Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF Document 31-8 Filed 06/09/2005 Page1 of 4

Case 1:04-cv-01282-JJF Document 31-8 Filed 06/09/2005 Page 2 of 4
Not Reported in F.Supp. Page 1
1990 WL 15680 (D.Or.}, 52 Fair Ernpl.Prac.Cas. {BNA) 289
(Cite as: 1998 WL 15680 (D.()r.)}
H analyzed to be "new.“ PGE responds that the RIF
committee, and not the Position Evaluation
Motions pleadings and Filings Cemmitfaee, is the body which decides whether zi
position is to be treated as a new gab. PGE
represents that Butler and Flynn have obtained copies
Unitod States District Coon, Do Ofogoo of all relevant minutes and other documents of the
Gierm BUTLER and Farley Fiyma, Plaintiffs, RH: €0mmim"€-
v.
PORTLAND GENERAL ELECTRIC COMPANY, As it appeékfs that the I’!1i11L1¥;€S and 1‘€pOI’£S ofthe
an Oregon corporation, Defggdgmp Position EV3iLl3Ti0H Cemmitiee do not coniain furiher
Cly_ No 88_455_FR_ relevant information, Butler and Fiymfs motion is
denied as to Requese No. 9.
Feb. 9, 1990.
Timmth ji vang HS, }-Bmmgs, Vamgas & Lowa} 2, Butier and Fiyrm move to compei further
Gresham OL for ploioofg production in response to Request Ne. 26 IH their
i third request for production. PGE responded that
Jonathan T. Hamish, Corbett Gordon, Buliard, 31/€hUu§i"* the mqugst is Va§U€» it WOUM Produce tim
Kofshoj Smith & jomstodn p_C_’ Moo; Boon tests. Butler and Flynn contend that they have not
Hoffman, Portland General Electric Company, F€G€1V€€i $16 €€StS·&S pfomxsed by PGE. PGE states
P0mzmd’Of_j{o, dofonoam that the responsive documents were produced to
Butler and Fiyma on October 3, i9S9. FGE offers io
OP[NiON arrange for Butler and Fiynn to be provided again
with the documents ifihey cannot locate them.
FRYE, District Judge; _ _
The court finds thai: the issue regarding Request Ne.
*1 The matter before the coun is the motion (ii 82) 26 is m°0*·
of plaintiffs, Glenn Butler and Farley Fiymn, to
compel discovery amd fer sanctions against 3- Buiiw find FIYHR THUVB {G ’·?¤¥¤P€i _¥°¤*‘th§¥
defendant, Portiand General Electric Company Prcducmm H1 FBSPOHSG {Cf RWUGSY N0- 3 in th€?Y
(PGE). This is an action for age discrimination by fouoh YEQUESY fer i—'*T0fii¤C?*0¤- RGQUGSY N0 3_ esks
two {mmol. omployoos ogpGE_ for annual records indicating the names and positions
held by employees in Division Operations whose
ANALYSIS AND RULING Wages OI salaries W€1‘€ iHCiLld€>(i in Codes 9} E, 912,
Butler and Fiynn move to compel responses to 9{3 and 916 Of the 1982*986 PGE FERC Form I
various discovery requests from PGE. The court miners- PGE Objects that tim? YBQWSY *5 0V€VbTQ3d
wiii address the requests in the order presented by the and m'€i€V¤m» but KWBS U) Pmduce any YQSPGHSWB
pmico documents reiating to the CFS departments which
have not already been produced. PGE further states
L Bmw, and Flynn movo to compo] {ortho,. that it has searched for such documents and found no
production in response to Request No. 9 in their third additmnal documents-
request for production. Request N0. 9 asks for the _ _ _
minutes and reports of the Position Evaluation Buiicf and Hyun C°m€¤d that the d€P0$iU€>¤
Committee for 1985-86. PGE objects that the #€$t_*m0¤Y vf D&V§_C¤Fb0¤€¤¤¤ 81* §mP}Gy€€ ef PGE,
request is oVoi.b;.ood_ but Offers to pl-oduoo the indicates that addmonai records exist. PGE submits
iiscumene which comaie snrmmaeim imivmg the ¤h¤=_¤f¤dev¤S Of Cvfbw G¤r<¤¤¤ wd V}¤=i<¤¤ €¤¤¤iS»
jobs fo:. which Boom, ond Flynn oopiiod which state that Counts made the inquiry suggested
by Carbeneau and found that no further documents
Bona and Flynn orgoo that they Hood information are aveilabie and that it will be necessary to creme a
regarding all jobs evaiueted by the Position {ww COIYPUYGT Program in 0Fd€T tv PF0dU€·€ €¤¥“{h€F
Evaluation Committee in order te determine if the 1¤f¤rm¤t¤¤¤r¢==p¤¤S1v¤¢¤ R€Q¤€$¥N0· 3·
committee had an practice ef finding every job it
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv-01282-JJF Document 31-8 Filed 06/09/2005 Page 3 of 4
Not Reported in F.Supp. Page 2
1990 WL l5680 (D.Or.), 52 Fair En1pl.Prac.Cas. (BNA) 289
(Cite as: 1990 WL 15680 (D.Or.))
*2 Under Ped.R.Civ.P. 34{a;, a pany is required to Advertising activities and charges, Marketing/Sales
produce only documents which are in its "possession, activity, conservation, promotional activities and
custody or controi." A document is not in the concessions regarding PGE rate making cases
possession, custody or control of a party if it does not between 1976 through l986, and PGE’s responses
exist, and production cannot he required of a thereto.
document which is not yet in existence. Wright and
Miller, Federal Practice and P1·oceu'ure.· Civil § Defendants Responses to Plaintiffs Fifth Request
22iO, p. 625. for Production, p, 8. PGE objects to the request as
vague and burdensome, but offers to produce the
The court accepts the representation of PGE that the boxes of documents which include the responsive
requested information has not been compiied into the documents and to permit Butler and F lynn to search
form of a document or a computer program. As the tor the responsive documents at a mutually
law does not require a party to prepare or create a convenient time.
document in response to a discovery request, the
motion to compel is denied as to Request No. 3. Butler and Flynn contend that PGE should be
required to identify the responsive documents in the
4. Butler and Flynn move to compel iiirther approximately twenty-five boxes of documents made
production in response to Request No. I3 in their available for review by PGE. PGE argues that under
lifth request for production. Request No. E3 asks for Rule 34, it is proper to produce documents as they are
minutes, records and reports of the Executive kept in the usuai course of business. PGE contends
Position Review Committee between i984 and l9S8. that since the parties are in an equal position to sort
PGE objects that the request is overhroad in scope, through the material, PGE shouid not be required to
but offers to produce any responsive documentation structure and organize the documents for Butler and
"whicli pertains to the Executive Position Review Flynn.
Committee, within the CFS department ofthe Sales,
Community Relations, and Service and Design *3 Under Ruie 34th), it is proper to produce
Consultant aspects of the MCO department? PGE documents as they are kept in the usual course of
states that it has made a search for such business. There is no indication that PGE has
documentation and learned that none exists. purposefully produced the documents in an
inconvenient form. Rather, Request No. E4 is so
Butler and Flynn argue that PGE's limitation on the wide-ranging and vague that Butler and Flynn are
scope of Request No. i3 is unacceptable because the better situated than PGE to sort through the
practice of age discrimination was widespread at documents and determine which are responsive. The
PGE and involved many work areas. PGE responds court accepts PGE‘s representation that the
that since there are no responsive documents, documents continue to be made available for
Request No. 13, regardless of scope, is moot. inspection by Butler and Flynn. The motion to
compel is denied as to Request No. 14.
The court accepts the representation of PGE that it
has made a diligent search for responsive documents 6. Butler and Flynn move to compel further
and that none have been Eocated. The motion to production in response to Request No. 18 in their
compel is denied as to Request No. 13. fifth request for production. Request No. iS asks for
copies of PG}:`L's separation letter (agreement) for each
5. Butler and Fiynn move to compel further Division Operations employee RIFFED by PGE
production in response to Request No. 14 in their between i983 and i986. PGE objects that the
tifth request for production. Request No. I4 asks request is overbroad, but offers to produce such
for: letters for all employees RIFFED from the CFS
department in 1986.
Any and all documents of any nature or description,
including but not limited to calendars, photographs, Butler and Flynn contend that discovery should not
journals, diaries, memoranda, correspondance, be limited to the CFS department where they worked
testimony notes, rough notes, telephone messages because employees in other work areas have testified
and data responses which relate in any way to the to their beiief that age discrimination occurred in
Oregon Public Utility Commission staff requests to other areas. PGE contends that separation letters are
PGE for information regarding PGE Reduction in essentially form letters which would not provide any
Force Program, Categories A, B, D, and D relevant information. PGE argues that the testimony
© 2005 Thomsonfv/est. No Claim to Orig. U.S. Govt, Works.

Case 1:04-cv-01282-JJF Document 31-8 Filed 06/09/2005 Page 4 of 4
Not Reported in F.Supp. Page 3
1990 WL 15680 (D.Or.), 52 Fair Empl.l’rac.Cas. (BNA) 289
(Cite as: 1999 WL 15680 (D.()r.))
of empioyees from other departments as to their (BNA) 239
subjective belief regarding discrimination is not
relevant to the claims brought by Butler and Fiynu. Motions, Pleadings and Filings gliack to top)
Butler and Fiynn have not stated what information · 3:88C\/00455 (Docket)
they expect to gain from the separation Eetters, or (Apr. 22, 1988)
how evidence regarding the subjective beiiefs of
employees in other departments would be reievant to ENE) OF DOCUMENT
this action. As the separation letters appear to be
duplicative of other discovery materiais, and of
marginal relevance at best, the court denies the
motion to compel as to Request No. 18.
7. Butler and Flynn move to compel production
under Request No. 20 in their filth request for
production, which requests: "Report and supporting
OAR 860—2l-605 materiais, submitted to the PUC, as
required by all for 1976 through i986." PGE
responded that the request is vague and
incomprehensible due to the inclusion of the words
"by a1l."
Butler and Flynn contend that PGE seized on the
mistaken inclusion of extra words in the request as an
excuse to object to the request. PGE responds that it
cannot be expected to know whether Butler and
Flynn mistakenly included extra words or whether
further words were omitted from the request.
The court agrees that a party is not required to guess
as to the meaning of a word or phrase mistakenly
included in a discovery request. However, this
matter couid have been resoived by an informal
conference between counsel before this motion was
filed. The court has insufficient information before
it regarding the nature of the documents sought by
Request No. 20. Therefore, the motion to compel is
denied as to Request No. 20.
8. Butler and liiynn move for an award of their
reasonable expenses, including attorney fees,
incurred in bringing this motion. As Butler and
Flynn have not prevailed in this motion, such an
award is not appropriate.
CONCLUSiON
*4 The motion of Butter and Flynn to compel
discovery and for sanctions {#82) is denied.
ORDER
ET IS HEREBY ORDERED that plaintiffs motion to
compel discovery and for sanctions (#82) is
DENIED.
E990 WL 15680 (D.Or.), 52 Fair Emp1.Prac.Cas.
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.