Opinion
CASE NO. 2:09-cv-01907-GEB-KJN-PS
09-15-2011
Deidra A. Lintz Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service Defendant.
Deidra A. Lintz In Pro Se BENJAMIN B. WAGNER United States Attorney J. EARLENE GORDON Assistant United States Attorney
Deidra A. Lintz
JOINT STATEMENT REDISCOVERY
DISAGREEMENT
Hearing Date: September 22, 2011
Time: 10:00 a.m.
Courtroom 25
Pursuant to Local Rule 251, the Parties hereby submit to the Court a Joint Statement re Discovery Disagreement. The Parties seek the Court's guidance on the disputed issues of whether (a) The Defendant's Counsel failed to provide Discovery; Plaintiff's interrogatories Set One, production of documents Set(s) One, Two and Three, and admissions Set One that were due no later than February 5, 2011; and therefore Plaintiffs' discovery is established deemed by the Court; and if so (b) Defendant's Counsel waived all objections including privacy to Plaintiff's disco very jequest(s) with adverse sanctions, due to not responding according to the local rules, (c) whether Defendant's request(s) for discovery, production of documents and interrogatories exceeded the twenty-five; and if so (c) Plaintiff request for any disclosure after the twenty five be stricken, (d) whether Plaintiff is granted monetary sanctions under the local rules (e) whether Plaintiffs requests under the local, rules be granted. (f)whether or not Plaintiff's admissions and interrogatoried be deemed and established by the Court. DISPUTES
Plaintiff claims that Counsel did not engage in discovery and failed to provide Plaintiff discovery request thereby waiving objections to Plaintiffs discovery with sanctions. Counsel claims that its' reason for failing to provide Discovery is based upon Plaintiff affording continuous extensions of time while Counsel paraded other cases. Counsel also alleges that Plaintiff agreed to fabrication concerning the FAX of April 20, 21, 2011, in which Plaintiff flat out denies. Plaintiff did not make the agreements that Defendant's Counsel claimed in her FAX of April 20, 21, 2011. What was discussed between Plaintiff and Defendant's Counsel was based upon Plaintiff's letter April 11, 2011, to "Meet and Confer" request (s) (dkt 36)that of the waiver of all objections to Plaintiff's discovery due to Counsels' failure to provide discovery. Defendant's Counsel finally replied to Plaintiff's exhaustive attempts to converse with Counsel. Plaintiff's meet and Confer request of April 11, 2011, finally captured some ones attention on April 20, 21, 2011. Plaintiff did not receive Counsel certified copy of Plaintiff's deposition in time to make corrections within the thirty day time limit. Plaintiff is requesting an extension of time from the Court to correct the deposition due to Defendant's Counsel failure to take active steps to ensure that Plaintiff would receive the deposition in a timely fashion for correction as was stipulated on the record.
A. Details of the conference or conferences:
On July 8, 2010, Plaintiff filed this suit (Third Amended Complaint) in the United States District Court for the Eastern District of California for Employment Discrimination based on Disability", Retaliation in violation of the Rehabilitation Act of 1973, Employment Discrimination based on Race, and Retaliation in Violation of Title VII of the Civil Rights Act of 1964. On November 8, 2010, Plaintiff served Defendant's Counsel its First Set of Production of Documents not in it's proper form due to Plaintiff inadvertently pursuing and EEO re a personal property claim that discoverable would have shown continuous actions of discrimination from the Agency. A letter was provided to Agency on November 8, 2010, and Plaintiff forwarded it to Defendant's Counsel with Certification of Service commencing Discovery with Production of Documents.
On January 5, 2011, Plaintiff served on Defendant's Counsel its First Set of Interrogatories Nos. 1-21 and First Set of Admissions Nos. 1-13 and its Second Set of Production of Document Nos. 1-31. Expressively, On January 6, 2010, Plaintiff contacted Counsel, re: discovery and Defendant's Counsel made it aware to Plaintiff that Defendant's Counsel husband was in the hospital. Counsel never asked for any amount of time for an extension nor requested one but just stated to Plaintiff that "it might take a while" for Counsel to produce Discovery. Plaintiff was sympathetic and said okay. In addition, Plaintiff expressed having dealt with love ones in the hospital as well. From January 6, through April 4, 2011, Counsel had not contacted Plaintiff. Counsel was still in receipt of Plaintiff's discovery requests. If Counsel had any problems in providing discovery, Counsel could have solicited the help of her assistant or requested in writing or by correspondence to Plaintiff making aware of her situation on the record. On April 5, 2011, Plaintiff provided Counsel a letter. The letter of April 5, 2011, informed Counsel that Discovery had not been produced, it mentioned the last time the parties spoke, and informed Counsel that Plaintiff was not contacted for an extension of time. Counsel took for granted her statement to Plaintiff "it will take a while." Plaintiff finally heard from Counsel on April 20, 21, 2011, by an unauthorized FAX. Counsel had from January 6, 2011, through April 4, 2011, re: Discovery. Plaintiff also expressed to Counsel on January 6, 2011, that her husband was in Plaintiffs prayers. At this juncture Discovery was not produced, and it was well late (past 30 days). Plaintiff's verbiage at the end of the April 5, 2011, letter may have obscured these facts but they still hold true. Discovery had not been received. In addition, Counsel had not responded to the April 5, 2011, letter.
On April 11, 2011, Plaintiff sent Counsel a "Meet and Confer" indicating that Defendant had not provided any Discovery or responded to the letter of April 5, 2011 and was interested in meeting and conferring regarding not the extension of time or any other matter, but for Counsel to produce discovery with a deadline of seven (7) days that by April 20, 2011, and if Counsel failed to provide discovery, Plaintiff expressed to Counsel that Plaintiff would file a motion to compel and for sanctions. Counsel did not provide any discovery by April 20, 2011, but instead provided a fabricated FAX (unauthorized) on the very late evening of April 20, 2011, that was superimposed. Consequently, Plaintiff called Counsel on the morning of April 21, 2011, and spoke to Pam Beauvais to make known that Counsel's fax was superimposed and therefore, requested Counsel to re-send fax (authorized). Plaintiff reiterated to Pam Beauvais Plaintiff's position re Discovery, that of waiver of objections, because Plaintiff's discovery had not been produced or provided. Pam then alerted Plaintiff that Counsel would give Plaintiff a return call in which Counsel did. In that conversation, it was expressed to Counsel that the FAX was superimposed and Plaintiff requested from Counsel to please forward a copy of what was faxed to Plaintiff by mail. Plaintiff never received a mailed copy of that FAX as of date. Plaintiff also reiterated to Counsel at this time her position regarding discovery, that of objections being waived and discovery is deemed and that it stands. Counsel was in disagreement and mentioned privacy. Plaintiff responded to Counsel concerning Counsel's privilege log and the (Freedom of Information Act (FOIA) and the waiver including privacy. It must be noted that Counsel at this time never requested an extension of time to provided Plaintiff's discovery. The April 21, 2011, letter was a Meet and Confer, surrounding the issues of the Local Rules. Counsel responded to Plaintiffs Meet and Confer correspondence with a unauthorized FAX, and although the parties conversed Counsel was still in disagreement of the Local Rules to discovery and still failed to provide Plaintiffs' Discovery. If Counsel thought that Plaintiff was granting her time until the end of Discovery (September 16, 2011) she surely would have allowed Plaintiff to have done so. Counsel did not follow Rules 16 (4) 26 (a) (E)29(b).
The FAX of April 20, 21, 2011, is a fabricated document with most of the issues stated in it are not in truth. Counsel never at one time mentions in her April 20, 21, 2011 FAX anything about Plaintiffs April 5, 11, 2011, correspondences re: failure to provide Discovery or the request of more time or Counsels position on the waiver of objections concerning Plaintiffs' discovery {doc 36) {attachments). Just let's get back on track. Plaintiff was never off track. As a matter of record the April 21, 2011, letter forwarded to Counsel followed up with the issue at hand, it clearly requests Counsel to "explain her position" on the matter of discovery [doc 36] {ex 3 }. Counsel has not taken any action or steps to respond to that request. Until this report. Therefore, Local Rule 16 (4)(f){C} (2), comes into play.. Counsel have knowingly or unknowingly failed to engage in the Discovery process according to the Local Rules 26-37. The FAX of April 20, 21, 2011, the alleged issues in it are frivolous and untrue. Events in that FAX never came to fruition. And even it they had at that point, Counsel failed to provide discovery and did not provide it on time therefore, the waiver of objections still stands and so does the admissions and interrogatories according to the local rules. Regarding the FAX Plaintiff can go into detail about what is and is not true but for the sake of time Plaintiff will mention a few. Some of those expressions are: (1) Today I'm in Court. This FAX was originally sent to Plaintiff in the late evening of April 20, 2011. (2) sitting down to discuss Plaintiff discovery request. Counsel never responded to the previous letters that were sent prior to her FAX, Counsel never provided nor produced any correspondence to back up such a statement nor had there been any to date provided to Plaintiff from Counsel concerning this issue. The Meet and Confer (April 11, letter) was to discuss failure to provide discovery and the waiver of objections (3) organization of documents and the format of Plaintiffs' discovery request. Plaintiff's Discovery Requests were provided to Counsel on January 5, 2011, which clearly set out instructions to Counsel. With Counsels expertise Counsel is very much aware of how to produce discovery under the Local Rules of 26-37. (4)Counsel claims that she had gathered many of the documents that Plaintiff requested to produce and that Counsel is in the process of obtaining the remaining information and getting interrogatories signed. Those documents were never produced nor has Plaintiff received any discovery or any signed discovery from Counsel. Counsel failed Local Rules 26(4)(g)(l)(A)(B)(eye)(eye,eye)(iii)(2); (5)(A)(eye,eye)[c](l)(A)(B)[C](D)(E)(F)(G)(H)(g)(l)(A)(B)(eye)(eye,eye)(iii); L.R. 33(b)(l)(B)(2)(3)(4)(5); Local Rule 34 (l)(A)(B)(2)(b) (2)(A)(B){C}(D)(E)(eye) Rule 36(a) (3)(4) and Rule 37(a)(B)(iv)(5)(b)(A)[c](2)(d)(eye,eye)(e). (5)In the FAX Counsel claimed that interrogatories are being signed. Counsel has the authority to sign interrogatory documents. (6) Counsel requests for Plaintiff to follow procedure for privileged information. According to Local Rule 26(5)(A)(eye)(eye,eye)[c] it's Counsels' responsibility not that of Plaintiffs' as stated in Counsel's FAX. These issues are a fabrication and are Frivolous. Plaintiff did not deviate from her evidence-that was submitted to the Court on her Motion to Compel {doc 36} [doc 40]. Counsels FAX was and is not based on truthfulness. A message can be left on plaintiff's phone although fax is assimilated. (7) Counsel suggested in her FAX that Plaintiff requested Discovery by facsimile. Plaintiffs production of documents requested for those documents to be sent to Plaintiffs' home at 7301 Saltgrass Way, Elk Grove, CA. Obviously that would be through the mail. Plaintiff never requested or authorized Counsel to fax nor has Plaintiff requested discovery through facsimile esp. 2400 pages. Regarding privacy, Counsel failed to accept Plaintiffs position that privacy was waived. As far as working out a solution as stated in Counsels' FAX. The primary solution could not be agreed upon which is that Counsel failed to provide discovery, discovery was never provided, even it Counsel provided discovery it was and is untimely and that Counsels objections to Plaintiffs' discovery is waived and deemed. The solution is before the Court is (1) deem as established Plaintiffs' Discovery Requests, (2)litigate waiver, (3) litigate monetary sanctions and to the Courts discretion compel discovery, (4) grant Plaintiff s motions. But Counsel has claimed that Discovery has been provided. Therefore, at the Courts discretion to (5)establish whether or not Counsel has abided by the local rules and engaged in Discovery without abuse. Although Privacy has been waived at this point Counsel never took any steps to confer with Plaintiff nor did Counsel provide any correspondence concerning the issue of providing Discovery to Plaintiff or extension of time. Plaintiff did discuss with Counsel the issue of Privacy but Counsel was in disagreement with that issue as well. Plaintiff reiterated the waiver of all objections due to not responding to discovery timely specifically within 30 days. The April 21, 2011 "Meet and Confer" call was then concluded. Although Plaintiff contacted Counsel on April 21, 2011, to "Meet and Confer" re discovery, at no time did Counsel ever mention that discovery would be provided, that Counsel was interested in setting up a date or that Counsel did not have Plaintiffs discovery requests. Counsel never produced or provided in writing or over the phone anything about Plaintiffs' discovery: Plaintiff has never received any correspondence regarding any of these issues. Plaintiff request that the Court take into consideration that Plaintiff was seeking to establish local Rules 33, 34 and 37 before continuing with the seeking of Discovery. On April 21, 2011, Plaintiff wanted to establish agreement of the waiver of objections with Counsel but Counsel utterly was in disagreement. Plaintiff was in a state of distrust and continues to be due to Counsel's unsolicited behavior towards Plaintiffs case with this Court. Therefore, Plaintiff leaves it up to the Courts discretion to Compel Counsel for Discovery Requests by granting more time and delay even further Plaintiffs case. Counsel has abused discovery and Plaintiff feels that Counsel will continue to do so. Discovery is a pertinent factor to any case and Plaintiff's discovery requests had been served since January 5, 2011, Counsel's FAX was sent April 20, 21, 2011. Plaintiff would like to give the Court its discretion to decipher the verbiage in the FAX of April 20, 21, 2011. Plaintiff does not want to waste the Courts time in giving what her explanation could be to all what is said in the FAX. Basically, the FAX is fabricated and untimely and irrelevant to the issues. After the FAX of April 20, 21, 2011, Counsel stated towards the end of that conversation that discovery would be provided overnight and that it will consists of over 2400 documents. A letter dated April 21, 2011, was sent out to Counsel after the meet and confer. It summarized the conversation of that morning and also asked Counsel to explain her position re: Discovery. Particularly for Counsel to explain " why Counsel should not waive all objections including privacy by failing to respond on time. Plaintiff would like to clarify to the Court that the "on time" was referencing to the Meet and Confer and letters to Counsel for not providing any discovery to Plaintiff within the 30 day period. Because Counsel as of April 21, 2011, had not provided any discovery. Plaintiff goes on to say in the follow-up letter of April 21, 2011, that due to Counsel's failure to provide any discovery, Plaintiff is giving Counsel seven (7) days to comply and if Counsel was not to comply Plaintiff will file a Motion to compel with sanctions. The date of April 25, 2011 was designated for Counsel to comply. Counsel had not complied. Counsel had not responded and had not provided any discovery to Plaintiff. Plaintiff did not hear from Counsel until Defendant's request for Deposition, production of documents and interrogatories. Sometime in May 2011, Plaintiff received on her door step a BOX. Plaintiff cannot claim when she received this BOX. The BOX was left on Plaintiff's door step for some unascertainable reason and time. For Plaintiff had not noticed that the BOX was there. The BOX was filled with stacks of paper with blue headers on them. The headers states 1) Pleadings LINTZ OPF (THRU 9/11/2009)(USPS_2153-2413) (4F-940-0183-08 USPS_0001-0409)Discovery MSPB SF -0353-09-0247-l-2(USPS_1643-1658) Discovery MSPB SF -0752-09-0180-1-1 (usps_l967-1997)4F-940-0143-07 USPSJ)410-1171)Pleadings MSPB SF-0353-09-02470-1-2(USPS_1659-1966)Pleadings EEOC 550-2008-00133X (USPS_ 1358-1642) Pleadings MSPB SF-0752-09-0180-1-1 (USPS_1998-2152)Discovery EEOC 550-2008-00133X (USPS_1172-1357) This BOX only contained one letter in it that of Mary Ann Rackley? 1) Plaintiff can't figure out to this day why she would receive the Equal Employment Opportunity Commission(EEOC) and Merit System Protection Board (MSPB) documents? As Plaintiff investigated the paper inside the BOX it had every document ever sent by Plaintiff to those entities'. It came with only one letter inside signed by Mary Ann Rackley, dated May 13, 2011, Re: Deidra A. Lintz v. John E. Potter, U.S. Postal Serv. Case No. 2:09-cv-01907 GEB KJN. It also stated that once "her husband is stabilized and she is able to leave the hospital and get back to the office, she will send you OUR formal discovery responses". Plaintiff never received any discovery request. Plaintiffs discovery request did not request any EEOC or MSPB unidentified documents. These document were not organized and definitely was not Plaintiffs requested Discovery. Counsel has not complied to the Local Rules and has abused Discovery. Plaintiff s request for admissions, interrogatories, or production of documents Sets, One, Two, or Three have not been received. Counsel admits in that May 13,2011, letter that Counsel had not sent Plaintiff's discovery request and Plaintiff admits that she has not received any Discovery Request from Counsel. DEPOSITION
On August 3, 2011 Plaintiff received Defendant's request for Discovery namely interrogatories, and production of document. In addition, Plaintiff was noticed for Deposition on Aug. 23, 2011. The Court must take into consideration that Plaintiff conferred with Counsel 3 months plus in advance a letter dated May 5, 2011, to Counsel re: Deposition. A letter was faxed to Counsel re: Plaintiff's availability and unavailability re: Deposition. On August 4, Plaintiff contacts Counsel to make aware to Counsel feelings of being overwhelm with Deposition, Interrogatories, and Production of Documents so close in proximity. Plaintiff felt that 30 days may not have been enough time to accomplish Counsels requests. Counseled acquiesced and stated to Plaintiff that at the close of 30 days to give Counsel a call to request an extension. Plaintiff then sent Counsel a fax at approximately 8:33 p.m. with the request for Counsel to provide a signature to the agreements of extension. Counsel never responded or Complied to the agreement. Plaintiff never-obtained a signature from Counsel to date. Plaintiff was deposed on August 23, 2011, and OBJECTED ON THE RECORD due to Local Rules 33, 34, 36. Counsel was not in agreement. Additionally, it was stipulated on record that Counsel would secure a certified copy and forward that copy to Plaintiff. On August 9, 2011, Plaintiff files her Ex parte Motion to Compel/Discovery/litigation of waivers and sanctions. The Court responded when it entered its Minute Order on August 16, 2011, and Counsel was electronically served on August 16, 2011. On August 26, 2011, Plaintiff contacts Counsel re: Deposition matters. Counsel does not respond so Plaintiff leaves a message. On August 26, 2011, Counsel returns the call and try to confer with Plaintiff re: the Minute Order that Plaintiff had not yet been served. Counsel in her panic state makes every move she could to get Plaintiff to acquiesce. Plaintiff explains to Counsel that she cannot confer on something that she did not received. According to Local Rule 135. Counsel then takes the step to file for an Ex parte Motion to Continue hearing and claiming by declaration her travels and inability to be present on Sept 8, 2011. On September 6, 2011, Plaintiff contacts Counsel by letter re: Deposition. Counsel does not respond. Plaintiff left a message. Counsel had not responded to Plaintiffs message that of not receiving a certified copy of deposition as stipulated on record of August 23, 2011. On September 9, 2011, Plaintiff contacts Counsel re: the September 6, 2011, letter. There was No reply to that letter. On September 9, 2011, Plaintiff contacts Counsel by phone and Counsel picks up. Plaintiff takes the initiative in stating the purpose of call. Counsel request from Plaintiff at this time to send the letter from Capitol Reporting Company. Counsel is not aware that Plaintiff had sent Counsel that letter 3 days prior. The Court must also take into consideration that September 9, 2011, was a time that Counsel claimed to have been in China Lake, Ca. {doc 39-1} Counsel has demonstrated a total disregard for the Discovery Process. On August 9, 2011, Plaintiff filed her Ex parte Application for Shortening Time which Magistrate Judge Newman found to be moot. Additionally, Plaintiff filed Motion to Compel/ Discovery/ Litigation/ of waivers and sanctions. The Court responded with entering a Minute Order on August 16, 2011, that was sent electronically to Counsel. On August 23, 2011, Defendant deposed Plaintiff,. On August 26, Plaintiff contacted Counsel about protecting privileged information that was disclosed in Deposition. Plaintiff left a message in which Counsel returned the call. On August 13, 2011, Plaintiff requested production of documents electronically stored and entry onto land. A meet and confer was sent to Counsel on September 9, 2011, for Counsel to reply by Monday, September 12, 2011. As of date Plaintiff has not received any reply. Regarding further conversations pertaining to the parties, Counsel made Plaintiff made aware of her travels on Tuesday, September 13, 2011, out of State. Counsel and Plaintiff have agreed to customized this Joint Report re Discovery Disagreement. The agreement sets forth that: Plaintiff will initiate the report as I should because I am the moving party. It was also agreed that I would provide Counsel with my copy of the report on Tuesday, September 13, 2011, in which Plaintiff complied (not on time as promised but it got there) and that Plaintiff would received a call from Pam Beauvais to provide Plaintiff a copy of Ms. Gordon's reply and that Plaintiff would have the final opportunity to make changes to her report and then Plaintiff would pick up Counsels report and file both with the Court by deadline. In conclusion failure to provide discovery in Rule 37(d) (I) (A) is not excused on the ground that the discovery sought was objectionable unless the party failing to act has a pending motion for a protective order under Rule 26(a). B. Matters to Be Decided
Interrogatories: 1) Identify by name, title, work and home address, and all known telephone numbers of all persons who made the decision to terminate plaintiff.
Response: None
2) State all reasons plaintiff was terminated.
Response: None
3) State all facts that support the reasons plaintiff was terminated.
Response None
4) Identify by name;, title, work and home address and all known telephone numbers all persons who have knowledge of facts that support the reasons plaintiff was terminate.
Response: None
5) Describe all actions taken by the Agency in attempts to reasonably accommodate plaintiff's disability after January 1, 2007. Description should include the date and nature of each action, the name and title of the person who took the action.
Response: None
6) State all facts that support the contention that Plaintiff, with or without reasonable accommodation, was not able to perform the essential functions of her job.
Response: None
7) State all facts that support the contention that Plaintiff, with or without reasonable accommodation, was not able to perform the essential functions of her job.
Response: None
8) Identify each essential job function USPS contends plaintiff could not perform.
Response: None
9) State all facts that support the contention that providing plaintiff with the reasonable accommodation of her disability that she requested would have caused the Agency an undue burden or hardship.
Response: None
10) State all reasons USPS failed to pay plaintiff COP after she was injured on or about June 22, 2007. Response: None
11) State all reasons plaintiff's Postal Vision Coordinator position was discontinued in or about July 2007.
Response: None
12) Identify by name, title, and job location all personas who assumed th duties formerly performed by plaintiff after plaintiff's Postal Vision Coordinator position was discontinued. Response: None
13) Describe all steps USPS took, if any, to comply with ELM 546.12. Description should include the names of each person who took action, the date of the action and the nature of the action.
Response: None
14) Describe all steps USPS took prior to plaintiff's termination to engage in an interactive process with plaintiff to determine how plaintiff could be reasonably accommodated, Description should include the names of each person who took action, the date of the action and the nature of the action.
Response: None
15) Identify by name, home address and all known telephone numbers all USPS letter carriers or clerks in the San Francisco and Sacramento districts who have complained since January 1, 2005 due to physical inability to meet the requirements of his or her position.
Response: None
16) Identify by name, home address and all known telephone numbers all USPS letter carriers or clerks in the San Francisco and Sacramento districts who have complained since January 1, 2005 that he or she was terminated by USPS based on disability discrimination.
Response: None
17) Describe all steps taken by defendant to preserve evidence in this case. Description should include what actions were taken, the names and job titles of all persons who took the actions and the dates of each action and decision to take action.
Response: None
18) Identify by name, home and work address, and all known telephone numbers all persons [who have personal knowledge that Plaintiff was not able to perform essential functions of her position with Defendant, with or without reasonable accommodation.
Response: None
19) Identify by name, home and work address, and all known telephone numbers all persons who have personal knowledge that Plaintiff was not a qualified person with a disability within the meaning of the Rehabilitation Act of 1973 when she worked for Defendant.
Response: None
20) identify by name, home and work address, and all known telephone numbers all persons who have personal knowledge that providing Plaintiff with reasonable accommodation of her disability would have caused Defendant undue burden or hardship.
Response: None
21) State all facts that support the assertion that there is no causal connections between plaintiff's protected activities and her termination.
Response: None Production of Documents Sets two and three
1) All documents containing rules, regulations, policies or procedures that applied to USPS termination of Plaintiff.
Response': None
2) All documents containing rules, regulations, policies or procedures that applied to USPS disciplinary action against plaintiff in 2006.
Response: None
3) All documents containing rules, regulations, policies or procedure that applied to USPS processing of plaintiff s worker's compensation claims in and after 2007.
Response: None
4) All documents containing rules, regulations, policies or procedures that applied to USPS efforts to find limited duty work consistent with Plaintiff medical limitations in 2007 and 2008. Response: None
5) All documents, including but not limited to emails, letters, memos and notes sent to or from Don Smearaldi that mention plaintiff directly or indirectly.
Response: None
6) All documents, including but not limited to emails, letters, memos and notes sent to or form
Rosemarie Fernandez that mention plaintiff directly or indirectly.
Response: None
7) All documents including but not limited to emails, letters, memos and note4s sent to or from Rosemarie Fernandez that mention plaintiff directly or indirectly.
Response: None
8) All documents, including but not limited to emails, letters, memos and notes sent to or from Winnie Groux that mention plaintiff directly or indirectly.
Response: None
9) All documents including but not limited to emails, letters, memos and notes sent to or from Debra Powell that mention plaintiff directly or indirectly.
Response: None
10) All documents including but not limited to emails, letters, memos and notes sent to or from Irene Lericos that mention plaintiff directly or indirectly.
Response: None ;
11) All documents, including but not limited to emails, letters, memos and notes sent to or from Nice Susich that mention plaintiff directly or indirectly.
Response": None
12) All documents, including but not limited to emails," letters, memos and notes concerning plaintiff s June 2008 request for Continuation of Pay.
Response: None
13) All documents including but not limited to emails, letters, memos and notes concerning plaintiffs application for unemployment benefits in or about July 2008.
Response: None
14) All documents, including but not limited to emails, letters, memos, notes concerning the termination of plaintiff's medical insurance in or about June 2008
Response: None
15) All documents including but not limited to emails, letters, memos, notes that show that USPS made efforts to consider plaintiff for nay jobs consistent with her medical restrictions during or after June 2007.
Response: None
16) All documents, including but not limited to emails, letters, memos and notes that show that USPS made efforts to comply with Elm 546.12 in regards to plaintiff during or after June 2007
17) All documents including but not limited to emails, letters, memos and notes that show that USPS attempted to engage plaintiff in an interactive process to determine a reasonable. accommodation of her disability.
Response: None
17) All documents including but not limited to performance evaluations, which have positive or negative comments about plaintiff since January 1, 2007.
Response: None
18) All documents including but not limited to performance evaluations, which have positive or negative comments about plaintiff since January 1, 2003.
Response: None
19) All documents showing or reflecting actions, including but not limited to disciplinary actions, warnings, counseling's, or performance improvement plans, taken against plaintiff since January 1, 2003
Response: None
20) All signed or sworn statements by any person that are relevant to the claims or defenses in this action.
Response: None
21) All documents that support the position that plaintiff is not a person with a disability under the Rehabilitation Act of 1973.
Response: None
22) All documents that support the position that plaintiff is not a "qualified individual with a disability under the Rehabilitation Act of 1973
Response: None
23) All documents that support the position that plaintiff was not able to perform the essential functions of her job.
Response: None
24) All documents that support the position that providing plaintiff with the reasonable accommodations of her disability that requested would have caused the Agency an undue burden or hardship.
Response: None
25) All reports USPS submitted to Human Resources as required by ELM 365.242(c) prior to Plaintiffs' termination.
Response: None
26) All documents concerning the investigation by the USPS Office of Inspector General of allegations against plaintiff in or after February 2007.
Response: None
27) All documents including but not limited to job postings, job applications, offer letter, form SF-50, concerning the hiring of James Wigdel in the USPS Corporate Communications Service Ctr. in or about 2007.
Response: None
28) All documents requesting preservation of evidence related to any of plaintiff s discrimination complaints since January 1, 2005.
Response: None
29) All form 3971s submitted by plaintiff on or after June 22, 2007.
Response: None
30) All notices of job vacancies in the San Francisco arid Sacramento districts and in the Mountain View post office for the period between May 1, 2007 and October 31, 2008 inclusive: Responses: None
31) Plaintiff s entire personnel file
Response: None Request for Admissions
1) Admit that Plaintiff was a persona with a disability under the Rehabilitation Act of 1973 to 2007 and 2008.
Response: None
2) Admit that Plaintiff was a "qualified " individual with a disability under the Rehabilitation Act of 1973 in 2007 and 2008.
Response: None
3) Admit that plaintiff, with or without reasonable accommodation, was able to perform the essential functions of her job in 2007 and 2008.
Response: None ;
4) Admit that providing plaintiff with a reasonable accommodation of her disability in 2007 and 2008 would not have caused the Agency an undue burden.
Response: None
5) Admit that in or about 1996, USPS learned that Plaintiffs' physician had concluded that plaintiff was permanently restricted from performing the duties of Letter Carrier.
Response: None ;
6) Admit that USPS failed to pay plaintiff Continuation of Pay (COP) payments after she was injured on the job on or about June 22, 2007
Response: None :
7) Admit that the duties of the job USPS offered to plaintiff in Mountain View, CA beginning on or about June 22, 2007 were not consistent with Plaintiffs' medical restrictions at that time.
Response: None
8) Admit that plaintiff was told in or around June-July that there were no vacant positions in the USPS Public Affairs and Communications Dept. in which she could be placed.
Response': None
9) Admit that in or about July-August 2007, a white male was hired for a position in the USPS Public Affairs and Communications Dept.
Response: None
10) Admit that in or about June 2008, USPS terminated Plaintiff's medical insurance. Response: None
11) Admit that USPS opposed Plaintiff's application for unemployment in or about July or August 2007.
Response: None
12) Admit that USPS failed to submit a report to Human Resources as required by ELM 365.242(c) prior to plaintiff's termination.
Response: None
13) Admit that USPS failed to make every effort to assign plaintiff to limited duty consistent with her medically defined work limitations in and after June 2007.
Response: None Conclusive Reasoning's
As it is clear to Plaintiff and hopefully to the Court that Counsel has willfully deprived Plaintiff of discovery and deliberately instituted tactics for delaying. Totality of Counsel actions constitute intentional tactics to delay the Courts and the discovery process. Although Counsels husband was hospitalized and Counsel fulfilled her duties as his wife, Counsel has assistants in such a event as sickness in the family. I'm disabled and so is my Son with a genetic diease. We have no one to come to our rescue. As a matter of fact, I don't even have a job to return to in in the bout of sickness or hospitalization. With all said and done Counsel has no excuse to have not responded to Plaintiff's discovery request within 9 months of time. I'm sure there are similar cases but this is One that is outright disregard for the Discovery Process. Law stands on Discovery. 1) Counsel perjured herself re: Counsel Ex parte Motion to Continue Declaration, 2)Counsel to date has not provided any discovery, interrogatories, production of documents sets one, two, and threes, and admissions. Several factors may be useful in evaluating a district court's exercise of discretion "to impose sanctions pursuant to this rule (Fed.R. Civ P. 37 (b)(2)(A), including "(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of noncompliance. Agiwal v. Mid Island Mortg. Corp., 555 F. 3d 298. 302 (2d Cir 2009) Because the district court has "wide discretion in imposing sanction sunder Rule 37, these factors are not exclusive., and they need not each be resolved against the party challenging the Courts sanctions. Civil Contempt sanctions may serve "dual purposes" securing "future compliance with court orders" and "compensating the party that has been wronged.: Insurance Corp. of Ireland [Insurance Corp. of Ireland, Ltd,v. Compagnie des Bauxites de Guinee, 456 U. S 694,102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982) held that it does not violate due process for a district court to impose under Rule 37(b) an order subjecting a party to personal jurisdiction in that court as a sanction for the party's failure to comply with a discovery order seeking to establish facts relating to the court's personal jurisdiction over it. Even assuming Counsels reads the Supreme Courts decision in Insurance Corp. of Ireland to apply to all sanctions imposed pursuant to Rule 37(b) Counsel's over breadth argument is never the less without merit. This is because insurance Corp. of Ireland, permit's a court to presume from a party's willful failure to answer a discovery request relating to a particular issue that the facts of that issue are established against the noncompliant party and makes clear that such a presumption is consistent with due process. Disciplinary sanctions under Rule 37 are intended to serve three purposes. 1) They ensure that a party will not benefit from its own failure to comply. 2) they are specific deterrents and seek to obtain compliance with the particular order issued. 3) they are intended to serve a general deterrent effect on the case at hand and on other litigation, provided that the party against whom they are imposed was in some sense at fault. When there is bad faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules, rather than the inherent power. Societe Internationale, 357 U.S. at 207
Counsel definitely did not need this forum to produce discovery. Plaintiff is and was not unsympathetic to Counsel situation. Counsel received Defendant's discovery without any claim of being at a hospital bedside or out of town. The record is clear. Counsel has abused discovery. Plaintiff's discovery request is clearly relevant information that could have possibly led to other discoverable material and the exposure of the continuous discriminatory actions from the Agency towards that of the Plaintiff. Plaintiff has been aggrieved by unfairness and the unethical deletion of Plaintiff's due right process in order to establish her case in Civil Court. Pro Se litigants have rights too. As mentioned in Counsels Joint Report re; Discovery Disagreement "she bears the fault". Plaintiff has been deprived and prejudiced. Counsels conduct brings down the very foundation in which litigation stands that of "DISCOVERY". Plaintiff also alleges that Defendant and his Counsel have failed to take precaution to protect evidence in this case. While Counsel unnoticed delay of Plaintiff Discovery requests the letters re: Don Smearaldi indicated destruction of USPS property. Counsel being in receipt of those letters as mentioned in her Joint Report have not taken any action to secure a litigation hold. Plaintiff seeks from the Court Spoliation of evidence and seek a litigation hold notice. In addition, Plaintiff makes the assertion that some of Counsel's joint report was not written by Ms. Gordon. I, Deidra A. Lintz, SWEAR UNDER THE PENALTY OF PEJURY THAT THIS REPORT IS TRUTH TO THE BEST OF MY KNOWLEDGE AND MEMORY.
Respectfully Submitted,
Deidra A. Lintz
In Pro Se
DEFENDANT'S POSITION RE: DISCOVERY DISAGREEMENT
Plaintiff has framed the disputed discovery issues as follows: (1) whether Defendant failed to respond to Plaintiff's written discovery, what the due date was of that discovery, and whether Plaintiff's discovery is "established deemed by the Court," including waiver of all objections; (2) whether Defendant's request for "discovery, production of documents and interrogatories exceeded the twenty-five," and if so whether any requests beyond "the twenty five" may be stricken.
Until today, defense counsel believed that the discovery responses were served in May, 2011, along with over 2000 pages of responsive documents. They were prepared for delivery at that time, with the exception of the signature page for the Interrogatory Answers. At no time since May has Plaintiff indicated to defense counsel that she had not received the responses, despite several communications. When she received Plaintiff's Motion to Compel, it was defense counsel's understanding that Plaintiff was taking the position, not that she had received no responses, but that the alleged untimeliness of the responses provided in May resulted in a waiver of defense objections. Prior to today she was unaware that it is Plaintiff's position that absolutely no responses were received in May. In reviewing Plaintiff's statement above, however, and the letter of Mary Ann Rackley dated May 13, 2011, Defense counsel cannot represent with certainty that Defendant's formal discovery responses were in fact delivered to Plaintiff with the document production. Nor has defense counsel been able to locate those responses, with the exception of the Response to the Request for Admissions. If, in fact, the responses were not included with the document production, such omission was inadvertent, and caused by defense counsel's absence from the office at the time of delivery, to be with her husband who was in the hospital.
Defense counsel's belief that the responses were served was reasonable, based on the fact that, despite communication with Plaintiff between delivery of the documents and the filing of Plaintiff s Motion to Compel, no mention was made by Plaintiff of the absence of any such service.
A. Details of discovery conferences
Defendant's discovery responses to Plaintiff.
This case was originally filed on July 13, 2009. [Doc. 1] An amended complaint was filed on August 31, 2009. [Doc. 5] On November 9, 2009, Magistrate Judge Drozd dismissed Plaintiff s amended complaint, with leave to file a second amended complaint. [Doc. 7] That was done on December 8, 2009. [Doc. 8] In May 2010, Defendant filed a motion to dismiss. [Doc. 16] That motion was granted on June 14, 2010, and Plaintiff was given leave to amend. [Doc. 21] A Third Amended Complaint was filed on July 8, 2010, and Defendant's answer filed on July 19, 2010. [Docs. 22, 23]
On October 14, 2010, Plaintiff filed her own motion to dismiss her lawsuit. [Doc. 31] One week later, on October 25, 2010, prior to a ruling on the motion, she withdrew it. [Doc. 33]
DISCOVERY CONFERENCES:
On January 6, 2011, Plaintiff called defense counsel to speak with her about written discovery that she had mailed out the previous day. [Declaration of J. Earlene Gordon, attached hereto as Exhibit 1 and by this reference incorporated herein.] In that conversation Plaintiff indicated that she had intended letters addressed to a postal service employee, Don Smiraldi, to be discovery requests in the litigation. She indicated that she had sent Mr. Smiraldi those letters in November 2010, and had received no response to them. Defense counsel advised Plaintiff that she was unaware of any requests for production being sent in the case, and asked Plaintiff to identify the letters so that she could look at them. Ms. Gordon told Plaintiff at that time that she would read them and see if she felt it necessary for them to be resubmitted in a proper format. Ms. Lintz said that was fine, and if she needed to resubmit her requests she would. Ms. Gordon also advised Plaintiff that she was going to be absent from the office for several weeks in January, due to her husband's scheduled surgery and medical condition, so Ms. Lintz may not have responses for quite some time. Ms. Lintz indicated that it would not be a problem, and expressed a hope that the surgery would go well. Finally, Ms. Lintz advised Ms. Gordon that she had mailed out additional discovery requests the previous day, without a signature page, but that she would fax a signature page that day. Ms. Gordon told her that would be fine. [Ex. 1]
Defense counsel was out of the office for approximately three weeks. [Ex. 1] She spoke with Plaintiff shortly after her return and indicated that she needed additional time to respond to the discovery requests, and was told by Plaintiff that she was "not in a hurry," and she "understood." [Ex. 1]
On April 4, 2011, defense counsel was advised that on March 30, 2011, Plaintiff had called to inquire about when the discovery responses would be completed. Defense counsel was unavailable to speak with Plaintiff on March 30 as she was out of town, and did not return until the 4th. [Ex. 1] Defense counsel attempted to call Plaintiff but was unable to reach her. Ms. Gordon was again absent from the office at the end of that week When she returned, she had a letter from Plaintiff, dated April 5, 2011, indicating that Plaintiff believed all objections to those requests were waived by the failure to file responses in January. [Ex. 1] Again, defense counsel attempted to call Ms. Lintz, but could only get a fax signal. [Ex. 1] On April 13, 2011, defense counsel received another letter from Ms. Lintz, giving her a seven-day deadline within which to provide discovery responses. Again, defense counsel attempted to call Ms. Lintz, but could only get a fax signal. [Ex. 1]
On April 20, 2011, having been unable to contact Plaintiff by phone, Ms. Gordon wrote Plaintiff a letter requesting the opportunity to sit down with Plaintiff and discuss the discovery requests, their deficiencies, and Privacy Act protection issues with regard to some of the documents Plaintiff sought. A copy of that letter is attached hereto as Exhibit 2 and by this reference incorporated herein. Defense counsel also advised Plaintiff that she was seeking guidance from Plaintiff about the organization of the thousands of pages of documents to be produced, and the format in which they would be delivered. [Ex. 2] Specifically, Plaintiff was advised that discovery responses were ready, except for a signature page on the interrogatory answers, but that it was too voluminous to send via facsimile, which was the method Plaintiff had previously requested Defendant use for service. That letter was faxed to Plaintiff. [Ex. 2]
The following morning, April 21, 2011, Plaintiff called and indicated she was unable to read the faxed letter, and asked that it be resent via the mail, rather than faxed, [p. 2 infra] That was done. [Ex. 2] During that telephone conference, Ms. Lintz finally agreed to consider an in-person meeting with Ms. Gordon, but would first like to see something in writing from defense counsel explaining why the Privacy Act protects the disclosure of private information about government employees. Ms. Gordon agreed to provide such a document, but requested that Ms. Lintz also at least schedule a meeting time sometime in May so that both parties could get it on the calendar. Ms. Lintz refused. Ms. Gordon also told Ms. Lintz that she would be unable to get the letter to Ms. Lintz in the next few days, because of upcoming scheduling conflicts which would take her out-of-town. Ms. Lintz responded that Ms. Gordon should "not worry about it," that she was "in no hurry as long as we're working on it." Ms. Gordon took Ms. Lintz at her word. Notwithstanding that representation, in a letter dated Thursday, April 21, 2011, Plaintiff demanded that Ms. Gordon give her such a letter by Monday, April 25, 2011. [Ex. 1] This demand was made despite the fact that Ms. Lintz was aware that defense counsel was scheduled to be out of the office on April 22, and out of state on April 25, and could not possibly receive the letter in time to comply with the deadline.
In any event, Ms. Gordon did not leave town on the 25th. On April 23, 2011, Ms. Gordon's husband was admitted to Sutter Memorial Hospital through the emergency room with a potentially life-threatening condition. [Ex. 1] She did not return to her office until the first week of May, when she saw Ms. Lintz's April 21 letter for the first time. By this time the April 25, 2011 deadline, of which she had been unaware, had passed. [Ex. 1] Immediately upon her return, Ms. Gordon called Ms. Lintz and informed her of what had happened, and why the deadline had been missed. Ms. Lintz again expressed sympathy, and indicated that the deadline was not a problem, reiterating that she just wanted to move things forward. [Ex. 1]
On Thursday, May 5, 2011, Plaintiff and defense counsel conferred again by phone. Plaintiff again agreed that defense counsel could provide the documents she had prepared, by federal express or U.S. mail, and indicated she did not want to discuss the format of those documents until she had a chance to review them. She also continued to refuse to meet in person with Ms. Gordon to discuss issues relating to discovery in the case. During this conversation Plaintiff's questions about the Privacy Act were addressed at some length, and defense counsel indicated a willingness to work with Plaintiff to try and find a way to get her the information she needed without violating the Act, either through a Court Order, through redaction, or through a narrowing of the discovery requests. Plaintiff indicated she would discuss it later, after she had had an opportunity to review the documents being produced. Defense counsel prepared a letter for transmittal of the documents and formal discovery responses, as well as service of Defendant's discovery requests. [Ex. 3] Within minutes of her completing that letter she was called away to the hospital again, where her husband had been admitted in the emergency room. Ms. Gordon was absent from the office due to her husband's medical situation until the week of May 23, 2011, when she returned on a half-time basis. [Ex. 1]
Nevertheless, Ms. Gordon arranged with her office for the delivery of the discovery responses and documents during her absence, while she was at the hospital with her husband. [Ex. 1; Ex. 4] It was her understanding that both the documents responsive to the Request for Production, and the formal discovery responses, were served, with the exception of a signature page on the Interrogatory Answers (a deficiency brought to light by defense counsel's preparation of this response). Defense counsel cannot, however, find a document actually sent to Plaintiff which confirms service of the formal discovery responses at that time, and the letter of paralegal Mary Ann Rackley, dated May 13, 2011, together with Plaintiff's representation that she did not receive such documents, raises an issue in this regard. [Ex. 1]
On August 2, 2011, Defendant sent Plaintiff a letter with a set of discovery requests, and asked for Plaintiff's availability for a deposition. Upon her receipt of the letter, Plaintiff called Ms. Gordon to discuss deposition dates, and to state that she would not be able to provide responses in the 30 days allowed. Ms. Gordon indicated she would agree to an extension of time to respond. Ms. Lintz made no mention of any deficiency in Defendant's discovery responses during that conversation. Plaintiff followed this conversation up with a letter confirming Ms. Gordon's agreement to give her additional time to respond. [Ex. 1; Ex. 5] Again, no mention was made of any concern with Defendant's responses.
No communication of any kind was received from Plaintiff between May 13, 2011 and the date her motion to compel was filed on August 9, 2011, that indicated to defense counsel that Plaintiff had not been provided with the formal discovery responses. Until that point, Ms. Gordon was unaware that there were any outstanding discovery disputes, and until today Ms. Gordon did not realize that Plaintiff was claiming to have received no formal responses at all.
Plaintiff's motion was not made in sufficient time for it to normally be heard prior to the August 18, 2011 deadline for the hearing of discovery motions. Ms. Lintz had not noticed the motion for hearing, but did file an ex parte motion to shorten time along with her motion. Ms. Lintz had not attempted to get defense counsel's agreement to shorten time.
Plaintiff's deposition was taken on August 23, 2011. At that time Plaintiff was "too tired" and in too much pain to discuss other issues, so her motion to compel was not addressed. [Ex. 1]
The Court set the hearing on Plaintiff's motion for September 8, 2011. Defense counsel spoke with Plaintiff and informed her that she would not be available on that date. That conversation, and defense counsel's additional effort to contact Plaintiff to discuss the motion, is described in the Declaration of J. Earlene Gordon which was filed in connection with Defendant's Ex Parte Motion to Continue the hearing. [Doc. 39; Ex. ]
Subsequently, upon the Court's rescheduling the hearing for September 22, 2011, on September 9, 2011 defense counsel and Plaintiff spoke about the mechanics of filing the Joint Statement. Ms. Lintz expressed her desire to draft the initial document, and stated that she would have it to Ms. Gordon by late morningTuesday, September 13 for her additions, as Ms. Gordon is leaving town and will be unavailable the remainder of the week. [Ex.1] She delivered her draft shortly before 2:00 pm. Again, not until Ms. Gordon reviewed this draft did she understand that Ms. Lintz was claiming not to have received any discovery responses whatsoever.
As set forth in her Declaration, Ms. Gordon will be unavailable to attend the hearing either in person or by telephone on September 22, 2011, as she will be in the midst of traveling from South Carolina to Sacramento at the time of the hearing. While Ms. Gordon would prefer to be present herself, another attorney in the office is available to appear in her stead. [Ex. 1]
Defendant's discovery to Plaintiff.
Until reading Plaintiff's portion of the Joint Statement, Defendant was unaware that Plaintiff contended more discovery was propounded by Defendant than that allowed under the Federal Civil Rules of Procedure. Defendant sent 19 Interrogatories to Plaintiff, and 28 Requests for Production of Documents. It is unclear how Plaintiff believes this is excessive. It is Defendant's position that the discovery propounded was appropriate in length.
B. Nature of the action
Ms. Lintz is claiming that she was discriminated against based on her race and her disability when her job as a Postal Vision Coordinator was eliminated, and she was reassigned to other duties, and when her employment was terminated for failure to report to work. She is also claiming that the Postal Service retaliated against her for engaging in protected activity in connection with her complains of disability discrimination.
Defendant has denied any discrimination and retaliation, and has affirmatively stated that it had legitimate, non-discriminatory reasons for every action it took with regard to Plaintiff's employment.
C. Defendant's contentions regarding the contested Issues
Defendant's Discovery Responses
Plaintiff claims that no discovery responses were provided to her. Defendant cannot with any certainty dispute that formal discovery responses may not have been provided. Defense counsel does, however, state that it was her belief in May, 2011, that such responses were delivered, and that she is certain that over 2000 pages of documents were provided to Plaintiff. The fact that Plaintiff at no time after May 13, 2011, indicated any deficiency in these responses until the filing of the instant motion is an indication that defense counsel's belief was a reasonable one, especially in light of the fact that the previous few weeks Plaintiff and defense counsel had been communicating regularly about this subject. With regard to the May 13 delivery date, Defendant states that defense counsel was entitled to rely upon Plaintiff's agreements to extend the time for Defendant's responses, which were unequivocal and reasonable in light of defense counsel's situation.
The Federal Rules of Civil Procedure give the court wide discretion to address the issue of a party's failure to comply with the rules of discovery. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). In the instant case, no sanctions are warranted. Plaintiff ultimately agreed to give Defendant until May to provide discovery responses. Even if the formal responses were not timely filed, Plaintiff has failed to show she has been prejudiced by that failure. She was provided with the documents she requested, with the exception of those responsive to requests which sought information protected by the Privacy Act, and which Defendant is still willing to provide if Plaintiff will either agree to redaction of personally identifiable information, or obtain the requisite Court order (including a protective order).
Plaintiff has likewise not been prejudiced by any delay in receipt of the Responses to the Requests for Admission, attached hereto as Exhibit and by this reference incorporated herein. No information was sought by those requests, the lack of which would have hampered Plaintiff's ability to proceed with discovery.
With regard to the Interrogatories, all of the information sought by Plaintiff's interrogatories is contained in the documents provided by Defendant in May, and again no prejudice to Plaintiff has resulted. If Plaintiff could show that she was denied some discovery based on the delay in receiving those responses, the appropriate sanction would be a reopening of discovery to allow her to obtain the information she claims she lacks.
To the extent that Plaintiff claims a delay caused her prejudice, she also bears some responsibility for the delay, in waiting until August to address the issue by filing a motion to compel. Had Plaintiff simply asked defense counsel about the fact that the formal requests had still not been provided, any inadvertent omission could have been immediately rectified, in sufficient time for Plaintiff to complete any discovery necessitated by the discovery responses.
Defendant has not "willfully deprived Plaintiff of discovery and deliberately instituted tactics for delaying," as posited by Plaintiff in her "Conclusive Reasonings." [p. 13, infra] As the letters from defense counsel to Plaintiff make clear, defense counsel regretted her repeated absences from work and was trying to move the case along, even to the extent of working from her husband's hospital bed to ensure delivery of the responses to Plaintiff. [Ex. 1] Again, if, in fact, those formal responses were not provided in May, that omission was inadvertent and unintentional, and could easily have been rectified by a call or letter from Plaintiff pointing out the omission.
Defendant is unable to intelligently address the remainder of Plaintiff s "Conclusive Reasonings," because she cannot determine the precise nature of Plaintiff s accusations, or requested relief. Defendant does state, however, that all responsive documents have been provided, no electronic information has been "destroyed," and a spoliation motion is neither timely nor appropriate.
Defendant's Discovery Requests
As discussed above, Defendant's discovery requests were within the limits allowed by the Federal Rules of Civil Procedure.
Respectfully Submitted,
BENJAMIN B. WAGNER
United States Attorney
J. EARLENE GORDON
Assistant United States Attorney
Exhibit 1
BENJAMIN B. WAGNER
United States Attorney
J. EARLENE GORDON
Assistant United States Attorneys
Attorneys for Defendant
John E. Potter, Postmaster General
Of the United States
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DEIDRA A. LINTZ, Plaintiff,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.
CASE NO. 2:09-cv-01907 GEB-KJN-PS
DECLARATION OF J. EARLENE
GORDON IN SUPPORT OF THE JOINT
STATEMENT RE: DISCOVERY
DISAGREEMENT
DATE: September 22, 2011
TIME: 10:00 a.m.
JUDGE: Hon. Kendall J. Newman
CRTRM: 8th Floor, #25
I, J. Earlene Gordon, do declare as follows:
1. I am an Assistant United States Attorney for the Eastern District of California.
2. On January 6, 2011, Plaintiff called me about written discovery that she had mailed out the previous day. In that conversation Plaintiff indicated that she had intended letters addressed to a postal service employee, Don Smiraldi, to be discovery requests in the litigation. She indicated that she had sent Mr. Smiraldi those letters in November 2010, and had received no response to them. I told Plaintiff that I was unaware of any requests for production being sent in the case, and asked her to identify the letters so that I could look at them. I also told Plaintiff at that time that I would read them and see if I felt it necessary for them to be resubmitted in a proper format, as opposed to just a letter. Ms. Lintz said that was fine, and if she needed to resubmit her requests she would. I also advised Plaintiff that my husband was having major surgery, and that I would be absent from the office for several weeks in January, so Ms. Lintz may not have responses to any requests that came in while I was gone, for quite some time. Ms. Lintz indicated that it would not be a problem, and expressed a hope that the surgery would go well. Finally, Ms. Lintz advised me that she had mailed out additional discovery requests the previous day, without a signature page, but that she would fax a signature page that day. I told her that would be fine.
2. I was out of the office for approximately three weeks. I spoke with Plaintiff shortly after my return and indicated that I needed additional time to respond to the discovery requests, and was told by Plaintiff that she was "not in a hurry," and she "understood."
3. On April 4, 2011, my legal assistant told me that on March 30, 2011, Plaintiff had called to inquire about when the discovery responses would be completed. I was unavailable to speak with Plaintiff on March 30 as I was out of town, and did not return until the 4th. When I got back into the office I attempted to call Plaintiff, but was unable to reach her.
4. I was again absent from the office at the end of that week. When I returned, I had a letter from Plaintiff, dated April 5, 2011, indicating that Plaintiff believed all objections to her discovery requests were waived by the failure to file responses. Again, I attempted to call Ms. Lintz to remind her that she had given me no deadline which had been breached, but could only get a fax signal.
5. On April 13, 2011, 1 received another letter from Ms. Lintz, giving me a seven-day deadline within which to provide discovery responses. Again, I attempted to call Ms. Lintz, but could only get a fax signal.
6. On April 20, 2011, having been unable to contact Plaintiff by phone, I wrote Plaintiff a letter requesting the opportunity to sit down with Plaintiff and discuss the discovery requests, their deficiencies, and Privacy Act protection issues with regard to some of the documents Plaintiff sought. A copy of that letter is attached hereto to the Joint Statement. I also advised Plaintiff that I needed guidance from her about how she would like the thousands of pages of documents to be produced, and the format in which they would be delivered. Specifically, Plaintiff was advised that discovery responses were ready, except for a signature page on the interrogatory answers, but that it was too voluminous to send via facsimile, which was the method Plaintiff had previously requested Defendant use for service. That letter was faxed to Plaintiff.
7. The following morning, April 21, 2011, Plaintiff called and indicated she was unable to read the faxed letter, and asked that it be resent via the mail, rather than faxed. That was done. During that telephone conference, Ms. Lintz finally agreed to consider an in-person meeting with me, but would first like to see something in writing from defense counsel explaining why the Privacy Act protects the disclosure of private information about government employees. I agreed to provide such a document, but requested that Ms. Lintz also at least schedule a meeting time sometime in May so that both parties could get it on the calendar. Ms. Lintz refused. I also told Ms. Lintz that I would be unable to get the letter she was requesting out to her in the following few days, because of upcoming scheduling conflicts which would take me out-of-town. Ms. Lintz responded that I should "not worry about it," that she was "in no hurry as long as we're working on it." I took Ms. Lintz at her word.
8. Notwithstanding that representation, in a letter dated Thursday, April 21, 2011, Plaintiff demanded that I give her such a letter by Monday, April 25, 2011. This demand was made despite the fact that Ms. Lintz was aware that I was scheduled to be out of the office on April 22, and out of state on April 25, and could not possibly receive the letter in time to comply with the deadline.
9. In any event, I did not leave town as scheduled. On Saturday, April 23, 2011, my husband was admitted to Sutter Memorial Hospital through the emergency room with a potentially life-threatening condition. I did not return to my office until the first week of May, when I saw Ms. Lintz's April 21 letter for the first time. By this time the April 25, 2011 deadline, of which I had been unaware, had passed. Immediately upon my return, I called Ms. Lintz and informed her of what had happened, and why the deadline had been missed. Ms. Lintz again expressed sympathy, and indicated that the deadline was not a problem, reiterating that she just wanted to move things forward.
10. On Thursday, May 5, 2011, Plaintiff and I conferred again by phone. Plaintiff again agreed that I could provide the documents I had prepared, by federal express or U.S. mail, and indicated she did not want to discuss the format of those documents until she had a chance to review them. She also continued to refuse to meet in person with me to discuss issues relating to discovery in the case. During this conversation Plaintiff's questions about the Privacy Act were addressed at some length, and told Plaintiff I was willing to try and find a way to get her the information she needed without violating the Act, either through a Court Order, through redaction, or through a narrowing of the discovery requests. Plaintiff indicated she would discuss it later, after she had had an opportunity to review the documents being produced. I prepared a letter for transmittal of the documents and formal discovery responses, as well as service of Defendant's discovery requests. Within minutes of my completing that letter I was called away to the hospital again, where my husband had been admitted in the emergency room. I was absent from the office due to my husband's medical situation until the week of May 23, 2011, when I returned for a period of time on a half-time basis, until returning to work full time.
11. Despite my husband's serious medical condition, knowing that I had assured Plaintiff I wanted to move the case along I arranged with my office on May 13, 2011, for the delivery of the discovery responses and documents during my absence, from my husband's hospital room. Because of my husband's condition, I was spending 24 hours a day at the hospital. It was my understanding that both the documents responsive to the Request for Production, and the formal discovery responses, were served, with the exception of a signature page on the Interrogatory Answers. That understanding may have been in error, in light of the transmittal letter of Mary Ann Rackley and Plaintiff's assertion that she did not receive formal responses. I cannot find a document which confirms service of the formal discovery responses at that time. Nor can I find, although I have searched exhaustively for them, any copy of Plaintiff s discovery requests to Defendant, or Defendant's prepared responses. I do know that such requests were received, and have a specific memory of discussing specific requests with Plaintiff over the telephone, namely those related to Privacy Act issues. I also have a memory of having prepared discovery responses. Only the responses to the Requests for Admissions have been located. Those are attached as Exhibit A.
12. On August 2, 2011, 1 sent Plaintiff a letter with a set of discovery requests, and asked for Plaintiff's availability for a deposition. Upon her receipt of the letter, Plaintiff called me to discuss deposition dates, and to state that she would not be able to provide responses to Defendant's discovery requests in the 30 days allowed. Mindful of what, at the time, I believed had been Plaintiff's latitude and understanding with my situation, I immediately indicated that I would agree to an extension of time to respond. Ms. Lintz made no mention of any deficiency in Defendant's discovery responses during that conversation. Plaintiff followed this conversation up with a letter confirming my agreement to give her additional time to respond. Again, no mention was made of any concern with Defendant's responses.
13. At no time between May 13, 2011 and the date Plaintiff's motion to compel was filed on August 9, 2011, did Plaintiff indicate to me that she had not been provided with the formal discovery responses. Until that point, I was unaware that there were any outstanding discovery disputes, and until today I did not realize that Plaintiff was claiming to have received no formal responses at all. It was my belief, upon my receipt of the discovery motion, that Plaintiff was merely attempting to have all defense objections waived based on the timing of Defendant's responses.
14. Plaintiff's motion was not made in sufficient time for it to normally be heard prior to the August 18, 2011 deadline for the hearing of discovery motions. Ms. Lintz had not noticed the motion for hearing, but did file an ex parte motion to shorten time along with her motion. Ms. Lintz had not attempted to get my agreement to shorten time.
15. Plaintiff's deposition was taken on August 23, 2011. At that time Plaintiff was "too tired" and in too much pain to discuss other issues, so I was unable to discuss her motion to compel with her.
16. The Court set the hearing on Plaintiff's motion for September 8, 2011. I spoke with Plaintiff and informed her that I would not be available on that date, and asked if she would agree to continuing the hearing on her motion. That conversation, and my additional effort to contact Plaintiff to discuss the motion, is described in the Declaration of J. Earlene Gordon which was filed in connection with Defendant's Ex Parte Motion to Continue the hearing. [Doc. 39]
17. Subsequently, upon the Court's rescheduling the hearing for September 22, 2011, on September 9, 2011 I spoke with Plaintiff about the mechanics of filing the Joint Statement. Ms. Lintz expressed her desire to draft the initial document, and stated that she would have it to me by late morning Tuesday, September 13 for her additions, as I have an early morning flight out of town on September 14, 2011 and will be unavailable the remainder of the week. Ms. Lintz delivered her draft shortly before 2:00 pm. Again, not until I reviewed this draft did I understand that Ms. Lintz was claiming not to have received any discovery responses whatsoever.
18. The discovery propounded by Defendant to Plaintiff on August 2, 2011 consisted of 19 Interrogatories to Plaintiff, and 28 Requests for Production of Documents.
19. If no formal discovery responses were provided to Plaintiff in May 2011 by Defendant, that failure was inadvertent. It was my understanding at that time that both the documents and responses were being sent, and Plaintiff at no time said anything to me which disabused me of that belief. My absence from the office precluded me from double-checking what went out, and my haste to get Plaintiff what she had been seeking precluded me from waiting until I was back in the office to personally take charge of the discovery. Although inadvertent, any error in producing the responses was undoubtedly mine.
I declare that the foregoing is true and correct.
Executed this 13th day of September, 2011, in Sacramento, California.
J. EARLENE GORDON
Assistant United States Attorney
CERTIFICATION OF SERVICE
This is to certify that the undersigned Deidra Lintz completed her Joint Discovery Disagreement Report and obtained J. Earlene Joint Discovery Disagreement Report from Pam Beauvais while Counsel is out of state to file with the Court located at 5011 Street, Sacramento, Ca. 95814 to the Clerks office for filing on September 15, 2011.
Deidra Lint