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Lowe v. District of Columbia

May 21, 2008

THYRA LOWE, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, ET AL. DEFENDANTS.



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

MEMORANDUM OPINION

Before me is Plaintiff Thyra Lowe's Motion to Compel Defendants to Fully Answer All Interrogatories and to Comply with All Document Production Requests Submitted in Discovery and for Sanctions Against Defendants [#30] ("Motion"), which was referred to me for resolution by Judge Colleen Kollar-Kotelly. For the reasons stated below, the Motion will be granted in part and denied in part.

I. Background

Lowe alleges in this action that she was unlawfully terminated when her employer, the District of Columbia Department of Health ("DOH"), eliminated her position "in retaliation for [her] speaking out against violations of District of Columbia and federal regulations and laws, and for other protected activity disclosing waste, fraud, abuse, and gross mismanagement." Amended Complaint for Unlawful Employment Retaliation [#14] at 2. She brings this action under 42 U.S.C. § 1983 and the District of Columbia Whistleblower Reinforcement Act against defendants District of Columbia (the "District"), Gregory Payne*fn1 , Monica Lamboy, Thomas Calhoun, and Cheryl Edwards.

A. Plaintiff's Motion

The Motion before the Court involves what Lowe alleges to be defendants' inadequate responses to her interrogatories and document requests. She seeks: (1) an order compelling defendants to fully respond to her discovery requests; (2) an award of attorneys fees and costs incurred in the preparation of the Motion; and (3) a sanction prohibiting defendants from asserting any further objections to the discovery requests. Proposed Order, attached to Motion. In opposing the Motion, defendants argue that their discovery responses are sufficient and/or would be supplemented. Defendants' Opposition to Plaintiff's Motion to Compel and for Sanctions ("Opposition" or "Opp.").

B. Defendants' Supplemental Production

On January 7, 2008, defendants' filed Defendants' Supplemental Opposition to Plaintiff's Motion to Compel and for Sanctions [#40] ("Supplement" or "Supp."), in which they informed the Court that they had supplemented their discovery responses. The Court, on February 4, 2008, ordered Lowe to describe whether this supplemental production had remedied any of the deficiencies she alleged in her Motion. In accordance with that order, Lowe filed Plaintiff's Reply to Supplemental Opposition to Plaintiff's Motion to Compel Following Supplemental Responses ("Reply to Supp."), in which she withdrew some of her initial objections.

C. Discovery Responses at Issue

The following chart indicates which discovery responses remain at issue:

DefendantInterrogatory Objections WithdrawnInterrogatory Objections RemainingDocument Request Objections WithdrawnDocument Request Objections Remaining District of ColumbiaNos. 5-6, 8-10, and 16Nos. 3, 7, 11-15, and 21---Nos. 1-6 Gregory Payne---Nos. 1 and 6---All Monica LamboyNo. 2Nos. 3-4, 6, 15-16, and 18---All Thomas Calhoun---------All Cheryl Edwards---------All

II. Analysis

A. Requests for Production of Documents

1. The District's Document Production

As mentioned above, the District has produced additional documents in the time since the Motion was filed. Lowe acknowledges that at least some of these documents are responsive, but she "is not prepared to withdraw her Motion to Compel until such time as the detailed review of the documents submitted can be completed." Reply to Supp. at 7. It would be imprudent for the Court to rule on objections that may already be remedied; as such, Lowe's objections to the District's document production will be dismissed without prejudice with leave to re-file after completion of her "detailed review."

2. The Document Production of Lamboy, Calhoun and Edwards

Lowe objects in her Motion to the entire document production of Lamboy, Calhoun and Edwards; none of these individual defendants have produced any documents, either initially or in the supplemental production.

Lamboy responded to each document request:

None. I do not have possession, custody, or control of hardcopy documents within the scope of this request as I am no longer employed by the Department of Health. I may have possession, custody, or control of some electronic documents within the scope of this request and am attempting to identify such documents.

Id. at 29-30. Calhoun responded to each document request:

No such documents are in my care, contact, and/or custody. To the extent that such documents do exist, see the District of Columbia's Responses to Plaintiff's Request for Production, Exhibit 4.

Id. at 29. Edwards responded to each document request:

None. I do not have possession, custody, or control of documents within the scope of this request as I am no longer employed by the Department of Health. To the extent that such documents do exist, see the District of Columbia's Responses to Plaintiff's Request for Production, Exhibit 4.

Id. at 30.

Lowe argues that each of these defendants has been named in their personal and official capacity and, as a result, "share a duty [with the District] to provide all documents responsive to these requests." Id. at 29-31 (emphasis in original). Moreover, Lowe argues that "[e]ven if [they] no longer ha[ve] personal access to such documents [they have] a duty to find and provide such documents." Id. Defendants respond that Lamboy, Calhoun and Edwards are no longer employed by DOH Emergency Health and Medical Services Administration ("EMHSA") and therefore have no access to the requested documents. Opp. at 2. Defendants also proffer that their counsel "has either met with or spoken to each of these defendants and they have assured undersigned counsel that they do not have any documents in their care, control, custody or possession relating to this matter." Id.

Rule 34 of the Federal Rules of Civil Procedure limits document requests to those documents "in the responding party's possession, custody, or control." Fed. R. Civ. P. 34(a)(1). Former employees of government agencies do not have "possession, custody, or control" of documents held by their former employers. While it is theoretically possible that Lamboy, Calhoun or Edwards took personal possession of responsive documents during their employment and that those documents remain in their possession, no evidence has been presented that would contradict the defendants' assertions to the contrary. For this reason, Lowe's Motion will be denied as it relates to the responses to document requests of Lamboy, Calhoun and Edwards. See Doe v. District of Columbia, 231 F.R.D. 27, 35 (D.D.C. 2005) ("Obviously plaintiff is not obliged to produce anything that is not in his possession, custody, or control, with respect to this or any other document request.").

3. The Document Production of Payne

Lowe complains that Payne has not produced any documents in response to her document requests. Payne responded to each document request:

None. I do not have personal possession, custody, or control of documents within the scope of this request. To the extent that such documents do exist, see the District of Columbia's Responses to Plaintiff's Request for Production, Exhibit 4.

Motion at 28. Lowe argues that, as Director of DOH, "he has control of and access to all responsive documents in the possession of DOH, EHMSA and any DOH and/or EHMSA personnel." Id. As a government employee, however, Payne's "control" of documents created in the ordinary course of the government's business is secondary to that of his employer; he cannot on his own initiative remove government files and provide them to a third party. Cf. United States ex. rel. Touhy v. Ragen, 340 U.S. 462, 467 (1951). Lowe must look to the District of Columbia for the production of Payne's files.

B. Interrogatories

1. The District's Responses to Interrogatories

a. Interrogatory No. 3

Interrogatory No. 3:

For each individual named in response to Interrogatory #2, please describe in detail what role they played in the decision, what information they provided or what other contribution they made to the decision to abolish Ms. Lowe's position.

The District's Response:

Mr. Tillery was the Interim Director of DOH. Ms. Lamboy was the Chief Operating Officer and Ms. Edwards was the Chief of Staff for DOH.

Lowe argues that the District's answer does not describe in detail the roles of the eight persons named in Interrogatory No. 2. Memorandum of Points and Authorities in Support of Plaintiff's Motion to Compel Defendants to Fully Answer All Interrogatories and to Comply with All Document Production Requests Submitted in Discovery ("Memo") at 4-5. Defendants concede that point, but refer Lowe to Lamboy's answer to Interrogatory No. 16, in which she stated that the only persons with a role were Lamboy, Payne and Edwards. Opp. at 11. Perhaps recognizing that this response still failed to explain in detail the roles, information provided, or contributions made by those three people, the District later provided the following supplementary response*fn2

Supplemental Response to Interrogatory No. 3:

Ms. Monica Lamboy was the Chief Operating Officer. The reason for the abolishment of Ms. Lowe's position according to Ms. Lamboy: "During the summer of 2004, we reorganized several administrations. At the time, Interim Director Tillery, Ms. Edwards and myself decided to make no change in EHMSA in order spend more time understanding its operating needs and grant funding constraints. At the time, EHMSA was overseen by Dr. Thomas Calhoun, Medical Officer and Acting Senior Deputy Director, and Thyra Lowe, Administrator. While Dr. Calhoun was the administration director, Ms. Lowe provided direct supervision to all of the staff. In July 2004, Ms. Sherry Adams returned to EHMSA as Assistant Senior Deputy Director. In effect, this created a three-tiered management structure for a work until that only had 32 employees. We came to realize over the following months that this was not a workable structure for such a small organization and that it would be better served with a structure similar to the other administrations with modification. In discussion with Dr. Pane and Cheryl Edwards, we determined it would be best to create a Chief of Staff position, where the COS reported to the director but did not have a direct oversight of employees and to maintain the Administrative Officer position instead of upgrading to an ASM because the budget was very small relative to the other administrations. In recognition of the 24 hour nature of EHMSA's business, it was determined that the Assistant Senior Deputy position would remain although this would be the only administration with this position. The Medical Director position was to be eliminated in recognition that a full time position was not required for this administration. As a result, the position was eliminated, but funding was set aside for a part time, contract position. The result or the reorganization would be a significantly flatter organization that would have greater parallels with other administrations. Ms. Cheryl Edwards was the Chief of Staff for Department of Health. The reason for the abolishment of Ms. Lowe's position according to Ms. Edwards: "It was a result of the restructuring of the program. The program was restructured to enhance improvements in the program and grants management." See interrogatory no. 3 within Cheryl Edward's responses and objections to Plaintiff's first set of interrogatories. Dr. Thomas Calhoun was the Senior Deputy Director for EHMSA. The reason for the abolishment of Ms. Lowe's position according to Dr. Calhoun: "I had no role in abolishing Ms. Lowe's position." See interrogatory no. 3 within Thomas Calhoun's Responses and Objections to Plaintiff's First Set of Interrogatories. Dr. Gregg Pane was the director of the department of health. The reason for the abolishment of Ms. Lowe's position according to Dr. Pane: " I was told by Monica Lamboy that it was part of the Department of Health realignment that was then being completed." See interrogatory no. 3 within Gregg A. Pane's Responses and Objections to Plaintiff's First Set of Interrogatories.

Lowe is not satisfied with this supplemental response, which she claims still does not provide sufficient detail; it does not, for example, "answer who proposed the termination, who, if anyone, gathered information for the other managers to review, who, if anyone, interviewed the managers and advisors named in the response, to get their views." Supp. Resp. at 3. Moreover, she argues that the answer does not address other individuals encompassed within the interrogatory. Id.

The supplemental response by the District is sufficient; it is understandable that Lowe would like more information, but her interrogatory was not crafted with the specificity that would justify compelling a more detailed response. It is clear from the response that Lamboy believes the termination to have been the result of a team effort between herself, Payne, and Edwards, and she provides the rationale and information that led to the decision. As for the individuals not referenced in the response, it is clear that the District's position is that those individuals had no role in her termination; as such, there is no information to provide. That Lowe believes otherwise does not make the response incomplete.

b. Interrogatory No. 7

Interrogatory No. 7:

For each employee who was given one or more of the duties Ms. Lowe performed, please describe in detail the qualifications and experience that employee had which led the deciding management officials to ...


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