This quarter, Magistrate Judge Marian W. Payson examined the full spectrum of discovery devices, including requests for production, depositions, and requests for authorizations for multiple types of records, and also requests to admit in deciding motions by defendants to compel discovery and further responses from pro se plaintiffs in two cases decided the same day. Both sets of motions also sought sanctions. Although the decisions were issued in two distinct cases, the underlying fact patterns in both cases are substantially the same: a pro se plaintiff alleged racial discrimination in the workplace against his former employer.
Throughout these opinions, practitioners can glean several “takeaways” for guidance in the discovery process in general and before filing motions concerning allegedly deficient responses. While recognizing every case is fact specific, the facts in these cases illustrate some takeaways that are helpful to both well-seasoned and newly-minted attorneys alike.
Case 1: On Aug. 14, 2018, Judge Payson issued a Decision & Order in Morales v. Pepsi Co., No. 16-CV-6597L, 2018 U.S. Dist. LEXIS 137424 (W.D.N.Y. Aug. 14, 2018). Here, the pro se plaintiff filed a lawsuit against his former employer pursuant to Title VII of the Civil Rights Act of 1962 and the New York State Human Rights Law, alleging that he was discriminated against on the basis of race. During the discovery phase, the defendant-employer brought a Motion for Sanctions or to Compel, which Judge Payson granted in part and denied in part. More specifically, Judge Payson declined to impose the severe sanctions of dismissal or evidentiary preclusion on plaintiff despite the defendant’s allegations that plaintiff had not complied with the court’s prior discovery order. She did, however, order some limited further discovery as discussed below.
On a prior motion addressed to discovery issues, Judge Payson directed the parties to confer and to set up a date for plaintiff’s deposition and that plaintiff produce documents related to his claims and claimed damages. Id. at *2. Judge Payson advised plaintiff that failure to comply could result in sanctions, including dismissal. Id. at *2-3.
After that order, plaintiff’s deposition took place, and he produced some documents, mainly text messages, notes, and a handwritten damages calculation prior to his deposition. Id. at *3. Nevertheless, defendant asked the court to impose sanctions for violation of her order when plaintiff did not produce documents, namely, electronic data and a red notebook, he testified at his deposition he possessed. Id. at *5-6. Defendant also sought an order compelling production of certain categories of documents, authorizations for records, a further deposition, and costs of its motion, in the alternative. Id. at *2.
Following the deposition, defendant’s counsel wrote to plaintiff requesting several categories of documents and execution of authorizations for records. Id. at *3. The letter imposed a one-week deadline for a response. Id. When plaintiff did not respond, defendants filed the pending motion without further conferring with plaintiff. Id.
The court rejected defendant’s arguments, finding instead that plaintiff did his best to comply with his discovery obligations from her prior order. Id. at *2. Judge Payson stated that her earlier order did not direct plaintiff to produce all documents responsive to defendant’s requests. (Emphasis added.) Id. at *5. Rather, she said she directed him to produce any documents relating to his claims, prior to his deposition, including those upon which he intended to rely, and those documents relating to damages. Id. The record showed that plaintiff did indeed produce documents ten days prior to his deposition and that defendant did not raise any issue with respect to his production at the time of the deposition. Id.
The court noted, moreover, that defendant provided the court with little information from which to discern what the documents mentioned at the deposition are and whether they are relevant to this litigation. Id. at *5-6. The defendant failed to attach excerpts of the relevant deposition testimony. Id. at *3. Based on this record, Judge Payson declined to impose sanctions or costs. Id. at *5.
She did, however, then examine the multiple categories of documents requested, authorizations sought (including a discussion of medical records and damages in employment cases), and a request for a second deposition of plaintiff, and give the parties specific directions and deadlines as to further discovery. Id. at *3-16.
Case 2: On the same day, Judge Payson issued a Decision & Order in a case involving another Pepsi defendant-employer. Campbell v. Pepsi Bevs., No. 16-CV-6600L, 2018 U.S. Dist. LEXIS 137426 (W.D.N.Y. Aug. 14, 2018). In this case, plaintiff also filed suit under Title VII of the Civil Rights Act of 1962 and the New York State Human Rights Law, likewise alleging that defendant discriminated against him on the basis of race. Defendant (through the same counsel) similarly filed a motion seeking the severe sanctions of dismissal or evidentiary preclusion or to compel. In Campbell, defendant filed two discrete motions, a Motion for Sanctions and a separate Motion for Sanctions or to Compel.
Despite conceding that plaintiff complied with the explicit directions set forth in the court’s earlier order—including supplementing his initial disclosures, sitting for a deposition, and resolving issues concerning the audibility of an audio recording —defendant contended that plaintiff had failed to produce certain categories of documents, including electronic information and medical records, and that an award of sanctions was justified. Id. at *3. Defendant also argued that plaintiff should be required to provide further responses to its requests for admission. Id. at *14.
Judge Payson refused to impose sanctions, noting that plaintiff generally complied with the court’s specific directions concerning discovery and attempted in good faith to comply with his discovery obligations by responding to additional discovery requests and producing additional documents. Id. at *6.
Practitioners can glean a number of important takeaways from each of Judge Payson’s opinions.
Confer with your opponent. In Campbell, Judge Payson refused to impose sanctions, specifically pointing out that plaintiff tried to communicate with defendant and invited dialogue if further clarification was necessary concerning his discovery responses. Id. at *6-7. Judge Payson noted that defendant did not make any effort to resolve the supposed discovery disputes before filing the motion for sanctions; to the extent the scheduling order was the problem, she noted defendant could have requested an extension of the deadline in order to confer with plaintiff prior to filing its motion. Id. at *7 & n. 3. Movants should demonstrate to the court that they in good faith attempted to reach resolution of the discovery issue at hand before seeking court intervention and sanctions.
Clearly seek information that matters. Although Judge Payson declined to impose sanctions in both cases, she did order plaintiffs to produce certain, specific categories of information. She made it very clear, however, that she would not tolerate the defendants’ use of overbroad and unduly burdensome discovery requests.
For example, in Campbell, defendant sought electronic data from plaintiff’s mobile phone. Id. at *5. Specifically, defendant sought all calendar entries and “notes” stored on plaintiff’s mobile device between 2014-2017. Id. Notably, the defendant argued that it was entitled to production of the entirety of plaintiff’s calendar, despite plaintiff’s objection that he should be required to produce only calendar entries for events pertaining to the lawsuit. Id. at *8. In declining to compel production of the electronic data, Judge Payson called defendant’s requests “patently overbroad,” and specifically noted that nothing in plaintiff’s deposition testimony suggested that he kept information on his electronic calendar relevant to the issues in the lawsuit. Id. at *7-8. She did, however, require that plaintiff produce any parts of the calendar or electronic data he intended to use at trial, or he would be precluded from using it. Id. at *9.
In Morales, defendant sought electronic data and “the red notebook” (which was raised during plaintiff’s deposition). The court noted, however, that the motion provided the court little information to discern precisely what the “red notebook” is. It did not provide sufficient information to the court on what the data and notebook purportedly contained or why they were relevant to the litigation. Morales, No. 16-CV-6597L, 2018 U.S. Dist. LEXIS 137424 at *5-6. Without more information, Judge Payson did not order production of any of the information sought from plaintiff, finding that
… the descriptions provided by defendants are so broad, vague, and unlimited in time or scope—i.e., “all data and information kept on any tablet” or “all text messages and text message screenshots”—that it is difficult for this Court, let alone a pro se litigant, to discern precisely what information defendant seeks.
Id. at *6. She did, however, direct that plaintiff had to produce any of the requested information he intended to use it at trial or be precluded from using it. Id.
In both examples, among others in the cases, Judge Payson found that broadly-fashioned requests for information that was not relevant did not warrant compelling a response. Another takeaway for a motion to compel, therefore, is to explain to the court what information the party wants and why that information is relevant to the litigation.
Requests for admissions are not the same as interrogatories. Finally, the court noted that there is a key difference between requests for admissions and interrogatories and the responses required to them. Judge Payson noted that in contrast to answering an interrogatory, a party responding to a request for admission need only agree or disagree and is not required to provide an explanation for his or her response.
In Campbell, Judge Payson highlighted this distinction, stating that “[r]equests for admissions are not intended to function as interrogatories requiring a detailed response.” Campbell, No. 16-CV-6600L, 2018 U.S. Dist. LEXIS 137426 at *16. She cautioned that requesting parties should structure the facts in their requests to admit in a singular fashion. Id. Otherwise, a responding party “‘may deny the entire statement if one fact, on which the remainder of the request is premised, is denied.’” Id. (quoting Diederich v. Department of Army, 132 F.R.D. 614, 621 (S.D.N.Y. 1990)).
Here, in one of many similar examples presented to the court, defendant asked plaintiff to admit or deny the accuracy of a several-paragraph narrative concerning conversations plaintiff had with another person relative to a report. Id. at *15. In response, plaintiff simply “stated, ‘Deny’” without explanation. Id. Judge Payson noted that defendant cited no authority supporting its argument that plaintiff “is required to ‘provide the basis of his denial, and/or delineate his denial for each statement referenced by’ the request.” Id. at *15-16. Thus, she held no further response was necessary. Id. at *17.
Judge Payson did, however, parse what she described as one request she describe as “inexplicably drafted” in a “compound manner,” into a simple request that she said plaintiff could easily answer by admitting or denying he received a notice. Id.
Sharon M. Porcellio is a member of Bond, Schoeneck & King, representing businesses and institutions in commercial litigation and employment matters. She can be reached at email@example.com. Alyssa Jones, an associate in the firm’s litigation department, assisted with the preparation of this article.