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MacIntosh v. Building Owners and Managers Association International

October 12, 2005

SCOTT MACINTOSH, PLAINTIFF,
v.
BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case is before me for resolution of all outstanding discovery disputes. Currently pending and ready for resolution are several motions. Although I will reserve issuing my final ruling until a later date, herein I will partially resolve Plaintiff's Motion to Set Aside Claims of Privilege and Work Product Protection and Memorandum in Support and Plaintiff's Motion to Compel Responses to Discovery Requests and Memorandum in Support.

INTRODUCTION

In this Title VII action, a significant controversy has arisen as to a note in the handwriting of the defendant, Ron Burton, apparently commemorating a conversation he had with counsel for the Building Owners and Managers Association International ("BOMA'). Plaintiff, Scott MacInstosh, claims that he found Burton's note lying on a copying machine while Burton claims that he first "buried" his note among papers on his desk in his office but then put it in his briefcase, where it remained until this lawsuit was filed. At that point, Burton claims he turned it over to BOMA counsel.

After reviewing the parties' papers, I have concluded that I can only resolve the controversy after an evidentiary hearing. Plaintiff's motion to compel proceeds upon the presumption that all parties are agreed that plaintiff inadvertently found the note. Defendants make no such concession. Obviously, I will not speak to the discovery issues raised by the note until I hold a hearing and make findings of fact. In the meanwhile, however, I can resolve the other issues raised by plaintiff's motion.*fn1

DISCUSSION

I. Plaintiff's Interrogatories to BOMA

A. Interrogatories 1 & 2

Plaintiff's first interrogatory asked BOMA to identify all persons who had knowledge of the facts alleged in the complaint. Plaintiff's second interrogatory asked BOMA to identify those individuals who had knowledge of the allegations in three specific paragraphs.*fn2

In response to Interrogatory 1, BOMA named certain persons and indicated that they had information "relating to Plaintiff's employment with and/or separation from BOMA as well as information relating to the 401k plan." Opp. Exhibit 5 at 3. BOMA then supplemented that answer by naming additional persons and noted that one of them, Wayne Smithies, had specific information as to a particular matter.

As to interrogatory 2, BOMA ultimately answered it by indicating that four of the persons it named in response to Interrogatory 1 had specific information as to the three paragraphs of the complaint that plaintiff specified in propounding Interrogatory 2. Additionally, BOMA incorporated by reference those persons it originally identified in its Initial Disclosures. Thus, plaintiff now knows everyone that BOMA believes has information about the allegations of the complaint and which of those individuals has specific information about the three specified paragraphs. Although plaintiff complains that the answers are somehow insufficient, I see no basis whatsoever for his complaint and I will not order any further supplementation.

B. Interrogatory 5

In this interrogatory, plaintiff sought the identification of any disclosure or report made to a BOMA supervisor that involved assertions of racially or ethnically offensive conduct or remarks. BOMA answered that the fact that plaintiff filed this lawsuit was disclosed to the BOMA Executive Committee but that it was not aware of "any other 'disclosures' or 'reports' from any employees relating to ethnically or racially offensive conduct through the date of Mr. MacIntosh's departure." Opp., Exhibit 5 at 6. It would seem that the matter would end there, but in its opposition, BOMA, after noting that the existence of the lawsuit was made known to the BOMA Board of Directors, stated: "Any investigation into Mr. MacIntosh's claims occurring after the lawsuit commenced is most certainly privileged, and Mr. MacIntosh does not argue otherwise." Opp. at 12. For his part, plaintiff challenges any claim of privilege as to any investigation. Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion to Compel at 7-9.

Since BOMA speaks hypothetically as to a possible investigation, I do not know whether it is making a specific privilege claim as to an investigation that was actually conducted. Lest I chase a will-o'-the-wisp, I will order BOMA to file, in camera and under seal, a declaration from a person authorized to speak for the company indicating whether any investigation into MacIntosh's claims was conducted, the names of the persons who conducted it, and what its results were. BOMA shall also file, in camera and under seal, any documents that were either created during the investigation or as a result of it and all ...


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