Superior Court of the District of Columbia
Civil Division
MARLENE R. CROWELL,
Plaintiff,
v.
NATIONAL ACADEMY OF SCIENCES,
Defendant. |
Case No. 01-CA-008091
Calendar 7
Judge Kravitz
|
-------------------------------------------------------------------------------------------------------------
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S THIRD MOTION TO COMPEL
This matter is before the Court on the plaintiff's "third motion to compel" discovery. The Court has considered the plaintiff's motion, the defendant's opposition, and the plaintiff?s reply, as well as the many exhibits that the parties have appended to their pleadings. The Court understands that the parties have narrowed the issues since the filing of the plaintiff's motion, and it accordingly will limit its discussion to those issues that have been identified in the plaintiff?s reply brief as still in dispute.
Verified Answers to Interrogatories Rule 33(b) of the Superior Court Rules of Civil Procedure requires that answers to interrogatories be made "under oath" and "signed by the person making them." The defendant must comply with these requirements.
Interrogatory #2 (First Set)
The plaintiff alleges that the defendant has failed to give a complete response to an interrogatory asking it to "identify all reasons for Plaintiff's termination." The defendant has produced some information and documents in response to this interrogatory, and it argues that its response is sufficient under the rules. In light of the totality of the circumstances, however, the Court concludes that Rule 33 entitles the plaintiff to a written response that sets forth the complete set of reasons, and a summary of the factual bases underlying those reasons, for the plaintiff's termination.
Company-Wide Information and Materials
The parties disagree over whether the plaintiff is entitled to discover company-
wide statistical data and other information and materials concerning employment decisions affecting persons outside the plaintiff's particular unit of the company. The Court is persuaded, based on the record currently before it, that the information and materials requested fall within the permissible scope of discovery. See Super. Ct. Civ. R. 26(b). Because the defendant has not established that production of the requested information and materials would be so burdensome as to justify a limitation on the scope of discovery, the defendant must produce all responsive company-wide statistical data and other information and materials concerning employment decisions affecting persons outside the plaintiff's particular unit.
Document Request #4 (First Set)
The plaintiff requested that the defendant produce "all documents that record, reflect, refer, or relate to the racial demographics of NAS from January 1, 1995 to the present." The parties disagree over whether this request includes documents related to the racial demographics of particular departments or units of NAS as opposed to the racial demographics of the entire agency. The Court agrees with the plaintiff that the request is most reasonably interpreted to include not only those documents that relate to the racial demographics of the entire agency but also those documents that relate to the racial demographics of particular departments or units of NAS. Because such documents fall within the permissible scope of discovery, see Super. Ct. Civ. R 26(b), they must be produced.
Document Request #7 (Fourth Set)
The Court is persuaded that the plaintiff is entitled to discover Volumes I, II, and III of the Academy's Affirmative Action Program to the extent that those materials relate to the issues of race. The defendant may redact any sections or other portions of the materials that focus on issues of gender, disability, or other categories of persons not related to race.
E-Mails The parties disagree over whether the defendant should be required to conduct further searches for e-mail messages that are responsive to Request Numbers 11 and 12 of the plaintiff?s first set of document requests. In the absence of any persuasive showing by the defendant that such searches would be unduly burdensome or expensive, the Court concludes that the plaintiff is entitled to have the defendant use the remaining two search methods not previously used by Ms. Segal and that, with regard to e-mail of executives whim the plaintiff alleges were involved in her unlawful termination - Sharon Segal, Douglas Bauer, Dennis Charmot, Archie Turner, and Kathy Goodman ? the plaintiff is entitled to have the defendant conduct a search of back-up tapes for deleted email responsive to the requests.
Personnel Files The Court does not believe that the plaintiff has articulated any basis sufficient to justify the compelled production of any or all of the personnel files of Douglas Bauer, Dennis Charmot, Sharon Segal, Kathy Goodman, and Valerie West. The Court must balance the sensitivity of the files against the likelihood that any of the files would contain discoverable information. On the record currently before the Court, the balance strongly favors the defendant.
Communications Referenced in Privilege Log The plaintiff argues that the defendant has waived all privilege objections by serving untimely responses to the plaintiff?s discovery requests, by making its objections without sufficient specificity, and by disclosing other privileged communications relating to the same subjects as those to which materials that the defendant has withheld relate. The plaintiff thus asks the Court to order the defendant to produce materials that fall within the first and third categories of information identified in the defendant's privilege log. However, in light of the extent and complexity of the plaintiff's discovery requests, the Court is not persuaded that the tardiness of the defendant's responses should serve as an implicit waiver of all of the defendant's privilege objections. Nor does the Court, believe that the defendant's objections are so vague as to be deemed an implicit waiver or that the defendant has effected a broad "subject matter waiver" by disclosing other allegedly privileged materials. The plaintiff's request therefore must be denied.
Fees and Costs Each party requests an order directing the other party to pay for its costs, including reasonable attorney's fees, in litigating and/or defending against this discovery motion. The Court believes, as a general matter, that the plaintiff should be reimbursed for its costs, including reasonable attorney's fees, in litigating the portions of its motion on which the Court has ruled in the plaintiff's favor. Conversely, the Court believes that the defendant should be reimbursed for its costs, including reasonable attorney's fees, in defending against the portions of the plaintiff s motion on which the Court has ruled in the defendant's favor. In light of the dispute between the parties over the date on which the defendant sent the privilege log and the letter dated October 14, 2002 to the plaintiff, the Court does not believe that it would be appropriate to award fees and costs to either party for their litigation or defense of the portions of the plaintiffs motion that were ultimately withdrawn from the Court's consideration in the plaintiffs reply brief. It is the Court's expectation that the parties will seek informally, and in good faith, to resolve the issue of fees and costs consistent with the parameters set forth in this order, with the understanding that either party may petition the Court in the event that the parties' efforts are not successful.
Conclusion It is this 9th day of December 2002
ORDERED, that the plaintiff's third motion to compel discovery is
GRANTED IN PART AND DENIED IN PART as set forth in this order. It is further
ORDERED, that the defendant shall have until December 31, 2002 in which to serve verified responses to all of the plaintiff's interrogatories and a supplemental (and verified) response to Interrogatory #2 of the plaintiff's first set of interrogatories. It is further
ORDERED, that the defendant shall have until January 15, 2003 in which to produce all of the remaining information and materials it is required to produce pursuant to this order.
--------------------------------------------
Neal E. Kravitz, Associate Judge
(Signed in Chambers)