The opinion of the court was delivered by: JOHN FACCIOLA, 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. I. BACKGROUND
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.*fn2 Id. at 57, 65, 67, 91-93, 96-98, 149, 289.
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.
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 ...