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Mento v. Potter

March 29, 2010


The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott


Before the Court is defendant's motion to compel and seeking extension of the Scheduling Order (Docket No. 32*fn1 ). Responses to this motion were due by March 1, 2010, with any reply due by March 8, 2010 (Docket No. 33; see also Docket No. 36). The motion was argued and decision reserved on March 15, 2010 (Docket No. 39).

Defendant also moved for an expedited hearing of this motion to compel (Docket No. 34), which was denied in part; instead, the deadlines of the current Scheduling Order (Docket Nos. 29, 30) were held in abeyance pending resolution of this motion (Docket No. 36).


This is a Title VII action against the United States Postmaster General, alleging sexual discrimination against plaintiff, a clerk at the United States Postal Service in Kenmore, New York (Docket No. 1, Compl. ¶¶ 9-10, 13-16, 28-29). Defendant answered on May 5, 2008 (Docket No. 5).

The Court entered, and then amended at the request of the parties, a Scheduling Order (Docket Nos. 13, 16, 18, 24, 29, 30). The current Fourth Amended Scheduling Order had plaintiff's expert disclosure due by January 29, 2010, defendant's expert disclosure by February 19, 2010, discovery to be completed by March 30, 2010, and dispositive motions filed by June 29, 2010 (Docket Nos. 29, 30).

Defendant's Motion to Compel

Defendant served Interrogatories and document demands upon plaintiff on January 8, 2009 (see Docket No. 32, Def. Atty. Decl. ¶ 6, Exs. A, B). After plaintiff failed to respond to these demands, defendant then moved for the first time to compel in July 2009 (Docket No. 19; see Docket No. 32, Def. Atty. Decl. ¶ 9, Ex. C). Plaintiff responded to the discovery demands and made her initial disclosures on July 27, 2009 (Docket No. 32, Def. Atty. Decl. ¶ 10, Exs. D, E). At defendant's request, this first motion was held in abeyance and a status conference was held (Docket Nos. 21, 23; see also Docket No. 32, Def. Atty. Decl. Ex. F). When the Third Amended Scheduling Order was entered, defendant's initial motion to compel was terminated (Docket No. 24). At plaintiff's request (Docket No. 26; see Docket No. 28 (defendant noting he had no objection)), the schedule was amended again to the current schedule (Docket Nos. 29, 30).

Defendant next reviewed plaintiff's discovery responses and found them to be "woefully inadequate" (Docket No. 32, Def. Atty. Decl. ¶ 12), concluding that plaintiff in some instances merely copied portions of her Complaint as responses (id. ¶ 13). Defense counsel wrote to plaintiff's counsel detailing the deficiencies in plaintiff's response (id. ¶ 16, Ex. G; see also id. Ex. F). Current defense counsel followed up this correspondence with letters and a telephone call (id. ¶¶ 17-21, Exs. H, I, J).

Meanwhile, plaintiff's attorney's former firm was in the process of dissolution and her attorney formed a new firm and filed a consent to change attorney in this action (Docket No. 37, Pl. Atty. Aff. ¶¶ 17-19).

On January 19, 2010, defendant filed the pending motion to compel (Docket No. 32). There, defendant complains about the inadequacies in plaintiff's Interrogatory Answers and other production. First, Interrogatory # 4 requested plaintiff to identify each alleged act of discrimination (id., Def. Atty. Decl., ¶ 24, Ex. D). Plaintiff responded by reference to the documents produced by the parties in the administrative proceedings prior to commencement of this action and a repetition of the allegations asserted in the Complaint (id. ¶¶ 26-27, 30). Defendant complains that these were non-responsive and problematic, since the former requires review of almost 5,000 pages of documents without specifying where in that record were responsive items and the generic answers did not address the specific components of Interrogatory # 4 (id. ¶¶ 28-29, 31-32; see also Docket No. 35, Def. Atty. Decl. for Motion for Expedited Hearing ¶¶ 10-17 (criticizing plaintiff's amended Answers to Interrogatory # 4)). He also complains that some of the responses to Interrogatory # 4 were vague and required clarification and amplification (Docket No. 32, Def. Atty. Decl. ¶ 33). Next, he contends that these answers merely provide background and fail to allege discriminatory acts (id. ¶ 34). Defendant seeks plaintiff to redraft her Interrogatory answer (id. ¶ 39; see id. ¶¶ 46, 51 (seeking similar relief for Interrogatory answers to # 5 and 6)).

Interrogatory # 5 seeks plaintiff to give statements that manifest unlawful discrimination, harassment, and retaliation (id. ¶ 40, Ex. D). Instead, plaintiff furnished reference to the nearly 5,000 pages of produced documents and cross reference to her answers to Interrogatory # 4 (id. ¶¶ 41-42). Defendant concludes that this answer was not appropriate since these Interrogatories ask for two different things (discriminatory acts and discriminatory statements). Interrogatory # 6 sought itemization of plaintiff's damages, which plaintiff did not furnish (id. ¶ 47, Ex. D).

Defendant also sought medical authorizations from plaintiff in her maiden name in order to produce her medical records from the Niagara County Department of Health (id. ¶ 52). Plaintiff raised various privilege objections to her responses but failed to provide a privilege log (id. ¶¶ 54-55). ...

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