Opinion
03 Civ. 1606 (LAK)(HBP).
May 24, 2007
OPINION AND ORDER
By motion dated May 8, 2007, plaintiff moves to compel the following categories of documents that she claims Safe Horizon has improperly failed to produce: (1) monthly and quarterly reports of plaintiff's work; (2) handwritten documents by Carol Weinman that appear to be notes of meetings between plaintiff and Weinman concerning plaintiff's performance; (3) notes generated between Weinman and her supervisors concerning Weinman's relationship with plaintiff; (4) any complaints and/or communications plaintiff had filed with Safe Horizon concerning Weinman's allegedly discriminatory treatment of plaintiff; (5) warnings issued to plaintiff during her employment at Safe Horizon; (6) job descriptions for the position of case manager; and (7) affidavits or sworn statements of certain Safe Horizon employees with respect to plaintiff's allegations of discrimination.
Defendants claim that these documents have either been produced or do not exist (Letter of Michael H. Williams, Esq. to my Chambers dated May 22, 2007 ("Williams Ltr."); Defendants' Response to Plaintiff's First Request for the Production of Documents dated August 4, 2004; Letters of Darryl Gibbs, Esq. to Patricia Okoumou dated December 1, 2004 and December 13, 2004). As I explained to plaintiff at a conference held in April 2007, it is often the case during litigation that one party believes her adversary is withholding documents. I cannot, however, issue a discovery order solely on the basis of one party's subjective belief. With one exception, plaintiff has still not provided anything more than her subjective belief that defendants are withholding probative, non-privileged evidence.
Plaintiff has submitted an e-mail written by Weinman to Frederika Robinson dated February 19, 2002 in which Weinman mentions a "revised memo" that plaintiff claims related to her termination (Okoumou's Motion to Compel Production, dated May 8, 2007 ("Mtn. to Compel"), Ex. 23a). Plaintiff also submits an e-mail from Ms. Robinson to Weinman dated May 22, 2002 that plaintiff claims relates to this "revised memo" (Mtn. to Compel, Ex. 42).
Defendants have responded that they have searched their records and electronic files and have produced all responsive documents (see Williams Ltr.). However, given the lack of specificity of defendants' response, no later than June 8, 2007, defendants are to either produce the "revised memo" allegedly written by Weinman, or to submit an affidavit detailing the efforts made to locate the "revised memo."
Plaintiff also seeks discovery of a computer that was once the property of Safe Horizon, but is now apparently in her possession (Mtn. to Compel, at 16). Plaintiff claims that the files in the computer would establish that the now obsolete e-mail system used by Safe Horizon ("Lotus ccmail") was discontinued before plaintiff was hired (Mtn. to Compel, at 17). According to plaintiff, this would refute defendants' contention that there may be responsive e-mails on that system that they cannot access (Mtn. to Compel, at 17). Since plaintiff herself appears to have possession of the computer, it is unclear what relief she is seeking. Furthermore, even if plaintiff is correct that Safe Horizon ceased to use the Lotus ccmail system before it hired plaintiff, it does not necessarily follow that defendants have failed to produce all relevant, non-privileged e-mails.
Plaintiff also alleges that Kirsa Phillips, Esq., counsel for Metropolitan College of New York ("MCNY"), suborned Emmanuel Tetteh, one of plaintiff's former professors at MCNY, to commit perjury at Tetteh's deposition on April 19, 2004. Plaintiff requests the Court to: (1) conduct an investigation of Phillips' e-mail correspondences with Safe Horizon and Tetteh; and (2) make a finding that MCNY has waived its attorney-client communications due to the alleged perjurious conduct of Phillips and Tetteh (Okoumou's Motion to Investigate Phillips and Tetteh's Alleged Perjurious Conduct, dated May 8, 2007 ("Mtn. to Investigate"), ¶ 12). According to plaintiff, Phillips' contact with Safe Horizon and her conduct during Tetteh's deposition are sufficiently improper to warrant an investigation of Phillips (Mtn. to Investigate, ¶ 12). Plaintiff does not offer any evidence to support the allegation that Phillips communicated with Safe Horizon; furthermore, plaintiff does not explain why such communication would be improper. I have already addressed the issue of Phillips' conduct during Tetteh's deposition in resolving plaintiff's motion for sanctions against Phillips, in which plaintiff alleged that Phillips and Safe Horizon coerced Tetteh into committing perjury at his deposition (Motion Requesting Sanctions, dated June 15, 2004 (Docket Item 16), at 3). I denied this motion by Order dated September 17, 2004 (Docket Item 32), and plaintiff offers no reason to revisit the issues resolved in that Order.
The only evidence that plaintiff offers to support her allegations of Tetteh's perjury is the fact that Tetteh gave testimony damaging to plaintiff's case and that Tetteh claimed he had a poor recollection concerning certain events (Mtn. to Investigate, ¶¶ 3, 8). Plaintiff argues that Phillips must have persuaded Tetteh to lie during his deposition by virtue of the fact that plaintiff would not have chosen to depose Tetteh if she had known he was going to give testimony that damaged her case (Mtn. to Investigate, ¶ 1). The fact that testimony is damaging or that a witness does not recall certain facts is simply not evidence of perjury, notwithstanding the expectations of the party calling the witness. Similarly, plaintiff's allegation that Safe Horizon knew of Phillips' alleged perjury is completely unfounded. Accordingly, I deny plaintiff's request for the Court to conduct a sua sponte investigation of Phillips' correspondence with Tetteh and Safe Horizon, or to make a finding that MCNY has waived its attorney-client communications.
Accordingly, plaintiff's motion is granted to the extent that, no later than June 8, 2007, defendants are to either produce the "revised memo" allegedly written by Weinman, or to submit an affidavit detailing the efforts made to locate the "revised memo." Plaintiff's motion is denied in all other respects.