ELIZABETH D. LAPORTE, Magistrate Judge.
Pending before the Court are: (1) Plaintiff's Motion for Order Compelling Discovery and Entry of Default; (2) Plaintiff's Motion to Shorten Time to Hear Plaintiff's Motion to Strike; and (3) Plaintiff's Motion to Strike Defendant's Opposition. For the reasons set forth below, the Court grants in part and denies in part Plaintiff's motion to compel. The Court also grants Plaintiff's motion to shorten time but denies his motion to strike Defendant's opposition.
Plaintiff Domingo sued his former employer, the United States Postal Service ("USPS"), for discrimination. The District Court limited this case to the discrete charges Plaintiff raised in EEO Case No. 4-F-945-0103-06, which related to a string of events that allegedly occurred from March 9, 2006 through March 31, 2006. (Dkt 31.) Plaintiff alleges that Defendant discriminated against him on the basis of his race, nationality, and physical handicap. (
The present motion arises from Plaintiff's Second Set of Requests for Admission, Plaintiff's Second Set of Requests for Production, and Defendant's Privilege Log. The parties met and conferred on May 15, 2013 and June 10, 2013 regarding many, but not all, of the issues raised by Plaintiff in his motion to compel. Fact discovery closed on June 14, 2013, and the District Court denied Plaintiff's motion to extend fact discovery. (Dkt. 121.) On June 21, 2013, Plaintiff filed the pending motion to compel. Defendant's opposition was due on July 5, 2013, but Defendant did not serve Plaintiffwith the opposition brief until July 6, 2013. Plaintiff replied on July 15, 2013, and simultaneously filed a motion to strike Defendant's opposition and a motion to shorten time.
Plaintiff requests that the Court strike Defendant's opposition to Plaintiff's motion to compel because Defendant served Plaintiff with the opposition brief one day late. Plaintiff argues that Defendant should have sought an extension under Fed. R. Civ. P. 6(b) before the July 5, 2013 deadline, and, because Defendant's counsel has not provided a compelling reason for an extension, the Court should sanction Defendant by striking its opposition brief. (Pl.'s Mot. Strike at 3, Dkt. 122.) Plaintiff also moves to shorten time so that the Court can hear his motion to strike before the Court rules on his motion to compel.
The Court grants Plaintiff's motion to shorten time but denies Plaintiff's motion to strike. Plaintiff has not shown that he was prejudiced by Defendant's late service.
Plaintiff moves the Court to compel responses to Requests for Admission ("RFAs") 4-35, 37, 39-43, 45-50, 52-53, 56-67, 59-71, 80, and 82-106. Plaintiff argues that Defendant's "boilerplate objections" are insufficient and that Defendant has evaded answering the RF As. Defendant counters that Plaintiff has failed to demonstrate how Defendant's responses to the RFAs are deficient and that Plaintiff seeks to compel responses to RF As that Defendant has already admitted.
Plaintiff correctly points out that many of Defendant's objections are improper boilerplate, or misdirected objections of "vague and ambiguous" as to understandable terms. Nonetheless, the Court denies Plaintiff's blanket motion to compel all of the RFAs on which he moves. As the moving party, Plaintiff is required to inform the Court "why he believes the defendants' responses are deficient, why the defendants' objections are not justified, and why the information he seeks through discovery is relevant to the prosecution of his action."
Plaintiff also moves the Court to compel supplemental responses to RFA 94 and RFA 95, which seek admissions that Defendant did not take, and does not have, statements from employees of Stag's Leap Wine Cellar regarding Plaintiff's citizenship. (Wang Decl. Ex. N, Dkt. 119.) Defendant responded to these RFAs by admitting that "no Stags Leap wine Cellar employee submitted an EEO Investigative Affidavit, or other written statement, as part of EEO Case 4F-945-0103-06." Plaintiff argues that Defendant's attorney-client and work product objections are inappropriate and that Defendant did not respond to the admissions as written. Defendant asserts that the RFAs are ambiguous, the information they seeks is not relevant, and that to the extent the RFAs are not limited to the EEO investigation, they seek information protected by the work product doctrine.
However, these RF As are fairly straightforward and are not limited to statements provided in the EEO proceedings. Defendant has not established that answering these RFAs invades work product protection. Fed. R. Civ. P. 26(b)(3). Unlike the case cited by Defendant,
Plaintiff moves to compel the production of documents responsive to Requests for Production ("RFPs") 6, 7, 10, 11, 16, 17, 22, and 23 from Plaintiff's Second Set of Requests for Production.
RFP 6 seeks the complete record of Defendant's "Initial Management Inquiries" in response to Plaintiff's complaints of harassment, hostile work environment, and other allegedly improper conduct. (Wang Decl. Ex. L, Dkt. 115.) Plaintiff argues that this RFP relates to EEO Case 4F-945-0103-06 and is thus relevant and not overly broad. Defendant argues that to the extent RFP 6 is so limited, it already produced responsive documents. According to Defendant, Plaintiff argued at the June 10, 2013 meet and confer that RFP 6 was not limited to EEO Case 4F-945-0103-06, but instead includes all complaints the USPS received from Plaintiff. (Wang Decl. ¶ 30, Ex. X.)
The Court denies Plaintiff's motion to compel with respect to RFP 6. The request is overbroad on its face. The District Court determined that this case is limited to allegations raised in EEO Case 4F-945-0103-06.
RFP 7 seeks Form 4241s that were submitted to the Management Sectional Center in 2006. (Wang Decl. Ex. L (emphasis added).) Defendant produced these documents. Plaintiff now argues he is entitled to Form 4241s fram the Management Sectional Center because the documents Defendant produced might not be authentic.
The Court denies Plaintiff's motion to compel with respect to RFP 7. Defendant provided responsive documents. Plaintiff cannot change his request based on speculation.
RFP 10 seeks "[f]or the time period on or about March 2006 ... the USPS policy, personnel practice, and or contract agreement showing supervisor Jeff Tillotson had the authority to designate a craft employee to be a route inspector or temporary management." (Wang DecI. Ex. L.) According to Plaintiff, his co-worker Pete Breeland "made a sworn statement that Jeffrey Tillotson gave him authorization as temporary management." (Pl.'s Mot at 10.) Plaintiff believes he is entitled to documents sufficient to show whether Tillotson was authorized to take such action. Defendant counters that it already produced all documents responsive to this request and in addition produced the affidavit of Patricia Santos-Armstrong, the Postmaster for the Napa Post Office, in which she explains how Breeland was given the authority for route inspections. (Wang Decl. Ex. D.) Further, Defendant notes that in RF A 98 it admitted that Santos-Armstrong did not create written documentation of her authorization of Tillotson to use Breeland as a route inspector.
The Court denies Plaintiff's motion to compel with respect to RFP 10. Defendant has produced the responsive documents it has in its possession and cannot produce documents that do not exist.
RFP 11 seeks "Pete Breeland's March 2006 written notes and observations while following Plaintiff on his route on or about March 2006." (Wang DecI. Ex. L.) Plaintiff asserts that these notes were not produced, and that to the extent they were destroyed, Defendant engaged in spoliation. Plaintiff believes that Breeland should have retained his notes because: (1) past history indicated that Plaintiff was likely to file a grievance or EEO complaint; (2) emails between Plaintiff and the union indicate that Breeland was contacted about the route inspection before he destroyed his notes; and (3) Plaintiff contacted the EEO Dispute Resolution specialist as early as March 27, 2006, and the notes were destroyed no earlier than March 30, 2006. (Pl.'s Reply at 7-8.) In response, Defendant represents that the notes at issue no longer exist because Breeland did not retain them after using them to create a Form 4241.
The Court denies Plaintiff motion to compel with respect to RFP 11. Breeland's notes no longer exist, and therefore the Court cannot order Defendant to produce them. Moreover, Defendant's evidence of alleged spoliation is insufficient to justify an adverse inference against Defendant. In order to prove spoliation, a party must show: "(1) the party with control over the evidence had an obligation to preserve it at the time of destruction; (2) the evidence was destroyed with a `culpable state of mind'; and (3) the evidence was relevant to the party's claim or defense."
RFP 16 seeks "the documentation that the Plaintiff was timely paid for filling out the Voice of the Employee Survey on or about February 2006." (Wang Decl. Ex. L.) Defendant produced a "Rural Carrier YTD Adjustment Register dated December 27, 2006 that lists pay adjustments made in 2006 based on submission of a PS Form 8127, Rural Carrier Supplemental Payment." (
The Court denies Plaintiff's motion to compel with respect to RFP 16. Defendant has already responded with documents sufficient to show that Plaintiff was paid. Moreover, the document Plaintiff seeks no longer exists. (Wang Decl. ¶ 33.) Plaintiff's belief that the USPS should have retained these documents is unsupported by the evidence.
RFP 17 seeks "the documentation that any other employee was timely paid for filling out the Voice of the Employee Survey on or about February 2006." (Wang Decl. Ex. L.) Plaintiff makes the same arguments with respect to RFP 17 that he makes with respect to RFP 16. Similarly, Defendant counters that the PS Form 8127s that Plaintiff seeks no longer exist and are irrelevant.
The Court denies Plaintiff's motion to compel with respect to RFP 17 for the same reasons it denied the motion to compel with respect to RFP 16.
RFP 22 seeks "a complete list of all complaints filed by the Plaintiff from 2004 to 2008, including EEO pre-complaints, formal EEO complaints, mediated EEO complaints, and dismissed EEO complaint." (Wang Decl. Ex. L.) Plaintiff asserts that Defendant produced an incomplete and selective list. Defendant contends that it provided an appropriate printout from its database of EEO complaints.
The Court denies Plaintiff's motion to compel with respect to RFP 22. Plaintiff has not indicated what it believes is missing from Defendant's printout, and the printout includes complaints initiated in 2004, 2005, 2006, 2007, and 2008.
RFP 23 seeks Defendant's records regarding Defendant's investigation of Plaintiff's January 4, 2005 automobile accident referenced in Patricia Santos-Armstrong's Investigative Affidavit. (Wang Decl. Ex. L.) Defendant did not respond to this request and argues that the automobile accident is not relevant to the claims and defenses in this lawsuit. Defendant asserts that the mere fact that Santos-Armstrong mentioned the accident in two paragraphs of her 2008 affidavit does not make the accident an issue in this lawsuit, which is limited to discrete charges brought in EEO Case No. 4F-945-103-06. Plaintiff argues that the accident is relevant because he experienced more harassment after being blamed for the accident. Further, Plaintiff notes that his work-related medical record was part of the EEO Investigative Report, he was asked about the accident in a Rule 35 medical examination and at his deposition, and Defendant produced 31 pages of exhibits about the accident during the EEO investigation of this case. (Pl.'s Mot at 19-20; Pl.'s Reply at 9-10.)
Although RFP 23 is overbroad as written, and the issue is a close one, the Court grants in part Plaintiff's motion to compel with respect to RFP 23. While the 2005 automobile accident itself is not at issue, Defendant's investigation into the accident could potentially lead to relevant evidence as background to Plaintiff's claims. Consequently, the Court orders Defendant to produce documents sufficient to show the conduct and results of its investigation into the January 4, 2005 automobile accident.
Plaintiff objects to a number of entries on Defendant's privilege log and argues that Defendant has improperly withheld documents on the basis of attorney-client privilege and work product immunity. Although the parties did not meet and confer on a number of these issues, the Court will address those that the parties have fully briefed.
Plaintiff argues that emails and written communications between Jason Marsh, Senior Litigation Counsel for the USPS's Pacific Law Area Office, and Malcolm Randolph and Shalanda Brown, USPS Information Catalog Program ("ICP") contractors, are not protected because the communications do not reveal an attorney's mental impressions, conclusions, strategies, or theories. Defendant counters that Randolph and Brown are the functional equivalents of Postal Service employees and that the attorney-client privilege therefore extends to otherwise protectable communications between Marsh, Randolph, and Brown. Defendant points out that the communications at issue concern the preservation and retrieval of emails and that the duties of Randolph and Brown include assisting the USPS Law Department in meeting its e-discovery obligations. (Marsh Decl. ¶¶ 4-6.)
The Court denies Plaintiff's motion to compel with respect to communications between Marsh, Randolph and Brown listed on Defendant's privilege log. Randolph and Brown supported the Law Department in meeting its e-discovery obligation and searched for responsive documents. Moreover, the ICP is a partnership between the USPS's Chief Technology Officer's organization and the USPS's General Counsel's office. (Marsh Decl. ¶¶ 4-6.) Accordingly, Randolph and Brown acted as "functional equivalents" of employees, so their communications with Defendant's counsel are protected by the attorney-client privilege.
Plaintiff seeks production of September 12, 2012 email communications involving Breeland and Attorneys Jennifer Wang and Jason Marsh that Defendant withheld on the basis of attorney-client privilege and the work product doctrine. (Wang Decl. Ex. Rat 2.) Defendant lists the subject of these communications as "regarding litigation and preparation of litigation materials." (
Plaintiff argues that these communications are not privileged because as of September 12, 2012, Breeland was no longer a USPS employee and was not a client of Defendant's counsel. According to Plaintiff, at the time of these communications, Breeland was no different from any other fact witness. In support, Plaintiff cites
Defendant acknowledges that Breeland retired from the USPS on April 30, 2012. However, Defendant states that the emails at issue relate to counsel's investigation of facts regarding Breeland's conduct while employed at the USPS, and preparation of Defendant's responses to discovery. Specifically, the September 2012 emails include questions from counsel regarding Plaintiff's allegations and Breeland's responses, and the June 2012 letter includes a list of questions for Breeland. Defendant argues that these communications between USPS attorneys and Breeland are protected by the attorney-client privilege under
The Court denies Plaintiff's motion to compel the production of the September 12, 2012 email communications and the June 22, 2012 letter. At a minimum, these documents are protected by the work product doctrine, whether or not the attorney-client privilege applies.
Plaintiff seeks production of December 13, 2012 email communications between Attorney Jennifer Wang and Patricia Santos-Armstrong. Defendant's privilege log states that the email communications were prepared regarding litigation and contain the subject "Domingo v. USPS." (Wang Decl. Ex. R.) Because Defendant has agreed to produce the withheld emails, the Court need not address this issue further.
Plaintiff seeks "various" documents involving Pete Breeland and Aftim Saba. (Pl.'s Mot. at 22.) Plaintiff argues that these individuals are no different than third-party fact witnesses and Defendant has not established that an attorney participated in the communications, and in any event these individuals were not clients of USPS attorneys.
The Court denies Plaintiff's motion to compel with respect to communications between USPS attorneys and Breeland and Saba. First, the privilege log indicates that the communications involved USPS attorneys. (Wang Decl. Ex. Rat 3.) Second, as to communications from Breeland created during his period of employment, the privilege log indicates that the communications involve privileged subject matter. Further, Attorney Marsh avers that he communicated with Saba, a USPS contract employee or functional equivalent of an employee, for the purpose of searching for responsive documents. Communications between USPS counsel and a USPS employee regarding responding to discovery requests are privileged.
Finally, Plaintiff moves to compel the production of a draft of a declaration that Breeland submitted during Plaintiff's EEO case. This document was created January 10, 2009, while Breeland was still an employee of the USPS. Plaintiff argues that the draft is not protected simply because Breeland may have received assistance in drafting the declaration from Larry Estrada, a USPS attorney. He cites
The Court denies Plaintiff's motion to compel with respect to Breeland's draft declaration. Breeland's draft declaration was created by Defendant's employee and Defendant's counsel during a formal EEO administrative proceeding that was the prelude to this litigation. Accordingly, it was prepared in anticipation of litigation and is protected work product. Also, like draft answers to interrogatories, which are "classic examples of opinion work product," a draft declaration is likely to contain an attorney's mental impressions and legal strategies.
The Court grants in part and denies in part Plaintiff's motion to compel, grants Plaintiff's motion to shorten time, and denies Plaintiff's motion to strike.
