Aponte-Navedo et al v. Nalco Chemical Company et al, No. 3:2009cv01232 - Document 57 (D.P.R. 2010)
Court Description: OPINION AND ORDER DENYING re 54 MOTION for Protective Order filed by Nalco Chemical Company, DENYING 47 Second MOTION to Compel Production of Documents filed by Conjugal Partnership Aponte-Santiago, Belkis Isabel Santiago-Martinez, Donato Aponte-Navedo, GRANTING 50 MOTION to Strike 48 Notice of Deposition filed by Ashok Paul Duggal, Nalco Chemical Company, Conjugal Partnership Duggal-Doe, GRANTING 52 MOTION to Strike Reply Re: 51 Reply to Response to Motion,, filed by all plaintiffs, GRANTING IN PART AND DENYING IN PART 41 First MOTION to Compel Discovery filed by Conjugal Partnership Aponte-Santiago, Belkis Isabel Santiago-Martinez, Donato Aponte-Navedo, DENYING 44 Second MOTION to Compel Discovery filed by Conjugal Partnership Aponte-Santiago, Belkis Isabel Santiago-Martinez, Donato Aponte-Navedo, GRANTED IN PART AND DENYING IN PART 53 MOTION requesting Order filed by Conjugal Partnership Aponte-Santiago, Belkis Isabel Santiago-Martinez, Donato Aponte-Navedo Signed by Chief Mag. Judge Justo Arenas on 5/20/2010.(nydi) Modified as to repetitive and dkt. text on 5/21/2010 (ab).
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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 DONATO APONTE-NAVEDO, et al. 5 6 Plaintiffs 7 v. 8 NALCO CHEMICAL COMPANY, et al. 9 CIVIL 09-1232 (JA) Defendants 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on two motions to compel discovery filed by plaintiffs, Donato Aponte-Navedo ( Mr. Aponte ) and Belkis Isabel Santiago- 15 16 MartÃnez, against the defendants, Nalco Chemical Company ( Nalco ), Ashok Paul 17 Duggal ( Mr. Duggal ), his wife Somarie Santiago and the conjugal partnership 18 constituted between them. (Docket Nos. 41 & 47.) Plaintiffs motions were all 19 opposed by the defendants. (Docket Nos. 45 & 49.) Plaintiffs replied only to the 20 21 defendants opposition to the second motion to compel. (Docket No. 51.) For the 22 reasons set forth below, the first motion to compel is GRANTED in part and 23 DENIED in part, and the second motion to compel is DENIED. 24 I. BACKGROUND 25 26 On March 10, 2009, plaintiffs filed a complaint for employment 27 discrimination against the defendants. (Docket No. 1, at 1, ¶ 1.) The complaint 28 was answered by the defendants on July 7, 2009 and August 13, 2009. (Docket 1 CIVIL 09-1232 (JA) 2 2 3 Nos. 15 & 27.) On September 18, 2009, the Initial Scheduling Conference 4 5 Memorandum ( ISCM ) was filed by the parties. (Docket No. 32.) According to 6 the ISCM the parties were in the process of compiling and exchanging 7 electronically stored information ( ESI ) composition and had notified each other 8 by e-mail interrogatories and requests for production of documents on 9 10 September 9, 2009. They were to have responded to the interrogatories and the 11 requests for production of documents on or before October 27, 2009. (Id. at 34.) 12 Also, plaintiffs expert witness report was to be notified on or before October 26, 13 2009. (Id.) The defendants were to announce their expert witness, if any, by 14 15 16 17 18 November 27, 2009. (Id. at 35.) The parties also set aside several dates in February, 2010, for depositions. (Id.) On January 11, 2010, plaintiffs filed a motion requesting that the court issue an order compelling the defendants to respond to their: (1) ESI inquiries, 19 20 and (2) discovery requests in the redrafted first set of interrogatories and request 21 for production of documents. (Docket No. 41, at 9.) On January 26, 2010, 22 plaintiffs filed a brief in support of the motion to compel, arguing that since the 23 defendants objections were not made within 10 days as directed by Local Rule 24 7(b), the motion to compel had to be deemed as unopposed. (Docket No. 44, at 25 26 27 28 2-3, ¶¶ 5 & 6.) 1 CIVIL 09-1232 (JA) 3 2 3 The defendants opposed plaintiffs motion to compel on January 28, 2010. 4 5 (Docket No. 45.) In essence, they argue that plaintiffs motion has to be denied 6 because the discovery request is overbroad. (Id. at 2.) Shortly thereafter, on 7 February 3, 2010, the defendants filed a motion in opposition to plaintiffs brief in 8 support of the motion to compel. (Docket No. 46, at 2, ¶ 2.) The defendants 9 10 11 12 13 contend that due to a recent amendment to Local Rule 7(b), objections to the motion to compel were not due until January 28, 2010. (Id.) On February 24, 2010, plaintiffs filed a motion requesting that the court order the defendants to answer a request for production of documents that was 14 15 served on January 15, 2010. (Docket No. 47.) Plaintiffs argue the defendants 16 have no choice but to comply with their discovery request because the objections 17 were both ineffective and untimely. (Id. at 2-4, ¶¶ 7, 10 & 11.) 18 On March 11, 2010, plaintiffs filed a notice for the taking of deposition of 19 20 Nalco, which the defendants immediately moved to strike. (Docket Nos. 48 & 49.) 21 The defendants also opposed plaintiffs second motion to compel. (Docket No 50.) 22 With regard to the notice for the taking of deposition, the defendants argue that 23 it must be stricken because Local Rule 26(a) specifically provides that discovery 24 cannot be filed with the court. (Docket No. 50.) As to the second motion to 25 26 compel, the defendants contend that it should be denied because the discovery 27 request was not properly served pursuant to Federal Rule of Civil Procedure 5. 28 1 CIVIL 09-1232 (JA) 4 2 3 (Docket No. 49 at 1, n.1.) According to the defendants claim, the discovery 4 5 request was served via email. (Id. at 1, ¶ 1.) Also, the defendants claim that 6 plaintiffs failed to comply with Local Rule 26(b) because their motion does not 7 certify that they either conferred or attempted to confer in an effort to try and 8 solve the discovery dispute. (Id. at 2, ¶ 2.) 9 10 On March 17, 2010, plaintiffs replied to the defendants opposition to the 11 second motion to compel. (Docket No. 51.) Plaintiffs contend, among other 12 things, that discovery was properly served pursuant to Local Rule 5.1(c). (Id. at 13 2, ¶ 2.) On that same day, the defendants filed a motion to strike plaintiffs reply 14 15 memorandum. (Docket No. 52.) According to the defendants, plaintiffs neither 16 sought nor obtained prior leave of the court to filed the reply as required by Local 17 Rule 7(c). (Id. at 1-2, ¶ 1.) The defendants, therefore, request that the court not 18 consider plaintiffs motion. (Id.) 19 20 On March 25, 2010, plaintiffs filed an omnibus motion for discovery orders. 21 (Docket No. 53.) Plaintiffs essentially seek leave to depose co-defendant Mr. 22 Duggal and a corporate representative of co-defendant Nalco, and to issue 23 subpoenas for production of documents on Amgen Pharmaceutical ( Amgen ) and 24 Bank of America Commercial Card Services ( BACCS ). (Id. at 10-12, ¶¶ 21-22.) 25 26 In addition, plaintiffs request that the court order the defendants to propose three 27 alternative dates to depose Mr. Duggal and Nalco s corporate representative, 28 1 CIVIL 09-1232 (JA) 5 2 3 identify and provide the curriculum vitae of the designated corporate 4 5 representative to be deposed, and pay attorneys fees and costs associated with 6 the filing of the motion. (Id. at 10-11, ¶ 21 & at 13.) 7 8 On April 9, 2010, the defendants filed an motion for protective order to preclude plaintiffs from deposing Nalco. (Docket No. 54.) According to the 9 10 defendants there are two problems with the notice of deposition. (Id. at 2, ¶ 4.) 11 First, the defendants claim that the notice states that the deposition is supposed 12 to take place in San Juan. 13 (Id.) However, the defendants argue that the deposition has to take place in Naperville, Illinois, because that is where Nalco s 14 15 principal place of business is located. (Id.) Second, the defendants claim that the 16 topics of the proposed deposition are overly broad. 17 defendants claim that plaintiffs seek to expand the reach of discovery by including 18 (Id. at 3, ¶ 5.) The topics, computer systems and databases beyond the relevant issues in this case. 19 20 (Id. at 4.) 21 On April 12, 2010, the defendants responded to plaintiffs omnibus motion 22 for discovery orders. (Docket No. 55.) According to the defendants, they have 23 no objection as to plaintiffs request to depose either Mr. Duggal and/or a 24 corporate representative of Nalco, so long as the topics to be covered are within 25 26 27 28 the scope of discovery and the depositions are conducted in the appropriate 1 CIVIL 09-1232 (JA) 6 2 3 locations. (Id. at 4, ¶ 6.) The defendants only oppose plaintiffs request for 4 5 attorney s fees and costs associated with the filing of the motion. (Id.) 6 On April 26, 2010, plaintiffs filed an opposition to the defendants request 7 for protective order. (Docket No. 56.) Plaintiffs argue that since the defendants 8 failed to meet the requirements of Federal Rule of Civil Procedure 26(c), the 9 10 motion for protective order must be denied. (Id. at 2, ¶ 6.) II. ANALYSIS 11 12 13 A. First Motion to Compel 1. Local Rule 7(b) 14 15 Plaintiffs argue that the defendants waived their right to controvert the facts 16 asserted in the motion to compel, because they failed to file written objections 17 within 10 days as required by Local Rule 7(b). (Docket No. 44.) The defendants, 18 however, claim that there are two reasons reflecting that the objections were filed 19 20 on time. (Docket No. 46, at 2, ¶ 2.) First, Local Rule 7(b) was amended to 21 extend the time to file written objections from 10 to 14 days. (Id.) Second, 22 Federal Rule of Civil Procedure 6 provides an additional three days to deadlines 23 when service is made via the CM/ECF system. (Id.) The defendants, thus, claim 24 that the objections were not due until January 28, 2010. (Id.) 25 26 The local rules were amended December 3, 2009. As a result, Local Rule 27 7(b) now provides that [u]nless within fourteen (14) days after the service of a 28 1 CIVIL 09-1232 (JA) 7 2 3 motion the opposing party files a written objection to the motion, incorporating 4 5 a memorandum of law, the opposing party shall be deemed to have waived 6 objection. Local Rules of the U.S. Dist. Court for the Dist. of P.R. Rule 7(b). 7 Thus, the defendants had 14 days to oppose plaintiffs motion to compel. Since 8 the motion was filed on January 11, 2010, the defendant had until January 25, 9 10 2010, to oppose. However, Federal Rule of Civil Procedure 6(d) states that 11 [w]hen a party may or must act within a specified time after service and service 12 is made under [Rule 5(b)(2)(E)] 3 days are added after the period would 13 otherwise expire under Rule 6(a). Fed. R. Civ. P. 6(d). Rule 5(b)(2)(E) states 14 15 that a pleading or other paper may be served by sending it by electronic means 16 if the person consented in writing--in which event service is complete upon 17 transmission, but is not effective if the serving party learns that it did not reach 18 the person to be served[.] Fed. R. Civ. P. 5(b)(2)(E). It is clear then, that when 19 20 a pleading or other paper is served through the [CM/ECF system] . . . [Rule 6(d)] 21 will apply. 4B Charles Alan Wright 22 Procedure § 1171 (3d ed. 2002). Hence, the defendants had until January 28, 23 2010, to oppose the motion to compel. Therefore, since the defendants filed the 24 & Arthur R. Miller, Federal Practice and written objections on that date, plaintiffs motion is not deemed unopposed. 25 26 27 28 (Docket No. 45.) 2. First Set of Interrogatories and Request for Production of Documents 1 CIVIL 09-1232 (JA) 8 2 3 Plaintiffs argue that since the ESI inquiries were not answered, Nalco was 4 5 served with a first set of interrogatories and request for production of documents. 6 (Docket. No. 41, at 2, ¶ 3.) According to plaintiffs, the defendants failed to 7 comply, once again, with the discovery requests. (Id. at 3, ¶ 6.) They claim, 8 however, that the defendants later agreed to comply with all outstanding 9 10 discovery requests, provided their scope was reduced or limited. (Id. at 3, ¶ 7.) 11 As a result, a redrafted first set of interrogatories and request for production on 12 documents was served on the defendants. (Docket No. 41-8.) However, plaintiffs 13 claim that the discovery requests were not properly answered by the defendants. 14 15 (Docket No. 41, at 4, ¶ 10.) Plaintiffs stress that in order for them to prove their 16 claims, the defendants must be compelled to provide the information requested. 17 (Id. at 6, ¶ 22.) 18 The defendants contend that plaintiffs discovery request is overly broad. 19 20 (Docket No. 45, at 3.) Specifically, the defendants object to interrogatory No. 5 21 of plaintiffs redrafted interrogatories and request for production of documents, 22 which reads as follows: 23 24 25 26 27 28 5. From January 2007 until the present day, list for each NALCO CHEMICAL, INC., employee who has received a promotion, or who s conditions of employment have improved as compared to those conditions of others within the following delimited and narrowly defined reference group: employees who have been under the scope of authority, chain of command, area of responsibility, reported to or 1 CIVIL 09-1232 (JA) 9 2 3 4 5 been accountable in any way, formally or informally, on an institutional or project basis, to any of the following named co-defendants: José Serrano, Jorge Castillo and Ashok Paul Duggal: 6 7 8 a. b. 9 10 c. 11 12 13 d. 14 15 16 e. f. 17 18 19 g. 20 21 22 23 24 h. name, gender, age, national origin, and date of promotion; job promoted from, with its corresponding salary grade and department; job promoted into, with its corresponding job description and criteria, selection devices and procedures, salary grade and department; justifications and reasons why promotee was selected over others; date and position of initial hire, with its corresponding salary grade and department; other positions held with employer, with their corresponding salary grade and department; supervisors and officials involved with promotion and the nature of their involvement; copy of personnel file and all documents related to the above promotions. (Docket No. 41-8, at 1 & Docket No. 45, at 5.) According to the defendants, the request is too broad because it seeks 25 26 information concerning employees outside of the Puerto Rico office even though 27 plaintiff was terminated by his manager in Puerto Rico. (Docket No. 45, at 6.) 28 1 CIVIL 09-1232 (JA) 10 2 3 The defendants argue that plaintiffs claim is one of disparate treatment, not 4 5 disparate impact. (Id.) In other words, the defendants believe the request is 6 overly broad because it goes beyond Mr. Aponte s work unit without showing a 7 particularized need for the information sought. (Id. at 6 & 7.) Furthermore, the 8 defendants argue that despite that this is not a failure to promote case, plaintiffs 9 10 are also seeking information concerning employees who were promoted. (Id.) 11 The defendants claim that plaintiffs have not shown why decisions on promotion 12 are relevant to either the alleged hostile environment that Mr. Aponte supposedly 13 endured or to his unjust termination claim. (Id.) 14 15 Also, the defendants contend that interrogatories 12-18 all concern 16 databases and computer information beyond the scope of Nalco s Puerto Rico 17 office. (Id.) The defendants claim that all documents related to employees, 18 including performance reviews and documentation relating to the termination 19 20 decisions are kept in personnel files. (Id.) The defendants state that Nalco does 21 have an electronic database where employee information is stored, located in 22 Naperville, Illinois. However, they claim that beyond that database, plaintiffs 23 request for information regarding other non Puerto Rico ESI databases is 24 overboard and not reasonably calculated to lead to admissible evidence. (Id. at 25 26 27 28 7 & 8.) 1 CIVIL 09-1232 (JA) 11 2 3 As to plaintiff s request for production of documents, the defendants claim 4 5 that it is also overly broad and seeks information not reasonably calculated to lead 6 to admissible evidence. (Id.) For example, the defendants object to request No. 7 1 which reads as follows: 8 9 10 11 12 13 From January 2007 until the present day, and in support of the organizations to which belong the same delimited and narrowly defined reference group as laid out for Interrogatory 5, above: All files identifying the nature of NALCO CHEMICAL, INC. s operations, physical locations, and organizational structure, including agents, principals, officers, officials, directors, and any others who have or might have any responsibility for the development of NALCO CHEMICAL, INC. policy. 14 15 16 17 18 (Docket No. 41-8, at 5, ¶ 1.) The defendants claim that this request like all others would require Nalco to produce every file in its possession worldwide. (Docket No. 45, at 8.) The defendants state that a production of this magnitude is neither justified by 19 20 relevance to plaintiff s claim nor by the importance of the issues at stake in the 21 action or the importance of the discovery in resolving the issues. (Id.) Plaintiffs, 22 however, posit that the defendants objections fail on their face to comply with the 23 specificity requirement of Federal Rules of Civil Procedure 33 and 34. (Docket No. 24 41, at 7, ¶ 25.) 25 26 Rule 33(b)(4) states that: [t]he grounds for objecting to an interrogatory 27 must be stated with specificity. Any ground not stated in a timely objection is 28 1 CIVIL 09-1232 (JA) 12 2 3 waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 4 5 33(b)(4). Rule 34(b)(2)(C), on the other, provides that: [a]n objection to part 6 of a request must specify the part and permit inspection of the rest. Fed. R. Civ. 7 P. 34(b)(2)(C). 8 It is well settled that: 9 10 11 12 13 14 15 16 [t]he party resisting production bears the burden of establishing lack of relevancy or undue burden . . . . [T]he mere statement by a party that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection. . . . On the contrary, the party resisting discovery must show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive. Sánchez-Medina v. UNICCO Serv. Co., 265 F.R.D. 24, 27 (D.P.R. 2009) (quoting 17 18 St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. 19 Iowa 2000) (citations omitted)). In their response to the redrafted interrogatories 20 and request for production of documents, the defendants explained to plaintiffs 21 that the information requested in interrogatory No. 5 regarding employees that 22 23 had been promoted or whose conditions of employment improved compared to 24 others who were under the authority of a narrowly defined group comprised of Mr. 25 Serrano, Mr. Castillo and Mr. Duggal was still overly broad. (Docket No. 41-10.) 26 The defendants stated that in the case of Mr. Serrano 615 employees were 27 28 under his supervision, 166 in Mexico, 260 in Brazil, 23 in Argentina, 52 in Chile, 1 CIVIL 09-1232 (JA) 13 2 3 67 in Colombia, 28 in Venezuela, 5 in Trinidad, 5 in the Dominican Republic, 2 in 4 5 the United States and 7 in Puerto Rico. 6 information concerning employees in foreign jurisdictions, who are not subject to 7 United States equal employment opportunity statutes but instead to the laws of 8 (Id.) According to the defendants, their several nations, would not lead to admissible evidence regarding an alleged 9 10 hostile work environment and an alleged wrongful termination in Puerto Rico. 11 (Id.) Also, in their answer the defendants informed plaintiffs that the information 12 they were seeking was not relevant because their claims are for hostile work and 13 wrongful termination, not failure to promote. (Id.) As to electronic discovery 14 15 requests contained in the other interrogatories, specifically interrogatories 12 16 through 18, the defendants informed plaintiffs that once an appropriate scope was 17 established, they would produce the information requested. (Id.) The defendants 18 also stated that plaintiffs had failed to show that discovery of Nalco s databases 19 20 was necessary at this stage of the proceedings. (Id.) 21 Discovery in disparate treatment cases has been limited to employees 22 within certain work units and who have suffered similar treatment as the plaintiff. 23 Whittingham v. Amherst Coll., 164 F.R.D. 124, 127 (D. Mass. 1995) (citing 24 Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49 (D.N.J. 1985)). Thus, open 25 26 ended reviews of corporate records are not allowed. Briddell v. Saint Gobain 27 Abrasives Inc., 233 F.R.D. 57, 60 (D. Mass. 2005). In order to avoid overly broad 28 1 CIVIL 09-1232 (JA) 14 2 3 and unduly burdensome requests, discovery may be limited both geographically 4 5 and temporally. Id. (citing Glenn v. Williams, 209 F.R.D. 279, 281-82 (D.D.C. 6 2002)). 7 8 Plaintiffs claims in this case were brought pursuant to 29 U.S.C. § 626, Section 7(b) of the Age Discrimination in Employment Act ( ADEA ), 42 U.S.C. § 9 10 1981, 42 U.S.C. § 12101, Americans with Disabilities Act ( ADA ), 42 U.S.C. § 11 2000, and Title VII of the Civil Rights Act of 1964 ( Title VII ). (Docket No. 1, at 12 2-3, ¶ 2.) However, nowhere is it alleged in the complaint that the discrimination 13 claims are based on failure to promote. Furthermore, if Mr. Aponte was 14 15 terminated from his employment in Puerto Rico, discovery cannot go beyond his 16 work unit without showing a valid need to do so. 17 Goodyear Tire & Rubber Co., 232 F.R.D. 246, 253 (E.D.N.C. 2005). 18 See McDougall-Wilson v. Plaintiffs claim that the information requested, which primarily consists of 19 20 personnel files, is essential in order for them to prove their claims. (Docket No. 21 41, at 6, ¶ 22.) This conclusory assertion is not enough to entitle plaintiffs to be 22 handed entire files of employees, much less conduct discovery beyond Mr. 23 Aponte s work unit. In short, plaintiffs fail to make a particularized showing that 24 the information requested is in any way relevant to his claims. See Whittingham 25 26 27 28 v. Amherst College, 164 F.R.D. at 127-28. 1 CIVIL 09-1232 (JA) 15 2 3 As to the defendants objections regarding the scope of the other 4 5 interrogatories, although the interrogatories were not made individually, it does 6 not mean that they are improper. The information requested by plaintiffs in 7 interrogatories 12 through 18 is based on the narrowly defined group laid out in 8 interrogatory No. 5, which the defendants objected to as overly broad. Thus, an 9 10 objection much like the one made by the defendants, may be sustained if the 11 interrogatory objected to is adequately covered by other interrogatories. 8B 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and 13 Procedure § 2174 (3d ed. 2002). The same can be said of the defendants 14 15 objections to plaintiffs request for production of documents. Like the 16 interrogatories, plaintiffs request for production of documents is overbroad 17 because it is based on the same scope set forth in interrogatory No. 5. (Docket 18 No. 41-10.) Therefore, the defendants objections to the interrogatories and the 19 20 request for production of documents are not deficient. Accordingly, plaintiffs 21 discovery request will be limited to Nalco s Puerto Rico databases located in 22 Naperville, Illinois. 23 24 3. ESI Inquiries Plaintiffs claim that during a meeting on August 25, 2009, the defendants 25 26 agreed to address their ESI inquiries before exchanging formal discovery requests. 27 (Docket No. 41, at 1, ¶ 1.) The ESI inquiries required the defendants to identify 28 1 CIVIL 09-1232 (JA) 16 2 3 the following: (1) databases and data structures which Nalco maintains or has 4 5 maintained, and which are now in its possession, from which statistical 6 employment information can be obtained or produced; (2) Nalco s information 7 technology infrastructure, including: manufacturer, model number, operating 8 system, input/output devices, and other peripherals; (3) Nalco s network 9 10 infrastructure; (4) software programs that have been, or are currently, in use by 11 Nalco, including desktop productivity tools, integrated enterprise resource 12 management systems, and database management systems; (5) email and 13 corporate level messaging systems in use by Nalco; (6) security and 14 15 16 17 18 authentication policies for all networks and applications previously identified. (Docket No. 41-3, at 2.) According to plaintiffs, it was later agreed that the scope of the ESI inquiries would be expanded, as it related to any initial disclosures, to include for each 19 20 indexed document produced, the following: (1) identification of the corresponding 21 computer desktop program or software productivity tool from which it was 22 created, or electronic messaging system from which it was transmitted; (2) a soft- 23 copy in its native electronic file format form together with all of its original 24 metadata. (Docket No. 41, at 2, ¶ 2.) Also, for each indexed document which is 25 26 purported to be an email communication, the defendants had to provide the 27 identity of the data extraction techniques and key-words utilized for its 28 1 CIVIL 09-1232 (JA) 17 2 3 identification. (Id.) Plaintiffs claim the ESI inquiries were submitted on August 4 5 27, 2009, and were supposed to be answered by the defendants by September 6 3, 2009. (Id. at 1, ¶ 1.) However, plaintiffs state the defendants failed to answer 7 their inquiries. (Id. at 2, ¶ 3.) Thus, plaintiffs request that the defendants be 8 compelled to answer their ESI inquiries because they have not made a full, 9 10 11 12 13 proper, and timely disclosure of the information technology infrastructure. (Docket No. 41.) The defendants claim that they refused to answer plaintiffs ESI inquiries because they are overly broad. (Docket No. 45.) According to the defendants 14 15 rather than identifying the appropriate scope of the information sought, plaintiffs 16 are demanding voluminous categories of information regarding databases, 17 systems and networks without regard as to whether they contain any discoverable 18 information. (Id. at 9.) Therefore, the defendants contend that plaintiffs ESI 19 20 21 inquiries should be denied because they have made no showing as to what they expect to discover. (Id. at 10.) 22 A party should [be allowed to] discover the organization of the responding 23 party s information technology department, the hardware and software it uses, as 24 well as its policies and practices for information processing. 1 Jay E. Grenig and 25 26 William C. Gleisner, III et al., eDiscovery & Digital Evidence § 7:10 (2009). There 27 is no question that plaintiffs can obtain information regarding Nalco s databases, 28 1 CIVIL 09-1232 (JA) 18 2 3 information technology infrastructure, network infrastructure, software programs, 4 5 messaging systems and policies. This does not mean that in doing so, plaintiffs 6 are authorized to conduct a fishing expedition. MartÃnez v. Cornell Corrs. of Tex., 7 229 F.R.D. 215, 218 (D.N.M. 2005). The problem is that plaintiffs ESI inquires 8 are too broad. As the defendants point out, plaintiffs ESI inquires would require 9 10 them to produce information of Nalco s worldwide operations. Discovery cannot 11 extend beyond Nalco s Puerto Rico databases located in Naperville, Illinois. 12 Defendants cannot be compelled to answer the ESI inquiries as drafted. As to the 13 documents produced in the initial disclosures, the defendants have to identify the 14 15 computer program and/or software in which they were created, or electronic 16 messaging system that was used to transmit them.1 Also, for each document 17 produced, the defendants must provide a soft-copy in its native format in order 18 and original metadata. See Dahl v. Bain Capital Partners, LLC., 655 F. Supp. 2d 19 20 146, 150 (D. Mass. 2009). 21 B. 22 Plaintiffs claim that the defendants failed to answer a request for production 23 Second Motion to Compel of documents served on January 15, 2010. (Docket No. 47.) According to 24 25 26 27 28 1 Federal Rule of Civil Procedure 26(a)(1)(A)(ii) provides that a party must, without awaiting a discovery request, provide to the other parties: . . . a copy--or description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment. 1 CIVIL 09-1232 (JA) 19 2 3 plaintiffs, the defendants objections to the request are ineffective because they 4 5 do not specify how and why the requested production is burdensome. (Id. at 2, 6 ¶ 7.) Also, plaintiffs claim the defendants objections have to be deemed waived 7 because they were not made within 30 days, as required by Federal Rule of Civil 8 Procedure 34. (Id. at 3, ¶ 9.) Thus, plaintiffs claim that the defendants have to 9 10 comply with the discovery request as drafted. (Id. at 4, ¶ 11.) 11 The defendants claim that the motion to compel has to be denied because 12 the request for production of documents was not properly served and because 13 plaintiffs failed to certify that reasonable effort was made to try solving the 14 15 discovery dispute. (Docket No. 49, at 1, n.1 & at 2, ¶ 2.) Furthermore, the 16 defendants argue that plaintiffs discovery request is too broad. (Id. at 4, ¶ 6.) 17 Primarily, the defendants dispute request No. 1 of plaintiffs request for production 18 of documents, which reads as follows: 19 20 21 22 23 24 1. From January 1, 2006, until the present date, produce all versions of all Lotus Notes (or any other format of email store containing message units, including, but not limited to, EDB, OST, PST, and NSF) container files, mail stores, mailboxes and calendars, from which the following named individuals initiated, originated, sent, received or performed any electronic messages or transactions: 25 26 27 28 a. b. c. d. José Serrano; Jorge Castillo; Ashok Paul Duggal; Jorge Ortiz-Soldevilla; 1 CIVIL 09-1232 (JA) 20 2 3 e. f. g. h. i. j. k. l. m. n. o. p. 4 5 6 7 8 9 10 Stephanie Glashagel; Alenda Young; Deborah S. Davis; Dennis J. López; Miriam Vera Vega; Antonio Chapina; Pedro Lara; à ngel Urena; Rudy Rosales; Ruddy A. Guerrero; Crispin Hernández; Manuel Rivera-Ramos. 11 12 (Docket No. 47-2, at 2-3, ¶ 1 & Docket No. 49, at 3, ¶ 4.) 13 The defendants claim that the information sought by plaintiffs has nothing 14 to do with Mr. Aponte, the working environment at his office in Puerto Rico, or his 15 termination. (Docket No. 49, at 3-4, ¶ 4.) Furthermore, the defendants argue 16 that plaintiffs reply has to be stricken because leave of court was neither sought 17 18 nor obtained before it was filed.2 (Docket No. 52, at 1-2, ¶ 1.) 19 Plaintiffs contend that discovery was properly served. (Docket No. 51, at 20 2, ¶ 2.) According to plaintiffs, Local Rule 5.1(c) allows for a discovery request 21 to be served through the use of the court s transmission facilities, which includes 22 23 electronic mail transport or any other electronic means consented to by the 24 person being served. (Id.) Plaintiffs claim that in the Electronic Case Filing 25 System Attorney Registration Form that was filed, the defendants consented to 26 27 28 2 The defendants motion to strike was not opposed by plaintiffs. 1 CIVIL 09-1232 (JA) 21 2 3 receive notice and service electronically and waived the right to receive notice and 4 5 service by first class mail. (Id. at 2-3, ¶ 2.) 6 Plaintiffs also argue that the defendants assertion that they have not met 7 their duty to confer in good-faith is without merit. (Id. at 4, ¶ 8.) Plaintiffs claim 8 that the second motion to compel details their futile attempts to reach an 9 10 agreement with the defendants over the pending discovery disputes. (Id. at 4, 11 ¶ 6.) Moreover, plaintiffs argue that the defendants are deliberately trying to 12 mislead the court by claiming that the information sought from the named 13 individuals is irrelevant. (Id. at 8, ¶ 15.) Plaintiffs claim that Mr. Serrano, Mr. 14 15 Castillo, Mr. Duggal, Mr. Soldevilla and Mrs. Glashagel were all identified in Nalco s 16 initial disclosures as individuals likely to have discoverable information that the 17 defendants may use to support their claims or defenses. (Id.) In Mrs. Young, Mr. 18 López, and Mr. Lara s cases, plaintiffs claim that they were identified in Nalco s 19 20 answers to the first discovery request as persons of interest closely involved with 21 Mr. Aponte s termination. (Id.) As to the other remaining individuals, Mrs. Davis, 22 Mrs. Vera, Mr. Chapina, Mr. Urena, Mr. Rosales, Mr. Guerrero, Mr. Hernández, and 23 Mr. Rivera, plaintiffs state that they were identified from Nalco s production bates 24 numbered 5, 13, 15, 49; 50, 57, 66; 67, 72, 74, 126, 128, 133, 137; 138, 140 25 26 27 28 and 167. (Id. at 9.) 1 CIVIL 09-1232 (JA) 22 2 3 Local Rule 7(c) provides that in order to file a reply memorandum, the 4 5 moving party has to seek the court s leave within seven (7) days of the service 6 of any objection to a motion . . . . Local Rules of the U.S. Dist. Court for the 7 Dist. of P.R. Rule 7(c). In this case, plaintiffs reply to the defendants opposition 8 to the second motion to compel was filed without prior leave of court. (Docket 9 10 No. 51.) As such, plaintiffs reply memorandum must be stricken. Even if it were 11 assumed that leave was sought prior to filing the reply, it would not make a 12 difference. Plaintiffs argument that the request for production of documents was 13 properly served is incorrect. The discovery request was served via e-mail without 14 15 using the CM/ECF system. Nevertheless, assuming that service was proper, the 16 defendants objections were made on time. Plaintiffs request for production of 17 documents was served on January 15, 2010. Pursuant to Federal Rule of Civil 18 Procedure 34 the defendants had 30 days, that is until February 18, 2010, to 19 20 answer and/or object to plaintiffs discovery request. Fed. R. Civ. P. 34(b)(2)(A). 21 However, since it is been assumed that service was made through the court s 22 transmissions facilities, the defendants had an additional 3 days to respond. Fed. 23 R. Civ. P. 6(d). Therefore, the answers and objections to request for production 24 of documents were due by February 21, 2010. The defendants responded to 25 26 plaintiffs discovery request on February 19, 2010. 27 objections were timely made. 28 Hence, the defendants 1 CIVIL 09-1232 (JA) 23 2 3 As to the issue of whether or not plaintiffs met their duties to confer, I find 4 5 that they did not. Local Rule 26(b) and Federal Rule of Civil Procedure 37(a)(1) 6 requires that before filing a motion to compel, the moving party has to certify that 7 it has made a reasonable and good-faith effort to [try and solve the discovery 8 dispute] with opposing counsel without the court s intervention. Local Rules of 9 10 the U.S. Dist. Court for the Dist. of P.R. Rule 26(b); see Fed. R. Of Civ. P. 11 37(a)(1). An attempt to confer will not suffice. Local Rule 26(b). Plaintiffs 12 certification states that [p]ursuant to their duty to confer . . . [they] inquired into 13 the status of Nalco s production on February 17, 2010, since the defendants had 14 15 not responded to the discovery request. (Docket No. 47, at 1, ¶ 2.) After the 16 defendants responded to the request on February 19, 2010, plaintiffs claim that 17 on that very same day they made a second effort to convince them about the 18 propriety of the requests. (Id. at 2, ¶ 6.) It is clear that plaintiffs certification is 19 20 deficient. First, plaintiffs do not specify if any attempt was made to discuss the 21 discovery dispute either personally or through a telephone conference. 22 Shuffle Master, Inc. v. Progressive Games Inc., 170 F.R.D. 166, 172 (D. Nev. 23 1996). Second, only two of the emails were sent by plaintiffs to the defendants, 24 See which instead of showing a good faith effort to reach an agreement, only showed 25 26 plaintiffs point of view over the objections made. 27 Imaging, Inc., 2008 WL 169955, at *1 (D.N.H. Jan. 16, 2008) ( emails . . . do[] 28 See Antonis v. Elec. for 1 CIVIL 09-1232 (JA) 24 2 3 not meet the requirement that the parties confer in good faith about discovery 4 5 issues before invoking judicial remedies ); see also Ross v. Citifinancial, Inc., 203 6 F.R.D. 239, 240 (S.D. Miss., 2001) (the meet and confer prerequisite is not an 7 empty formality and cannot be satisfied by including with the motion copies of 8 correspondence that discuss the discovery at issue ). Thus, plaintiffs failure to 9 10 11 12 13 comply with the meet and confer requirements constitutes sufficient reason to deny the motion to compel. C. Notice of Deposition The defendants request that the court strike the notice for the taking of 14 15 deposition of Nalco filed by plaintiffs on March 11, 2010, because it was filed with 16 the court. (Docket No. 50.) Rule 5(b)(3) of the Federal Rules of Civil Procedure 17 states that [i]f a local rule so authorizes, a party may use the court s 18 transmission facilities to make service under Rule 5(b)(2)(E). Fed. R. Civ. P. 19 20 21 22 23 24 25 26 27 28 5(b)(3). Local Rule 26(a) states, in pertinent part, that: [u]nless otherwise ordered by the Court, deposition upon oral examination and interrogatories, request for documents, request for admissions, answers and responses and disclosures made under Fed. R. Civ. P. 26(a)(1)-(3) or pursuant to scheduling orders, shall be served upon other parties but shall not be filed with the court . . . . The party that has served notice of a deposition or has served discovery papers shall be responsible for preserving and for insuring the integrity of original transcripts and discovery papers for use by the Court. Local Rules of the U.S. Dist. Court for the Dist. of P.R. Rule 26(a). 1 CIVIL 09-1232 (JA) 25 2 3 Local Rule 26(a) clearly precludes filing discovery documents with the court. 4 5 Therefore, the notice for the taking of deposition must be stricken. 6 D. 7 The defendants request that since Nalco s principal place of business is in 8 Request for Protective Order Naperville, Illinois, the deposition take place there and not in San Juan, Puerto 9 10 Rico. (Docket No. 54, at 2-3, ¶ 4.) Also, the defendants argue that because 11 discovery has to be focused on the existence or non existence of alleged hostile 12 work environment and the basis of Mr. Aponte s termination, the topics proposed 13 for the deposition have to be limited to those databases or networks that contain 14 15 information relevant to claims. (Id. at 4, ¶ 5.) 16 Plaintiffs in turn argue that the defendants request for protective order has 17 to be dismissed because it fails to meet the requirements of Federal Rule of Civil 18 Procedure 26(c). (Docket No. 56, at 2, ¶ 6.) Plaintiffs claim that on February 17, 19 20 19 and 25, 2010, the defendants tried to reach an agreement as to when and 21 where the deposition would take place, as well as who was going to be Nalco s 22 corporate representative for the taking of the deposition. (Id. at 1-2, ¶¶ 2-4.) 23 Plaintiffs state that despite their efforts the defendants did not take advantage and 24 no agreement was reached. (Id. ¶ 5.) 25 26 The court may issue a protective order upon motion by [a] party or any 27 person from whom discovery is sought . . . [accompanied by] a certification that 28 1 CIVIL 09-1232 (JA) 26 2 3 the movant has in good faith conferred or attempted to confer with other affected 4 5 parties in an effort to resolve the dispute without court action. Fed. R. Civ. P. 6 26(c). After the movant meets these requirements, [t]he court may, for good 7 cause, issue an order to protect a party or person from annoyance, 8 embarrassment, oppression, or undue burden or expense . . . . Id. The 9 10 defendants here failed to meet the requirements of Rule 26(c). The defendants 11 motion does not contain a certification that they made a good faith effort to 12 resolve the discovery dispute before seeking the court s intervention. Thus, the 13 defendants request for protective order must is denied. 14 E. 15 Plaintiffs seek leave from the court to depose Mr. Duggal and a 16 17 18 Omnibus Motion representative of Nalco, and serve subpoenas on Amgen and Bank of America. (Docket No. 53, at 11-12, ¶ 22.) They also request that the defendants be 19 20 ordered to pay attorney s fees and costs associated with the filing of the motion 21 as a result of their contumacious behavior in treating the discovery process in this 22 case. 23 regarding plaintiffs request to depose either Mr. Duggal or Nalco as long as the 24 (Id. at 1.) The defendants in turn state that they have no objection topics to be covered are within the scope of discovery and the deposition take 25 26 place in the appropriate locations. (Docket No. 55, at 4, ¶ 6.) Also, they do not 27 oppose plaintiffs request to serve the third party subpoenas. 28 (Id.) The 1 CIVIL 09-1232 (JA) 27 2 3 defendants only oppose plaintiffs request for attorney s fees and costs, because 4 5 they believe that they have not failed to respond to the discovery requests. (Id.) 6 There being no controversy as to whether or not Mr. Duggal and Nalco can 7 be deposed, both plaintiffs and the defendants must agree on the time and place 8 where the deposition will be taken. Also, the defendants must provide to plaintiffs 9 10 the curriculum vitae of Nalco s designated corporate representative who is to be 11 deposed within 14 days upon the entry of this order. As to the issue regarding 12 the topics to be covered during the depositions, they will not extend beyond the 13 discovery scope delineated in section 1(3). Last but not least, given the 14 15 complexity of the discovery issues in this case, failure to adhere to the discovery 16 schedule cannot be solely attributed either to plaintiffs or the defendants. 17 Therefore, monetary sanctions will not be imposed on the defendants. 18 III. CONCLUSION 19 20 For the reasons set forth above, the: (1) first motion to compel (Docket No. 21 41) is GRANTED in part and DENIED in part; (2) motion to deem as unopposed 22 the second motion to compel (Docket No. 44.) is DENIED; (3) motion to strike 23 plaintiffs reply to the defendants opposition to second motion to compel (Docket 24 No. 52) is GRANTED; (4) second motion to compel (Docket No. 47) is DENIED; 25 26 27 28 (5) motion to strike the notice for the taking of deposition (Docket No. 50) is 1 CIVIL 09-1232 (JA) 28 2 3 GRANTED; (6) motion requesting protective order (Docket No. 54) is DENIED; (7) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 omnibus motion (Docket No. 53) is GRANTED in part and DENIED in part. At San Juan, Puerto Rico, this 20th of May, 2010. S/ JUSTO ARENAS Chief United States Magistrate Judge
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