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Rosita C. Go v. Rockefeller University

March 9, 2012

ROSITA C. GO, PLAINTIFF,
v.
ROCKEFELLER UNIVERSITY, ET AL., DEFENDANTS.
ROSITA C. GO, PLAINTIFF,
v.
ROBERTA MALONEY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

OPINION AND ORDER

I. Introduction

Plaintiff moves for an Order, pursuant to Rule 37(a)(2) of the Federal Rules of Civil Procedure, compelling (a) production of additional documents in response to her document requests, and (b) revised responses to her requests for admissions (Plaintiff's Response to Order Filed October 28, 2010, dated Nov. 19, 2010 ("Plaintiff's Response to Order")(Docket Item 129*fn1 ) at 11-13). For the reasons set forth below, plaintiff's motion is granted in part and denied in part.

II. Facts

A. Background

Plaintiff, Rosita Go, proceeding pro se, brings this action against her former employer, Rockefeller University, and several of her former co-workers, alleging discrimination on the bases of race, gender, national origin, disability, and age. Plaintiff's claims are discussed in detail in my March 2, 2009 Report and Recommendation (Docket Item 62), familiarity with which is assumed.

On February 16, and May 10, 2010, plaintiff served discovery requests on the defendants which contained 67 requests for production of documents and 248 requests for admissions (Exhibits 9, 15, 17, 18, 19 to Declaration in Response to Court Order Filed October 28, 2010, filed Nov. 24, 2010 ("Go Decl.")(Docket Item 130)). On March 18 and 26, April 22, and July 12, 2010, defendants served objections and responses to plaintiff's discovery requests and produced a total of 1,151 pages of documents and a privilege log of documents redacted or withheld on the basis of privilege (see Exhibits 1 and 2 to Go Decl.).

Following the dismissal of certain claims and defendants, I issued an Order, dated October 28, 2010 (Docket Item 128), outlining the claims remaining in the cases:

Based on my review of the record in these cases, it is my understanding that only the following claims remain: (1) plaintiff's claims against Rockefeller University for (a) race and national origin-based discrimination in violation of Title VII, (b) age discrimination in violation of the ADEA, (c) discrimination and retaliation in violation of the NYSHRL and NYCHRL, (d) violation of the Rehabilitation Act and (e) racial discrimination in violation of Section 1981, and (2) plaintiff's claims against the Individual Rockefeller Defendants (Roberta Maloney, Kathleen Cassidy, Michelle Keenan, and Gloria Chang DiGennaro) (a) for racial discrimination in violation of the NYSHRL and the NYCHRL, and (b) for racial discrimination in violation of Section 1981.

No later than November 19, 2010, all parties are to advise whether they disagree with my understanding of what is left in these cases. The parties are also to advise me at that time whether there is any reason why the pretrial order should not be filed by December 31, 2010.

I also directed plaintiff to raise all existing discovery issues with me no later than December 20, 2010. Plaintiff and counsel for the remaining defendants responded to my October 28, 2010 Order and concurred with my understanding of the claims remaining in the case (see Order, dated Dec. 2, 2010 (Docket Item 131)).

B. The Present Dispute

As part of her submission responding to my October 28, 2010 Order, plaintiff requested my "assistance in requiring defendants['] . . . [p]roduction of [d]ocuments . . . pursuant to Fed.R.Civ.P. 37(a)(2)" and in obtaining revised responses to her requests for admissions (Plaintiff's Response to Order at 11 (the "November 19, 2010 Motion to Compel")).

With respect to her document requests, plaintiff argues that (a) defendants did not produce all responsive documents; (b) defendants' "dumping 1,151 documents without identifying which, if any, of the documents produced are responsive to plaintiff's specific requests" was improper pursuant to Federal Rule of Civil Procedure 34; (c) defendants produced many "after-the-fact 'handwritten' documents [that are] clearly fabricat[ed]"; (d) defendants improperly restricted their responses to a more narrow time frame than plaintiff sought; (e) defendants erroneously relied upon claims of privilege and confidentiality "as a shield from their disclosure"; (f) defendants improperly withheld documents which were electronically stored; and (g) defendant's improperly "interposed the familiar litany that the request [is] 'irrelevant, burdensome, oppressive, overly broad' and a plethora of frivolous, unreasonable and groundless objections without clarifying and explaining their objections and provid[ing] support thereof" (Plaintiff's Response to Order at 11-12; Plain-tiff's Memorandum of Law attached to Go Decl., dated Nov. 19, 2011 ("Plaintiff's Nov. 19 Memo. of Law") at ¶¶ 2-5, 8, 10-12, 15, 18, 20, 23-29, 34-36, 40-45).

With respect to her requests for admissions, plaintiff contends that it was improper for defendants' attorney to sign the responses to the requests (Plaintiff's Response to Order at 11-12).

Defendants argue that they have fully responded to forty-eight of plaintiff's documents requests,*fn2 and represent that, as to another four of plaintiff's requests,*fn3 "[they] have diligently searched for responsive documents but have been unable to locate any" (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Compel Dated November 19, 2010, filed Dec. 20, 2010 ("Defendants' Memo. Of Law")(Docket Item 132) at 3-4).

As to the remaining fifteen document requests,*fn4 defendants make individual arguments as to why each is improper, arguing generally that the requests "call for the production of information that is irrelevant, overly broad . . . unduly burdensome . . . ha[ve] no probative value to this litigation[, are] personal and confidential [and the requests amount to a] fishing expedition that is meant to do nothing more than harass Defendants" (Defendants' Memo. of Law at 5-16). Additionally, defendants agreed to provide plaintiff with a reference sheet identifying the specific requests to which each document is responsive (Defendants' Memo of Law at 3-4). With respect to plaintiff's requests for admission, defendants assert that they have complied with the Federal Rules of Civil Procedure in replying to plaintiff's requests (Defendants' Memo. of Law at 2).

By notice of motion dated April 30, 2011, plaintiff again moved, pursuant to Federal Rule of Civil Procedure 37(a)(2), to compel further production of documents responsive to her sixty-seven document requests and to compel revised responses to her requests for admission (Docket Item 133)(the "April 30, 2011 Motion to Compel"). Plaintiff claims that defendants only provided her with a reference sheet identifying which documents are responsive to each request eight months after defendants produced those documents (Plaintiff's Affirmation, dated Apr. 30, 2011 (Docket Item 134) at 2; Plaintiffs' Memorandum of Law in Support of Motion to Compel Production of Document and Request to Admit, dated Apr. 30, 2011 ("Plaintiff's Apr. 30 Memo. of Law")(Docket Item 136) at 5). Additionally, plaintiff reiterates many of the arguments she articulated in her November 19, 2010 Motion to Compel, and replies to some of the arguments defendants asserted in opposition to Plaintiff's November 19 Motion to Compel (see Plaintiff's Apr. 30 Memo. of Law).

Defendants note that plaintiff's April 30, 2011 Motion to Compel appears to be nothing more than a renewal of plain-tiff's November 19, 2010 Motion to Compel as the two submissions address the same discovery issues and, "to the extent that Plaintiff's new motion to compel attempts to expand upon arguments laid out in her November [19,] 2010 motion, those arguments should not be considered as they are untimely" (Letter by Elise M. Bloom, Esq., counsel to the defendants, dated May 12, 2011 at 1-2).

III. Analysis

A. Plaintiff's April 30, 2011 Motion to Compel

Plaintiff's April 30, 2011 Motion to Compel appears to discuss and, to a large degree, supplement the arguments asserted in her November 19, 2010 Motion to Compel. As such, it appears that plaintiff's April 30, 2011 submission is more in the nature of a reply to defendants' opposition to her earlier motion, rather than a new and independent motion, and I construe it as such. Although her April 30, 2011 Motion to Compel was filed more than four months after defendants filed their opposition to her November 19, 2010 motion, defendants do not take issue with plaintiff's late filing (Letter by Elise M. Bloom, Esq., counsel to the defendants, dated May 12, 2011 at 1-2). Considering defendants' lack of opposition to plaintiff's late filing, and plaintiff's pro se status, I shall consider plaintiff's April 30, 2011 submission to the extent it responds to arguments asserted in opposition to plaintiff's November 19, 2010 Motion to Compel. However, to the extent that plaintiff's April 30, 2011 submission raises new arguments or attempts to supplement arguments that were inadequately asserted in plaintiff's November 19, 2010 Motion to Compel, such material is improper, see Johnson & Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 359 (S.D.N.Y. 2007) (Lynch, then D.J., now Cir. J.) ("[a]rguments first raised in reply memoranda are not properly considered [and] the same is true of arguments first raised by letter several months after reply memoranda and all other motion papers have been filed" (internal quotation marks and citations omitted)), and untimely under the deadline for all then existing discovery disputes set in my October 28, 2010 Order. I, therefore, do not consider such material.*fn5

B. Global Discovery Disputes

Before addressing the disputes concerning specific document requests, I shall address three broad arguments plaintiff raises concerning defendants' production. These are plain-tiff's claims that defendants have fabricated documents, imposed improper temporal limits on document discovery, and provided an insufficient privilege log.*fn6

1. Plaintiff's Fabricated-Document Argument

Plaintiff argues that: Included in the 1,150 [pages of documents] were many after-the-fact "handwritten" documents[,] clearly fabrications given the duration it took to produce the "handwritten["] documents that were supposedly in the possession and control of defendants since at least April 29, 2005 (Plaintiff's Response to Order at 12). Plaintiff's November 19, 2010 submission does not identify the documents she believes to be fabricated nor does she explain how the alleged fabrication is evident. Moreover, plaintiff's arguments in her April 30, 2011 submission illustrate plaintiff's disagreement with the content of the allegedly fabricated documents, not their putative lack of authenticity. For example, plaintiff states, concerning document D000925, "This [document] is another of Cassidy's unfounded criticisms . . . ." Similarly, with regard to document DD000137, plaintiff claims "The above statements are completely false" (Plaintiff's Apr. 30 Memo. of Law at 13, 15). Thus, plaintiff has not offered any evidence that defendants produced fabricated documents.*fn7

2. Plaintiff's Argument Concerning the Appropriate Temporal Limits of Document Discovery

In the vast majority of her document requests, plaintiff does not specify the time period for which she seeks responsive documents. Defendants, in their General Objection number 6, object to the Requests to the extent that they are . . . without proper limit as to their subject matter or temporal scope and are beyond the relevant time[]frame in this action which is May 6, 2000, the earliest relevant date for Plaintiff's remaining claims, through July 18, 2003, the date of the end of Plaintiff's internal grievance process [and] the responses to these Requests are limited accordingly (Exhibit 1 to Go Decl. at 3-4). Accordingly, defendants limited their production in response to each document request to "the time[]frame . . . set forth in the general objections" (Exhibit 1 to Go Decl. at 7-63).

Plaintiff argues that evidence of defendants' conduct outside of the time period set by defendants may still be "relevant, probative and admissible" (Plaintiff's Nov. 19 Memo. of Law at ¶ 11(iii)). While implicitly acknowledging that some of what she is seeking may be from beyond the applicable limitations period, plaintiff further argues that "evidence of such conduct may be admissible to shed light on the motives with which acts within the limitations period were performed" (Plaintiff's Nov. 19 Memo. of Law at ¶ 11(iii), quoting Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, 502 (S.D.N.Y. 2010) (Wood, D.J.)).

Although plaintiff does not specify the time period for which she is seeking documents, and does not further elaborate on how broader temporal limits will "shed light" on defendants' motives, I find the time period set by defendants to be too narrow. "In Title VII cases, courts have imposed restrictions on discovery as to time period. However, the scope of discovery is commonly extended to a reasonable number of years prior to the defendants' alleged illegal action . . . ." Miles v. Boeing Co., 154 F.R.D. 117, 119-20 (E.D. Pa. 1994) (document requests for period of more than two years from date of alleged discrimination not overly broad); Obiajulu v. City of Rochester Dep't of Law, 166 F.R.D. 293, 296 (W.D.N.Y. 1996) (three year time period suggested by defendants found reasonable); see also Chang v. Cavalry Portfolio Servs. LLC, CV-11-1153 (JS)(GRB), 2011 WL 6101952 at *1 (E.D.N.Y. Dec. 1, 2011); Trzeciak v. Apple Computers, Inc., 94 Civ. 1251 (LAK), 1995 WL 20329 at *1 (S.D.N.Y. Jan. 19, 1995) (Dolinger, M.J.).

As I previously noted in my March 2, 2009 Report and Recommendation (Docket Item 62), plaintiff claims that many of her problems began with management's promotion of an unqualified African-American co-worker, Cynthia Payne, and its shifting of many of Payne's responsibilities to plaintiff (Second Consolidated Amended Complaint, filed June 26, 2008 ("June 2008 Complaint")(Docket Item 41), at ¶ 46). Although it is not exactly clear when Ms. Payne's promotion occurred, plaintiff has alleged that "Maloney shifted parts of accounting manager, Ms. Cynthia Payne's job to Plaintiff in November 1998 and reinforced commitment to advance Plaintiff's career during annual review meetings in June 1999 and June 2000 by dangling statements, 'you're ready for seniority'" (June 2008 Complaint ¶ 45).

Given plaintiff's allegations, I conclude that the time period defendant imposed should be expanded to commence on November 1, 1998. At a minimum, I find that documents from as early as November 1998 may provide relevant and admissible background evidence which plaintiff may utilize to present her case effectively to a fact finder. Accordingly, to the extent they have not already done so, defendants are directed to produce responsive, nonprivleged documents for the time period from November 1, 1998 to July 18, 2003, unless the request specifies a narrower time period.*fn8 This production is to be completed no later than twenty-one (21) days from the date of this Order.

3. Sufficiency of Defendants' Privilege Log

Defendants, in their General Objection number 5, object to the Requests to the extent that they seek information and/or documents that are protected from disclosure by the attorney-client privilege, the attorney work product doctrine, the self-critical analysis privilege, or any other applicable privilege or immunity from disclosure (Exhibit 1 to Go Decl. at 3). Additionally, in response to nine requests -- Requests 1, 2, 3, 8, 11, 29, 31, 37, and 38 ---defendants "further object to [these requests] to the extent [they] seek[] information protected by privilege or immunity, including but not limited to the attorney-client privilege and work product doctrine." Defendants also provided a privilege log listing forty-two documents withheld or redacted. The privilege log includes the headings "Date," "Author," "Recipient," "Copied," "Type of Document," "General Subject Matter," "Type of Privilege," "Redacted or Not Produced," and "Bates Range," and reflects assertions of the attorney-client privilege and the work product doctrine (Exhibit 2 to Go Decl.).

Plaintiff argues that: Descriptions under "General Subject Matter", such as, "Response to Go's allegations", "Status of Go grievance", "Responses to Go complaint", "Status of Go EEOC charge", "Investigation of Go allegations", "Investigation of allegations in Go complaint", "Request for comments regarding answer to Go complaint", "R Go allegations" "Breakdown of Accounting Services employees ... ", "Go employment chronology", "Draft Position Statement" "Summary of Go Job description" are bare-boned and clearly not "mental impressions, opinions, and legal theories prepared by an attorney in anticipation of litigation." Defendants "Privilege Log" entries are un-itemized/un-numbered, some are undated, and most fail to identify the party cc'd. The log is wholly inadequate, improper and insufficient. (Plaintiff's Nov. 19 Memo. of Law at ¶ 10). Plaintiff contends that defendants should be required to re-submit "a more detailed privilege log . . . including the identities, titles, and roles of the authors, recipients, and individuals cc'ed on these communications, and the purpose of the communications" (Plain-tiff's Nov. 19 Memo. of Law at ¶ 10).

a. Legal Principles Applicable to the Attorney-Client Privilege and the Work-Product Doctrine

The elements of the attorney-client privilege are well settled:

"The [attorney-client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."

Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995) (Francis, M.J.), quoting United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358--59 (D. Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990) (Conboy, D.J.). The privilege "exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice." Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). Therefore, "[i]t is now [also] well established that the privilege attaches not only to communications by the client to the attorney, but also to advice ren- dered by the attorney to the client, at least to the extent that such advice may reflect confidential information conveyed by the client." Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., supra, 160 F.R.D. at 441--42; see also O'Brien v. Board of Educ., 86 F.R.D. 548, 549 (S.D.N.Y. 1980) (Leval, then D.J., now Cir. J.); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 520--22 (D. Conn. 1976).

"'[T]he burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship.'" von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), quoting In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984). Thus, the party seeking to invoke the privilege must establish all elements of the privilege. Bowne of NYC, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993) (Dolinger, M.J.) (collecting cases).

A party asserting work-product protection must prove three elements: "[t]he material must (1) be a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative." In Re Grand Jury Subpoenas dated Dec. 18, 1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1257 ...


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