The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This matter is referred to me by Judge Kessler for all purposes. Having denied defendant's motion to dismiss, I now resolve Plaintiff's Motion to Compel and to Extend Deadline for Responding to Motion for Summary Judgment [#18].
Plaintiff is an African-American male who was employed by the Federal Emergency Management Agency ("FEMA") as a GS-13 program specialist. Plaintiff commenced this Title VII action alleging racial discrimination. The acts that underlie plaintiff's claims are FEMA's pre-retirement failure to upgrade his position (the "upgrade claim") and his post-retirement non-selection (the "non-selection claim") for a newly expanded GS-13/14 position. *fn1
On March 7, 2001, plaintiff propounded Interrogatories and Requests for Production of Documents on defendant. Defendant submitted its Answers to Interrogatories, and its Responses to the Request for Production of Documents, on June 1 and June 19, 2001, respectively, objecting to eight (8) of the interrogatories and fifteen (15) of the document requests. Plaintiff allegedly wrote two letters to defendant on June 8 and July 21, 2001, in an effort to resolve these disputes, but defendant failed to respond. Plaintiff's Motion to Compel at 6. On August 15, 2001, plaintiff filed this Motion to Compel.
Plaintiff moved to compel responses to interrogatories # 9-12[a], 14-15, 17-18 and production of documents set forth in requests # 6-7, 9, 11-13, 15-16, 19, 21, 23, 25-26, 38, and 41. Defendant primarily objects to a number of these discovery requests because they purportedly address the upgrade claim and are not calculated to lead to relevant information concerning the non-selection claim that, defendant insists, is the only claim plaintiff can press. Because I ruled plaintiff properly pled a continuing violation with respect to his failure to upgrade claim, *fn2 I will permit discovery on both claims.
I hasten to add, however, that there is sub judice in the Supreme Court a case, to be decided this term, that may radically transform the law pertaining to continuing violations of Title VII of the Civil Rights Act. See Morgan v, Nat'l R.R. Passenger Corp, 232 F.3d 1008, 1015-16(9th Cir. 2000), cert. granted, 121 S.Ct 2547 (U.S. June 25, 2001). I have, of course, premised this decision and the decision in Pleasants v. Allbaugh, 185 F. Supp. 2d at 69, on the law as it presently is. If, as I anticipate, the Supreme Court substantially modifies the law I may be compelled to revisit both decisions.
Generally, a party is entitled to discover information "if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Moreover, a party may only obtain discovery as to a matter that is "relevant to the claim or defense of any party." Id.; Krieger v. Fadely, 199 F.R.D. 10, 13 (D.D.C. 2001)(holding that the nature of the claims asserted defines relevancy).
In Title VII cases, plaintiffs have been permitted a very broad scope of discovery, extending to documents and information pertaining to so-called workforce data, i.e., information regarding non-party employees in plaintiff's workplace. See Minority Employees at NASA (MEAN) v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983)("It is well established that statistical data and comparative information concerning an employer's treatment of minorities is relevant evidence in an individual discrimination claim against that employer."); see also Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001)(citing MEAN); Miller v. Poretsky, 595 F.2d 780, 790-91 (D.C. Cir. 1978)(recognizing that acts of discrimination against non-party tenants may be admissible to show a pattern of discrimination by landlord); White v. U.S. Catholic Conference, 1998 WL 429842 (D.D.C. May 22, 1998); Planells v. Howard Univ., 1983 WL 30372 (D.D.C. Jan. 25, 1983). In fact, some circuits have expressly held that discovery in employment discrimination suits is especially broad. *fn3 Nonetheless, courts remain concerned about "fishing expeditions, discovery abuse, and inordinate expenses involved in overbroad and far-ranging discovery requests" and have therefore limited discovery to the issues involved in the particular case. Hardrick v. Legal Services Corp., 96 F.R.D 617, 618 (D.D.C. 1983). Even in cases involving racial discrimination, where such claims, by necessity, require discovery on how others are treated, discovery "should be reasonably related to the circumstances involved in the alleged discrimination and to a time frame involving the alleged discriminatory conduct and the individuals who are allegedly involved in that conduct." Id. at 618-619. As in many discovery disputes, I shall seek to find the golden mean between unduly restrictive and overbroad production.
Temporal Scope of Discovery
The problem of setting a time period for the discovery ordered is a perplexing one because it does not admit of a lapidary solution; life is messy and cannot be divided into neat chronological segments. In a case involving class-wide discrimination, responsible statistical analysis has to be based on enough data to make that analysis meaningful. Understandably, in such cases, courts permit discovery of data over an extensive period of time. E.g., Rich v. Martin Marietta Corp., 522 F.2d 333, 342 (10th Cir. 1975).
In an individual, disparate treatment case, the courts cannot be as sure handed. On the one hand, the defendant wonders why a plaintiff in such a case is entitled to any information other than the information pertaining to his own case. But that wonderment presupposes the existence of watertight compartments between individual, disparate treatment cases and pattern and practice cases that challenge agency-or company-wide policies and practices in terms of the effects on individuals. There are cases, and this is one of them, in which those two concepts blend or meld into an indistinguishable whole. In this case, the premise of plaintiff's upgrade claim is that he was treated unfairly by being required to do more than his actual position and that he never received the proper promotion or pay. By necessity, he must examine how the Division in which he worked treated people who were similarly situated. Were there other people who, like him, did more than they should have been required to do and did they share his race? If so, his individual claim becomes more credible because there emerges evidence that his employer treated people in a certain, unfair way because of their race. Given the nature of the showing he is required to make, it is eminently fair to strike the balance between his needs and the defendant's burden in favor of permitting discovery at some point before his request for a promotion was rebuffed in 1995.
This, of course, puts us back where we started: what should the beginning and end of the period be? Plaintiff has chosen January 1, 1992, the beginning of the year in which he began to work for the agency, which is over three years before he became Acting Chief of the Operations Services Branch. For its part, defendant is certain that plaintiff's upgrade claim is barred by the statute of limitation and would resist any discovery whatsoever other than discovery pertaining to his non-selection claim. Since I have rejected the defendant's argument, the question whether the discovery period should start on Jauary 1, 1992 persists.
For present purposes, I believe that events within the three-year time period from 1992 to 1995 are relevant to his upgrade claim. By its very nature, the comparison of the plaintiff to his colleagues and whether they suffered from being forced to do more than their position descriptions required has a temporal dimension that has to extend back to a period before he became Acting Chief of the Operations Services Branch in October, 1995, so that he can flesh out (if he can) that there was a pattern of treating people of his race differently. The exploration of this allegation requires the analysis of events that pre-date the rejection of his demand that his position warranted a promotion to GS-14. Plaintiff seeks to establish that there was a continium of events affecting African-American people that extended over the period of time he worked at FEMA and that what happened to him occurred along that continuum. To restrict discovery in this case solely to the period between the rejection of his bid to become a GS-14 to his retirement denies him a fair opportunity to establish that continuum. While I cannot pretend to be cutting a diamond, I can only say that a three-year period strikes a proper balance between his right to establish his case and the burden placed upon the defendant.
I say "for present purposes" because, as I have indicated, the Supreme Court's anticipated decision may have a dramatic effect on plaintiff's upgrade claim. I have given defendant a generous 45 days within which to produce the discovery I have ordered. Obviously, since the Supreme Court will finish its business for this term in June, we have every reason to hope that the Supreme Court's decision will issue before the deadline I have set. If defendant believes that decision obliterates plaintiff's upgrade claim, it may move to stay my order and seek reconsideration of my denial of its motion to dismiss. In ...