The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel supplemental discovery (Docket No. 67*fn1 ). At a previous status conference (Docket No. 66), plaintiff indicated that she would move to compel this supplemental discovery if conferring with defense counsel did not produce this material. Responses to this motion were due by January 27, 2012, with any replies due February 3, 2012, and the motion deemed submitted (without oral argument) on February 3, 2012 (Docket No. 68).
BACKGROUND This is a Title VII action in which, according to the Second Circuit decision in this case, Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 95 (2d Cir. 2010) (see also Docket No. 41, Mandate of Second Circuit; Docket No. 1, Compl.), plaintiff alleges that her former employer, defendant JetBlue Airways ("JetBlue") discriminated against her based on age and gender and retaliated against her for complaining to her supervisors about that age and gender discrimination, as well as race discrimination against other employees. Upon JetBlue's motion for summary judgment, Judge John Elfvin dismissed the Complaint in its entirety. The Second Circuit vacated and remanded the case for further proceedings, holding that it was not unreasonable as a matter of law for an employee to complain of sexual harassment to the employee's harasser if that person is the designated official to hear such complaints under the employer's plan, concluding "that whether a plaintiff's complaints to the harasser constitute reasonable availment of an employer's sexual harassment policy is to be determined by the specific facts and circumstances of each case," id. at 96. The Second Circuit also held that "Moreover, we find that Gorzynski has presented genuine issues of material fact with respect to her hostile work environment, age, and retaliation claims, which are made evident through examining several omissions and incorrect accounts of the record in the District Court's decision," id.
Upon remand, the case was reassigned to Judge Richard Arcara (Docket No. 42) and referred to the undersigned for pretrial matters (Docket No. 47). Meanwhile, the case was referred to mediation (Docket Nos. 44, 46 (appointing mediator)) but the case was not resolved (see text minute entry, Sept. 10, 2010). The parties then held settlement discussions before the undersigned (Docket Nos. 52, 54, 61) but this case remains unresolved.
On March 1, 2011, a status conference was held wherein plaintiff produced updated expert and other disclosures and awaited defense updated disclosure (Docket No. 58). Expert disclosure and any remaining discovery were to be completed by April 29, 2011 (id.; see Docket No. 67, Pl. Atty. Decl. ¶ 11). A further conference was held on May 10, 2011, where the parties exchanged expert reports (Docket No. 60). At the last status conference in this case, on December 7, 2011, plaintiff indicated that she would move to compel supplemental discovery (Docket No. 66).
Plaintiff's Motion to Compel
Plaintiff now seeks an Order compelling defendant to respond to her First Request for Production of Documents (Docket No. 67). In 2005, she had written to Judge Elfvin to have him compel production from defendant and Judge Elfvin ordered production of personnel records and payroll records of certain identified individuals (id., Pl. Atty. Decl. ¶¶ 5-6, Ex. B). Judge Elfvin granted plaintiff's motion to compel production of the non-privileged documents (Docket No. 23, Order of Aug. 4, 2005). After appeal of the summary judgment Order and the proceedings discussed above, plaintiff's counsel wrote to defendant, on December 14, 2011, seeking supplementation of defense discovery responses (Docket No. 67, Pl. Atty. Decl. ¶ 15. Ex. D). Plaintiff seeks supplementation of personnel documents, payroll records (including W-2 forms) of numerous employees who either are still JetBlue employees or were employed there beyond the 2005 production (id. ¶¶ 17-23, Ex. D). JetBlue contends that plaintiff seeks documents on 23 current and former employees stationed at Buffalo, New York, from the 2005 discovery (Docket No. 69, Def. Memo. at 2-3). As of the date of plaintiff's motion, JetBlue has not responded to this letter (Docket No. 67, Pl. Atty. Decl. ¶ 16) while plaintiff claims to have made a good faith effort to obtain these materials short of motion practice (id. ¶ 25).
JetBlue argues that discovery was closed on March 31, 2006, and this Court ordered the parties to update their expert disclosures and complete supplemental discovery by April 29, 2011 (Docket No. 69, Def. Memo. at 3, citing Docket No. 58), extended by leave of the Court to May 9, 2011 (Docket No. 69, Def. Memo. at 3; id., Def. Atty. Decl. ¶ 5). JetBlue then claims that, seven months later, it learned from plaintiff for the first time that she was seeking additional documents she believed were withheld (Docket No. 69, Def. Memo. at 3). Plaintiff had then orally sought leave to move to compel, but defense counsel objected since no attempt was made to confer regarding the discovery dispute (id.). On December 7, 2011, this Court gave the parties thirty days to confer and, if not resolved, for plaintiff to formally move to compel (id.; see Docket No. 66). After plaintiff wrote to defense counsel, on December 14, 2011, requesting these supplemental documents, defendant began to check its records to see if additional responsive documents existed when plaintiff filed the instant motion (Docket No. 69, Def. Memo. at 3-4; id., Def. Atty. Decl. ¶ 10). During the week of January 23, 2012, JetBlue supplemented its response regarding personnel and payroll records (Docket No. 69, Def. Memo. at 4; id., Def. Atty. Decl. ¶ 11). Defense counsel called plaintiff's counsel asking for withdrawal of the motion to compel but plaintiff's counsel refused because she believed one current employee's records may not have been supplemented (Docket No. 69, Def. Memo. at 4). JetBlue argues that it produced responsive documents and plaintiff needs to identify the documents she believes has been withheld (id. at 4-5; id., Gentile Decl.).
In reply, plaintiff points to instances when she attempted to confer on this issue, first at the December 7, 2011, conference and in her letter of December 14, 2011 (Docket No. 70, Pl. Atty. Reply Decl. ¶ 14). Plaintiff points to the Order that required all discovery by April 29, 2011, and that JetBlue had violated that Order by December 7, 2011, in not supplementing (id. ¶ 15). Although JetBlue has supplemented, plaintiff claims that documents have not yet been produced, in particular for two JetBlue employees' records, Cheryl Harrison (her personnel records) and James Celeste (his termination records) (id. ¶¶ 19-21, 25). Plaintiff notes the six-year time lapse (from 2005 to 2011) from the completion of discovery prior to the motion for summary judgment to present, and that for plaintiff's lost wages claim she needed discovery during that six-year period (Docket No. 70, Pl. Reply Memo. at 3).
Both parties seek sanctions for this motion (compare Docket No. 69, Def. Memo. at 8-9 with Docket No. 70, Pl. Atty. Reply Decl. ¶¶ 23-24, 26).
Other than this discovery dispute, this case is ready for trial (see Docket No. 66).
I. Motion to Compel Standards
Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to ...