Free Letter - District Court of Delaware - Delaware

Case 1 :06-cv-00027-SLR Document 23 Filed 10/31 /2006 Page 1 of 3
J ¤.Aw OFFICES
ABER, GOLDLUST, BAKER & OVER
(AN ASSOCIATION OF LAW PRACTICES)
702 KING STREET, SUITE 600
P.O. Box 1675
WILMINGTON, DELAWARE 19899-1675
GARY W. ABER, P.C. (302) 472-4900
PERRY F. GOLDLUST, P.A.* TELECOPIER (302) 472-4920
DARRELL J. BAKER, P.A.
SUSAN C. OVER, P.C.
ZZ`.ZSZ£;"Z..’l`$SN october 31, 2006
BY ELECTRONIC FILING
The Honorable Gregory M. Sleet ,
U.S. District Court
District of Delaware
844 N. King Street
Lockbox 19
Wilmington, DE 19801
Re: Pagomzkis v. Exgress LLC, Case N0. 06-027 (GMS)
Dear Judge Sleet:
In anticipation of the discovery conference scheduled for November 2, 2006 at 11:30 a.m.
in the above-captioned matter, Plaintiff Paula Pagonakis submits the following items to be
presented to the Court:
Plaintiff’s Issues:
Plaintiff served Defendant with her First Set of Requests for the Production of
Documents and First Set of Interrogatories in early July 2006. Defendant subsequently
requested, and Plaintiff allowed, several extensions in time for Defendant to respond to the
discovery requests. Defendant subsequently sought, and Plaintiff consented to, an extension of
the discovery period. Defendant did not respond to Plaintiff` s discovery requests until October
24, 2006. When Defendant finally did respond, its responses were inadequate.
1. Defendant’s failure to provide dates for depositions of defense witnesses.
On October 3, 2006, pursuant to prior discussions between the parties, Plaintiff provided
Defendant with the names of several witnesses that Plaintiff intended to depose and asked that
Defendant provide dates of availability for these witnesses. As of the date of this letter,
Defendant has not provided Plaintiff with any dates for these depositions. This is especially
troubling given that Defendant informed Plaintiff for the first time during the parties’ telephonic
meet and confer conference on October 27, 2006, that several of the witnesses are no longer in
the employ of Defendant (thereby depriving Plaintiff of the opportunity to subpoena these
.

Case 1 :06-cv-00027-SLR Document 23 Filed 10/31 /2006 Page 2 of 3
The Honorable Gregory M. Sleet I
U.S. District Court, District of Delaware
October 31, 2006
Page 2
witnesses for deposition). Defendant had previously asserted in its Initial Disclosures (on May
31, 2006) that these witnesses were employed by Defendant as managers and, therefore,
Defendant "obj ects to any ex parte contact of such individuals by counsel for Plaintiff. Any such
contact may be arranged through counsel for Express." Defendant’s actions and inactions have
caused undue delay in the taking of these depositions.
2. Defendant’s failure to produce documents in response to Plaintiff s First Set of
Requests for Production of Documents to Defendant.
Defendant has not produced documents responsive to Plaintiff s Request for Production
Nos. 2, 3, 7, 8, 9,10,11,15,16,17,18, 21, 22, 25, 26, 27, 28, 29, 30, 31, 34, 35, 36, 37 and 38
(i.e., Defendant has not produced documents in response to approximately two thirds of
Plaintiff s requests). Defendant has only turned over approximately eighty pages of documents,
more than half of which make up an employee handbook. Moreover, although Defendant listed
"Plaintiff s personnel file" in its Initial Disclosures, Defendant has not turned over that file.
Counsel for Defendant stated during the October 27, 2006 meet and confer that counsel has
produced everything Defendant provided to counsel. Plaintiff is concerned that additional
responsive documents exist, are in Defendant’s possession, custody and control, and have not
been produced to Plaintiff.
3. Defendant’s failure to respond adequately to Plaintiff s First Set of Interrogatories
to Defendant.
During the October 27, 2006 meet and confer, the parties discussed the following issues
with regard to Defendant’s objections and responses to several interrogatories set forth in
Plaintiff s First set of Interrogatories to Defendant. Although the parties were able to resolve a
few of the issues raised by Plaintiff, they were unable to reach agreement with regard to two
interrogatories, as set forth below:
(a) Interrogatory No. 3 requests that Defendant identify other employees who
complained of disability discrimination or harassment. Defendant objected on the basis that the
request was “not relevant, overbroad, unduly burdensome, and protected by the attomey—client
privilege and work product doctrine." Defendant did not otherwise respond to this request.
Although Plaintiff agreed to limit the scope of this request to some extent, Defendant did not
agree to respond to the request.
(b) Interrogatory No. 5 requests that Defendant identify each court or
administrative complaint filed against Defendant alleging wrongful termination or employment
discrimination during the past five years. Defendant objected on the basis that the information
sought is "not relevant, overly broad, unduly burdensome, and protected by the attorney-client
privilege and work product doctrine." Defendant did not otherwise respond to this request.

Case 1:06-cv-00027-SLR Document 23 Filed 10/31/2006 Page 3 of 3
The Honorable Gregory M. Sleet
U.S. District Court, District of Delaware
October 31, 2006 _
Page 3
Although Plaintiff agreed to limit the scope of this request to some extent, Defendant did not
agree to respond to the request.
Very truly yours,
/s/ Gary W. Aber
W Gary W. Aber (DSB #754)
cc: Francis G.X. Pileggi, Esquire