Free Motion to Compel - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, v. Anthony Principi, Secretary Department of Veteran's Affairs, Defendant. Defendant, Anthony Principi, Secretary Department of Veteran's Affairs, by and through CIV-03-2300 PHX ROS DEFENDANT'S DISCOVERY DISPUTE MEMORANDUM

13 undersigned counsel, respectfully submits his memorandum regarding the pending discovery 14 disputes. 15 16 17 18 19 20 21 22 23 24 Defense pending discovery disputes fall into six general categories: 1. 2. 3. 4. 5. 6. Improper time frame of plaintiff's discovery requests. Improper discovery "fishing expeditions." Rules 33(d) and 34(b), F.R.Civ.P. regarding inspection of voluminous records. Self-critical analysis privilege and related relevance/materiality issues. Records retention policies and "spoliation." Extending defense expert disclosure deadline.

1. Improper time frame of plaintiff's discovery requests. On December 1, 2000, the plaintiff filed an informal complaint alleging that she was not selected for the position of Computer Specialist, GS-344-5/7/9 as reprisal for prior EEO activity. Plaintiff seeks information and documents as far back as May 1, 1994 and to the date of defendant's responses (November 8, 2004 and June 16, 2005). The defendant's objected to such time frames. Such requests in Title VII cases are too broad and that two year before and after

25 is reasonable. General Ins. Corp. v. EEOC, 491 F.2d 133 (9th Cir.1974)( Eight years prior to 26 action held excessive); Raddatz v. Standard Register Co., 177 F.R.D. 446, 448 (D. Minn. 1997); 27 Hicks v. Arthur, 159 F.R.D. 468, 471 (E.D.Pa. 1995);Miles v. Boeing Co., 154 F.R.D. 117, 11928 1

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1 20 (E.D.Pa., 1994);Robbins v. Camden Cit Bd. of Educ., 105 F.R.D. 49, 62-63 (D.N.J.1985); 2 McClain v. Mack Trucks, 85 F.R.D. 53, 63 (E.D.Pa.1979). However, when responsive 3 documents or information was available it was produced. 4 5 6 7 2. Improper Discovery "Fishing Expeditions." Exhaustion of administrative remedies is a precondition to filing suit. Yamaguchi v. U.S. Dept. of Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997); Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762, 768 (9th Cir. 1991). Likewise, the federal circuits have recognized that Title VII plaintiffs do not have an unlimited ability to delve into their employers' policy and personnel

8 records, even when they have alleged a pattern/practice of discrimination. Title VII's recognition 9 of broad discovery is not without limits and the trial court is given wide discretion in balancing 10 the needs and rights of both plaintiff and defendant to establish reasonable boundaries on the 11 type of discovery permissible. Claims of discrimination by similarly situated employees may be 12 discoverable if limited to the (a) same form of discrimination, (b) the same area where plaintiff 13 14 15 worked, and © a reasonable time before and after the alleged discrimination. Marchese v. Secretary, Dept. of the Interior, 2004 WL 2297465(E.D.La. 2004); Hicks v. Arthur, 159 F.R.D. 468, 470-71 (E.D.Pa.); Robbins 105 F.R.D. at 56-63; Prouty v. National R.R. Passenger Corp.,

99 F.R.D. 551 (D.D.C. 1983)( It would be an invasion of other employees' privacy to make these 16 complaints public.); Miller v. Doctor's Hospital, 76 F.R.D. 136, 138-140 (W.D. Okla., 1977). 17 Plaintiff's counsel has not demonstrated the relevance of his unfocused requests for such 18 information, and so the objections to plaintiff's discovery requests including her Rule 30(b)(6), 19 F.R.Civ.P. notice and deposition subpoena (Docket entries 30 and 31) should be sustained. 20 Plaintiff's demands that the defendant produce and review well over one hundred and 21 fifty files that are stored in California regarding other disgruntled VA employees is over broad and of no probative value. Rule 403, 404, 701,704 F.R.Evid.. Equal Employment Opportunity 22 Commission v. Associated Dry Goods Corp., 449 U.S. 590, 603(1981) (There is no reason why 23 a plaintiff should know the content of any other employee's charge.) Prouty, 105 F.R.D. at 5624 63; Guruwaya v. Montgomery Ward, Inc., 119 F.R.D. 36, 39 (N.D.Cal., 1988);Hardrick v. Legal 25 Services Corp., 96 F.R.D. 617, 618-19 (D.D.C. 1983). The plaintiff must be precluded from her 26 intent to present evidence of all her prior non-selection for positions, her prior EEOC cases and 27 series of "me too" mini-trials based on the complaints filed by other VA employees. Such 28 2

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1 anecdotal evidence has been the subject of numerous federal employment discrimination 2 decisions. The relevance, materiality and admissibility of such "evidence" is highly problematic 3 especially when records no longer exist and timely EEOC appeals or lawsuits were not filed. 4 5 6 7 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102-03, 113-122 (2002)(Laches, waiver, estoppel, and equitable tolling when equity so requires.);Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (confirming that Title VII is not "a general civility code for the American workplace");Lyons v. England, 307 F.3d 1092, 1107-1113 (9th Cir., 2002); Unless there was a finding of discrimination after a decision on the merits, such matters simply

8 reflect other disgruntled employees subjective beliefs, personal opinions on ultimate facts, and 9 impermissible speculation and therefore lack probative value and relevance. Pleasants v. 10 Allbaugh, 285 F.Supp.2d 53, 56-57 (D.D.C., 2003). No "background" of discriminatory animus 11 can be established from unrelated, irrelevant activity. Such evidence may well have triggered 12 liability in the past, but that was liability upon which the plaintiff declined to act. Allowing 13 14 15 consideration of stale, unrelated events as "background evidence" is contrary to the concept of a statute of limitations and only serves as a backdoor method by which to introduce time-barred statements to avoid judgment for the defendant.. Clearly the prejudicial impact on the defendant,

before a jury, is the primary goal of such "evidence" and clearly invite reversible error. Hester 16 v. BIC Corp., 225 F.3d 178, 182-86 (2nd Cir. 2000); Marker v. Union Fidelity Life Ins. Co., 125 17 F.R.D. 121, 125 (M.D.N.C. 1989). When permitted such "anecdotal evidence" must be limited 18 to admissible evidence of discrimination that can somehow be tied to the employment actions 19 disputed in the case at hand, employees similarly situated to the plaintiff and a carefully 20 determined time frame. Rules 403, 404(b), F.R.Evid.; Obrey v. Johnson, 400 F.3d 691, (9th Cir., th 21 2005); Coral Const. Co. v. Coral Const. Co. v. King County, 941 F.2d 910, 919 (9 Cir. 1991) 22 23 24 (Rarely, if ever, can anecdotal evidence show a systemic pattern of discrimination necessary for the adoption of an affirmative action plan.); Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 689-90 (9th Cir., 2001)("mini-trials"); Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 464-65 (9th Cir.1987); Becker v. ARCO Chemical Co., 207 F.3d 176, 190-192 (3rd

25 Cir. 2000); Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, (5th Cir.2000)( 44 26 prejudicial mini-trials); Heno v. Sprint/United Management Co., 208 F.3d 847, 856-57 (10th Cir. 27 2000); Raddatz, 177 F.R.D. at 448. Robbins, 105 F.R.D. at 62. 28 3

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Therefore, the defense objections must be sustained. 3. Rules Rule 33(d) and 34(b), F.R.Civ.P., option to make voluminous records available for inspection. The plaintiff has not accepted this offer. Rather she served a facially improper Rule 30(b)(6) Notice of Deposition and Subpoena Duces Tecum which ordered the defendant to

5 produce witnesses who, in addition to other matters, would be completely familiar with the 6 entire contents of these files. (Docket entries 30, 31), See EXHIBITS 17, 18. Jane Doe v. 7 Yorkville Plaza Associates, 1996 WL 343038(S.D.N.Y., 1996); E.E.O.C. v. HBE Corp., 157 8 F.R.D. 465 (E.D.Mo., 1994); U.S. v. District Council of New York City and Vicinity of United 9 Broth. of Carpenters and Joiners of America, 1992 WL 208284(S.D.N.Y., 1992); Norris v. 10 11 12 Fotomat Corp., Inc. 1987 WL 5202, *3 (E.D.Pa. 1987)(Unfair to require production of voluminous files. Plaintiff allowed to inspect files where they are normally kept.). The Federal Rules of Civil Procedure, especially Rules 33 and 34, F.R.Civ.P., do not require a party to generate specific data or review existing records to generate a new document

13 in response to a discovery request. See, e.g., 8A Wright & Miller, Federal Practice and 14 Procedure § 2174 at 303. The plaintiff, as of this date, has not responded to the August 17, 2005 15 letter. Once again as discussed above, the plaintiff seeks to re-litigate not only her on untimely 16 and abandoned discrimination claims but those of over one hundred and fifty other VA 17 employees whose files are in storage. A complete discussion of this problematic issue is simply 18 beyond the scope of an eight page memorandum. Such efforts pose a significant burden on the 19 20 Due Process rights of any employer especially when such "evidence" is presented to a jury. Therefore, the defense objections must be sustained.

4. Discovery requests for defendant's affirmative action plans, annual affirmative action reports and similar documents which federal law requires the defendant to prepare. 21 22 The Ninth Circuit, in dicta, has indicated approval of the self-critical analysis privilege.
th 23 Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 426-27 (9 Cir. 1992). See also, 24 Walker v. County of Contra Costa, 227 F.R.D. 529, 531 ((N.D. Cal., 2005); Price v. County of

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San Diego, 165 F.R.D. 614, 617-19 (S.D. Cal., 1996).It allows individuals or businesses to candidly assess their compliance with regulatory or legal requirements without creating evidence that may be used against them by their opponents in future litigation. The rationale for the 4

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1 doctrine is that such critical self-evaluation fosters the compelling public interest in observance 2 of the law. The privilege protects an organization or individual from the Hobson's choice of 3 aggressively investigating the work place, but thereby creating a self-incriminating record that 4 5 6 7 may be evidence of discrimination, or deliberately avoiding making a record on the subject in order to lessen the risk of civil liability. The self-critical analysis privilege is analogous to, and based on the same public policy considerations as, Rule 407, Federal Rules of Evidence, which excludes evidence of subsequent remedial measures. Reichhold Chemicals, Inc. v. Textron, Inc., 157 F.R.D. 522, 524 (N.D. Fla., 1994); Hardy v. New York News, Inc., 114 F.R.D. 633

8 (S.D.N.Y.1987) 9 Affirmative action plans are not discoverable in racial discrimination cases on the ground 10 that the plans are not relevant to the subject matter of the suit or constitute confidential 11 privileged information. McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 58 (E.D. Pa., 1979(Citing 12 cases); Dickerson v. U.S. Steel Corp., 1976 WL 596 ( E.D.Pa.,1976). Courts that do recognize 13 14 15 the privilege have identified four elements that the party seeking to assert the privilege must establish: 1) the materials were prepared for mandatory government reports; 2) the privilege is being asserted only to protect subjective, evaluative materials; 3) the privilege is not being

asserted to protect objective data in the same report; and 4) the policy favoring exclusion clearly 16 outweighs Plaintiffs' need for the information. Tice v. American Airlines, 192 F.R.D. 270, 272 17 (N.D.Ill.2000).Plaintiff has not demonstrated the relevance of this self-evaluative information 18 or an exceptional need for this information. Penk v. Oregon State Bd. of Higher Educ., 99 F.R.D. 19 506, 507 (D.Or., 1982); O'Connor v. Chrysler Corp., 86 F.R.D. 211, 216-18 (D. Mass. 1980). 20 Nor has she responded to defense counsel's letters regarding the raising of this privilege. 21 Furthermore, in light of plaintiff's counsel's fixation with "waiver" even if the defendant 22 23 24 redacted the privileged portion and provided a copy, it is doubtful that this discovery dispute would have been avoided. However, plaintiff has obtained a full copy of the defendant's Affirmative Employment Program for Minorities and Women, Multi-Year Affirmative Employment Program (Plan Update) for fiscal year 1997 marked it as an (Exhibit # 7) to the

25 deposition of John Fears on September 16, 2005. Regardless of her obtaining this document, 26 outside the discovery process, does not trump the defendant's objections which must be 27 sustained. 28 5

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5. Spoliation Plaintiff has repeatedly requested documents that are no longer in existence. She has

3 asserted that the defendant had an absolute duty to retain these documents. She asserts that an adverse inference instruction must be given to the jury. Nothing could be further from the truth. 4 She has not responded to defense counsel letters regarding this discovery issue. The VA 5 maintained the subject records in accordance with E.E.O.C. requirements, 29 C.F.R. § 1602.14., 6 and the National Archives and Records Administration regulations. She was given a copy of the 7 NARA regulations. 8 An employer's destruction of or inability to produce a document, standing alone, does not 9 warrant an inference that the document, if produced, would have contained information adverse 10 to the employer's case. Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir.2001). Rather, 11 to draw such an inference, bad faith must motivate the destruction. S.C. Johnson & Son, Inc. v. 12 Louisville & Nashville R.R. Co., 695 F.2d 253, 258 (7th Cir.1982). While a violation of a record 13 14 15 retention regulation may create a presumption that the missing records contained evidence adverse to the violator, the presumption does not attach to inadvertent failures to comply with a regulation. Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir.1998)

Furthermore, absent bad faith, a violation of 29 C.F.R. § 1602.14, would not automatically 16 trigger an adverse inference. Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir., 2002); 17 Rummery, 250 F.3d at 558. The Carl T. Hayden VA Medical Center had no clear indication of 18 its obligation regarding record preservation of the documents sought by this plaintiff. Valentino 19 v. U.S. Postal Service, 674 F.2d 56, 73 fn. 31,(D.C.Cir.,1982). Plaintiff's argument lack merit. 20 21 6. Extending defense expert disclosure deadline. Rule 26(a)(1)(B), Fed. R. Civ. P., requires a party to provide "a copy of, ... of all

22 documents, data compilations, and tangible things in the possession, custody, or control of the 23 party and that the disclosing party may use to support its claims or defenses ...." (Emphasis 24 added) Heath v. F/V ZOLOTOI 221 F.R.D. 545, 551 (W.D.Wash.,2004).Rule 26(a)(1)© 25 requires initial disclosures with respect to computations of damages claimed by the disclosing 26 party. The initial disclosure requirements are intended to obviate the necessity of discovery on 27 the matters covered by the rule. 28 6

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Plaintiff failed to make proper initial disclosures, failed to respond completely to

2 interrogatories, failed to timely and properly supplement her discovery responses with respect 3 to her claimed medical and mental injuries, and special damages which she claims were a result 4 of the alleged unlawful discrimination and/or retaliation. Defendant is entitled to know the 5 factual basis as revealed in medical records, statement, out-of-pocket payments and proper 6 schedule of such expenses. Kyte v. Progressive Northwestern Ins. Co. 2004 WL 3363409, *3 7 (D.Alaska, 2004). As a direct result of this on-going failure, the defendant failed to meet the 8 March 5, 2005, deadline for the listing of an expert witness. 9 Should a party fail to disclose information as required by Rule 26(a), the provisions of

10 Rule 37(c)(1) prohibits the use at trial of the information that was not properly disclosed. The 11 district court is given a wide latitude of discretion to issue sanctions under Rule 37(c)(1). Yeti 12 By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001); Colombino v. 13 Members of Bd. Of Directors, 2001 WL 1006785, *7-8 (N.D. Cal., 2001); see also, generally, 14 8 Fed. Prac. & Proc. Civ.2d § 2053, Wright and Miller (1994). 15 This problem was timely and repeated brought to plaintiff's counsel's attention.

16 EXHIBITS 4,5,11,16. However, there was no written response to these letters. Plaintiff 17 produced documents on November 30, 2004, January 12, 2005 and on May 13, 2005. However, 18 she has produced only 22 pages of medical records written by treating practitioners. Likewise, 19 from the documents submitted it is not possible to determine what her actual out-of-pocket 20 medical expenses are rather than those expenses paid by her health insurance carrier. Plaintiff 21 refused to produce any medical records or bills that were not in her immediate physical 22 possession. EXHIBIT 16, p.3. As of May 13, 2005, she claims "$10,000.00 for lost wages and 23 past out-of-pocket which resulted in her expending monies for transportation for physician visits 24 and for medication costs associated with mental health counseling." Further, she is "... 25 requesting .20 cents per mile totaling $2,600." However, the records provided also reveal 26 treatment for unrelated illnesses, e.g.,upper respiratory infection, general medical examination, 27 28 7

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1 vaccinations, gynecological examination, enlargement of lymph nodes, sinusitis, and medical 2 bills for her husband who is not entitled to damages in this action. 3 Then for the first time on September 22, 2005 at the "meet and confer," plaintiff's

4 counsel announced that he intended to obtain all of her medical records and bills and use them 5 as exhibits at the time of trial. In light of the intentional violation of the disclosure requirements, 6 the defendant seeks, at this time, the court permission to list one expert witness. This witness is 7 presently reviewing the materials produced by the plaintiff in addition to the medical records 8 subpoenaed by the defendant from plaintiff's treating physicians. 9 10 11 12 13 14 15 16 CERTIFICATE OF SERVICE I hereby certify that on October 3, 2005, I electronically transmitted the attached Respectfully submitted this 3rd day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

17 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 18 of Electronic Filing to the following CM/ECF registrants: 19 Rosval A. Patterson 20 Attorney at Law Patterson & Associates, P.C. 21 777 East Thomas Road # 210 Phoenix, Arizona 85014 22 Attorney for Plaintiff 23 s/ John R. Mayfield 24 Office of the U.S. Attorney 25 26 I hereby certify that on October 3, 2005, I served the attached document by mail, on the 27 following, who are not registered participants of the CM/ECF System: 28 8

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1 Dana Heck, Attorney Office of Regional Counsel 2 Department of Veterans Affairs 650 East Indian School Road, Building 24 3 Phoenix, Arizona 85012-1839 4 s/ John R. Mayfield 5 Office of the U.S. Attorney 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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