Opinion
Civil Action No. 02-2016 (JMF).
March 8, 2005
MEMORANDUM OPINION
This case was referred to me for discovery purposes. For the reasons articulated below, Plaintiff's Motion to Compel Production of Documents ("Plains. Mot.") will be denied.
INTRODUCTION
Plaintiff proceeds pro se and it is clear from the record that plaintiff's failure to grasp two most fundamental concepts has driven opposing counsel and the presiding trial judge to distraction.
Nemo dat quod non habeat
A party in litigation can, pursuant to Rule 34 of the Federal Rules of Civil Procedure, serve a request for production of documents upon his opponent, who must then file a written response indicating either that inspection and copying will be permitted or noting an objecting to the requests. Obviously, stating that the responding party does not have the documents sought is a perfectly legitmate response. The ancient maxim, nemo dat quod non habeat, says it all: one can not give what one does not have. Plaintiff, however, thinks that his opponent's saying that a document does not exist or that plaintiff has been given all that does exist justifies his moving to compel. Thus, plaintiff, an economist and an intelligent man, who should know better, keeps compelling the production of what he is told does not exist.
I appreciate that a document never existed in the first place or, having existed, no longer does may prove significant for some other purpose. That a document existed, and is now gone, and yet should have been kept may justify the finder of fact inferring that, had it been produced, its contents would be unfavorable to the party that failed to keep it. Indeed, in a given case, the facts may justify a stronger remedy, with a court invoking the principles gathered under the rubric "spoliation." See generally Adam I. Cohen David J. Lender, Electronic Discovery: Law and Practice, §§ 3.01-3.02 (2004). Plaintiff, now knowing what his opponent once had and yet does not have currently, can invoke these principles as to any document that he claims his opponent should have kept. What he can't do is continue to move to compel that which does not exist. When I say "can't," I mean it. As Judge Huvelle has noted, frightfully large amounts of time and effort have had to be expended by opposing counsel, Judge Huvelle and now me, because plaintiff keeps moving to compel the production of what his opponent and government depositories do not have. That is coming to an end. If plaintiff serves another document, in whatever form, that demands the production of what he has been told does not exist, I will sanction him severely.
Subpoena Duces Tecum
As I have just explained, a party is permitted to request the production of documents. A party also may serve a subpoena duces tecum upon a person who is to be deposed, seeking documents that the deponent may have in her possession. Plaintiff thinks, however, that, having served and received responses to his request for production, he can serve a subpoena duces tecum on the deponent seeking either more documents or the documents he has been told do not exist. There are so many things wrong with his doing that that it is hard to know where to start.
First, a party is not entitled to a request for production of documents and then to as many subpoenae duces tecum as there are deponents. The subpoena duces tecum reaches out to documents the deponent has. It is not a means to secure from the opposing party documents that the opposing party has. Once a party has served on an opposing party a request for production of documents, that exhausts the right to secure documents from one's opponent and that right cannot have as many resuscitations or resurrections as there are deponents employed by one's opponent.
Second, people who work for the government do not own the government's records and cannot possibly be personally obliged to produce them by subpoena duces tecum over the government's objection. That is the central thrust of the Supreme Court's decision in United States ex rel Touhy v. Ragen, 340 U.S. 462, 467-69 (1951). Even if the rule is different when the government is a party to litigation, the subpoena duces tecum would have to be directed to the agency, not the individual. How could an individual be held in contempt for not producing documents that are owned by the agency that employs him? Once again, nemo dat quod non habeat. An employee of an agency is without power to give to anyone the documents that are owned not by him but by his employer. Therefore, it would have been perfectly appropriate for the Department of Labor ("DOL") to have moved to quash the subpoena duces tecum on an employee that purported to demand documents that the DOL and not the employee possessed. I would have granted that motion instantly particularly because the DOL had already responded to a request for production of documents and Judge Huvelle had resolved plaintiff's claims of the insufficiency of the DOL's response. That DOL was more gracious than it had to be, viewed the subpoena duces tecum as another request for production of documents and answered, does not detract from the reality that plaintiff had no business serving such a subpoena upon a DOL employee in the first place.
RESOLUTION OF THE MOTION TO COMPEL
Since the DOL did not move to quash on this basis and answered the subpoena duces tecum and because I am so desirous of bringing this matter finally to rest, I will now review the record and resolve plaintiff's Motion to Compel ("Mot. to Compel") on its merits, or to be more precise, its lack of merit.
I will review these requests, numbered in 1-10, in the order that they appear at pages 14-22 of his Motion to Compel. In each request, plaintiff specifies the documents he demands be compelled.
DISCUSSION
I. Competitive Inventories Generally
A. The Request
In this request (Request #1), plaintiff seeks "[a]ll documents (other than Delegated Examining Operations Handbook) pertaining to operational procedures for establishment, maintenance, terminating and merging of Competitor Inventories." Mot. to Compel at 14.
B. The Meaning of the Terms in the Request
An explanation is first in order of the terms "Delegated Examining Operations Handbook," "Competitor Inventories," and "Register."
The Office of Personnel Management ("OPM") may delegate to an agency the hiring of persons in the competitive system. That office has issued a Delegated Examining Operations Handbook and DOL has explained to plaintiff that the handbook is "required to be followed by all federal agencies when ranking candidates for entry-level positions such as occurred in the selection in 1997 that is the subject of the instant action." Defendant's Opposition to Plaintiff's Motion to Compel and for Protective Order on Documents Pertaining to the Plaintiff's Claims Prior to 1997 (Defs. Opp. and Mot. for P.O.") at 3.
While the words "competitor inventories" are not defined in the regulations and I do not know whether they are defined in the handbook given plaintiff, they appear from this record to be a collection of information pertaining to the competitors for a particular vacancy that the agency maintains pursuant, perhaps, to a requirement in the handbook.
Finally, while the word "register" is not specifically defined in the section of the Code of Federal Regulations pertaining to OPM, it appears from the context in which the word is used that a "register" is a listing of qualified competitors for a civil service position. See e.g. 5 C.F.R. §§ 2.1, 3.1, 7.1, 8.2.
All references to the United States Code or the Code of Federal Regulations are to the electronic versions that appear in Westlaw or Lexis.
C. What Has Been Provided
We begin with what has already been provided plaintiff. At the status hearing held before Judge Huvelle on April 30, 2004, defendant indicated that there were no documents, other than those already given to plaintiff, relating to the termination of a registry. Defendant's Opposition to Plaintiff's Motion to Compel ("Defs. Opp.") at Exhibit 8, page 44. Later, in the June 16, 2004 letter to plaintiff, defendant indicated that information plaintiff seeks about the creation of a DEU file is contained in the DEU manual published by OPM. Defs. Opp., Exhibit 9 at page 1. Specifically, defendant cited to Section 5-B-9: Documenting the rating process, Section 5-C-3: Documentation for case examining, and Section 5-C-12: Maintaining a case file (competitor inventories). Id. Defendant also stated that DOL does not have a copy of the DEU handbook that was in use in 1997. Id. Finally, defendant cited generally to Section 5-C, which relates to the establishment, termination or combination of competitor inventories. Id. at page 2.
It is clear, therefore, that plaintiff has received all the information there is pertaining to what he requests, i.e., "all documents pertaining to operational procedures for establishment, maintenance, terminating, and merging of Competitor Inventories." Mot. to Compel at 14. Obviously, OPM issued a handbook that defined those procedures and plaintiff's attention has been specifically brought to those sections of the handbook that deal with "the operational procedures for establishment, maintenance, terminating and merging of competitor inventories." For good measure, DOL reminds us that "[p]laintiff has in his possession the sworn testimony of the individual that performed the ranking of candidates, Darlene Williams, in which Mrs. Williams explains in detail the manner in which she ranked the candidates for 97-08, including Mr. Madan." Defs. Opp. and Mot. for P.O. at 5.
Accordingly, plaintiff had the handbook that was supposed to be used in ranking the candidates and the testimony of the woman who did the ranking — everything he needs to make the argument that there was a deviation from that handook and that the deviation has some significance in his case. Nevertheless, he mysteriously demands all documents other than those in the Delegated Examining Operations Handbook pertaining to operational procedures for establishment, maintenance, terminating and merging of Competitor Inventories. Why is there any reason to think that there is another document containing those procedures when the Handbook was created to contain those procedures? .
Furthermore, assuming the inconceivable — that documents pertaining to those procedures exist — they are not relevant to a claim or defense in this lawsuit. Plaintiff has to show that he was discriminated against on the basis of his race. He might try to argue that there was a deviation from the proper procedure in this case and that the deviation is evidence of discriminatory intent. But, he knows from the handbook what should have been done and from Ms. Williams what was done and, therefore, he has all he needs to make that point. The possibility that there exist documents pertaining to competitor inventories other than those in the handbook has nothing to do with any claim he is making or any defense DOL is asserting.
II. Competitor Inventory Regarding Vacancy Announcement DEU-97-08
In this request (Request #2), plaintiff seeks "[a]ll records on file pertaining to establishment, maintenance, termination and merging of Competitor Inventory as it relates to Vacancy Announcement DEU-97-08 (also referred to as inventory case file), including but no [stet] limited to
D. date when the DEU-97-08 was first announced
E. date when the inventory was established
F. date when the inventory was terminated
G. all documentation pertaining to changing pool of applicants in the inventory.
H. all records pertaining to successor inventories
I. list of applicants who were merged with the successor inventories.
J. all requests for referral of eligibles
K. certification of name requests
L. all groups of certificate of eligibles issues from vacancy announcement DEU-97-08, including supplemental certificates, record of any amendments to the certificate of eligibles
M. for each certificate issued, produce job applications, rating information, and all other job selection information.
N. all records related to personnel actions, including all instances of Standard Form 39, Standard Form 50, Standard Form 52, etc.
O. all records pertaining to successor inventory and selection there from
This request has been satisfied.
In a letter from AUSA Heather Graham-Oliver to plaintiff, dated March 17, 2004, defendant stated that "all the Agency has pertaining to vacancy announcement DEU-97-80 have been provided . . ." Defs. Opp., Exhibit 3 at page 3.
In addition, in its Responses to Plaintiff's Document Requests, dated April 27, 2004, the defendant stated the following: "All documents and records on file pertaining to vacancy announcement DEU-97-08 have already been provided as part of the administrative proceeding or in discovery in the instant case. This would include rating information on the top ten candidates as well as their job applications. We are providing the log book with respect to DEU vacancy announcements for 1997. There are no other records." Defs. Opp., Exhibit 5, Responses to Plaintiff's Document Requests at page 4. Later, in the same document, defendant stated that "[a]ll documents and records on file pertaining to vacancy announcement DEU-97-08 have already been provided as part of the administrative proceeding and/or in discovery in the instant case." Id. at pages 6-7. Defendant than added that "[t]his would include all of the applicants' applications for that particular vacancy announcement as well as the rating information used to develop the certificate of eligibles" as well as "the `tie breaking' information with this pleading and the log book with respect to BLS/DEU vacancy announcements for 1997." Id. at page 7.
Finally, attached as Exhibit A to defendant's opposition is a document captioned "Certificate of Eligibles" for Certificate Number XW-XW-7-0034SO dated July 15, 1997. Although it is unclear exactly when plaintiff received this document, it is clear from his knowledge of the names of the other individuals on the list that he did in fact receive it.
III. Certification Name Requests for Certificate Number XW-XW-7-0034SO
In this request (Request #3), plaintiff seeks "[a]ll documents pertaining to certification name requests on certificate number XW-XW-7-0034SO (e.g. F39s)." Mot. to Compel at 15.
At the status conference held before Judge Huvelle on October 21, 2003, agency counsel described what is referred to at the agency as "name requested":
The expression name requested is an expression that is used within the agency in connection with job fairs. A job fair brings into the building a number of people at one particular point in time for a couple of hours. Managers sit in this large room, talk to different people. Based upon these conversation, they may identify someone who applied for a position as having a particular skill that they think would be of use to them in their office. The job fair is over. Then the applications are all going to the personnel office, and this particular manager who spoke to this person says, can name request that individual. And then so that person is highlighted on the list of eligibles.
Defs. Opp., Exhibit 4 at page 36.
This request has been satisfied. In its responses to Plaintiff's First Set of Interrogatories and First Request for the Production of Documents, dated June 2, 2003, defendant stated that Lyn Myles had "identified all people that attended the job fair and provided an application for 97-08 as name requested." Defs. Opp., Exhibit 12 at page 11. In addition, in a June 16, 2004 letter to plaintiff, defendant added that "[t]he procedures to be followed for being name requested are contained in the DEU handbook under the heading of `submitting your request to the DEU officer." Id., Exhibit 9 at page 2.
IV. Documents Relating to the Top Nine Candidates
In this request (Request #4), plaintiff seeks "[a]ll documents on file for Mirko Novakovic, Patricia Ryle, Murad Hussain, Hooshang Fazel, Samar El-Mofty, Janet Griffin-Graves, Patrick H. Phenis, Thierno S. Sow, and Krishna Kundu, who were the top 9 candidates on certificate number XW-XW-7-0034S0, including copies of all correspondence, notices and other communication with applicants." Mot. to Compel at 15-16.
This request has been satisfied. At the status conference held before Judge Huvelle on October 21, 2003, Judge Huvelle specifically asked defendant whether everything within the agency's possession relating to the top ten candidates for the economist Grade 9 position to which plaintiff applied had been turned over. Defs. Opp., Exhibit 4 at pages 16-19. Defendant indicated that the agency had turned over everything that the agency had. Id. Defendant also assured Judge Huvelle that all documents relating to Ms. Ryle had previously been produced.Id. at page 29.
In addition, in its Responses to Plaintiff's Document Requests, dated April 27, 2004, the agency stated the following: "We have produced all the documents that the Agency has on file with respect to Patricia Ryle. Because she is no longer an employee of DOL, we have no other records for Patricia Ryle. All applicants and related materials pertaining to Murad Hussain, Hooshang Fazel, Samar El-Mofty, Janet Griffin-Graves, Patrick H. Phenis, Thierno S. Sow, and Krishna Kunda, have been provided. All documents pertaining to Mirko Novakaobic and the announcement DEU-97-08 have been provided." Defs. Opp., Exhibit 5, Responses to Plaintiff's Document Requests at pages 7-8.
Three days later, at the status conference held before Judge Huvelle on April 30, 2004, defendant promised to give plaintiff everything relating to Ryle:
THE COURT: But let's just make sure he's got it all. Why can't you give him, if I sign an order, everything having to do that relates to her [Ryle's] application for employment, whether it's the application, whether it's the attachments, whether it's the letters of reference, whatever you have? Give it to him.
MS. OLIVER: We can do that.
Defs. Opp., Exhibit 8 at page 7.
Although that was done, plaintiff was not satisfied. He complains that he asked NPRC to provide a copy of the complete OPF of Ms. Ryle, including "all job related information, including all correspondence with the applicant, Notice of Personnel Action and other material related to her employment" but that all he got from DOL was her job application. He also complains he was not given any explanation for the exclusion of all the information that, in his words, is "typically part of the Official Personnel Folder." Motion to Compel at 12. The explanation he seeks is the one Judge Huvelle gave him at the hearing — the one that I just quoted; all he is entitled to is Ryle's application for employment and he got that. He is not entitled to anything else. Implicit in Judge Huvelle's statement is a ruling that everything other than the application in Ryle's OPF is irrelevant. I will make that explicit and specifically hold that nothing more than Ryle's application is relevant to a claim or defense in this case and that DOL has satisfied the only obligation it had.
V. Madan Documents
In this request (Request #5), plaintiff seeks "All records on file for the plaintiff Subhash C. Madan, including complete copies of job applications." Mot. to Compel at 16.
This request has been satisfied. At the status conference held before Judge Huvelle on October 21, 2003, Judge Huvelle specifically asked defendant the following: "Do you have any other documents, including personal notes computerized or handwritten regarding his [the defendant's] applications for employment, interviews, or consideration for employment that have not previously been produced?" Defs. Opp., Exhibit 4 at page 5. In response, defendant indicated that it did not and that it had given plaintiff everything that was in its possession. Id. In addition, in its Responses to Plaintiff's Document Requests, the agency stated the following: "All documents on file for the plaintiff Subhash Madan were provided." Defs. Opp., Exhibit 5 at page 8.
Finally, in the June 16, 2004 letter to plaintiff, defendant indicated that "[t]he only documentation in the possession of the Department of Labor regarding Mr. Madan has previously been provided to plaintiff in this case" and that plaintiff's application for the 97-08 position did not, contrary to plaintiff's belief, contain any dissertation or thesis. Defs. Opp., Exhibit 9 at page 2.
Notwithstanding defendant's responses to this request, plaintiff again insists that he submitted a ten page summary of his disseration as a research sample with his application but that during the administrative proceedings, only the odd pages of the sample were returned to him. Mot. to Compel at 8. He therefore continues to insist that DOL produce the complete sample. But, he already has a copy of the sample; after all, he submitted it. He certainly can still offer it into evidence, insisting that it was a part of his application. That DOL apparently only returned the odd numbered pages has nothing whatsoever to do with the relevance of plaintiff's testimony as to what he submitted.
VI. Vacancy Announcements
In this request (Request #6), plaintiff seeks "[a]ll documents and records on file [and] vacancy announcements developed for GS-9 level economist positions subsequent to June 1997 Job Fair, including but not limited to (i) Copies of all requests for referral of eligibles, vacancy announcements, and certificates of eligibles (ii) for each certificate of eligibles, all documents pertaining to applicants rating and rating procedure and copies of job applications for each selectee." Mot. to Compel at 16.
In its responses to Plaintiff's First Set of Interrogatories and First Request for the Production of Documents, dated June 2, 2003, defendant noted that "OPM regulations at 5 CFR332.401-407 mandate the manner in which registers, also known as certificates, are prepared and how candidates on the register are considered for appointment. Defs. Opp., Exhibit 12 at page 9. Defendant also referenced the DEU handbook discussed above.
In addition, at the status conference held before Judge Huvelle on October 21, 2003, Judge Huvelle specifically asked defendant whether all the materials relating to the Job Fair had been turned over and the defendant indicated both that the materials had been turned over and also that DOL's retention policy only requires that applicant materials, including the above requested vacancy announcements, are saved for two years. Defs. Opp., Exhibit 4 at pages 32-33. Defendant also stated that, in fact, the agency did not have any such materials dated earlier than 2001. Id. at 33. In addition, in its Responses to Plaintiff's Document Requests, the agency indicated that all documents pertaining to this request have already been provided. Defs. Opp., Exhibit 5 at page 8.
Plaintiff, however, believes that he is somehow entitled to track the employment history of everyone who submitted an application during the 1997 Job Fair and ultimately got a job with the DOL even if it was well after the Job Fair. As will now be explained at some length, Judge Huvelle considered that demand and narrowly limited the information that DOL had to give him as to these people. It suffices to say here that he has everything there is about the 1997 Job Fair and is certainly not entitled to anything more about the employment history of the other persons at the Job Fair than the limited information Judge Huvelle ordered.
VII. National Personnel Records Center ("NPRC") Subpoena: Information Regarding DOL/BLS Employees Hired Between 7/6/97 and 2/28/99
To understand this request, some history is in order.
Plaintiff complains that he was not hired and that a woman named Patricia Ryle was. The hiring took place after a DOL Job Fair and plaintiff contains that people who came to the job fair later were selected for positions in the DOL Bureau of Labor Statistics. Plaintiff complied a list of persons who he claims were hired in the period from 7/6/97 to 2/28/99. Plaintiff concedes that he did not apply for those positions but convinced Judge Huvelle that he was entitled to discovery concerning the people in the list although he never applied for the positions and never even filed an administrative grievance.
The absence of an administrative grievance is significant. If a grievance is filed within the required deadline, the agency is on notice that its selection of a particular person has been challenged and it is well advised, or perhaps, legally obligated by its own regulations, to preserve the records pertaining to that selection. If, on other hand, there is no challenge, there is no reason to keep the documents pertaining to the selection. Why would one bother to keep a vacancy announcement, the notes taken by the persons on the rating panel, or their scores for each applicant once it is clear that no one has challenged the selection? It is therefore understandable that, as DOL tells us, it does not keep such records for more than two years. This means, of course, that unlike an employee's official personnel file, these records are never retired to the National Personnel Records Center.
In October of 2003, Judge Huvelle, despite her misgivings about plaintiff's right to get the information, ordered DOL to produce "all employment applications and related materials in its custody" for the first thirty persons on plaintiff's list of 48 persons hired at the GS-9 level after the 1997 job fair. Order of October 31, 2003. In accordance with this Order, DOL produced job applications for five people on this list. When plaintiff complained that the five job applications did not include the applicants' names or signatures, DOL apparently realized that the names of the five employment applications had been redacted. DOL then provided plaintiff with copies of the unredacted applications. Defs. Opp. at 7 n. 3. DOL then discovered that there were more people on the list and gave plaintiff copies of the applications of twelve persons on the list who had been hired after the job fair. Id.
In the meanwhile, plaintiff sent a subpoena, not signed by a judge, to the National Personnel Records Center in St. Louis, Missouri. Since the subpoena was not signed by a judge and the records sought by the subpoena were covered by the Privacy Act, the Records Center advised plaintiff that the unsigned subpoena did not qualify as an order of a court and that he would have to secure such an order. Defs. Opp., Exhibit 11 at ¶ 11.
At a subsequent hearing convened on April 30, 2004 to consider plaintiff's complaints about DOL's alleged failures to comply with the October order, Judge Huvelle modified her October order to require DOL to produce "all application-related information in NPRC's possession regarding the 48 people identified on the list entitled `Employees Hired by the Bureau of Labor Statistics Between 7/6/97 and 2/28/1999.'" Order of May 3, 2004 at 1.
On June 11, 2004 the NPRC responded to the Order and sent what it had to plaintiff. Defs. Opp. at 8. In his declaration, Mr. Pellegrini addressed the subpoena's demand for job selection information, including "Vacancy Announcements, Request for Referral of Eligibles, Certificate of Eligibles, applicant's rating documents, Job Applications, Standard Form 50, Standard Form 52 . . . interview sheets, correspondence" as to the persons on plaintiff's list:
OPFs may contain job application information such as applications and attachments thereto; related appointment documentation; benefit, insurance, or award information; Standard Forms SF 50 and 52. However, OPFs do not contain vacancy announcements, Eligibles list, interview, or similar material because those documents do not relate to a particular individual.
I.e. Official Personnel Files.
Defs. Opp., Exhibit 11, ¶ 8.
This history makes clear that he DOL gave everything it had in compliance with the October, 2003 order requiring DOL to produce "all employment applications and related materials" in its custody for the first thirty persons on plaintiff's list. He has received all the information DOL has pertaining to 17 of the 48 people on the list. DOL has then explained that it does not have anything else because it does not keep what Judge Huvelle called "employment applications and related materials" for more than two years and, as we know from Mr. Pellegrini's declaration, DOL does not send those materials to NPRC because they do not relate to a particular individual.
It is equally clear that NPRC has complied with Judge Huvelle's second order, requiring it to produce "all application-related information" regarding the 48 people on plaintiff's list. NPRC has given him everything it has and has explained why it does not have anything more, i.e. application related information other than what is in an individual OPF file is not sent to NPRC in the first place. Hence, we now know that plaintiff has everything DOL or NPRC had that Judge Huvelle ordered them to produce. Astonishingly, plaintiff nevertheless moves to compel additional information in no less than three separate requests relating to the 48 people on his list.
First (Request #7), plaintiff seeks "[c]omplete job application and related material — including Vacancy Announcements, Request for Referral of Eligibles, Certificate of Eligibles, applicant's rating documents, Job Applications, Standard Form 50, Standard Form 52, and other information) [stet], interview sheets, correspondence, for the following job applicants hired by the Department of Labor/Bureau of Labor Statistics between 7/6/1997 and 2/28/1999 — for the following individuals who have been identified as currently employed with the Agency." Mot. to Compel at 16. Plaintiff then lists seventeen individuals and provides the vacancy announcement and the date of application.
In alphabetical order, the applicants are as follows: 1) Allard, Mary D., 2) Blee, Andrew Robert, 3) Elmore, Daniel James, 4) Kinoshita, Randal M., 5) McCarthy, Michael John, 6) McIllece, Sean Patrick, 7) Martin, Gary D., 8) Moore, David K., 9) Novakovic, Mirko, 10) Preston, Michael E., 11) Prines, Steven Carl, 12) Reed, Stephen K., 13) Russell, Matthew R., 14) Seagrave, Carl A., 15) Schwartz, Melissa E., 16) Torres Jr., Victor, and 17) Winslow, Eric M.
Second (Request #8), plaintiff seeks "[a]ll job selection and employment related information (other than job application material provided by the defendant on June 11, 2004 pursuant to Court Order dated May 3, 2004 pertaining to the National Public Record Center), including Vacancy Announcements, Request for Referral of Eligibles, Certificate of Eligibles, applicant's rating documents, Job Applications, Standard Form 50, Standard Form 52, and other information), interview sheets, correspondence, for the following job applicants hired by the Department of Labor/Bureau of Labor Statistics between 7/6/1997 and 2/28/1999." Mot. to Compel at 18. Plaintiff then lists thirteen individuals and provides the vacancy announcement and the dates of their applications.
In alphabetical order, the applicants are as follows: 1) Baroco, Polyanna, 2) Bradford III, Robert L., 3) Brenner, Robert E., 4) Calahan, Lynn Marie, 5) Chang, Helen H., 6) Giddings, Lisa A., 7) Halsey, Nathanial H., 8) Jensen, Michelle H., 9) McCarty III, Charles Joseph, 10) Reynolds, Taylor, 11) Ryle, Patricia, 12) Skuta, Douglas A., and 13) Vannett, Valerie A.
Third (Request #9), plaintiff seeks "[a]ll job selection and employment related information for remaining seventeen of the forty-eight candidates for whom the information was requested by the plaintiff, including Vacancy Announcements, Request for Referral of Eligibles, Certificate of Eligibles, applicant's rating documents, Job Applications, Standard Form 50, Standard Form 52, and other information), interview sheets, correspondence, for the following job applicants hired by the Department of Labor/Bureau of Labor Statistics between 7/6/1997 and 2/28/1999." Mot. to Compel at 19.
In alphabetical order, the applicants are as follows: 1) Clarke, Cynthia M., 2) Cox, Cherron A., 3) Giles, Frederick H., 4) Hayes, Victor, 5) Jack, Timothy B., 6) Joseph, Franklin D., 7) Kim, Hyung J., 8) Kirk, Michael C., 9) Kyn, Christine Jeahae, 10) Leino, Daniel Alan, 11) Logothetti, Theodore C., 12) Lynn, Robert J., 13) McCathen, Chelson R., 14) Martinez, Eduardo J., 15) Miller, Teresa M., 16) Troia, Rosaria, and 17) Williams II, Daniel R.
In the immortal words of Ronald Reagan, "there you go again." Plaintiff is again demanding that the court compel the information that he has been told does not exist. Indeed, in a second request he demanded that he be given even more than what he was given on June 11, 2004, in the teeth of being told that what he was given was all DOL and NPRC had. He therefore seeks to compel what he has been told does not exist. As I have grown hoarse explaining, a judge cannot do that anymore than he can make a donkey fly.
Furthermore, it is obvious that what I have called plaintiff's request in his Motion to Compel is a duplication of his initial Request to Produce Documents or Interrogatories. His doing so ignores that Judge Huvelle never granted his motion to compel DOL to answer his discovery as he drafted it. Judge Huvelle denied that request and, by granting his applications to compel in part, only required DOL and NPRC to give him the information she specified in her two orders. Thus, the only question presented is whether DOL and NPRC have complied with those orders. It is unequivocally clear that they have. There is nothing left to compel, no matter how deficient plaintiff complains the production was in terms of either the documents produced or the number of people for whom DOL and NPRC have information.
VIII. Agency Designee
In this request (Request # 10), plaintiff seeks "[t]he agency official or officials responding to the plaintiff's First Set of Interrogatories numbered 6, 8, 9, 14, 18, 20, 21, 24 and 25." Mot. to Compel at 21.
At the status conference held before Judge Huvelle on October 21, 2003, Judge Huvelle explained to plaintiff that defendant is not obliged to provide this information: "[I]nterrogatories are not required to be individually verified . . . The person who signs off on the interrogatory signs off for the whole set of interrogatories." Defs. Opp., Exhibit 4 at page 9.
There is, however, one loose end. DOL objected to plaintiff's taking the depositon of David Pena on the grounds that Pena is counsel in this case and the deposition is barred by the attorney-client privilege. Plaintiff's Motion to Compel at page 14 can be liberally construed as an application that Pena be compelled to give the deposition despite the claim of privilege. I cannot rule on that application, however, because discovery has ended and Judge Huvelle has ordered that there will no further extensions of the discovery deadline. Hence, if plaintiff still wants to take Pena's depostion, he will have to seek leave to do so from Judge Huvelle.
CONCLUSION
Nemo dat quod not habeat. As Judge Huvelle has often noted, and as I have emphasized, the court cannot compel defendant to turn over what it does not have. In addition, defendant has in good faith complied with the court's orders and is well aware of its continuing obligation to supplement the record if additional responsive materials are discovered. Neither the court nor the plaintiff can ask for more.
An Order accompanies this Memorandum Opinion.