Bartlett v. Dejoy

1

FELICIA BARTLETT, Plaintiff, v. LOUIS DEJOY, POSTMASTER GENERAL, Defendant.

No. 22-CV-03398 (GRB)(JMW)

United States District Court, E.D. New York

May 7, 2023

APPEARANCES:

Susan Karolena Crumiller, Esq. Julia Lea Elmaleh-Sachs, Esq. Hilary Joy Orzick, Esq. Crumiller P.C. Attorney for Plaintiff Felicia Bartlett

Vincent Lipari, Esq. United States Attorney's Office Attorney for Defendant Louis DeJoy

ORDER

JAMES M. WICKS UNITED STATES MAGISTRATE JUDGE

This case arises from Plaintiff Felicia Bartlett's allegations that Defendant Louis DeJoy, Postmaster General for the United States Postal Service (“Defendant” or “USPS”) discriminated against her on the basis of sex through a hostile work environment and ultimately constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”). Further, Plaintiff alleges USPS also violated the Americans with Disabilities Act of 1990 § 2 et seq., 42 U.S.C. § 12101 et seq., as amended by § 504 of the Rehabilitation Act of 1973 (“ADA”), by failing and refusing to grant her a reasonable accommodation or even to engage in an interactive dialogue with her about her request. (DE 1.)

In short, Plaintiff alleges that while working for the USPS her shift was unilaterally changed from the day shift to an overnight shift without warning. (Id.) As someone who suffers from Post-Traumatic Stress Disorder (“PTSD”) stemming from an assault that occurred at night, Plaintiff requested that she be switched back to the day shift, which was denied. (Id.) Plaintiff further alleges that she experienced sexual harassment during her overnight shift and despite her reporting the harassment USPS failed to respond. (Id.) Plaintiff contends she had no choice but to resign from her position. (Id.) Defendant, on the other hand, claims Plaintiff was notified sometime in February that once she became a career employee, her shift would change. (DE 27 at 1.)

On March 28, 2023, Plaintiff filed a motion to compel Defendant to (1) search Arthur Tovar's emails; (2) identify other discrimination complaints at the Bethpage facility - the facility that Plaintiff worked at from November 2020 to April 2021; and (3) produce electronically stored information (“ESI”). (DE 26.)

For the reasons stated herein, Plaintiff's Motion to Compel is granted in part, and denied in part.

PROCEDURAL BACKGROUND

The Initial Complaint was filed on June 9, 2022 (DE 1) and Defendant filed his Answer on August 30, 2022 (DE 10). An initial conference was held on September 27, 2022 and the Scheduling Order (DE 13) was entered. Defendant filed a motion to extend time for discovery on November 10, 2022, which the Court then granted on November 14, 2022. (DE 14.)

In a status conference on January 10, 2023, the parties informed the Court of several disputes concerning ESI and stated they would file a corresponding motion to compel. (DE 18.) Plaintiff filed her motion to compel and Defendant filed his opposition. (DE 19 and 21.) On February 8, 2023, the Court held oral argument on these issues and ultimately denied Plaintiff's motion to compel with leave to renew following the parties' meet and confer concerning the ESI search terms. (DE 22.) On March 3, 2023, Plaintiff submitted a joint status report detailing her intent to renew the Motion to Compel, which is now before the Court. (DE 25.)

LEGAL STANDARD

“Motions to compel are left to the court's sound discretion.” E.g., Mirra v. Jordan, No. 13-CV-5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016); see Liberty Mut. Ins. Co. v. Kohler Co., No. 08-CV-867, 2010 WL 1930270, at *2 (E.D.N.Y. May 11, 2010) (“[A] motion to compel is entrusted to the sound discretion of the district court.”). The permissible scope of the discovery is clear:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1).

Information “is relevant if: ‘(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.'” Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088, 2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016) (quoting Fed.R.Evid. 401). Moreover, “[t]he party seeking the discovery must make a prima facie showing that the discovery sought is more than merely a fishing expedition.” Evans v. Calise, No. 92 Civ. 8430, 1994 WL 185696, at *1 (S.D.N.Y. May 12, 1994); see also Mandell v. The Maxon Co., Inc., No. 06 Civ. 460, 2007 WL 3022552, at *1 (S.D.N.Y. Oct. 16, 2007) (“[T]he party seeking discovery bears the burden of initially showing relevance.”). “Once relevance has been shown, it is up to the responding party to justify curtailing discovery.” Fireman's Fund Insurance Co. v. Great American Insurance Co. of New York, 284 F.R.D. 132, 135 (S.D.N.Y 2012) (internal quotation marks omitted)

“When determining a motion to compel the production of ESI, a district court conducts a two-stage inquiry: first, has the party resisting discovery shown that the information in question is not reasonably accessible because of undue cost, and second, has the party requesting discovery nonetheless shown good cause to obtain it?” Stinson v. City of New York, No. 10 Civ. 4228 (RWS), 2015 WL 4610422, at *4 (S.D.N.Y. July 23, 2015) (emphasis in original).

For the reasons set forth below, Plaintiff's motion is GRANTED in part and DENIED in part.

DISCUSSION

a. Arthur Tovar's ESI

Plaintiff requests that Defendant apply certain search terms to EEO contract investigator Arthur Tovar's electronic accounts and review the responsive documents because Tovar played a major role in investigating Plaintiff's USPS complaint. (DE 26 at 1.)

Parties requesting documents should take care to refrain from imposing “blanket requests” on the producing party. Rodriguez v. NNR Global Logistics USA Inc., No. CV 14-1766 (JFB) (AKT), 2016 U.S. Dist. LEXIS 46093, at *18 (E.D.N.Y. Mar. 31, 2016) (compiling several cases which note that requests for “all documents” is overbroad); see also Hall v. N. Bellmore Sch. Dist., No. CV 08-1999 (JS)(ARL), 2011 U.S. Dist. LEXIS 61334, at *4 (E.D.N.Y. June 7, 2011) (noting that the plaintiff alleging disparate treatment could only receive personnel records similar to her position, job function, and during the same period of employment).

Plaintiff states that it would be fruitful to review Tovar's documents because he “was authorized to investigate all aspects of [Plaintiff's] complaint, require[d] all postal employees to cooperate in the investigation, and require[d] postal employees who had knowledge of the issues raised in the complaint to provide relevant testimony.” (DE 26 at 1.) In addition, Tovar conducted interviews and received affidavits and exhibits from various witnesses for Plaintiff's case. (Id. at 2.)

Defendant claims that Plaintiff's request “seeks broad categories of searches” which are applicable to any of the EEO cases that Tovar oversaw. (DE 27 at 2.) He further argues that the request should be denied on the basis that it is unduly burdensome, overbroad, and irrelevant. (Id.)

Here, Defendant does not deny that Tovar had a significant role in investigating Plaintiff's claims. (DE 27 at 2.) In fact, Plaintiff narrowed her request from asking for four EEO representatives' ESI, to only asking for Tovar's, which comes as a result of the meet and confer between the parties. (Id.) Further, the categories of searches that Plaintiff seeks in Tovar's ESI are not so-called “blanket requests” but indeed are likely to reveal responsive hits and are proportionate. (DE 26 at 2; DE 27 at 2.). Specifically, Plaintiff seeks Tovar's ESI from November 2015 to the present containing relevant search terms to her Title VII and ADA causes of action. (DE 27 at 2.) In opposition, Defendant has not provided any information demonstrating that the documents are not reasonably accessible or would consist of exorbitant costs or otherwise “unduly burdensome.” (Id.); See Stinson, 2015 WL 4610422, at *4; Zhulinska v. Niyazov Law Grp., P.C., No. 21-CV-1348 (CBA), 2021 U.S. Dist. LEXIS 219213, at * 8 (E.D.N.Y. Nov. 12, 2021) (finding that defendants failed to demonstrate that the information was not reasonably accessible or that production would be unduly burdensome); Integrated Structures Corp. v. Liberty Mut. Ins. Co., No. 21-CV-1744-ARR-SJB, 2022 U.S. Dist. LEXIS 205602, at *5 (E.D.N.Y. Aug. 9, 2022) (finding that merely “[s]aying something is voluminous, without describing the volume or the costs of search or production, is not persuasive”).

Defendant next posits that even if Plaintiff limited the request to Tovar's documents of her investigation, the request should still be denied. This is because Plaintiff already has “documents...statements and ... affidavits [that Tovar] collected from the persons with firsthand knowledge” from Plaintiff's investigation report. (DE 27 at 3.)

However the mere fact that the demanding party already has in its possession the same documents requested, that is no basis to refuse production. See Alliance Indus.v. Longyear Holding, Inc., No. 08CV490S, 2010 U.S. Dist. LEXIS 73471, at *9-10 (W.D.N.Y. July 21, 2010) (finding that defendant was required to provide complete answers to the interrogatories despite the fact that they referred to documents and testimony already provided); Williams v. City of New York, ...