Aponte-Navedo et al v. Nalco Chemical Company et al, No. 3:2009cv01232 - Document 93 (D.P.R. 2011)
Court Description: OPINION AND ORDER granting in part and denying in part re 77 MOTION to Compel Discovery filed by Conjugal Partnership Aponte-Santiago, Belkis Isabel Santiago-Martinez, Donato Aponte-Navedo Signed by Chief Mag. Judge Justo Arenas on 1/28/2011.(nydi)
Download PDF
<![CDATA[
Aponte-Navedo et al v. Nalco Chemical Company et al 1 Doc. 93 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 5 6 DONATO APONTE-NAVEDO, et al., 7 Plaintiffs 8 v. 9 CIVIL 09-1232 (JA) NALCO CHEMICAL COMPANY, et al., 10 11 Defendants 12 13 14 OPINION AND ORDER This matter is before the court on motion to compel discovery filed by 15 16 plaintiffs on October 25, 2010. (Docket No. 77.) A response in opposition to the 17 motion to compel was filed by defendants on November 12, 2010. (Docket No. 18 78.) The motion to compel was originally denied on November 15, 2010. The 19 attorneys were order to meet in an attempt to resolve the pending discovery 20 21 disputes before I were to take the disputes under consideration. The attorneys 22 did meet on November 23, 2010 and notwithstanding their attempts, they were 23 unable to reach agreement regarding the outstanding discovery sought by 24 plaintiffs. Plaintiffs then filed an assented-to motion seeking that the court hold 25 26 27 a hearing to rule on each of the discovery controversies. (Docket No. 84, filed December 31 2010.) That hearing was held on January 14, 2011. 28 Dockets.Justia.com 1 CIVIL 09-1232 (JA) 2 2 3 4 5 I. BACKGROUND On March 10, 2009, plaintiffs filed a complaint for employment 6 7 discrimination against the defendants. (Docket No. 1, at 1, ¶ 1.) Their claims are 8 brought under 29 U.S.C. § 626, Section 7(b) of the Age Discrimination in 9 Employment Act (“ADEA”), 42 U.S.C. § 1981, (as it pertains to deprivation of 10 rights of non-white persons), 42 U.S.C. § 12101, Americans with Disabilities Act 11 12 (“ADA”) (plaintiff is a Type II diabetic), 42 U.S.C. § 2000, and Title VII of the Civil 13 Rights Act of 1964 (“Title VII”) (plaintiff is of Puerto Rican national origin). 14 (Docket No. 1, at 2-3, ¶¶ 2, 5.) Specifically, plaintiff Aponte-Navedo alleges that 15 the defendants created a hostile work environment through discrimination and 16 privacy violations and adverse employment conditions leading to his unjustified 17 18 termination. Those acts or omissions allegedly started in 2001 and ending around 19 July 28, 2008. (Docket No. 1, at 1-2, ¶ 1.) Plaintiff Aponte-Navedo alleges that 20 the personal defendants, all in supervisory positions, either collaborated or failed 21 in their duty to prevent his being the object of disparaging, demeaning and 22 23 ridiculing remarks. He alleges that all codefendants were deliberately indifferent 24 to his rights and thus caused him damages due to their failure to adequately 25 supervise and discipline other persons. (Id. at 2, ¶ 1.) He also alleges that the 26 27 28 failure of Nalco’s upper management to take remedial action indicates that the 1 CIVIL 09-1232 (JA) 3 2 3 4 5 national origin, disability, age and gender discrimination animus that pervades in Nalco was endorsed at the highest levels. (Id. at 6-7, ¶ 22.) 6 7 Discovery in this case has not flowed as smoothly as desired. Prior 8 discovery impasses resulted in a lengthy order (see Aponte-Navedo v. Nalco 9 Chem. Co., 268 F.R.D. 31, 37 (D.P.R. 2010)) and this order is a continuation of 10 the prior process. On January 12, 2011, plaintiffs filed an informative motion 11 12 informing that they are in the process of drafting a motion for a finding of 13 spoliation, as well as for other related litigation abuses and behavior, and will be 14 filing such a motion within a time frame to be fixed by the court. (Docket No. 87.) 15 Plaintiffs also announced the intention of filing a motion in limine in which they will 16 oppose any foreseeable dispositive motion filed by the defendants. These motions 17 18 address several of the discovery requests subject of the motion to compel and 19 plaintiffs believe that the disputed items are ripe for adjudication, and better 20 served in the forthcoming dispositive motion. Plaintiffs thus announce that in 21 order to streamline the discovery hearing, without waiving their right to raise the 22 23 underlying legal contentions in their dispositive motion and motion in limine, that 24 they would not pursue interrogatories 12, 14-18, document request numbers 7, 25 12, 13 and 23, and second document request numbers 1-5. (Docket No. 87, at 26 2-3.) The defendants responded to the informative motion on the same day 27 28 (Docket No. 88), stressing that on the eve of the hearing, plaintiffs were 1 CIVIL 09-1232 (JA) 4 2 3 4 5 unilaterally attempting to remove the disputes from the court’s consideration. The defendants further stress that the parties have fully briefed these matters, and 6 7 that it would be a waste of the court’s and the parties’ time and resources to 8 further delay resolution of these matters. They insist that I rule on each issue, 9 one by one, as I had announced. Plaintiffs filed a second informative motion 10 charging the defense with obtaining a tactical advantage, taking a tenth bite at the 11 12 apple at concocting a pretext and having asked for a postponement of the hearing 13 previously scheduled for January 12, 2011. Plaintiffs then announced that they 14 were fully prepared to discuss the controversy (as scheduled), and noting that 15 defendants’ litigation behavior will be “as inexcusable and indefensible tomorrow, 16 as it will be on Monday.” (Docket No. 89, at 2, ¶ 7.) Plaintiffs conclude that 17 18 “there will . . . be no finality to the issues, as they [defendants] will come up 19 before the Court again prior to the deadline set for dispositive motions.” (Id.) 20 Therefore, I will rule on the matters addressed in plaintiffs’ motion to compel as 21 originally planned. 22 23 II. FIRST SET OF INTERROGATORIES 24 The defendants contend that notwithstanding redaction resulting from my 25 order to limit scope, plaintiffs’ discovery requests remain overbroad, continue to 26 27 28 seek irrelevant information, and are also burdensome. (Docket No. 78, at 2.) 1 CIVIL 09-1232 (JA) 5 2 3 4 5 Specifically, the defendants object to interrogatory No. 5 of plaintiffs’ redrafted interrogatories and request for production of documents, which reads as follows: 6 14 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 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 AND limited to information residing in Nalco’s Puerto Rico databases located in Naperville, Illinois: 15 a. 7 8 9 10 11 12 13 16 b. 17 18 c. 19 20 d. 21 e. 22 f. 23 g. 24 25 26 27 28 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. 77, at 7, ¶ 20.) 1 CIVIL 09-1232 (JA) 6 2 3 4 5 According to the defendants, the plaintiffs seek irrelevant information since failure to promote is not an issue before the court and the request is irrelevant 6 7 and not likely to lead to relevant evidence. The defendants had previously argued 8 that plaintiffs had not shown why decisions on promotion were relevant to either 9 the alleged hostile environment that Mr. Aponte supposedly endured or to his 10 unjust termination claim. Plaintiffs argue that greater latitude in discovery has 11 12 been recognized by the Supreme Court in Title VII cases so that plaintiffs should 13 have broad access to documents to document their claims. See Wards Cove 14 Packing Co. v. Atonio, 490 U.S. 642, 657-58 (1989). In that case, the Court 15 considered a disparate impact claim, and there is no doubt that such a claim, and 16 claims in general, invite painting with a broad discovery brush as plaintiffs 17 18 suggest. It is axiomatic that the federal rules provide for liberal discovery. While 19 not disagreeing with the general proposition, I fail to see the relevance or the 20 probability of leading to the “discovery of admissible evidence” (see Fed. R. Civ. 21 P. 26(b)(1)) stemming from defendants’ answering interrogatory five which 22 23 relates to promotions, just as I would find discovery related to disparate impact 24 irrelevant in a disparate treatment claim. See Rodríguez-Torres v. Gov’t Dev. 25 Bank of P.R., 265 F.R.D. 40, 42-43 (D.P.R. 2010). 26 Plaintiffs argue that the information sought attempts to uncover other instances of discrimination, whether 27 28 leveled against plaintiffs or other Nalco employees and that the information sought 1 CIVIL 09-1232 (JA) 7 2 3 4 5 would reveal Nalco’s history and trajectory of promoting or passing up for promotion certain individuals, and whether or not the individuals who have been 6 7 disproportionately affected are members of the protected groups to which 8 plaintiffs belong. Citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 9 385-88 (2008), plaintiffs argue that blanket rules excluding evidence of possible 10 discrimination against other employees are inappropriate. (Docket No. 77, at 9.) 11 12 However, “the information sought is not closely related to ‘plaintiff’s circumstances 13 and theory of the case.’” Zelaya v. UNICCO Serv. Co., 682 F. Supp. 2d 28, 33 14 (D.D.C. 2010) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. at 388). 15 Interrogatory No. 5 need not be answered. 16 The defendants have argued that interrogatories Nos. 12 through 18 all 17 18 concern databases and computer information beyond the scope of Nalco’s Puerto 19 Rico office. 20 employee information is stored, located in Naperville, Illinois. Plaintiffs counter 21 They argue that Nalco has an electronic database (SAP) where that SAP is a software, and not a database. Nalco insists that its database is SAP, 22 23 regardless of nomenclature. A ruling on interrogatory No. 12 will remain pending. 24 Interrogatory No. 14 is to be answered while interrogatories Nos. 15 through 18 25 need not be answered for the same reason that interrogatory No. 5 need not be 26 answered. The basis for my ruling on these objections stems from my belief that 27 28 the manner in which discovery is being sought, reflecting a jaundiced eye 1 CIVIL 09-1232 (JA) 8 2 3 4 5 approach to Nalco’s corporate animus, is not conducive to either a speedy or inexpensive determination of the action and that seeking the primary information 6 7 8 9 10 needed conserves litigation and judicial resources and keeps fees and costs down. II. REQUEST FOR PRODUCTION OF DOCUMENTS The defendants generally argue that the requests are beyond the scope of the law suit, beyond the scope of discovery in the case, overbroad and irrelevant, 11 12 13 14 15 16 17 18 19 20 21 and seek information not reasonably calculated to lead to admissible evidence. The defendants object to request No. 1 which reads as follows: 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. (Docket No. 41-8, at 5, ¶ 1.) The defendants claim that this request is unclear and beyond the scope of 22 23 24 25 26 27 28 discovery. (Docket No. 78, at 8.) “Discovery in disparate treatment cases has been limited to employees within certain work units and who have suffered similar treatment as the plaintiff.” Whittingham v. Amherst Coll., 164 F.R.D. 124, 127 (D. Mass. 1995) (citing Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49 (D.N.J. 1985)). Thus, open ended reviews of corporate records are not allowed. Briddell v. Saint 1 CIVIL 09-1232 (JA) 9 2 3 4 5 6 7 8 9 10 Gobain Abrasives Inc., 233 F.R.D. 57, 60 (D. Mass. 2005). In order to avoid overly broad and unduly burdensome requests, discovery may be limited both geographically and temporally. Id. (citing Glenn v. Williams, 209 F.R.D. 279, 281-82 (D.D.C. 2002)). Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. 31, 37 (D.P.R. 2010). Document request No. 1 need not be complied with for much such the same reasons as interrogatory No. 5 need not be answered. 11 12 13 14 15 16 17 18 19 20 21 Document request No. 2 reads as follows: 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 organizational charts, personnel charts, descriptions, lists, tables, flow charts or other similar documents that show the identities, titles or responsibilities of NALCO CHEMICAL, INC.’s agents, principals, officers, officials, directors, and any others who have or might have influence or authority over personnel, recruitment, hiring, selection, training, disciplining, demoting, terminating or accommodating any disability. (Docket No. 41-8, at 5-6.) 22 Document request No. 2 is to be complied with but limited to Puerto Rico 23 and only in relation to the factors of disciplining, demoting, terminating or 24 accommodating any disability. 25 26 27 28 Document request No. 6 reads as follows: From January 2007 until the present day, and in support of the organizations to which belong the same delimited 1 CIVIL 09-1232 (JA) 10 2 3 4 5 6 7 8 and narrowly defined reference group as laid out for Interrogatory 5 above: NALCO CHEMICAL, INC.’s published official - or unpublished unofficial - job postings, offers of employment, vacancies and promotional openings and opportunities from January 2007to the present date. (Docket No. 41-8, at 6.) 9 10 11 12 13 These documents are to be produced but limited to Puerto Rico and 2007 through 2009 inclusive. Document request Nos. 7, 8, 9, 10, 11, 12, 13 and 23 read as follows: Document request No. 7: 14 15 16 17 18 19 20 21 22 23 24 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 records maintained by NALCO CHEMICAL, INC. as required by federal law, including, but not limited to: a. b. c. d. e. f. g. h. Title VII; Executive Order 11246; Age Discrimination in Employment Act; Immigration Reform and Control Act; Fair Labor Standards Act; Rehabilitation Act of 1973; Americans With Disabilities Act; Family and Medical Leave Act. (Docket No. 77, at 14.) 25 26 27 28 Document request No. 8: From January 2007 until the present day, and in support of the organizations to which belong the same delimited 1 CIVIL 09-1232 (JA) 11 2 3 4 5 6 7 8 9 10 11 12 and narrowly defined reference group as laid out for Interrogatory 5, above: For NALCO CHEMICAL, INC. personnel and external contractors working or on assignment, temporary or permanent, at the same geographic regions or locations as plaintiff from January 2004 until the present date, provide all records held or examined to establish employment authorization and identity, such as: United States passport; Certificate of United States Citizenship; Certificate of naturalization; Unexpired foreign passport with unexpired Form I-551; Form I-94 with unexpired employment authorization stamp; Resident alien card; Temporary resident card; Employment authorization card. 13 (Docket No. 77, at 15.) 14 Document request No. 9: 15 16 17 18 19 20 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: For all individuals for which a record is produced in response to the request above, and who work or have worked under an employment visa, provide also their corresponding Labor Certification package and Visa application package. 21 (Docket No. 77, at 16.) 22 Document request No. 10: 23 24 25 26 27 28 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: Any and all documents which NALCO CHEMICAL, INC. is required to file or has filed with any state or federal agency dealing with race, color, gender, age, national origin, or disability of its employees. (Docket No. 77, at 16.) 1 CIVIL 09-1232 (JA) 12 2 3 4 Document request No. 11: 5 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 studies, reports, or analysis done by internal staff, consultants, government agencies, or others related to any and all of NALCO CHEMICAL, INC.’s employment practices, policies, procedures, or employee statistical breakdown. 6 7 8 9 10 11 (Id.) 12 Document request No. 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 documents which indicate the breakdown of NALCO CHEMICAL, INC.’s workforce by each of the following characteristics: date of hire, rate of pay, date of birth, gender, and national origin at the present time and during plaintiff’s employment with NALCO CHEMICAL, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id. at 17.) Document request No. 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 documents which indicate the breakdown of NALCO CHEMICAL, INC.’s applicant pool by each of the following characteristics: qualifications, date of application, position applied for and its rate of pay, date of birth, national origin and gender, and the final disposition of the application, at the present 1 CIVIL 09-1232 (JA) 13 2 3 4 time and during plaintiff’s employment at NALCO CHEMICAL, INC. 5 6 (Docket No. 77, at 17.) 7 Document request No. 23: 8 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 documents which constitute, comment on, or reflect the facts and circumstances of any comparison made between the training, experience, abilities, job duties and job performance of plaintiff, and other similarly situated NALCO CHEMICAL, INC. employees or applicants. 9 10 11 12 13 14 15 (Id.) 16 Document request Nos. 7, 8, 9, 10, 11, 12, 13 and 23 are to be complied 17 with but also limited to Puerto Rico and limited to the period 2007 through 2009 18 inclusive. 19 20 21 22 23 24 25 26 27 28 Second Document Request No. 1 reads as follows: From January 1, 2007, until the present date, AND limited to information residing in Nalco’s Puerto Rico databases located in Naperville, Illinois: 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: a. b. José Serrano; Jorge Castillo; 1 CIVIL 09-1232 (JA) 14 2 3 4 5 6 7 8 9 10 11 12 13 c. d. e. f. g. h. i. j. k. l. m. n. o. p. Ashok Paul Duggal; Jorge Ortiz-Soldevilla; Stephanie Glashagel; Alenda Young; Deborah S. Davis; Dennis J. López; Miriam Vera Vega; Antonio Chapina; Pedro Lara; Ángel Urena; Rudy Rosales; Ruddy A. Guerrero; Crispín Hernández; Manuel Rivera-Ramos. (Docket No. 77, at 18.) 14 15 This request is too broad. Therefore, in accordance with the discussion at 16 the hearing, plaintiffs are required to narrow the scope. The same ruling applies 17 to second document requests No. 2 through No. 5. 18 I hope that narrowing the scope of the requested discovery and continued 19 20 exchanges between counsel for the parties may yet bring this case to a reasonably 21 swift conclusion. Prior to the taking of a Rule 30(b)(6) deposition, the issue of 22 waiver of privilege will be presented and ruled upon. See Figueras v. Puerto Rico 23 Elec. Power Auth., 250 F.R.D. 94, 95-99 (D.P.R. 2008). Parties are granted a 24 discovery cutoff date of April 30, 2011 and may disregard the dispositive motion 25 26 27 28 practice date previously set. (See Docket Nos. 82, 83.) 1 CIVIL 09-1232 (JA) 15 2 3 4 5 IV. CONCLUSION For the reasons set forth above, the motion to compel filed by plaintiffs on 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 October 25, 2011 (Docket No. 77) is GRANTED in part and DENIED in part. At San Juan, Puerto Rico, this 28th of January, 2011. S/ JUSTO ARENAS Chief United States Magistrate Judge
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
