UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LINDA S. RIPLEY, )
)
Plaintiff, )
) Civil Action No. 06-1705 (EGS)
v. )
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Pending before the Court is plaintiff’s motion to compel and
for sanctions and defendants’ motion to file a sur-reply. This
case involves a discovery dispute in plaintiff’s action against
the District of Columbia and individual defendants for violations
of the Americans with Disabilities Act, 42 U.S.C. §§ 1211, et
seq., the Rehabilitation Act, 29 U.S.C. §§ 794, 794a, the
District of Columbia Human Rights Act, D.C. Code § 2-1403.16, and
the District of Columbia Whistleblower Protection Act, D.C. Code
§§ 1-615.51 - 1-615.58. Upon consideration of the motions, the
responses and replies thereto, and the applicable law, the Court
GRANTS plaintiff’s motion to compel and for sanctions and GRANTS
defendants’ motion for leave to file a sur-reply. Defendants are
ORDERED to (1) supplement their discovery responses; (2) make
available Brady Birdsong, Donna Whitman, and Kevin Bell for
depositions at defendants’ expense; and (3) provide competent
witnesses pursuant to Rule 30(b)(6) for depositions to address
e-mail destruction and preservation at defendants’ expense.
Plaintiff is awarded attorney’s fees associated with bringing the
motion to compel and for sanctions.
I. BACKGROUND
Plaintiff Linda Ripley has been employed as a social worker
by the Department of Human Services Child & Family Services
Division, which is now the Child & Family Services Agency
(“CFSA”), since 1994. Compl. ¶ 15. Plaintiff was visually
impaired when she was hired, and defendants were aware of her
impairment. Id. ¶¶ 11-12. She was provided clerical support
staff to assist her. Id. ¶ 13.
When CFSA switched their e-mail to an internet based e-mail
system in April 2005, the changes did not include a suitable
accommodation that would permit Plaintiff to access the new
system through screen-reading software. She alleges that from
April 2005 through the present, following her disclosures that
she needed to be accommodated regarding the changes in CFSA’s
computer system, she was subjected to an increasingly hostile
work environment. Id. ¶¶ 15-23.
On August 8, 2005, plaintiff filed a formal grievance with
CFSA management outlining issues she had with her supervisor,
defendant Heather Stowe. Id. ¶ 25. Plaintiff claims that
defendant Uma Ahluwalia, Stowe’s supervisor, refused to
investigate the issues she raised. Id. ¶ 26. After Ahluwalia
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held a meeting with plaintiff and Stowe, plaintiff claims that
both she and Stowe were moved to different positions and she
herself was demoted. She again requested an investigation. Id.
¶ 29.
On October 24, 2005, plaintiff filed a charge of
discrimination with the D.C. Office of Human Rights and the Equal
Employment Opportunity Commission. Id. ¶¶ 32-33. She received a
right to sue letter on April 6, 2007. Id. ¶ 36. Plaintiff filed
this lawsuit on October 2, 2006. Defendants’ motion to dismiss
was denied in December 2007, and cross motions for summary
judgment were also subsequently denied pending the outcome of
discovery disputes.
The discovery dispute at issue here involves plaintiff’s
interrogatories and requests for production of documents.
Plaintiff acknowledges that defendants provided some answers, as
well as supplemental answers to interrogatories. Defendants also
produced copies of some of plaintiff’s old e-mails from her
deleted electronic file folder. In January 2008, defendants,
however, informed plaintiff that copies of e-mails from
defendants Stowe and Ahluwalia had been deleted from the agency’s
e-mail system and could not be produced. See Pl. Mot. to Compel
& for Sanctions at 7. While plaintiff acknowledges that
defendants provided numerous documents, plaintiff claims that
defendants did not provide e-mail communication with Deloitte
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consultants regarding FACES.NET, the new e-mail system.
On April 14, 2008, plaintiff sent a detailed letter to
defendants’ counsel outlining unresolved discovery issues. Id.
at 8. Defendants responded that a more thorough search was being
conducted. After more back and forth between the parties’
attorneys about documents over the course of several weeks,
defendants produced 500 megabytes of e-mail and other
electronically stored files. Id. After reviewing those files,
plaintiff determined that additional information likely existed
and requested more information from defendants. Id. at 10.
Defendants said that more information would be forthcoming by
August 1, 2008, but that they opposed further depositions.
Defendants provided supplemental discovery on August 13, 2008,
but plaintiff claims that it did not fully address her request.
After a request by plaintiff, defendants sent an e-mail on August
25, 2008, stating that defendants had fully complied with all
discovery requests. Id. at 10-11. Plaintiff’s motion to compel
and for sanctions followed.
II. Discussion
A. Motion to Compel and Motion for Leave to File Sur-Reply
At the outset, the Court GRANTS the defendants’ motion for
leave to file its sur-reply. Given the disposition of the motion
to compel and for sanctions, plaintiff’s request to file a
response to the defendant’s sur-reply is moot.
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Plaintiff argues that defendants have refused to supplement
and correct prior responses to discovery as required by Federal
Rule of Civil Procedure 26(e).1 Specifically, plaintiff alleges
that defendants have flatly refused to search for and provide
certain information that plaintiff has requested and have opposed
continuing the deposition of the CFSA Technology Director and
taking depositions of Deloitte consultants who can explain
late-produced information and any information responsive to
plaintiff’s supplementation request.
Plaintiff asserts that defendants’ main objection - that
discovery is closed - provides no defense to the requirement to
supplement. “Rule 26 provides no exception for documents found
after discovery deadlines have passed.” Klonoski v. Mahlab, 156
F.3d 255, 268 (1st Cir. 1998), superseded on other grounds. Once
a party learns that a response to discovery is incomplete or
incorrect, there is an absolute obligation to supplement. See
Fed. R. Civ. P. 26(e)(1)(A). “To the extent the rules
1
Federal Rule of Civil Procedure 26(e)(1)(A) reads, in
pertinent part:
A party who has made a disclosure under Rule 26(a) – or
who has responded to an interrogatory, request for
production, or request for admission – must supplement
or correct its disclosure or response in a timely
manner if the party learns that in some material
respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective
information has not otherwise been made known to the
other parties during the discovery process or in
writing.
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contemplate additional material that a party finds after . . .
provid[ing] discovery to the other side, the rules require prompt
supplementation of its additional material so the opposing party
is not misled by the original discovery responses as the opposing
party prepares its case for trial.” Klonoski, 156 F.3d at 268.
On January 18, 2008, the District admitted that it destroyed
evidence - e-mails from Stowe and Ahluwalia. Defendants were on
notice of the nature of this litigation at least eight months
before Stowe’s e-mails were destroyed and at least eighteen
months before Ahluwalia’s e-mails were destroyed. A party has an
obligation to preserve material “when a party should have known
that the evidence might be relevant to future litigation.”
Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291
(D.D.C. 2008). In August 2008, defendants told plaintiff that
e-mails from back-up tapes could not be recovered. Defendants’
duty to preserve material evidence first arose before litigation,
as the duty arises “when a party reasonably should know that the
evidence may be relevant to anticipated litigation.” Silvestri
v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001); see also
Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) (“A
party’s destruction of evidence qualifies as willful spoliation
if the party has ‘some notice that the documents were potentially
relevant to the litigation before they were destroyed.’” (quoting
United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th
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Cir. 2002))). Defendant had notice of the litigation, yet failed
to properly protect material evidence from destruction.
In defendants’ original opposition, they claimed to have
produced all available e-mails in their possession that were
non-privileged and responsive to plaintiff’s discovery requests.
Defendants asserted that Stowe’s e-mails were archived and her
computer was wiped clean and recycled, per agency practice,
before the District had notice of plaintiff’s lawsuit.
Defendants also argued that they had repeatedly searched for
e-mails and that they did not find anything else that would be
responsive to plaintiff’s request. Based on these contentions,
defendants opposed the motion to compel, arguing that plaintiff
sought the production of documents that the District was unable
to produce. Plaintiff challenged defendants on these contentions
in her reply.
Defendants’ sur-reply acknowledged that after further
supervisory review of its earlier filing pursuant to a court
order issued in another case, it found back-up tapes from its
storage facility that contained thousands of e-mails that were
responsive to plaintiff’s request. The District, therefore,
withdrew its opposition to the re-opening of discovery for the
limited purpose of (1) continuing the deposition of Brady
Birdsong; (2) allowing plaintiff to depose Deloitte consultants;
and (3) producing Robert Mancini, head of the Citywide Messaging
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Team in the Office of the Chief Technology Officer, to discuss
the search for the e-mails. The District then subsequently
stated that it “does not seek to avoid its discovery obligations”
and it “does not oppose a discovery order in this case.” D.’s
Reply to Opp. for Leave to File a Sur-reply at 2-3.
Accordingly, Plaintiff’s motion to compel is GRANTED.
Defendants are ORDERED to (1) supplement their discovery
responses; (2) make available Brady Birdsong, Donna Whitman, and
Kevin Bell for depositions at defendants’ expense; and (3)
provide competent witnesses pursuant to Rule 30(b)(6) for
depositions to address e-mail destruction and preservation at
defendants’ expense. The Court now turns to the issue of
sanctions.
B. Motion for Sanctions
The Court notes that its April 6, 2007 Scheduling Order
clearly states, “[c]ounsel are hereby notified that the party
that does not prevail on the discovery dispute shall pay the
costs involved, including attorney’s fees.” Scheduling Order,
Apr. 6, 2007, Docket Entry #8. Defendants argue that its failure
to produce certain e-mails was inadvertent and not a basis for
sanctions. For all of the reasons above, and for the additional
reasons below, the Court will impose sanctions on the defendants.
Defendants assert that this discovery dispute involves no
bad faith on their part, and that the newly discovered e-mails
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were not the result of plaintiff’s motions. Whether or not the
newly discovered e-mails were the result of plaintiff’s motions
is of no consequence. Plaintiff’s attorneys have been extremely
diligent since January 2008 in requesting documents and
supplemental information. While it is plausible that defendants
did not intentionally hide documents, it is clear that defendants
were not as meticulous as they could have been with plaintiff’s
discovery requests and with their duty to supplement.
Federal Rule of Civil Procedure 37(e) prohibits a Court from
imposing sanctions only if a party fails “to provide
electronically stored information lost as a result of the
routine, good-faith operation of an electronic information
system.” Fed. R. Civ. P. 37(e). Defendants, however, did not
operate their e-mail system in a routine, good-faith manner.
Deposition testimony from Wilson Ndeh, CFSA’s Technology Manager,
demonstrates that defendants were unable to provide
electronically stored information only because they had not
searched all of the available files. Dep. of Wilson Ndeh, at
23:8. Ndeh’s testimony made clear that there are back-ups of all
e-mails – a point defendants repeatedly ignored up until the
filing of the instant motions.
For eight months, plaintiff asserted that defendants had
more information. Defendants routinely missed production
deadlines and told plaintiff that they had provided all
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information responsive to plaintiff’s discovery requests. At one
point, in response to plaintiff’s repeated requests for back-up
files that Ndeh testified existed, defendants’ counsel wrote in
an e-mail, “[t]here are no more back ups. Please stop asking for
them.” Pl. Mot. at 11. It was only after plaintiff filed this
motion, and its reply to defendants’ opposition – which pointed
out the possibility that documents might be in the District’s
storage facility – that defendants found other documents in the
District’s storage facility. In its reply, plaintiff pointed to
specific deposition testimony from the CFSA Chief Technology
Officer that indicated that “every e-mail is backed up.” Ndeh
Dep. at 23:8. Only then did the defendants finally acknowledge
that they had back-up tapes of e-mails and offer to produce the
back-up tapes and make witnesses available for further
deposition. Rule 37(e) does not stand in the way of relief
plaintiff seeks.
Plaintiff’s motion for sanctions is GRANTED.
III. CONCLUSION
The Court GRANTS plaintiff’s motion to compel and for
sanctions and GRANTS defendants’ motion for leave to file a sur-
reply. Accordingly, defendants are ORDERED to (1) supplement
their discovery responses; (2) make available Brady Birdsong,
Donna Whitman, and Kevin Bell for depositions at defendants’
expense; and (3) provide competent witnesses pursuant to Rule
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30(b)(6) for depositions to address e-mail destruction and
preservation at defendants’ expense. Plaintiff is awarded
attorney’s fees associated with bringing the motion to compel and
for sanctions. Plaintiff shall file an appropriate motion with
detailed accounting of attorney’s fees associated with the filing
of the motion. A separate Order accompanies this Memorandum
Opinion.
IT IS SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 2, 2009
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