether the 1998 e-mails were copied from his laptop in July 1999. Silvestri Dep., at 31-32.
Saint-Gobain had not produced any documents from the CD-ROM because, after reviewing such, it determined that its contents were not responsive. Id. at ¶ 28. Saint-Gobain's counsel currently has the CD-ROM. Ibid.
Accordingly and as a sanction for defendant's alleged failure to diligently produce documents (including the 1998 e-mails), the destruction of documents and the selective retrieval and production of documents on the eve of the scheduled November 26, 2001 trial, plaintiff seeks to strike the defendant's Answer or, alternatively, to preclude testimony from Silvestri or any other witness concerning the 1998 reorganization. Such relief will be denied.
Plaintiff directs this Court to various regulations that purportedly required Saint-Gobain to maintain its e-mails and executives' handwritten notes concerning the 1998 reorganization. Plaintiff cites 29 C.F.R. § 1602.40, but such is irrelevant. Plaintiff also cites regulations that are not implicated here.
Indeed, regulations such as 29 C.F.R. § 1602.14, cited by plaintiff, require the retention of "personnel records," which does not appear to encompass e-mails and handwritten notes of executives concerning a reorganization, which one would not expect to find in a personnel folder.
See Mem. Of Law In Opposition To Pl.'s Mot. To Strike Answer For Sanctions ("Def.'s Mem."), at 5-7 (discussing 29 C.F.R. §§ 1627.2-.3).
Moreover, defendant produced the 1998 e-mails as soon as it had received them — albeit on the eve of trial — and there is no evidence of any bad faith as to any withholding or destruction of the same. In any event, late production of the 1998 e-mails provides no basis for precluding testimony concerning the 1998 reorganization — especially inasmuch as plaintiff could have deposed Silvestri on this topic before the initial discovery deadline but chose not to.
See Lapoff Aff., at ¶¶ 20-22. Although Saint-Gobain has been unable to produce the handwritten notes of various executives involved with the 1998 reorganization, such does not support an inference of willful and bad faith destruction, especially where such notes were discarded after having been incorporated into spreadsheets and other working papers. See Savard v. Marine Contracting Inc., 471 F.2d 536, 541-542 (2d Cir. 1972), cert. denied, 412 U.S. 943 (1973).
Indeed, the parties have had ample time since the 1998 e-mails were produced to prepare for trial. Moreover, plaintiff can hardly suggest that it is surprised that Saint-Gobain is claiming that Williams was terminated as a result of a reorganization, which is the essential content of the 1998 e-mails.
Finally, there is no basis for an adverse inference with respect to the 1998 e-mails to the extent that they have been produced. Accordingly, this Court declines plaintiff's invitation to impose sanctions or award attorney's fees. See Rule 37(a)(4) of the Federal Rules of Civil Procedure ("FRCvP"); Minotti v. Lensink, 895 F.2d 100, 102-103 (2d Cir. 1990) (district courts have broad discretion with respect to the imposition of sanctions under FRCvP 37); Savard, at 541-542 (holding that "[n]o inference can be drawn from failure to produce evidence not within the party's control" where the defendant had failed to produce its notes that had been lost or discarded). Indeed, "preclusion of evidence and dismissal of the action are harsh remedies and should be imposed only in rare situations * * *." Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988). The instant facts do not, however, present one of those rare situations.
Additionally, Byrnie v. Town of Crommell Bd. of Educ., 243 F.3d 93, 108 (2d Cir. 2001), is inapplicable because, inter alia, Williams has failed to produce "some evidence suggesting that a document or documents relevant to substantiating his claims would have been included among the destroyed files." Ibid. (quoting Kronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998)). Not only have the 1998 e-mails not been "destroyed," but Williams has failed to produce any evidence that the notes of Saint-Gobain's executives contained anything that would substantiate his claims.
See footnote 11.
Nonetheless, Saint-Gobain will be ordered to make available for inspection the CD-ROM it received from Silvestri and to produce all documents related to the 1998 reorganization of the Wheatfield operation in defendant's possession or to which it has access, as well as any other documents responsive to any of plaintiff's outstanding discovery requests.
Based on the authorities discussed above, this Court declines defendant's invitation to impose sanctions or to award attorney's fees.
Williams, however, will be ordered to (1) produce any documents generated within Saint-Gobain (including but not limited to any e-mails) that are in his possession or control; (2) appear for further deposition the cost of which shall be borne by Williams; and (3) produce any documents in his possession or control that are responsive to any of defendant's outstanding discovery requests.
The e-mails attached as Exhibit F to Lapoff's Affirmation in support of Saint-Gobain's cross-motion (i.e., Pl.'s Exs. S-5 and S-6 to the Silvestri deposition) should have been produced by plaintiff.
Otherwise, both parties shall bear their own costs during any additional discovery permitted by this Order.
Accordingly, it is hereby ORDERED that plaintiff's and defendant's motions are denied and that the discovery deadline is extended until August 30, 2002 in order that the parties may complete any discovery necessitated by defendant's supplementation as well as any outstanding discovery, that Saint-Gobain shall (i) make available for inspection the CD-ROM it received from Silvestri and (ii) produce all documents related to the 1998 reorganization of the Wheatfield operation that are in defendant's possession or to which it has access as well as any other documents responsive to any of plaintiff's outstanding discovery requests, that Williams shall (i) produce any documents generated within Saint-Gobain (including but not limited to any e-mails) that are in his possession or control, (ii) appear for further deposition the cost of which shall be borne by Williams and (iii) produce any documents in his possession or control that are responsive to any of defendant's outstanding discovery requests, that any motion for summary judgment shall be served and filed not later than September 23, 2002 and that, barring the filing of a motion for summary judgment, the parties shall appear before Part III of this Court on the 27th day of September, 2002 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.