The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case is before me to resolve all discovery disputes. Ripe and ready for resolution are four discovery motions. For the reasons given herein, Plaintiff's Motion to Require the Navy to Comply with the Court's Order of June 30, 2004 Requiring the Navy to Supplement Its Answers to Plaintiff's Interrogatory #4 and Memorandum in Support Thereof ("Pl.'s Mot. to Supp.") is denied; Plaintiff's Motion to Conduct Additional Depositions, to Extend the Time for Completing Discovery, and to Require the Navy to Pay Reasonable Attorney's Fees and Costs Incurred as a Result of the Navy's Destruction of Documents and Obstruction of Plaintiff's Discovery and Memorandum in Support Thereof ("Pl.'s Mot. for Addl. Disc.") is denied; Plaintiff's Motion for Protective Order ("Pl.'s Mot. P.O.") is denied; and Plaintiff's Motion to Compel the Navy to Supplement Its Initial Disclosures and Responses to Plaintiff's Request for Production of Documents ## 1, 2, 39, 55, 56, 76, and 77 ("Pl.'s Mot. Compel") is granted in part and denied in part.
In 1991, Lavonne Jinks-Umstead ("Jinks-Umstead" or "plaintiff") began working for the Department of the Navy ("Navy" or "defendant"). In February 1997, she was assigned to work at Carderock as a Head Contracting Officer. At some point after her assignment to Carderock, the Navy decided to reduce the number of staff at that office. Defendant also removed plaintiff's supervisory status. Plaintiff claims that these restructuring decisions were discriminatory and retaliatory, in violation of Title VII of the Civil Rights Act. Defendant, however, maintains that the decisions were based on legitimate business reasons.
During discovery before the first trial, plaintiff requested work in place ("WIP") reports from defendant. Plaintiff believes that the WIP reports are critical to her case because they show whether defendant was justified in restructuring her office and taking away her support staff. Defendant, however, did not turn over any WIP reports before trial, claiming that it no longer had them. Indeed, one of plaintiff's supervisors, Patricia Holleran ("Holleran"), signed a declaration ("Holleran Declaration") that stated: "EFACHES does not retain or have a depository for historical work in place ('WIP') reports." Holleran Dec. at 1-2.
In the middle of the first trial, after plaintiff had rested her case-in-chief, defendant produced approximately 1,400 pages of WIP reports for the first time. Thereafter, Judge Kessler granted a new trial to allow plaintiff to present her case with the benefit of evidence she was entitled to receive before her first trial.*fn1 Judge Kessler also granted plaintiff's motion to conduct additional, limited discovery.
On June 30, 2004, I resolved several discovery disputes that arose during post-trial discovery. I also clarified the scope of the limited discovery that would be allowed, stating that plaintiff was entitled to seek: "1) information that was not produced, but should have been produced, to plaintiff during discovery prior to the first trial, and 2) information bearing on why such information could not be located or was not produced." Memorandum Opinion, June 30, 2004, at 4. Since I issued that Opinion, several additional discovery disputes have arisen. This Opinion and the accompanying Order resolve these issues.
II. POST-TRIAL DEPOSITION DISCOVERY
A. The Holleran Deposition
After the first trial, plaintiff deposed Holleran, plaintiff's supervisor who signed the Holleran Declaration stating that EFACHES did not retain historical work in progress reports.
In her post-trial deposition, Holleran testified that she based her staffing recommendations on: (1) the workload for facility support contracts, which she ascertained by requesting data from the Facilities Information System ("FIS") database on the number of contract actions at each facility and the dollar value of the work in place for those contracts; and (2) conversations with senior contract specialists (known as 1102s), who could inform her as to whether the workload numbers in FIS were accurate. Id. at 57, 65, 67, 91-93, 96-98, 149, 289.*fn2 If the senior 1102s indicated that there were contract actions that had not been reported in FIS, Holleran would record the dollar value of those actions so that she could convert it to a staffing number and incorporate that information into her staffing recommendations. Id. at 99-100.
When Holleran needed information regarding the number of contract actions at each field office and the dollar value of those contracts, she contacted Diane Carney ("Carney") and asked her to "pull... a report" from the FIS database. Id. at 28. Once Holleran received the information, she disposed of the reports as she used them or at the end of the year because "[t]he only thing that was important was the staffing number, which was then transferred to an approval or nonapproval for hiring a replacement for that position." Id. at 30-31. See also id. at 80. In other words, once she made her final recommendations, she "pitched" the documents she had used. Id. at 103, 176.
Holleran also clarified that there was no "formal report" and that, most of the time, she received the information from the FIS database on yellow "stickies." Id. at 32, 117-18. Holleran further testified: "[T]here was no document. [Rather, the numbers that supported her conclusions were the] numbers out of FIS and through the discussions with the senior 1102s." Id. at 63-64. She also testified that, when she recorded workload information gleaned from conversations with the supervisory 1102s, she recorded the information on little stickies, which "didn't last very long." Id. at 79-80.
Thus, Holleran discarded the documents, reports, and stickies on which she relied. The court understands that the data recorded on these papers was the same data that appeared in WIP reports. Accordingly, Holleran's deposition testimony confirms that Holleran herself did not retain WIP reports, even though at least one other Navy employee possessed them (in hard copy) and the Navy did maintain the underlying data on the FIS system. In addition, Holleran's deposition testimony confirms that her ultimate staffing recommendations were recorded and incorporated into other documents, such as budget and planning documents given to Bob Silver, Dave Ward, and Norma Jean Schnakenberg. Holleran Dep. at 100, 110, 139, 142-43, 155, 168-71, 193, 198, 200, 205.
Plaintiff also deposed Carney, the Navy employee who helped develop the FIS system from 1984 until 1994 and led or assisted many of the training sessions when FIS was first widely introduced to Navy employees. Carney Dep. at 37, 87. She explained that FIS contains two sources of information: (1) pre-written "canned reports," and (2) customized data queries. Id. at 91-92.
As indicated above, Holleran contacted Carney when she needed information on which to base her staffing recommendations. When asked for figures relating to contract actions and work in place,*fn3 Carney would pull the numbers from FIS and provide them to the employees from the Contracting Division who requested the information. Id. at 126-28. Pulling a whole report to provide a number was simply unnecessary. Id. at 165.
Carney explained that it is commonly known that the FIS stores information that can be retrieved via a data query. Carney further testified that "anything that was converted [from the old database] in December of 1994 is still in the [FIS] database." Id. at 101. She further testified that all of the data that has been input into the FIS system is still in the database today and can be retrieved via properly formulated queries. Id. at 102.
Carney also explained the difference between WIP reports and data stored on FIS. According to Carney, "[t]he WIP is different because the WIP is an accrued cost field. And again, maybe that's why these reports are hard to get. For example, you cannot get a summary WIP report in looking at the database. You can go contract by contract and say how much work has been done on this contract.... The database is strictly containing data. Summary reports are either written through programmers or by using the data query method. That data query method uses WIP flat files to report WIP, which is why I never used them. I used the standard generated reports that came out of California every month." Id. at 144.
These standard monthly reports, called R26s, were sent from California and printed out in hard copy by an office in Washington, D.C. Id. at 108-13. The R26 is one of many reports that can be generated using the FIS database. Id. at 114. Other monthly reports include WIP audit reports and projected WIP reports. Id. at 116. Carney also stated that the only R26s she can currently retrieve are from 2002 because those are the only ones online. Id. at 111. As for reports from earlier years, it appears from Carney's deposition that she produced these reports after she was contacted in the middle of the first trial and that those reports constituted the 1400 pages of "WIP reports" plaintiff received after she had already rested her case. See id. at 125.
III. POST-TRIAL DISCOVERY ISSUES TO BE RESOLVED
A. Access to the FIS Database
On June 30, 2004, I ordered defendant, by July 8, 2004, to "provide access to the Facilities Information System ("FIS") database for review by plaintiff's counsel or a computer technology consultant hired by plaintiff for the limited purpose of determining whether more information bearing on the workload and staffing at Carderock during the relevant period of plaintiff's employment (January 1, 1997 through October 1, 1999) can be retrieved from the FIS database." Order, June 30, 2004, at 3-4. On July 1, 2004, defendant faxed a letter to plaintiff offering to make the FIS database available on July 6 or July 7, 2004. Plaintiff did not respond to the letter until July 8, 2004. Plaintiff's lead counsel explains that he was on vacation from July 1 through July 11, 2004, but defendant insists that other counsel for plaintiff confirmed that lead counsel had read the fax on July 1 and that he was in the office as late as July 2, 2004. Defendant further notes that plaintiff's counsel failed to notify defendant or the court of his unavailability and failed to articulate why other counsel of record could not have reviewed the database on the days indicated by defendant.
As indicated above, on July 12, 2004, plaintiff deposed Carney, the FIS expert at EFACHES headquarters. Carney testified that it is possible to retrieve more information bearing on the workload and staffing at Carderock during the relevant period of plaintiff's employment with the Navy.
Thus, the court will not analyze counsel's arguments regarding whether plaintiff forfeited the opportunity to inspect the FIS database to determine whether relevant information can be retrieved because Carney's deposition testimony clearly indicates that additional information can be retrieved from the system if specific data queries are formulated. The important issue, at this point, is ensuring that plaintiff receives relevant information from the FIS database. To this end, Carney must re-create the process by which she responded to Holleran's requests for what the workload was at the EFACHES field offices (including work in place, number of contract actions, and dollar value of those actions) during the relevant period of plaintiff's employment with the Navy, i.e., January 1, 1997 through October 1, 1999. This process will require Carney to formulate queries and recover information from the FIS database, and it may also entail Carney's consultation with the relevant R26 reports. Because there is no record of how many times Holleran requested such information, except for the fact that it was done, at the very least, when a vacancy needed to be filled and at the end of each year, Carney must provide the information for every quarter, beginning in January 1997 and ending in December 1999. It is the court's intention that Carney do now whatever she did when Holleran asked her for the information that both she and Holleran described in their depositions. Defendant must produce this information to plaintiff within 60 days of the accompanying Order.
B. Navy's Compliance with Paragraph 6 of the Court's June 30, 2004 Order
On June 30, 2004, I also ordered defendant to "provide plaintiff with the summaries used by the Contracting Division and produced from data extracted from the WIP reports for construction contracts and data from other sources for non-construction contracts that were generated during the pertinent part of plaintiff's employment with ...