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Hubbard v. Potter

January 3, 2008

BRUCE C. HUBBARD ET AL., PLAINTIFFS,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



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

MEMORANDUM OPINION

This case was referred to me for resolution of all non-dispositive motions. Currently pending and ready for resolution are the following two motions: 1) defendant's Motion to End Pre-Certification Discovery and Memorandum of Points and Authorities in Support Thereof ("Defs. Mot. re Discovery"), and 2) Defendant's Motion for Leave to Designate a Rebuttal Expert and Serve that Expert's Report, and Memorandum of Points and Authorities in Support Thereof ("Defs. Mot. re Expert"). For the reasons stated below, the first motion will be granted in part and denied in part and the second motion will be denied.

BACKGROUND

Plaintiffs are five deaf employees of the United States Postal Service ("USPS") who work in various facilities across the country. The gravamen of their complaint is that they have been denied a qualified sign language interpreter at safety meetings and mandatory work meetings. Accordingly, plaintiffs claim that they have been prevented from performing their duties safely, which they contend is an essential function of their job.

Plaintiffs are currently in the process of seeking class certification pursuant to Rules 23(b)(2) and (3) of the Federal Rules of Civil Procedure. To that end, on December 21, 2005, the Court bifurcated discovery into two distinct periods-pre and post-certification discovery. Since then, and with the assistance of the Court, the parties have engaged in pre-certification discovery. Although it should now be time for pre-certification discovery to end and for the case to proceed to resolution of the remaining issues, plaintiffs have raised legitimate concerns regarding the discovery that has been thus far produced by defendant.

DISCUSSION

I. Motion to End Pre-Certification Discovery

A. The Parties' Arguments Defendant moves to end pre-certification discovery (save for the completion of expert witness depositions) on the grounds that ample time has passed and that plaintiffs should now have the discovery they need:

Plaintiffs either (a) have the evidence they need for class certification and are attempting to collect that which they need for trial on the merits, or (b) have failed in their attempts to meet the class certification requirements following this Court's dismissal of their first class complaint and are trying to squeeze every last document out of the Postal Service in a vain attempt to piece together a plausible class certification theory for their second amended complaint.

Defs. Mot. re Discovery at 7.

Plaintiffs counter that, thus far, defendant's discovery responses have been "grossly insufficient and manifestly incomplete." Plaintiffs' Opposition to Defendant's Motion to End Pre-Certification Discovery ("Plains. Opp.") at 1. Plaintiffs also argue that 1) numerous documents produced by defendant in response to plaintiffs' discovery requests have been nevertheless characterized by defendant as "non-responsive," 2) certain facilities failed to provide documents for the full five years identified in the Court's order, and 3) certain facilities failed to produce any electronic documents. Id. at 6.

Plaintiffs therefore seek another round of discovery, a stage in the litigation that can only be described as "meta-discovery," i.e., discovery about the discovery. First, plaintiffs want to take the depositions of 1) a subset of the senior officials who responded "regarding the process of preserving, locating, and producing documents responsive to the Court's February 22, order." Plains. Opp. at 12. Second, plaintiffs want to take a Rule 30(b)(6) deposition regarding the Postal Service's "efforts to institute a document hold and preserve documents relevant to this litigation." Id. According to plaintiffs, the paucity of the documents justifies the taking of additional 30(b)(6) depositions of another, or perhaps the same, subset of senior officials "regarding their facilities' reasonable accommodation practice and procedures." Id. In other words, plaintiffs contend that the absence of documents suggests the appropriateness of requiring that the officials who originally submitted the surveys be deposed about how, if at all, their facilities are accommodating deaf employees.

B. Analysis

1. The General Paucity of ...


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