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Gemma Moore v. Kingsbrook Jewish Medical Center

March 30, 2012

GEMMA MOORE,
PLAINTIFF,
v.
KINGSBROOK JEWISH MEDICAL CENTER,
DEFENDANT. JILLIAN JOHN,
PLAINTIFF,
v.
KINGSBROOK JEWISH MEDICAL CENTER,
D EFENDANT.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Defendant Kingsbrook Jewish Medical Center ("Kingsbrook") has objected to certain discovery rulings made by Magistrate Judge James Orenstein on February 2, 2012 (the "Discovery Order") (i) denying Kingsbrook's requests to conduct forensic examinations of the computers of plaintiffs Gemma Moore ("Ms. Moore") and Jillian John ("Ms. John") and to compel Ms. Moore and Ms. John to sign releases permitting Kingsbrook to obtain certain e-mails from the plaintiffs' e-mail providers; (ii) directing the parties to confer regarding a reasonable limitation on who may have access to the names of participants in Ms. John's "su-su"; and (iii) denying Kingsbrook's motion to compel the production of notes taken by Ms. John during her deposition on January 27, 2012. (See ECF No. 18, Minute Entry for Proceedings held on 2/2/2012; ECF No. 19, Transcript of Proceedings held on 2/2/2012 ("2/2/2012 Tr."); ECF No. 20, Appeal of Magistrate Judge Decision, filed 2/16/2012 ("Def. Mem.").)*fn1 The court has reviewed the Discovery Order and the parties' submissions and finds that the Discovery Order is neither clearly erroneous nor contrary to law. Accordingly, Kingsbrook's objections are denied and Magistrate Judge Orenstein's February 2, 2012 Discovery Order is affirmed in its entirety.

Background

The facts relevant to the present request for review are as follows. On July 20, 2011, Ms. Moore filed a lawsuit against Kingsbrook alleging employment discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964. (ECF No. 1, Complaint filed 7/20/2011 ("Compl.").) On July 26, 2011, Ms. John and Kyron Moore ("Mr. Moore"), Ms. Moore's son, filed two separate lawsuits against Kingsbrook, also alleging employment discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964. (Case No. 11-cv-3624, ECF No. 1, Compl. filed 7/26/2011 (Jillian John); Case No. 11-cv-3625, ECF No. 1, Compl. filed 7/26/2011 (Kyron Moore).) Notably, Ms. John's complaint alleged that the purported reason given for her termination was that she was running a "su-su."*fn2 (Case No. 11-cv-3624, ECF No. 1, Compl. filed 7/26/2011, at 9.) Ms. John alleged that this reason was pretextual, stating, "I could not understand why I was in danger of losing my job over a practice that has been rampant in Kingsbrook Jewish Medical Center/Rutland Nursing Home for decades. I knew right then and there that I was being terminated for more than just running the Su-su." (Id.)

On October 6, 2011, Magistrate Judge Orenstein held a joint conference in all three actions and ordered that discovery would proceed in a coordinated fashion in the three cases, but that the lawsuits were "not consolidated in any other way." (ECF No. 8, Minute Entry for Proceedings held on 10/6/2011.) Thereafter, discovery commenced.

On November 1, 2011, plaintiffs in all three actions filed identical motions for "permissive joinder of parties." (See, e.g., ECF No. 10, Plaintiff's Motion for Permissive Joinder of Parties, filed 11/1/2011.) Construing the parties' motions as requests to consolidate the three actions pursuant to Federal Rule of Civil Procedure 42(a), on November 17, 2011, the court denied the motions without prejudice, reasoning that "the three actions involved different circumstances under which the plaintiffs left the defendant's employment" and "the risk of confusing the jury and prejudice to the defendant would outweigh any judicial economy of consolidating the actions for trial." (Order dated 11/17/2011.) Nevertheless, the court confirmed that discovery in the three actions was to proceed jointly, under the supervision of Magistrate Judge Orenstein. (Id.)

A.E-mail Discovery from Ms. Moore and Ms. John

On November 1, 2011, Kingsbrook served Ms. John, Ms. Moore, and Mr. Moore with document requests. Kingsbrook asked the three plaintiffs to produce, inter alia, e-mail correspondence concerning their experience at Kingsbrook, the instant litigation, and any subsequent efforts to secure employment. (See generally ECF Nos. 20-9, 20-10, Defendant's First Request for Production of Documents.) Neither Ms. John nor Ms. Moore produced any e-mails pursuant to these requests.*fn3

(See generally ECF Nos. 20-11, 20-12, Plaintiff's Response to Defendant's First Request for Production of Documents.)

Kingsbrook took Ms. Moore's deposition on January 25, 2012 and Ms. John's deposition on January 27, 2012. During Ms. Moore's deposition, she stated that she and Ms. John did not exchange e-mails, but rather "[c]all each other on the phone." (ECF No. 20-13, Transcript of Deposition of Gemma Moore, dated 1/25/2012 ("Moore Dep."), at 273.) Similarly, Ms. John testified during her deposition that she had not written any e-mails to anyone concerning the case. (ECF No. 20-5, Transcript of Deposition of Jillian John, dated 1/27/2012 ("John Dep."), at 297.)

On February 2, 2012, Magistrate Judge Orenstein held a status conference to address the parties' discovery disputes. Kingsbrook renewed its request for the production of the plaintiffs' e-mails. (See ECF No. 19, 2/2/2012 Tr. at 6.) Further, Kingsbrook sought permission to conduct a forensic examination of Ms. Moore's and Ms. John's computers to verify that they had no responsive e-mails. (Id. at 4, 9.)

Magistrate Judge Orenstein denied Kingsbrook's request for a forensic examination. (Id. at 9.) Instead, he ordered both Ms. Moore and Ms. John to search their e-mail accounts and produce e-mails they had exchanged, or any e-mails they had exchanged with Mr. Moore, "concerning Kingsbrook Jewish Medical Center, their jobs at Kingsbrook Jewish and any of these cases and the claims in these cases." (Id. at 6-8.) He further ordered Ms. Moore and Ms. John to each write a letter verifying that she had looked at each of her e-mail accounts and produced all responsive e-mails. (Id. at 7-8.) In addition, Magistrate Judge Orenstein told Ms. John that if she was not able to access e-mails from an old e-mail account that had been suspended, she "should provide [Kingsbrook] with authorizations, so that they can go to the [e-mail] provider and get [the e-mails] themselves."*fn4 (Id. at 8.)

On February 9, 2012, Ms. Moore produced two e-mails and a letter stating, "these are the only e-mail communication[s] I have found between Jillian John and myself. There is no e-mail communication between Kyron Moore and me." (ECF No. 20-17, Letter from Gemma Moore to Kristen O'Connor, dated 2/9/2012 ("Moore 2/9/2012 Letter").) The letter also stated that Ms. Moore had contacted her e-mail provider and was told that there was no way to retrieve old e-mails that had not been saved. (Id.) She reiterated that she and Ms. John "rarely communicated via e-mail." (Id.) In response to two follow-up e-mails from Kingsbrook, Ms. Moore confirmed that she had produced the only e-mails she found between herself and Ms. John, that she had only ever used two AOL e-mail addresses, and that she did not exchange e-mails with Mr. Moore because they live in the same house. (ECF No. 20-20, E-mail from Gemma Moore to Kristen O'Connor, dated 2/13/2012 ("Moore 2/13/2012 Letter").) Ms. Moore refused to execute a consent form authorizing Kingsbrook to subpoena her e-mail provider for her current and deleted e-mails. (ECF No. 20, Def. Mem. at 11; ECF No. 20-22, E-mail from Gemma Moore to Kristen O'Connor, dated 2/14/2012.)

On February 9, 2012, Ms. John produced one e-mail - which was one of the two e-mails produced by Ms. Moore - and a letter stating that she had contacted her former Internet provider and "was informed that all records of her emails were no longer retrievable." (ECF No. 20-18, Letter from Jillian John to Kristen O'Connor, dated 2/9/2012 ("John 2/9/2012 Letter").) Ms. John confirmed that "copies of all other emails" between herself and Ms. Moore were enclosed. (Id.) In response to Kingsbrook's follow-up e-mails, Ms. John confirmed that she had "produced all email that was available" and that her "prior internet provider was not able to retrieve[] documents from their server." (ECF No. 20-21, E-mail from Jillian John to Kristen O'Connor, dated 2/15/2012 ("John 2/15/2012 E-mail").) Ms. John refused to authorize Kingsbrook to subpoena her Internet provider for her e-mails, but offered instead to set up a conference call among herself, Kingsbrook, and her Internet provider. (Id.; see also ECF No. 20, Def. Mem. at 11.)

B.Identity of the Participants in Ms. John's "Su-Su"

On November 1, 2011, Kingsbrook also served Ms. John with interrogatories. Kingsbrook's Interrogatory No. 8 ...


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