Opinion
Case No. 99-2182-JWL.
December 1, 2000.
MEMORANDUM AND ORDER
Plaintiffs, several minority-owned businesses, allege that defendant intentionally denied plaintiffs on the basis of race subcontracting opportunities in connection with defendant's various projects. In that regard, plaintiffs allege that defendant interfered with plaintiffs' civil rights in violation of 42 U.S.C. § 1981 and 2000d. This matter is presently before the court on several motions — defendant's motion to strike portions of plaintiffs' amendment to the pretrial order and defendant's motion to amend its portion of the pretrial order (doc. #202); plaintiffs' motion to compel discovery (doc. #214); and plaintiffs' motion to reconsider (doc. #216). As set forth in more detail below, defendant's motion to strike portions of plaintiffs' amendment to the pretrial order is granted in part and denied in part; defendant's motion to amend its portion of the pretrial order is granted; plaintiffs' motion to compel discovery is denied; and plaintiffs' motion to reconsider is denied.
• Motion to Reconsider
The court first addresses plaintiffs' motion to reconsider, as the motion raises several issues that bear on the court's resolution of plaintiffs' motion to compel and defendant's motion to strike. In their motion to reconsider, plaintiffs request the court to reconsider its decision to limit the discovery of certain plaintiffs to contracts in those plaintiffs' particular geographic areas; to reconsider its conclusion that plaintiffs have not asserted a disparate impact theory of discrimination; and to permit plaintiffs to discover certain statistics and other information concerning defendant's utilization of African-American contractors. For the reasons set forth in detail below, the court reaffirms its decisions on each of these issues.
Procedural Considerations
As an initial matter, defendant urges the court to deny plaintiffs' motion to reconsider as untimely. As defendant highlights, Local Rule 7.3(b) requires that any motion to reconsider be filed within ten days after the particular order at issue. In their motion, plaintiffs fail to identify any specific order or ruling that they wish the court to reconsider. The last day, however, on which the court made any rulings concerning the issues raised in plaintiffs' motion to reconsider was September 12, 2000 — the day of the final pretrial conference. Plaintiffs' motion to reconsider was filed on November 1, 2000. Clearly, then, plaintiffs' motion is untimely and the court would be justified in summarily denying plaintiffs' motion on this basis. See D. Kan. R. 7.3(b).
For whatever reason, plaintiffs have failed to file a reply to defendant's response to plaintiffs' motion to reconsider. Thus, the court does not have the benefit of plaintiffs' arguments, if any, on the untimeliness issue.
Nonetheless, the court deems it appropriate, in this particular case, to address the merits of plaintiffs' motion and to reconsider carefully the issues raised by plaintiffs in their motion. The court believes it is appropriate to review the merits of plaintiffs' motion for two reasons. First, the allegations contained in plaintiffs' amended complaint are particularly egregious. Plaintiffs allege invidious racial discrimination by defendant on a nationwide basis in connection with contracting opportunities and that defendant has a company-wide policy of refusing to employ African-American contractors. Plaintiffs maintain that an "anti-African-American" culture exists within the ranks of defendant's management and that defendant falsifies its records concerning diversity programming. To the extent, then, that plaintiffs can support these allegations, it would be a grave injustice to bar plaintiffs from obtaining relevant and meaningful discovery on the basis of a technicality — the untimeliness of their motion. See D. Kan. R. 7.3(b)(3) (reconsideration is appropriate to correct clear error or prevent manifest injustice). Second, because of the seriousness and the subject matter of the allegations in this case, the court is more than willing to accept this opportunity to reexamine with particular caution some of the decisions this court has made in terms of discovery. In short, despite the untimeliness of plaintiffs' motion, the court, in these limited circumstances, will address the merits of the motion.
Geographic Restriction on Discovery
The first issue on which plaintiffs seek reconsideration is the court's decision to limit the discovery of certain plaintiffs to contracts in those plaintiffs' particular geographic areas. As an initial matter, plaintiffs have grossly mischaracterized the court's rulings with respect to the geographic scope of discovery. According to plaintiffs, this court "has ruled that plaintiffs' damages and discovery should be restricted to the respective geographical areas where the plaintiffs lived." The court has done nothing of the kind. In fact, with respect to plaintiffs PAS, Riteway and Reliable, the court has ordered defendant to produce "all documents (including information concerning the successful bidders and other bidders) regarding the specific contracting opportunities for which PAS, Riteway and Reliable applied or in which those plaintiffs expressed an interest." See Order of July 28, 2000. In other words, defendant was required to produce all documents relating to contracts for which PAS, Riteway and Reliable had applied or in which they had expressed an interest regardless of the geographic location of the project.
Plaintiffs suggest in their papers that defendant has not complied with this order in that defendant has only produced documents relating to contracts for janitorial work. Of course, to the extent PAS, Reliable and Riteway are qualified to do other kinds of contracting projects, and to the extent any of those three plaintiffs applied for or expressed an interest in a specific opportunity for which they were nominally qualified, then defendant should have produced documents related to those opportunities.
This ruling did not apply to plaintiffs K.E. Johnson, 1A Rob and Quality Transfer simply because those plaintiffs were unable to identify any specific contracts for which they had applied or in which they had expressed an interest. In fact, those plaintiffs have conceded that they did not apply for or express an interest in any specific contracts with defendant. Rather, these plaintiffs allege only that in 1997 they sent a letter to defendant and/or had conversations with one of defendant's representatives in which they expressed a general interest in any and all contracting opportunities with defendant, regardless of location, in their respective fields of expertise. In the absence of a more particularized showing, including that defendant had reason to understand the qualifications of plaintiffs, it appeared to this court that contracting opportunities in the areas the plaintiffs operated was a reasonable scope for discovery. With respect to these three plaintiffs, then, the court ordered defendant to produce "all documents regarding any contracting opportunities in the Des Moines, Iowa and/or Omaha, Nebraska area for which plaintiffs K.E. Johnson, 1A Rob and Quality Transfer would have been qualified ( i.e ., contracting opportunities in the particular `technical' field in which plaintiffs worked)." See id . In fact, the court has some doubts about whether these plaintiffs have stated a viable claim of discrimination. Plaintiffs have never directly addressed the legal support for the theory underlying their action, leaving the court to search for answers on its own. To the extent that defendant utilizes a structured bidding process, case law in an analogous context would suggest that plaintiffs have embarked, to say the least, on an uphill battle.
See, e.g., Dews v. A.B. Dick Co . , ___ F.3d ___, 2000 WL 1673657, at *5-6 (6th Cir. Nov. 8, 2000) (company is held to a duty to consider all those who might reasonably be interested in promotion only where defendant fails to advertise the promotion through regular channels and does not provide a formal mechanism for expressing interest in the promotion); Kehoe v. Anheuser-Busch, Inc ., 96 F.3d 1095, 1105 n. 13 (8th Cir. 1996) (plaintiff is excused from application requirement only where plaintiff demonstrates that the employer "had some reason or duty to consider him for the position"); Jones v. Unisys Corp ., 54 F.3d 624, 631 n. 8 (10th Cir. 1995) (prohibiting plaintiffs from challenging as discriminatory the decision to fill positions they did not seek); Whalen v. Unit Rig, Inc ., 974 F.2d 1248, 1251 (10th Cir. 1992) (employment discrimination law requires that where formal hiring procedures are used, the employer must be on "specific notice" that the plaintiff seeks employment).
In short, these cases clearly suggest that plaintiffs, in order to prove their claims in the absence of evidence that they actually applied for particular contracts, must demonstrate that the defendant had a duty to consider them for all contracts for which they were qualified. While plaintiffs apparently believe that defendant in this case had a duty to contact them in connection with contract opportunities, plaintiffs have offered no support for their theory that sending a general letter of interest to defendant or having a general conversation with one of defendant's representatives in 1997 is sufficient to impose upon defendant a duty to contact plaintiffs concerning every contractual opportunity across the country that arises for which plaintiffs believe themselves to be qualified. The limited case law that the court has uncovered suggests that the opposite is true. See, e.g . , Fowle v. CC Cola , 868 F.2d 59,67-68 (3rd Cir. 1989) (Plaintiff failed to adduce material in the record sufficient to show that the defendants had any reason or duty to consider him for two open positions where plaintiffs "had not been in touch with those responsible for hiring at [defendants] about possible openings in over seven months."). Thus, in light of the fact that plaintiffs thus far have not presented the court with any authority which helps it understand the legal basis of their claim of entitlement, the court remains unwilling to permit these plaintiffs to obtain information regarding every contract across the country that they may have been qualified for simply because these plaintiffs sent a letter to defendant or had conversations with one of defendant's representatives in 1997 expressing a general interest in all contracts. The probative value of permitting such extensive, company-wide discovery in the absence of more of a showing by plaintiffs is greatly outweighed by the incredible burden on defendant of gathering and producing such information.
Plaintiffs also maintain that the court's ruling "limiting damages to the respective geographical areas" creates a conflict in the Tenth Circuit. As plaintiffs have repeatedly pointed out to the court, several of the particular plaintiffs here filed a similar suit against U.S. West in the United States District Court for the District of Colorado. That case, captioned RMES Communications, Inc. v. U.S. West , Civil Action No. 96-D-1331, was assigned to United States District Judge Wiley Daniel. According to plaintiffs, Judge Daniel did not find that the plaintiffs' damages in that case were limited to their "home states." Of course, this court has also not ruled that plaintiffs' damages are so limited. Rather, this court has simply limited discovery to information pertaining to the specific contracts for which plaintiffs applied or in which they expressed an interest, regardless of those projects were in Kansas, Missouri, California, Florida, or anywhere else. When three of the plaintiffs conceded that they had never applied for a specific contracting opportunity with defendant, the court permitted those plaintiffs to obtain information about the contracting opportunities for which they were qualified in their respective localities. Moreover, this ruling appears to be in accord with Judge Daniel's rulings in the U.S. West case. In that regard, the court has reviewed a transcript of a discovery motion hearing and status conference held by Judge Daniel and referenced by the plaintiffs in their papers. That transcript clearly indicates that Judge Daniel permitted plaintiffs to obtain discovery with respect to contracts for which plaintiffs had specifically applied and contracts that had been awarded to plaintiffs but were later terminated. In short, plaintiffs have failed to show the court any transcript or ruling from the U.S. West case indicating that Judge Daniel permitted nationwide discovery regarding contracts for which the plaintiffs had never submitted a bid and in which the plaintiffs had never even expressed an interest.
Plaintiffs' characterization of the court's ruling is simply inaccurate.
In fact, the documents at issue during the hearing that the plaintiffs reference were "directly related" to a particular plaintiff's performance in connection with a contract that they had been awarded by U.S. West.
For the foregoing reasons, the court reaffirms its rulings that plaintiffs are simply not entitled to discover information concerning all contracts, nationwide, for which they were allegedly qualified. Plaintiffs' motion to reconsider is denied with respect to this issue.
Disparate Impact Plaintiffs next challenge this court's "erroneous conclusion" that this case is not a disparate impact case. By way of background, the court's first opportunity to observe that plaintiffs had not alleged a disparate impact theory of discrimination occurred in the discovery context. Specifically, this observation was made in connection with the court's July 14, 2000 ruling on a motion to compel discovery filed by plaintiffs. In that motion, plaintiffs sought company-wide discovery on a variety of issues and broad statistical information concerning defendant's minority business enterprise (MBE) program. The court concluded that plaintiffs were not entitled to company-wide discovery or broad statistical information in the absence of any evidence of company-wide discriminatory policies or practices. See Memorandum Order of July 14, 2000 at 13-15. In reaching this decision, the court noted that the probative value of the expansive statistical information sought by plaintiffs was considerably less than the value that such information might have in a disparate impact case. See id . at 15-16 (citing Bullington v. United Air Lines, Inc ., 186 F.3d 1301, 1319 (10th Cir. 1999)). Nonetheless, the court gave plaintiffs an opportunity to present evidence supporting their allegations of company-wide discrimination and permitted plaintiffs to provide "supplemental briefing describing how the evidence presented demonstrates the particular need for and relevance of plaintiffs' discovery requests." See id . at 15.
On July 26, 2000, plaintiffs presented the court with their evidence of company-wide discrimination and a memorandum in support of plaintiffs' request to pursue company-wide discovery, including extensive statistical data. In their memorandum, plaintiffs, for the first time since the filing of their initial complaint in April 1999, maintained that they in fact were alleging a disparate impact theory of discrimination in addition to a disparate treatment theory of discrimination. Plaintiffs' renewed request for company-wide statistical data was based in large part on their contention that they had asserted a disparate impact theory. On July 28, 2000, the court held a motion hearing and status conference during which the court, inter alia , addressed plaintiffs' purported evidence of company-wide discrimination and plaintiffs' request for company-wide discovery and expansive statistical data. Prior to this hearing, the court carefully reviewed plaintiffs' amended complaint for any allegations suggesting a disparate impact theory. It found none. Believing that plaintiffs were somewhat confused about the nature of the disparate impact theory, the court reiterated its position that plaintiffs had not alleged a disparate impact theory of discrimination and explained in some detail to plaintiffs the court's understanding of the distinction between a disparate impact theory of discrimination and a disparate treatment theory of discrimination. See Transcript of July 28, 2000 hearing at 5-7 (citing Hazen Paper Co. v. Biggins , 507 U.S. 604, 609 (1993) (explaining distinction between disparate treatment and disparate impact theories of discrimination); Wards Cove Packing Co. v. Atonio , 490 U.S. 642, 645-46 (1989) (disparate impact theory challenges practices that are "fair in form but discriminatory in practice" and does not require showing of intent); Bullington v. United Air Lines, Inc ., 186 F.3d 1301, 1319 (10th Cir. 1999) (explaining why statistical evidence is considerably less probative in a disparate treatment case than in a disparate impact case)). Ultimately, while the court ordered defendant to produce additional information (as set forth above in connection with the court's discussion of the alleged geographical restriction on discovery and damages), the court denied plaintiffs' requests for company-wide statistical data.
Finally, the court addressed this issue at the final pretrial conference on September 12, 2000. There, counsel for defendant objected to a particular paragraph in plaintiffs' portion of the pretrial order which states:
In plaintiffs' view, there are several ways to prove racial discrimination in a case of this type: racial animus; disparate impact; deliberate indifference; deviation from applicable standards. All are present in this case.See Final Pretrial Order at 4. Counsel for defendant objected to this paragraph to the extent plaintiffs were attempting to assert a disparate impact theory of discrimination. Although the court permitted plaintiffs to keep the language in their portion of the pretrial order, it again reiterated that "there is no allegation that's been made in this case that is, in my opinion, an appropriately pled or pursued disparate impact theory." The court continued:
So the record should be clear. And I've said this before and I'll say it again. There is no disparate impact theory pled in this case, because the plaintiffs have never alleged that Sprint had a policy that could not — that somehow disparately impacted African Americans because of whatever the inherent nature of their businesses might happen to have been. This is not a disparate impact case. . . . To utilize the term disparate impact to refer to this case would be wrong, because that's not a theory that's been articulated, nor have there been any facts alleged that would support a disparate impact theory in this case. So that is clear here that that's the case.See Transcript of Final Pretrial Conference at 45-46.
Now, more than seven weeks after the final pretrial conference, plaintiffs ask the court to "reconsider" its position that this is not a disparate impact case. In support of their motion, plaintiffs contend that they have pled in their amended complaint both disparate treatment and disparate impact theories of discrimination. Specifically, plaintiffs direct the court to paragraphs 23 and 25 of their amended complaint. The court has reviewed these paragraphs and the entirety of plaintiffs' amended complaint time and again. There is no allegation suggesting that defendant maintains a facially neutral policy that, in practice, falls more harshly on African Americans. Paragraph 23 of plaintiffs' amended complaint contains numerous allegations — none of which even remotely suggests a theory based on disparate impact. For example, in paragraph 23, plaintiffs allege that defendant's procurement personnel "routinely enter into contracts with preferred vendors" and that such personnel "have made it clear to plaintiffs that Sprint has no intention of doing business with African American businesses." Plaintiffs also allege in paragraph 23 that defendant's mid-level managers have "used racial epithets against African American vendors . . . and against those fellow Sprint employees who have attempted to assist African American vendors." Finally, paragraph 23 contains allegations that defendant knowingly fails to enforce its diversity plan; that defendant's "pattern and practice is to falsify records related to diversity;" and that defendant "repeatedly promised [plaintiffs] meaningful contract opportunities," but that none of those opportunities have materialized. Paragraph 25 of plaintiffs' amended complaint states in its entirety as follows:
Sprint is engaging in deliberate intentional discrimination against plaintiffs who are being denied contract opportunities by race. Such opportunities as should be available to plaintiffs equally are being made available to majority owned companies without legitimate business reasons. Sprint is involved in enormous contracts in geographical areas in close or reasonable proximity to each plaintiff. Plaintiffs are fully capable of performing large, profitable contracts from Sprint, and the only reason that they are not being awarded them is out of racial animus and deliberate discrimination. Indeed, plaintiffs are not [only] being awarded contracts out of racial animus, they are also being denied knowledge of contracts and bid opportunities out of racial animus.
In short, none of the allegations in plaintiffs' amended complaint, including the allegations in paragraphs 23 and 25, suggest that defendant maintained a facially neutral policy that had an adverse impact on African-Americans. The entirety of plaintiffs' amended complaint alleges intentional, deliberate discrimination based on racial animus. This case is clearly based only on a disparate treatment theory of discrimination.Plaintiffs' only other argument with respect to the disparate impact issue is that they need more discovery to determine whether they in fact have a disparate impact claim. This is the first time that plaintiffs have raised this point. It is too late to do so — discovery has closed and the final pretrial order has been entered. Plaintiffs also misconstrue the nature and purpose of the discovery process. Clearly, plaintiffs have no evidence of a specific policy maintained by defendant that is facially neutral but operates to the disadvantage of African-Americans. Without in fact knowing of any such policy, plaintiffs would have the court permit them to engage in massive, expansive discovery in the hopes of finding such a policy. The court will not permit plaintiffs to engage in this attempted fishing expedition. See Koch v. Koch Indus., Inc ., 203 F.3d 1202, 1238 (10th Cir. 2000).
In sum, the court reaffirms its conclusion that plaintiffs have failed to plead a disparate impact theory of discrimination and that plaintiffs have failed to set forth any facts that would support a disparate impact theory of discrimination.
Defendant's Utilization Statistics, the Zimmer Report and Ad Hoc Guidelines
Finally, plaintiffs contend that they are entitled to receive defendant's utilization statistics reflecting the participation of African-Americans in defendant's procurement program; to discover what role Zimmer Management Company (an entity that contracted with defendant to provide certain services regarding the design and construction of defendant's campus) played in the formulation and/or enforcement of defendant's diversity policies at its campus project; and to obtain any guidelines used by an Ad Hoc Committee established by defendant in determining which minority firms would be considered for procurement opportunities at the campus. According to plaintiffs, this information is "crucial" not only for purposes of determining whether this case is a disparate impact case but also for purposes of establishing a "pattern and practice" of discrimination under the disparate treatment theory.
Defendant's campus facility is the site of defendant's world headquarters.
As an initial matter, to the extent any of the evidence referenced by plaintiffs is "crucial" in determining whether plaintiffs have a disparate impact claim, the motion is denied for the reasons set forth above in connection with the court's discussion of the disparate impact theory. The court turns, then, to the issue of plaintiffs' entitlement to company-wide statistical data. To put plaintiffs' argument that they were improperly denied discovery into perspective, it is necessary to examine the particular claims advanced by plaintiffs in their amended complaint. First, plaintiffs allege that they were subjected to individual disparate treatment; that is, that defendant intentionally discriminated against each particular plaintiff with respect to contracting opportunities. Second, plaintiffs allege that defendant's disparate treatment of plaintiffs is part of a "pattern and practice" of general discriminatory treatment toward all African-American contractors. A pattern and practice claim, unlike an individual disparate treatment claim, requires proof of more "than the mere occurrence of isolated or `accidental' or sporadic discriminatory acts." See International Bhd. of Teamsters v. United States , 431 U.S. 324, 336 (1977). Rather, plaintiffs alleging a pattern and practice of discrimination must "establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure — the regular rather than the unusual practice." Id . Most often, plaintiffs establish such a case by statistics, bolstered by anecdotal evidence of specific instances of discrimination. See id . at 339; accord Pitre v. Western Elec. Co . , 843 F.2d 1262, 1267 (10th Cir. 1983) (statistics may be useful to establish a pattern and practice of discrimination).
As set forth above, however, only three of the plaintiffs can identify specific contracting opportunities for which they applied. The other three plaintiffs concede that they never applied for or expressed an interest in any specific contracting opportunities.
In their papers, plaintiffs contend that the statistical data they seek is relevant and, indeed, vital to plaintiffs' ability to establish a pattern and practice of discrimination. See Plaintiffs' Brief at 10 ("Not only are such statistics relevant, they often are dispositive in a pattern and practice case. . . . [The discovery sought] can establish a pattern and practice of discrimination under the case law cited above. . . ."). Stated another way, plaintiffs maintain that the court's limitation of discovery has thwarted their efforts to establish that defendant has engaged in a pattern and practice of discrimination. The specific question here, then, is whether the restrictions placed on discovery ( i.e . , precluding plaintiffs from obtaining broad statistical data) have prevented plaintiffs from gathering evidence to show that racial discrimination was defendant's "standard operating procedure." Although this issue has not yet been addressed by the Tenth Circuit, the Fourth Circuit has addressed it in some detail. See Ardrey v. United Parcel Serv ., 798 F.2d 679, 684 (4th Cir. 1986) ("The question here presented is whether the restrictions placed on discovery by the individual claimants prevented them from gathering evidence to show that there was such a `general discriminatory practice' on the part of UPS.").
Although plaintiffs have requested the guidelines used by defendant's ad hoc committee, they make no mention of these guidelines in the body of their motion or memorandum in support in terms of why they need those guidelines, what they expect those guidelines to reveal, or how those guidelines would be relevant to their claims. Rather, plaintiffs' argument in the body of their papers is focused solely on statistical data and the Zimmer Management Company. Moreover, with respect to Zimmer, plaintiffs state only that the "Zimmer report reflecting procurement at the campus by minorities including African-Americans . . . can establish a pattern and practice of discrimination." See Plaintiffs' Brief at 10. It is undisputed, however, that plaintiffs have already obtained a copy of the so-called Zimmer report. In fact, they have attached a copy to their motion.
In Ardrey , the plaintiffs were employed by the West Carolina district of United Parcel Service — a district encompassing the western part of North Carolina and all of South Carolina. See id . at 679. Like plaintiffs here, the plaintiffs in Ardrey advanced two theories of employment discrimination. See id . at 679-80. The first theory was that they were subjected to individual disparate treatment on the basis of their race in connection with promotions, transfers, suspensions, discipline and termination decisions. See id . at 679. As the Fourth Circuit noted, those individual disparate treatment claims required a determination of whether the individual plaintiffs were victims of intentional racial discrimination. See id . at 683. The second theory advanced by the plaintiffs, however, was a class-based disparate treatment suit, or a "pattern and practice" claim. See id . In that regard, the plaintiffs alleged that UPS had a "policy and practice" of depriving African-Americans of their rights to equal employment opportunities. See id . at 679.
In their first set of interrogatories, the Ardrey plaintiffs requested information related to their individual disparate treatment claims. See id . at 680. UPS answered those interrogatories and provided information "not only about the specific UPS employee in question, but also about others who had been promoted, transferred or qualified for various positions." See id . In their second set of interrogatories, the Ardrey plaintiffs requested information concerning their pattern and practice allegations. See id . Specifically, the plaintiffs sought information about the employment history of all employees who had worked in the Charlotte, North Carolina headquarters of the UPS West Carolina region since January 1, 1979 (three years prior to the filing of their complaint); all vacancies which occurred in all job titles since January 1, 1979; the name and race of each person who filled the vacancies; transfer and promotion system policies; and the names, race and job titles of persons with knowledge of various personnel practices. The plaintiffs also sought information about the number of whites and blacks who were promoted, transferred, employed, or qualified for full-time jobs. See id . In response to this second set of interrogatories, UPS objected to the extent the plaintiffs sought "information about the employment history of employees, statistics, and duties, pay grades and minimum qualifications for jobs that were not related to the claims of individual plaintiffs." See id .
The Ardrey plaintiffs filed a motion to compel with respect to their second set of interrogatories. See id . at 681. The district court denied the motion on the ground that the information requested was "hardly germane" to the individual plaintiffs' claims "in view of the statistical data already furnished in respect to the specific jobs they sought." See id . According to the district court, because UPS "had already provided information about individuals and their claims pursuant to the first set of interrogatories, UPS was not required to produce the `comprehensive employment history' requested in the second set which was not relevant to individual claims." See id . The court also noted that such information would be "inordinately burdensome" for UPS to prepare. See id .
The district court essentially bifurcated the discovery process. See id. at 680. The court advised the plaintiffs that it would be willing to consider requests for further discovery of a class-wide nature only after plaintiffs established "viable" individual claims. See id. at 680-81.
The case was tried to the court and the trial was limited to plaintiffs' individual claims. Id . The district court found for UPS on all claims. Id . On appeal, the plaintiffs alleged that the district court's limitation of discovery prevented the plaintiffs from establishing their pattern and practice claims. Id . at 682. The Fourth Circuit recognized the importance of statistical data for purposes of establishing a pattern and practice case in accordance with Teamsters . See id . at 682-84. It further recognized that "undue restrictions" of discovery in Title VII cases are "frowned upon." See id . at 684. Nonetheless, the Fourth Circuit concluded that plaintiffs' argument was "without merit." See id . at 685. The Circuit found it significant that the district court had allowed discovery as to information regarding "others similarly situated to the individual plaintiffs." See id . at 684. The Fourth Circuit reasoned that the "wide" discovery permitted by the district court on the individual plaintiffs' claims in terms of the individuals "similarly situated" to the individual plaintiffs was sufficient to develop evidence, statistical and otherwise, relating to whether discrimination was the "standard operating procedure" of UPS in regard to their positions, or concerning promotions, transfers, suspensions or discipline related to their individual claims. See id . at 685.
Similarly, the court here has permitted ample discovery of information relating to contractors that are similarly situated to the plaintiffs. With respect to plaintiffs PAS, Riteway and Reliable, the court has ordered defendant to produce "all documents (including information concerning the successful bidders and other bidders) regarding the specific contracting opportunities for which PAS, Riteway and Reliable applied or in which those plaintiffs expressed an interest." These plaintiffs, then, should have sufficient information to develop evidence, statistical and otherwise, relating to whether discrimination was the "standard operating procedure" of defendant in regard to procurement with respect to the specific projects sought by plaintiffs. With respect to plaintiffs K.E. Johnson, 1A Rob and Quality Transfer, the court has ordered defendant to produce "all documents regarding any contracting opportunities in the Des Moines, Iowa and/or Omaha, Nebraska area for which plaintiffs K.E. Johnson, 1A Rob and Quality Transfer would have been qualified ( i.e ., contracting opportunities in the particular `technical' field in which plaintiffs worked)." These plaintiffs, too, have been given access to information that would bear on whether discrimination is defendant's "regular practice." With respect to plaintiffs' desire for statistical data reflecting procurement in all contracts let by defendant on a nationwide basis, the court simply finds that the probative value of such information, if any, is overwhelmingly outweighed by the inordinate burden on defendant of gathering and producing such information. Plaintiffs' motion to reconsider is denied.
Considering that these three plaintiffs never even applied for or expressed an interest in any particular project with defendant, the court's discovery rulings could be construed as somewhat generous.
• Motion to Compel
Plaintiffs served defendant with their third set of interrogatories on September 6, 2000. This set of interrogatories consisted of ten separate interrogatories. Plaintiffs' motion to compel challenges not only defendant's specific responses to eight of those ten interrogatories but also defendant's general objections to the interrogatories. Prior to addressing those objections, however, the court needs to address some introductory material contained in plaintiffs' motion suggesting that the court has mishandled discovery in this case and that defendant has failed to comply with its discovery obligations under the Federal Rules of Civil Procedure and Tenth Circuit precedent. Plaintiffs, for example, refer the court again to the U.S. West case assigned to Judge Daniel in the District of Colorado. Plaintiffs represent to the court that Judge Daniel sanctioned U.S. West in that case "for an extreme abuse of the discovery process" after learning that U.S. West had "withheld" 41 documents. For some reason, plaintiffs neglected to provide the court with a copy of the transcript from that discovery hearing. Having acquired a copy of the transcript from plaintiffs' counsel, the court has reviewed that transcript in its entirety. Judge Daniel did not state or even suggest that U.S. West had engaged in an "extreme abuse" of the discovery process. The only time in which Judge Daniel used that phrase was in reference to the caption of plaintiffs' motion. Nor did Judge Daniel sanction U.S. West in the manner urged by the plaintiffs in that case. Plaintiffs asked Judge Daniel to enter default judgment against U.S. West or, in the alternative, to shift the burden of proof to U.S. West to prove that it did not discriminate and to require U.S. West to pay all of plaintiffs' attorneys' fees from the beginning of the litigation to date. Judge Daniel denied each of these requests. Judge Daniel did find that U.S. West did not produce 41 documents until fairly late in the litigation process and that U.S. West probably was not as diligent in locating those documents as it could have been. Judge Daniel also found that the documents were relevant to plaintiffs' claims in that they specifically referenced a particular contract between one plaintiff, RMES, and U.S. West. In fact, the documents had to do with RMES' performance on a particular contract with U.S. West and U.S. West's subsequent termination of that contract. By way of relief, Judge Daniel permitted the plaintiffs to reopen a limited number of depositions for the limited purpose of inquiring about those specific documents. Thus, to the extent plaintiffs here suggest that Judge Daniel permitted much broader discovery than this court, the suggestion is rejected.
Plaintiffs also direct the court to a decision by Judge Lucero in the U.S. West case. Specifically, plaintiffs point the court to an excerpt from a discovery hearing before Judge Lucero in which Judge Lucero stated:
The Tenth Circuit has pointed out that discovery in discrimination cases should not be narrowly circumscribed. It is well settled that in a [discrimination] suit, an employer's general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment. Gomez v. Martin Marietta Corp ., 50 F.3d 1511, 1520 (10th Cir. 1995).
Judge Lucero consented to addressing several motions filed by the parties in the U.S. West case.
The court addressed this very excerpt in some detail during the July 28, 2000 telephone conference. See Transcript of July 28, 2000 hearing at 10-13. As the court noted during that conference, the issue before Judge Lucero was simply whether a plaintiff who joined the case fairly late in the process could obtain discovery that might otherwise be viewed as duplicative. Judge Lucero made the point that that particular plaintiff should not be denied the opportunity to engage in full and fair discovery simply because the plaintiff joined the case later than other plaintiffs. Thus, Judge Lucero's statements in the U.S. West case simply shed no light on the appropriate scope of discovery in this case. Moreover, the case cited by Judge Lucero, Gomez v. Martin Marietta Corporation , goes on to say that the desire for broad discovery "is not without limits and the trial court is given wide discretion in balancing the needs and rights of the plaintiff and defendant." See Gomez , 50 F.3d at 1520. The Tenth Circuit in Gomez affirmed the trial court's discovery rulings, noting that the plaintiff had been provided abundant discovery even though the plaintiff did not receive all the material he sought. See id . ; accord Scales v. J.C. Bradford Co . , 925 F.2d 901, 906 (10th Cir. 1991) ("It is well-settled that information concerning an employer's general employment practices is relevant even to a Title VII individual disparate treatment claim. . . . However, this desire to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.") (citations omitted). In short, the statements made by Judge Lucero in the U.S. West case, when placed in context, indicate that the Circuit has clearly adopted a balancing test in which the benefit of such broad discovery is weighed against the burden to the other side. Judge Lucero's statements in no way suggest that nationwide discovery on the broad range of subjects proposed by plaintiffs here is mandated or even appropriate.
General Objections
The court turns now to address defendant's general objections to plaintiffs' third set of interrogatories. Defendant's first general objection is that plaintiffs have exceeded the number of permissible interrogatories. According to defendant, the parties agreed to a limit of 25 interrogatories by each party. Indeed, the scheduling order in this case also limits the number of interrogatories by each party to 25. In September 1999, plaintiffs served their first set of interrogatories, consisting of 24 separate interrogatories, on behalf of all six plaintiffs. On March 6, 2000, plaintiffs served their second set of interrogatories, consisting of one interrogatory, on behalf of all six plaintiffs. Thus, according to defendant, each plaintiff has already propounded 25 interrogatories to defendant. Defendant further maintains that plaintiffs have not sought leave to exceed the number of interrogatories, see D. Kan. R. 33.1 (requests for leave to serve additional interrogatories must be by motion, subject to the conferral requirements, setting forth the additional interrogatories and establishing good cause for their service), that any such motion for leave would be untimely at this stage in the litigation, and that the motion to compel should be denied on this basis.
Because plaintiffs' interrogatories were filed jointly, or on behalf of all plaintiffs, each plaintiff has reached the 25 — interrogatory limit and, thus, the third set of interrogatories exceeds the permissible number of interrogatories. Nonetheless, the court deems it appropriate to address the merits of plaintiffs' motion for two reasons. The first reason mirrors the reason that the court considered plaintiffs' motion to reconsider despite the fact that the motion was untimely filed. See discussion supra pp. 3-4. The second reason is that had plaintiffs sought leave to serve an additional 10 interrogatories, the court would have granted that request.
For this reason, too, defendant's request for fees and costs incurred in responding to plaintiffs' motion to compel is denied.
Defendant's second general objection is based on plaintiffs' continued attempt to obtain company-wide discovery from defendant. Defendant has incorporated this objection into its responses to Interrogatories Nos. 7 and 8. These particular interrogatories and defendant's responses thereto are discussed below. Suffice it to say that the objection is sustained for the reasons set forth above in connection with plaintiffs' motion to reconsider.
In their papers, plaintiffs respond to this general objection by simply suggesting that "defendant's discovery responses have not included the information and documents ordered by the court" and that "plaintiffs are entitled to the discovery ordered." Unfortunately, the court cannot address these contentions because plaintiffs have not pointed to any particular document that they seek or any particular information that the court ordered defendant to produce that defendant allegedly has not produced.
Defendant's third and final general objection to plaintiffs' third set of interrogatories is simply to the extent those interrogatories request information "that has previously been requested in written discovery propounded to Sprint." Unlike its other two general objections, defendant fails to incorporate this objection into any of its specific responses to plaintiffs' interrogatories. Moreover, defendant fails to address this objection in its response to plaintiffs' motion to compel. It appears, then, that this objection has been abandoned or, more precisely, that the objection does not bear on any of the particular interrogatories that are the subject of plaintiffs' motion to compel. Thus, the court declines to address this objection further.
Specific Objections
Plaintiffs contest defendant's responses to plaintiffs' Interrogatories 1 through 4. These interrogatories are geared toward establishing plaintiffs' Title VI claim or, more specifically, plaintiffs' efforts to demonstrate that defendant receives a subsidy from the federal government. See 42 U.S.C. § 2000d (prohibiting racial discrimination "under any program or activity receiving Federal financial assistance"); see also DeVargas v. Mason Hanger-Silas Mason Co ., 911 F.2d 1377, 1382 (10th Cir. 1990) (an entity receives federal financial assistance when it receives a subsidy) (Rehabilitation Act). In those particular interrogatories, plaintiffs ask defendant to provide the total amount of money received by defendant from the Universal Service Fund with respect to various regulations. After preserving certain objections, defendant answered each of those interrogatories as follows:
Sprint Corporation does not receive any payments from the Universal Service Fund ("USF").
Plaintiffs' motion to compel addresses the objections made by defendant, but fails to address the answer that defendant ultimately provided — that defendant receives no payments from the Universal Service Fund. While plaintiffs allege in their papers that defendant's CEO William Esrey "admitted" in his deposition that defendant receives funds from the Universal Service Fund, Mr. Esrey merely testified that certain entities related to defendant, or subsidiaries of defendant, may receive such funds. Mr. Esrey further testified that he "did not know" whether defendant Sprint Corporation received such funds. In essence, then, it appears as if plaintiffs simply do not like the answer that defendant has provided to the particular interrogatories. This is not a proper basis for a motion to compel. The motion is denied with respect to all interrogatories concerning the Universal Service Fund.
Plaintiffs' interrogatories, of course, did not ask whether entities related to or subsidies of Sprint Corporation received funds from the Universal Service Fund.
Plaintiffs also challenge defendant's response to plaintiffs' Interrogatory No. 5. In Interrogatory No. 5, plaintiffs ask defendant to
[D]escribe every Historically Underutilized Business Zone (HUB Zone), as such zones are defined by the Historically Underutilized Business Zone Act of 1997 ( 15 U.S.C. § 631), that has been identified and utilized by Sprint to provide contracts to qualified small business concerns. The description should include geographic information as to where the zone is located by State and City, and demographics, including population numbers and ethnicity.
Defendant objected to the interrogatory, citing its general objection to company-wide discovery and further characterizing the interrogatory as overbroad and unlikely to lead to evidence relevant to plaintiffs' individual claims of discrimination. In their motion to compel, plaintiffs state only the following with respect to this particular interrogatory:
Recognition and utilization of Historically Underutilized Business Zones (HUB Zones) is one way that corporations can increase MWBE participation in contracting and supply procurement. Utilization of HUB Zones is relevant to Plaintiffs' claims.
This fails to demonstrate how such information is relevant to plaintiffs' claims that they were denied contracting opportunities on the basis of their race and, frankly, the court cannot conceive of how such information would lead to the discovery of admissible evidence. As defendant highlights in its papers, the requested information goes far beyond the subject of contracts let by defendant for which plaintiffs were allegedly qualified. For this reason, the motion to compel is denied. Moreover, to the extent plaintiffs seek this information as part of their attempt to prove that racial discrimination was defendant's "standard operating procedure," the request is denied for the reasons set forth above in connection with plaintiffs' motion to reconsider.
Plaintiffs have failed to file a reply brief to defendant's response to the motion to compel.
Plaintiffs next challenge defendant's responses to Interrogatories Nos. 7 and 8. Interrogatory No. 7 requested defendant, "pursuant to FAC 97-10(a)," to provide the names, addresses and federal contract number of every subcontractor hired by defendant since 1995 to provide goods or services in excess of $500,000 or, for federal construction contracts, in excess of $1,000,000. Interrogatory No. 8 requested defendant to provide a description of the Small Business Contracting Plan of each subcontractor identified in response to Interrogatory No. 7. Defendant objected to these interrogatories, citing its general objection to company-wide discovery and further characterizing the requests as unduly burdensome. With respect to defendant's objection based on company-wide discovery, plaintiffs state only the following in their papers:
Plaintiffs allege that defendant has failed to comply with federal reporting requirements. FAC 97-10(a) is a requirement that plaintiffs believe the defendant has failed to comply with.
Significantly, however, plaintiffs fail to explain (and the court again cannot comprehend) how defendant's alleged failure to comply with federal reporting requirements is pertinent to plaintiffs' claims that defendant engaged in intentional racial discrimination with respect to these particular plaintiffs in connection with its procurement contracts. The motion is denied for this reason. Moreover, to the extent plaintiffs seek this information as part of their attempt to acquire broad statistical data, the request is denied for the reasons set forth above in connection with plaintiffs' motion to reconsider.
In any event, in the absence of any evidence to support plaintiffs' mere allegation that defendant has failed to comply with federal reporting requirements, the court is unwilling to require defendant to shoulder the burden of gathering and producing such information so that plaintiffs might happen upon some evidence to support their allegation. See Koch v. Koch Indus., Inc., 203 F.3d 1202, 1238 (10th Cir. 2000).
Finally, plaintiffs contest defendant's response to Interrogatory No. 10. That particular interrogatory asked defendant whether it (or any of its divisions or subsidies) receives a "subsidy" from the federal government in connection with a particular project in the "18th and Vine" district of Kansas City. After preserving its objections, defendant responded "no." In their papers, plaintiffs simply "suggest that defendant's answer should be amended in light of its own report to the President of the United States" that describes the "funding available to participants in the . . . project" as subsidies. The court will not require defendant to amend its answer. Although the report referenced by plaintiffs apparently refers to subsidies available to program participants, defendant has previously explained to the court and to plaintiffs that it has not taken advantage of the tax benefits available under the program. In other words, the mere fact that certain subsidies may be available to program participants does not mandate the conclusion that defendant receives a subsidy in connection with that program. The motion is denied.
• Defendant's Motion to Strike and to Amend
Finally, the court turns to address defendant's motion to strike and to amend. In its motion, defendant moves to strike certain portions of plaintiffs' addendum to the final pretrial order and to amend its own portion of the pretrial order. By way of background, the final pretrial conference was held in this case on September 12, 2000. In preparation for that conference, both defendant and plaintiffs were required to submit to the court a proposed pretrial order. In their portion of that order, plaintiffs failed to include any specific information concerning their claims for damages. Thus, the court ordered plaintiffs to file an addendum to the final pretrial order in which plaintiffs set forth their damages claims, itemizing the basic categories of damages by each plaintiff. The court further ordered that defendant could then file any motion to strike plaintiff's addendum for untimeliness and/or could file any motion to amend defendant's portion of the pretrial order in light of plaintiffs' addendum. On September 15, 2000, plaintiffs filed their amendment to the final pretrial order. On September 25, 2000, defendant filed its motion to strike certain portions of plaintiffs' addendum as untimely and to amend its portion of the final pretrial order.
Defendant first moves to strike plaintiffs' amendment to the extent the amendment sets forth a specific claim by plaintiff PAS for damages in the amount of $1.2 million in connection with the wiring contract at defendant's campus facility. According to defendant, this specific element of damages should be stricken as plaintiff PAS never identified the campus wiring contract in discovery. In response, PAS points to an Interrogatory in which PAS asserted that it had been denied contracting opportunities at "all Sprint buildings in . . . the state of Kansas." Defendant urges that the "general, non-answer" of "all Sprint buildings in Kansas" is wholly insufficient for purposes of identifying the campus contract.
Defendant's campus facility is located in Overland Park, Kansas.
While plaintiffs' reference to "all Sprint buildings in Kansas" might be insufficient, standing alone, to put defendant on notice of a claim for damages concerning the campus project, the campus project was highlighted by plaintiffs from the onset of this litigation. In their initial complaint, filed in April 1999, plaintiffs specifically referenced the campus project and specifically alleged that the vast majority of contracts awarded in connection with the campus project were awarded to majority-owned companies "to the detriment of plaintiffs." These same allegations appear in plaintiffs' first amended complaint, filed in July 1999. Shortly thereafter, defendant filed a motion to dismiss plaintiffs' section 1981 claims based on plaintiffs' failure to identify specific contracts that they had been allegedly denied. In the court's order denying defendant's motion to dismiss plaintiffs' section 1981 claims, the court held that plaintiffs' allegations — including the allegations concerning the campus project — were sufficient to put defendant on notice of plaintiffs' claims. Finally, the court's clear recollection is that the subject of the campus project was discussed during numerous telephone conferences in connection with discovery disputes. In short, defendant can hardly claim unfair surprise or prejudice with respect to PAS's claim for damages arising out of the campus project. Defendant's motion to strike this portion of plaintiffs' amendment is denied.
Defendant next moves to strike a portion of plaintiffs' amendment to the pretrial order concerning plaintiff Riteway's claim for damages. By way of background, plaintiff Riteway is a provider of janitorial services. According to Riteway, its business includes both cleaning buildings and selling cleaning supplies. In that regard, Riteway, in support of its claim for damages, asserts that it "has an on-line business fully capable of supplying Sprint's supply needs throughout the country." Defendant contends that Riteway's allegations concerning its on-line business are raised for the first time in the amendment to the pretrial order and, as such, must be stricken. In response, Riteway simply submits the affidavit of Mark McAfee, Riteway's owner. Mr. McAfee avers that Riteway has marketed its products over the internet since 1998 and that he has attempted to sell those products to defendant through Riteway's website. Mr. McAfee further avers that Riteway has not received any on-line business from defendant through Riteway's website. Significantly, however, plaintiff Riteway does not contend that its on-line business was ever mentioned during discovery or at any time prior to the affidavit filed in response to defendant's motion to strike. For this reason, defendant's motion to strike is granted with respect to Riteway's claim for damages in connection with its on-line business.
Finally, defendant moves to strike a portion of plaintiffs' amendment to the pretrial order concerning K.E. Johnson's claim for damages. K.E. Johnson is a consulting firm specializing in diversity procurement. In support of its claim for damages, K.E. Johnson asserts that defendant has retained consultants "to assist with diversity or marketing to the African-American community" in various cities. Defendant challenges this portion of plaintiffs' amendment to the extent K.E. Johnson asserts a claim for damages based on a denial of "marketing" contracts. According to defendant, K.E. Johnson has never before asserted a denial of such contracts and has never before identified "marketing" as an area in which he has consulting expertise. In response, K.E. Johnson maintains that plaintiffs did not discover that defendant even entered into marketing contracts with consulting firms until the deposition of Ralph Moore. According to plaintiffs, then, K.E. Johnson only recently was able to assert a claim based on the denial of marketing contracts because plaintiffs just learned that those specific contractual opportunities existed. Like Riteway's allegations concerning potential internet sales to defendant, K.E. Johnson's allegations concerning potential marketing opportunities come far too late in the process. The allegation is untimely and is therefore stricken.
Defendant also seeks to amend its portion of the final pretrial order in light of plaintiffs' addendum. In its motion, defendant has set forth the specific amendment that it seeks. As an initial matter, plaintiffs maintain that defendant's proposed amendment should be denied because defendant has not followed "customary Federal procedure" in seeking the amendment. Specifically, plaintiffs criticize defendant for not filing a motion for leave to amend the pretrial order. This argument is completely unfounded. First, defendant's papers are clearly labeled "Motion to Amend its Portion of the Pretrial Order." Second, the court, in its September 13, 2000 order, specifically invited defendant to file a motion to amend its portion of the pretrial order in response to plaintiffs' addendum. Simply put, defendant's motion to amend is not procedurally deficient.
Plaintiffs next assert that two assertions in defendant's proposed amendment should have been set forth in the initial proposed pretrial order and that defendant's attempt to introduce these assertions into the pretrial order at this stage is simply untimely. Specifically, plaintiff challenges defendant's assertion in which defendant "denies that plaintiffs are qualified to perform the amount of work alleged" and defendant's assertion in which defendant "denies that it ever intentionally or with malice or ill will discriminated against any plaintiff based on race." The court rejects plaintiffs' argument. With respect to the first assertion, it is clearly a response to the allegations set forth in plaintiffs' addendum. In fact, in the initial pretrial order, plaintiffs made no reference whatsoever to any specific contracts or work that they were allegedly denied. Not until they filed their addendum did plaintiffs make any attempt to set forth the nature, number and types of contracts that each plaintiff was capable of performing. Thus, it only makes sense that defendant's denial that "plaintiffs are qualified to perform the amount of work alleged" would not come until after defendant reviewed plaintiffs' addendum. With respect to defendant's denial that it "ever intentionally or with malice or ill will" discriminated against plaintiffs, this particular assertion is in response to plaintiffs' claim for punitive damages — a claim that was set forth for the first time in plaintiffs' addendum. In any event, in the initial pretrial order, defendant specifically denied "that it discriminated against any of the plaintiffs in any way on the basis of race."
Defendant's amendment also contains statements in which defendant "denies that plaintiffs are entitled to recover attorney fees in this action" and "denies that plaintiffs are entitled to recover punitive damages." Apparently objecting to these statements, plaintiffs reiterate in their papers that they "are entitled to attorneys' fees and punitive damages as a matter of law." The purpose of the pretrial order, however, is to frame the issues in the case — including the parties' claims and defenses. Thus, plaintiffs are not waiving their right to seek attorneys' fees or punitive damages simply because defendant has asserted that plaintiffs are not entitled to recover fees or punitive damages. Defendant is merely preserving its argument that plaintiffs are not entitled to recover fees or punitive damages, just as plaintiffs have preserved their argument that fees and punitive damages are appropriate in this case. For this reason, then, plaintiff's objection to this portion of defendant's amendment is overruled.
Finally, defendant's amendment contains a statement in which defendant asserts that "plaintiffs cannot as a matter of law proceed on a theory of liability or damages not based on a denial of specific contracts on the basis of race." Plaintiffs object to this assertion because, according to plaintiffs, it is erroneous as a matter of law. Again, defendant is simply preserving its argument in this regard. While the parties obviously disagree on the appropriate construction of section 1981, all parties have the right to preserve their arguments on the issue in the pretrial order. Indeed, all parties have done so. By permitting this portion of defendant's amendment, the court in no way sanctions defendant's argument over plaintiffs' argument. The court merely recognizes that all parties are entitled to present and/or preserve their arguments. Plaintiffs' objection is overruled.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs' motion to reconsider (doc. #216) is denied; plaintiffs' motion to compel discovery (doc. #214) is denied; and defendant's motion to strike portions of plaintiffs' amendment to the pretrial order and to amend its portion of the pretrial order (doc. #202) is granted in part and denied in part.
IT IS FURTHER ORDERED BY THE COURT THAT defendant shall file its amendment to the pretrial order on or before December 11, 2000. Plaintiffs shall file a revised addendum to their portion of the pretrial order, reflecting the court's rulings with respect to defendant's motion to strike, on or before December 11, 2000.
IT IS SO ORDERED.