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,

, et

seq., the Rehabilitation Act,

, 794a, the

District of Columbia Human Rights Act,

, and

the District of Columbia Whistleblower Protection Act,

- 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.

. She was provided clerical support

staff to assist her.

.

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.

.

On August 8, 2005, plaintiff filed a formal grievance with

CFSA management outlining issues she had with her supervisor,

defendant Heather Stowe.

. Plaintiff claims that

defendant Uma Ahluwalia, Stowe’s supervisor, refused to

investigate the issues she raised.

. After Ahluwalia

2 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.

.

On October 24, 2005, plaintiff filed a charge of

discrimination with the D.C. Office of Human Rights and the Equal

Employment Opportunity Commission.

. She received a

right to sue letter on April 6, 2007.

. 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

3 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.

. 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.

After reviewing those files,

plaintiff determined that additional information likely existed

and requested more information from defendants.

.

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.

. 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.

4 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,

(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.

5 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,

.

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,

(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.,

(4th Cir. 2001); see also

Leon v. IDX Systems Corp.,

(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.,

(9th

6 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

7 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

8 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

9 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

10 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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