The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
By order dated July 2, 2009, the above-captioned matter was referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 5). Plaintiff Pamela Piccone ("Piccone") has brought suit under 42 U.S.C. § 1983 against the Town of Webster, New York (the "Town"), the Town's Supervisor and its Highway Superintendent, alleging that she was subjected to a hostile work environment on the basis of gender and age, and terminated from her employment on the basis of age. (Docket # 1).
Currently pending before this Court are motions filed by both parties seeking sanctions for spoliation of evidence. (Docket ## 17, 23). The allegedly spoliated evidence at issue in both motions is of the same type: sexually suggestive and otherwise offensive and off-color email communications between and among Piccone, defendant Barry Deane ("Deane"), the Superintendent of the Town's Highway Department, and other Town employees. In addition, the Town seeks an order compelling Piccone to produce (1) certain communications between her stepson Damon Piccone and herself and (2) her personal computer and other electronic data storage devices for forensic examination to determine whether they contain responsive emails that have not been produced.*fn1 Finally, the Town seeks reimbursement of its attorneys' fees and costs incurred in opposing Piccone's spoliation motion.
For the reasons set forth below, I deny both parties' motions for sanctions and grant in part and deny in part the Town's motion to compel.
Piccone began working part-time in the Town's Highway Department in 1995. (Docket # 1 at ¶¶ 10-11; # 26 at ¶ 2). In 2006, Piccone was permanently hired for a part-time position in the Drainage Department and alleges that Deane told her that the position would become full-time within one year. (Docket # 1 at ¶¶ 22-23). The full-time position never materialized, however, and the Town terminated Piccone on January 2, 2008. (Id. at ¶ 32). Piccone then filed a discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") on June 17, 2008. (Id. at ¶ 7). She filed the instant lawsuit on May 21, 2009. (Docket # 1).
Piccone's complaint alleges that she experienced a hostile work environment during her tenure in the Highway Department. (Id. at ¶ 12). Specifically, Piccone alleges that many employees and supervisors in that department frequently made derogatory comments about women, persons of Italian descent and older individuals, which included ethnic slurs and sexual jokes and innuendoes. (Id. at ¶¶ 14-19, 25, 31). Many of the offensive comments and jokes were contained in non-work-related email, much of which Piccone received from Deane. (Docket # 17-2 at ¶ 5). One such email that Piccone received from Deane in October 2006 read:
Today is International Disadvantaged People's Day.
Please send an encouraging message to a retarded friend, just as I've done.
I don't care if you lick windows, interfere with farm animals, vote liberal or occasionally s--- yourself.......You hang in there sunshine !!!
You're f------ special... (Docket # 26, Exhibit ("Ex.") A (the "October 2006 email")).*fn2 The parties agree that Piccone complained to Deane about the October 2006 email (Docket # 26 at ¶ 6), but the record does not reveal the substance or manner of her complaint. On October 19, 2006, Deane responded by email to Piccone's complaint, stating, "It was meant to be a joke and not anything other than that. So if you took it as an insult I'm sorry. I laughed and thought you would too." (Docket # 17, Ex. G).
Approximately five months later, on March 20, 2007, Piccone sent the following email to Deane:
Is this why you haven't hired me for the full time Drainage Job Opening yet... Sorry but I will never look like this!
(Docket # 17, Ex. H (the "March 2007 email")). Below the message was a link to a website titled "www.imagebeaver.com," which the Town claims contained pornographic material. (Docket # 26 at ¶ 7).*fn3 Piccone claims that she intended her email as a complaint about the fact that she had not been offered ...