Summary
denying plaintiff's motion to compel where plaintiff offered no “evidence to rebut the evidence cited by defendant that no such document exists”
Summary of this case from Franks v. City of New RochelleOpinion
01 Civ. 3609 (JGK)(HBP)
November 18, 2002
Nina H. Kazazian, Esq., Bartlett Bartlett LLP, New York, New York
Sheri P. Rosenberg, Esq., Assistant Corporation Counsel, New York, New York
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff moves to compel production of certain documents and for sanctions pursuant to Fed.R.Civ.P. 37, claiming that defendant has failed to comply with one of my discovery orders. For the reasons set forth below, the motion is denied.
II. Facts
This is an employment discrimination action in which plaintiff alleges that he was denied employment as an Agency Attorney Intern with the Department of Buildings due to age discrimination.
In May and June 2002 plaintiff's counsel wrote to defendant's counsel, citing certain alleged deficiencies in defendant's document production. As a result of that and other disputes, I held on a conference on May 23, 2002 at which I ordered the defendant to produce the following documents:
4. No later than June 3, 2002, defendant is to produce all requested documents that have been withheld on the ground of privilege.
5. No later than June 3, 2002, defendant is to produce all notes concerning the interviews of plaintiff for the position or positions for which plaintiff applied or was considered.
6. No later than June 3, 2002, defendant is to produce all interview notes concerning the individuals who were hired for the position or positions for which plaintiff applied or was considered.
7. No later than June 3, 2002, defendant is to produce all correspondence with those individuals who were actually hired for the positions for which plaintiff applied or was considered. Such correspondence shall be limited to correspondence dated prior to the individuals' actual employment with defendant.
8. No later than June 3, 2002, plaintiff shall produce all documents concerning salary and benefit information with respect to the positions for which plaintiff applied or was considered.
(Order dated May 24, 2002, ¶¶ 4-8)
Plaintiff's counsel subsequently contacted my chambers and claimed that defendant had not complied with the foregoing Order, and I conducted a tape-recorded telephone conference call with counsel on June 19, 2002 to discuss the dispute. During the June 19 conference call, it became clear to me that defendant had not fully complied with my May 24 Order, and I issued a second Order giving defendant one final chance to comply with its discovery obligations:
2. Defendant is directed to comply with all provisions of my May 24, 2002 Order no later than June 24, 2002. In addition, no later than 5:00 p.m. on June 24, 2002, plaintiff's counsel is directed to submit an affidavit or declaration pursuant to 28 U.S.C. § 1746 confirming that defendant has complied with all provisions of my May 24, 2002 Order. Defendant is hereby warned that an unjustified failure to comply with the terms of either this Order or my May 24, 2002 Order will result in the imposition of appropriate sanctions.
(Order dated June 20, 2002, ¶ 2 (emphasis in original))
On June 24, 2002, defendant produced additional documents and its counsel filed the affidavit required by my June 20, 2002 Order.
According to plaintiff, defendant's document production remains deficient on the following respects
a. Defendant has not produced documents for candidates it did not hire (Affirmation of Nina H. Kazazian, Esq., dated July 18, 2002 ("Kazazian Aff.") at ¶ 13)
b. Defendant has not produced correspondence, notes and Personnel Action forms for all individuals who were offered the position in issue in 2000 (Kazazian Aff. ¶ 13)
c. Defendant has not produced all of Oscar Alvarez s interview notes and correspondence for several candidates who received a second interview (Kazazian Aff. ¶ 15)
d. Defendant has failed to produce correspondence, interview notes and Personnel Action Requests for "other individuals who were offered the position around this time"
(Kazazian Aff. ¶ 16)
e. Defendant has failed to produce "all of the notes and records for the candidates who were selected for a second interview, plus information documenting who was offered the position [in issue] between December 1999 and January 2001" (Kazazian Aff. ¶ 18).
f. Defendant has produced "job vacancy notices without corresponding interview logs, and has not produced any vacancy notices or interview logs for the period from January to August 2000 (despite testimony that there were four additional vacancies during the time period" and has failed to produce complete copies of other interview logs (Kazazian Aff. ¶¶ 19-20).
g. Defendant has not produced the interview log "that documents the second-round interviews that took place on March 3, 2000 (coincidentally, the date of the second interviews of both Mr. Grinblat and Louise Brown — who was actually hired for the position)" (Kazazian Aff. ¶ 20).
h. Defendant has failed to produce a list of all personnel employed by the Enforcement Division of the Department of Buildings as of January 1, 2000 and December 31, 2000, including the name, title, birth date and the dates on which such individuals commenced their employment (Notice of Motion, dated July 18, 2002 at 2).
Defendant claims that it has complied with all of its discovery obligations and all orders of my prior Orders.
III. Analysis
As a threshold matter, plaintiff's request for sanctions with respect to several of the categories of documents in issue is procedurally defective. Except where there has been a total failure to respond to a discovery request, sanctions for a deficient response to a discovery request cannot be imposed unless the response violates a court order. Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986); Israel Aircraft Indus., Ltd. v. Standard Precision, 559 F.2d 203, 208 (2d Cir. 1977). In this case, neither of my Orders directed defendant to produce documents concerning other unsuccessful candidates for the position sought by plaintiff. Accordingly, there is no legal basis for sanctions with respect to the documents described in subparagraphs a, c, e, f and h, above.
Plaintiff argues in reply that all of the documents now in issue were requested in his document request and that fact, without more, makes them subject to disclosure as a result of my discovery orders (Affirmation of Nina H. Kazazian, Esq., dated July 31, 2002, ¶ 6). Although a court can, no doubt, order that all documents sought in a discovery request be produced, plaintiff never requested that relief here, and I never ordered such relief. Accordingly, plaintiff's attempt to alter the scope of the discovery orders retroactively is unavailing.
With respect to the documents described in subparagraph b — correspondence, notes and Personnel Action Forms for all individuals who were offered the Agency Attorney Intern position in issue in 2000 — plaintiff basis his claim that defendant's production is incomplete on deposition testimony from Oscar Alvarez, an employee of defendant. Alvarez testified that a personnel form produced by defendant for an individual named Oliver was incomplete, because it lacked all of the signatures necessary for Oliver to have actually be hired (Alvarez Dep. at 367-68, annexed as Exhibit C to Kazazian Aff.). In response, defendant reaffirms the completeness of its production and cites testimony from Alvarez in which he stated that he was not sure if Oliver was in fact hired (Declaration of Sheri P. Rosenberg, Esq., dated July 24, 2002 ("Rosenberg Dec."). ¶ 34-36) Thus, defendant argues that it is not at all clear that a copy of the form with all required approvals does in fact exist. Moreover, in the absence of some showing that the document was of critical importance, defendant's production of a copy of a personnel form which may have lacked a signature that appeared on another copy of the form is simply not of sufficient gravity to warrant the imposition of sanctions.
With respect to the documents in subparagraph d — correspondence, interview notes and Personnel Action Requests for "other individuals who were offered the position around this time" (Kazazian Aff. ¶ 16) — plaintiff cites no evidence whatsoever for his contention that defendant's production is incomplete. In contrast, defendant has submitted an affidavit from the Assistant Corporation Counsel to whom this matter has been assigned re-confirming the completeness of this aspect defendant's production (Rosenberg Dec. ¶ 33). In light of the uncontradicted evidence from defendant and the total lack of evidence supporting plaintiff's contention, plaintiff has failed to establish that sanctions are appropriate with respect to this aspect of his motion.
I do not mean to suggest that defendant's counsel's affidavit is entitled to any greater weight than plaintiff's as a result of defendant's counsel being employed in the public sector. I would reach the same result on similar facts involving a private employer and privately-retained counsel. The simple fact is that defendant's counsel has first-hand knowledge of the documents in defendant's possession, custody and control and has sworn that all documents in this category have been produced. In the absence of any countervailing evidence, there is simply no basis for an award of sanctions.
With respect to the documents described in subparagraph f — the interview logs — my Orders reached only the interview logs for plaintiff and the individuals who were actually hired for the position in issue. Thus, to the extent that plaintiff's motion seeks sanctions for defendants' alleged failure to produce other interview logs, it is procedurally defective for the reasons previously cited. To the extent plaintiff's motion is based on the failure to produce an interview log for the second round of interviews that took place on March 3, 2000, defendant has cited deposition testimony establishing that no such log exists (Rosenberg Dec. ¶¶ 25-27). Although it was no doubt reasonable for plaintiff to conclude that an interview log reflecting his second interview existed, he has not offered any evidence to rebut the evidence cited by defendant that no such document exists.
Finally, to the extent that plaintiff's motion can be construed as a motion to compel, the motion is denied. To the extent the documents in issue relate to other applicants who were not hired, the documents are irrelevant to plaintiff's claims. To the extent plaintiff is seeking the personnel roster of the Enforcement Division of the Department of Buildings, the discovery request was never made before the instant motion. Except for issues concerning the mandatory disclosures reqwuired by Rule 26(a), a Rule 37 motion is simply not the appropriate vehicle to seek discovery that has never even been requested. And, in any event, the Enforcement Division's personnel roster is irrelevant to plaintiff's claims.
IV. Conclusion
Accordingly, for all the foregoing reasons, plaintiff's motion for sanctions and to compel production of additional documents is denied in all respects.