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Therese M. Mento v. John E. Potter

July 18, 2011


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is yet another set of discovery and related procedural motions (in a series of discovery and procedural motions filed in this case*fn1 ), this time it is plaintiff's motions

(a) to compel discovery; (b) for further extension of an already extended Scheduling Order; and (c) for an expedited hearing (Docket No. 67*fn2 ). Familiarity with the previous Orders regarding discovery (Docket Nos. 40, 64; see also Docket No. 23 (minute entry of Sept. 29, 2009, noting termination of Docket No. 19)) and amended Scheduling Orders (Docket Nos. 16, 18, 24, 29, 41, 44-45, 49, 51, 64, 66; cf. Docket No. 13 (original Scheduling Order, entered July 1, 2008)) is presumed*fn3 . The current Scheduling Order discovery deadlines were held in abeyance pending the disposition of these motions (Docket No. 68); thus, plaintiff's motion for an expedited hearing (Docket No. 67) is deemed moot.

Responses to this latest motion were due by June 28, 2011, with any reply due by July 8, 2011, and the motion was deemed submitted, without oral argument, on July 8, 2011 (Docket No. 68). Defendant filed a timely response through its counsel's declaration (with exhibits) (Docket No. 69), and plaintiff replied through her counsel's declaration (Docket No. 70).


This is a Title VII action against the United States Postmaster General, in which plaintiff, a clerk at the United States Postal Service in Kenmore, New York, alleges sex discrimination, sexual harassment, discrimination due to her pregnancy, and retaliation against her (Docket No. 1, Compl. ¶¶ 9-10, 13-16, 28-29). Defendant answered on May 5, 2008 (Docket No. 5). Plaintiff's Present Motion to Compel Plaintiff now seeks to compel production of documents ordered by the Court in a previous discovery motion (Docket No. 67, Pl. Atty. Decl. ¶ 2, citing Docket No. 64, Order).

In particular, plaintiff seeks documents of claims of discrimination arising from the Buffalo, New York, postal plant ("Buffalo Plant") from 1999 to January 25, 2008 (when this action was commenced), as well as employment records for nine named employees (Docket No. 67, Pl. Atty. Decl. ¶7; Docket No. 54, Pl. Atty. Decl. ¶¶ 17-18, Request No. 6), claiming that she cannot effectively depose those co-workers without these records (Docket No. 54, Pl. Atty. Decl. ¶ 19). She seeks these personnel documents and documents responsive to Request No. 6 regarding claims against defendant.

This Court, in the last round of discovery motions, ordered plaintiff to respond and supplement her interrogatory answer to defendant's question, denied defendant's motion for a protective Order against conducting depositions, and limited plaintiff's document request to specific documents (Docket No. 64, Order at 8-11). That Order also amended the Schedule (id. at 12), which was subsequently amended to have plaintiff's expert disclosure submitted by June 14, 2011 (Docket No. 66), and discovery conclude by July 14, 2011 (Docket No. 64, Order at 12).

Plaintiff forwarded copies of the deposition notices of employees she sought to examine and for which she sought employment records (Docket No. 67, Pl. Atty. Decl. ¶¶ 10-11). Defense counsel forwarded a list of lawsuits filed in this District against defendant between 1999 and 2008 and stated that he would require an Order to produce "other similar discrimination lawsuits filed in the Western District of New York" (id. ¶ 13, Ex. B; Docket No. 69, Def. Atty. Decl. ¶¶ 50-52, Exs. A, B). Defendant identified 43 similar cases filed against the Postal Service in federal court within the relevant period (Docket No. 69, Def. Atty. Decl. ¶ 51, Ex. B). Defense counsel emphasized that they needed to move discovery along with alacrity to avoid delays in retrieving sought records or locating employee witnesses (or former employees) (id. ¶¶ 53, 58), but defense counsel would not hear from plaintiff's counsel for a month at a time (id. ¶¶ 54, 59). Defendant concludes these motions should be denied because plaintiff failed to prosecute this action (id. ¶¶ 70-72), arguing that, had plaintiff pursued this case more aggressively, the discovery sought might have been obtained by now and these motions rendered unnecessary (id. ¶¶ 66, 73).

Plaintiff sought records not of federal actions filed in this District but also "all claims of sexual and/or disability discrimination and/or harassment and/or retaliation arising out of the Buffalo Plant from 1999 to January 25, 2008" (Docket No. 67, Pl. Atty. Decl. ¶ 17). Defense counsel responded that review of the U.S. Attorney's records for pending and prior lawsuits would take 75 to 90 days (id. ¶ 18), without mentioning the time for obtaining records regarding non-litigated complaints.

As for the employee records of the nine witnesses sought, defense counsel reported that the Postal Service was trying to locate the records, but two employees were located out of state and one had retired. Defense counsel could not give an estimate of how long producing those records would take. (Id. ¶ 16.) Defendant does not alternatively state how much time might be needed to complete the production sought by plaintiff if compelled further.

In reply, plaintiff notes that defendant has not produced anything responsive to this Court's previous Order (Docket No. 70, Pl. Atty. [Reply] Decl. ¶¶ 5, 13; cf. Docket No. 64, Order at 10-12). Plaintiff seeks claims of discrimination from the Western New York District of the United States Postal Service, not merely discrimination cases filed against the Postal Service in this judicial District (id. ¶ 8), stating those claims could be found from Postal Service records (id. ¶ 9).


I. Applicable ...

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