The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for discovery. Currently pending and ready for resolution is Plaintiff's Second Motion to Compel ("Plains. Mot."). For the reasons stated below, plaintiff's motion will be granted in part and denied in part without prejudice.
This is an action in which the plaintiff complains that he was denied his rights under the Rehabilitation Act and the Age Discrimination Act. Specifically, plaintiff complains that although he was initially given light duty assignments after he injured his back in 1987, in 2000 the Postal Service sent him home and refused to permit him to work until he provided medical documentation to support any additional light duty assignments.
Discovery has been complicated in this case because, as the Postal Service explained, the necessity of eliminating anthrax at the Brentwood mail facility has led to the destruction of the documents and electronically stored information that plaintiff seeks in the motion currently before me, Plaintiff's Second Motion to Compel.
At the hearing held on the motion on April 10, 2007, the Postal Service also explained that all possible sources of information from which additional information could be secured have been destroyed and the extant computer systems cannot be made to yield what the plaintiff seeks.
Having heard both parties' positions, I am convinced that the case is at a significant crossroads and that what is first required is that the representations of the Postal Service regarding the ineffectiveness or impossibility of additional searching must be documented and attested to by sworn testimony. This will lay a solid foundation upon which the Court can decide whether, as the Postal Service protests, it can do no more than it already has done and whether any present or future demand for evidentiary or other sanctions rests on the most solid evidentiary basis possible.
I begin with an overview of Judge Kessler's order of February 7, 2006.
The February 7, 2006 Order
By an order dated February 7, 2006, the Court required the Postal Service to provide the plaintiff with (a) documents relating to light-duty employees and limited duty employees at the Brentwood Mail Facility who were denied work or had their hours reduced during the year 2000 and (b) information regarding prior complaints of discrimination against persons named in plaintiff's discovery requests so long as such complaints were lodged between January 1, 1998, and April 19, 2004.
Prior to that order, the Postal Service had filed a sworn statement by Compensation Manager Toni Grier, who indicated that she understood that plaintiff had demanded that the Postal Service identify and provide information concerning "limited or light duty USPS employees at the Brentwood Mail Facility whose OWCP [Office of Workers' Compensation Programs] cases were closed or who were denied work and sent home by the agency during the year 2000." Declaration of Toni Grier, filed Jan. 27, 2006. Ms. Grier then explained that, although she searched for this material, the documents and computer hard drive that would have contained the information were destroyed because the Brentwood facility was contaminated by anthrax,. Id. As a result, the Postal Service "no longer ha[d] in [its] possession the requested information and there [were] no other means [by] which the information [could] be ascertained." Id.
A week after the Court's order of February 7, 2006, the United States Attorney's office, on behalf of the Postal Service, sent plaintiff's counsel a CD that contained 430 pages of documents.
The Significance of the CD
Plaintiff first argues that the production of the CD contradicts the representation of Ms. Grier that all documents and the computer hard drive had been destroyed. Plaintiff insists that the Court draw the inference "that there are more documents in existence that have not been accounted for." Plains. Mot. at 6. The Postal Service answers that far from being evidence of "concealing requested discovery," the production of the CD is evidence of its continued, good faith effort "to search for requested documents that were lost during the chaotic days after the Anthrax scare in 2001." Defendant's Opposition to Plaintiff's Second Motion to ...