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December 7, 2005.


The opinion of the court was delivered by: GLADYS KESSLER, District Judge


This is an employment discrimination lawsuit brought by Lavonne Jinks-Umstead, a supervisory contract specialist, against the United States Navy. Plaintiff alleges that she was discriminated against on the basis of her race when the Navy failed, from 1997 to 1999, to provide her with adequate staff assistance to help her perform her duties at the Carderock Division ("Carderock") of the Navy's Engineering Field Activities Chesapeake ("EFACHES"). The Navy responds that it refused to fill the open positions which would have provided staff assistance to Plaintiff because of a Department-wide reorganization process resulting from what it alleges was a reduction in the workload at the Carderock facility.

The case was originally tried to a jury in July, 2003. After a six-day trial, the jury returned a verdict in favor of the Defendant. Thereafter, the Court granted Plaintiff's Motion for a New Trial on Liability and Damages for two reasons: first, Defendant failed to comply with its pre-trial discovery obligations to locate and produce certain Work In Progress ("WIP") reports which Plaintiff believed would counter Defendant's argument that there was no justification for giving her the staff support she requested; second, a number of emails relating to what Defendant characterized as a reorganization and downsizing at EFACHES were erroneously admitted into evidence. Subsequent to granting the motion for a new trial, the Court ordered further discovery. Once disputes surfaced over the post-trial discovery, the Court referred all discovery matters to Magistrate Judge Facciola for resolution.

  A new trial date is scheduled for January 18, 2006. The parties have filed numerous in limine motions. Because all of these motions focus on interrelated discovery issues — both those pertinent to the first trial and those flowing from post-trial proceedings, the Court will deal with all of the pending Motions in this consolidated Memorandum Opinion.

  Initially, it must be noted that the contentiousness of the parties in this case has not abated one whit. They have battled in front of this Court and the jury, in front of Magistrate Judge Facciola, and now again in front of this Court. Plaintiff's papers are repetitive, accusatory, and exaggerated. Defendant's papers suffer from other defects — at times they mischaracterize the rulings of Magistrate Judge Facciola or prior events in this case, and they often fail to provide an adequate substantive response to the arguments made by Plaintiff. In sum, counsel have done little to simplify or streamline the remaining issues.

  The Motions pending before the Court at this time, which consist of well over 100 pages of pleadings, are (1) Defendant's Motion to Reinstate the Jury Verdict; (2) Plaintiff's Motion in Limine to Bar Oral Testimony Not Supported By Documents and Exclude Evidence That Is Irrelevant and Confusing; (3) Plaintiff's Motion in Limine for a Jury Instruction on the Navy's Discovery Abuses and Spoliation of Evidence, or in the Alternative for Partial Summary Judgment; (4) Defendant's Motion in Limine to Exclude Argument and Preclude Instruction Regarding an Adverse Inference; and (5) Defendant's Motion in Limine to Exclude Testimony Regarding Alleged Spoliation and Discovery Disputes. All Motions were accompanied by related Oppositions and Replies. Upon consideration of all Motions, Pleadings, applicable case law, and the entire record herein, the Court concludes as follows:
I. Defendant's Motion to Reinstate the Jury Verdict
  Defendant argues that the jury verdict in its favor entered July 2, 2005, should be reinstated because, as a consequence of additional discovery which Plaintiff has received pursuant to the Court's post-trial Orders (Docket #249, 275, and 276), "it is apparent that the documents do not support Plaintiff's claim." Defendant's Motion at p. 1. The documents submitted as an exhibit to Defendant's Motion do not clearly demonstrate that Plaintiff's Division at Carderock was adequately staffed and that she was not, therefore, the victim of discrimination. Moreover, the decision as to whether the documents prove what Defendant argues they prove is clearly a decision for a jury, and not this Court, to make. Consequently, it is hereby ordered that Defendant's Motion to Reinstate the Jury Verdict is denied.

  II. The Remaining Motions

  The four remaining Motions are inextricably intertwined. The Court has no intention of rehashing all the facts and history pertinent to those Motions. The parties have done that repeatedly at enormous length.

  There are basically three issues presented in the four remaining Motions. First, whether an instruction should be given to the jury allowing it to draw an adverse inference from the discovery abuse committed by Defendant up to and during the first trial, and for the alleged discovery abuse committed by Defendant in the post-trial discovery ordered by this Court and Magistrate Judge Facciola. Second, whether the jury should be informed about Defendant's discovery abuse prior to and during the last trial and what Plaintiff alleges to be post-trial discovery abuse.

  Third, whether Defendant should be precluded from presenting oral testimony that purports to relate to documents which have not been produced by Defendant.

  In sorting through the arguments presented, it is essential to differentiate between the discovery-related conduct of Defendant which occurred prior to and during the July 2003 trial, and the discovery-related conduct of Defendant which occurred subsequent to that trial. As to the former period of time, there is no question that, as this Court held in its Memorandum Opinion of February 6, 2004, a new trial was required "because of Defendant's very serious failure to comply with its discovery obligations and locate and produce the [WIP] reports to which Plaintiff was entitled." Jinks-Umstead v. England, No. 99-2691, slip op. at 3 (GK) (D.D.C. Feb. 6, 2004). As to the latter period of time, Magistrate Judge Facciola ruled in his opinion of April 7, 2005, "[o]n the record currently before the court, I see no reasonable grounds upon which this court could find that the Navy has knowingly and intentionally refused to comply with the court's June 30, 2004 [discovery] Order." Jinks-Umstead v. England, No. 99-2691, slip op. at 3, 13 (JMF) (D.D.C. April 7, 2005). Additionally, Magistrate Judge Facciola concluded that "after a painstaking review of the depositions of Holleran and Carney, the court cannot see that the defendant is stonewalling or otherwise obstructing the post-trial discovery process." Id. at 17.

  In sum, although there were unquestionably discovery abuses prior to and during the July 2003 trial, it is also clear, based on Magistrate Judge Facciola's rulings, which are fully supported by the record, that there have been no such abuses since the Court granted Plaintiff's Motion for a New Trial and ordered further discovery. What is more, Defendant has been severely sanctioned for its earlier discovery abuses. Despite having prevailed at the July 2003 trial, Defendant has suffered the extreme sanction of having its verdict set aside. To put it rather colloquially, Defendant has "paid its dues" for its earlier violations of its discovery obligations. Finally, it must be remembered that although this Court found that there were serious discovery violations prior to and during the July 2003 trial, it never found, nor was there any reason to find, that Defendant's failure to comply was either wilful, intentional, or designed to impede Plaintiff from successfully litigating her case. This analysis of the long and convoluted discovery battle in this case provides the analytic framework for the Court's rulings on the three issues posed in the four pending Motions.

  A. The Court Concludes that the Facts in This Case Do Not Support the Giving of an Adverse Inference Instruction to the Jury Which Would Permit the Jury to Conclude that the Materials Withheld During the First Trial Would Have Supported the Plaintiff's Theory of the Case

  As Judge Louis Oberdorfer of this Court held in Friends for All Children, Inc. v. Lockheed Aircraft Corp., 587 F. Supp. 180, 208-09 (D.D.C. 1984):
Under existing appellate precedents, to justify an adverse inference against [defendant], plaintiffs would have to demonstrate evil intent, bad faith, or wilfulness on the part of [defendant] in the destruction of evidence sufficient to support a reasonable inference that the missing evidence was detrimental to [defendant's] case.
Just as Judge Oberdorfer concluded in his case, where the facts were far more egregious than in the present case, this Court concludes that Plaintiff has failed to carry the intent element of her burden. There is nothing in the record to demonstrate "evil intent, bad faith, or wilfulness" on the part of the Navy. The Navy may have been extraordinarily sloppy in its failure to comply with its ...

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