The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before the Court is plaintiff's motion to compel and for sanctions and defendants' motion to file a sur-reply. This case involves a discovery dispute in plaintiff's action against the District of Columbia and individual defendants for violations of the Americans with Disabilities Act, 42 U.S.C. §§ 1211, et seq., the Rehabilitation Act, 29 U.S.C. §§ 794, 794a, the District of Columbia Human Rights Act, D.C. Code § 2-1403.16, and the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 - 1-615.58. Upon consideration of the motions, the responses and replies thereto, and the applicable law, the Court GRANTS plaintiff's motion to compel and for sanctions and GRANTS defendants' motion for leave to file a sur-reply. Defendants are ORDERED to (1) supplement their discovery responses; (2) make available Brady Birdsong, Donna Whitman, and Kevin Bell for depositions at defendants' expense; and (3) provide competent witnesses pursuant to Rule 30(b)(6) for depositions to address e-mail destruction and preservation at defendants' expense. Plaintiff is awarded attorney's fees associated with bringing the motion to compel and for sanctions.
Plaintiff Linda Ripley has been employed as a social worker by the Department of Human Services Child & Family Services Division, which is now the Child & Family Services Agency ("CFSA"), since 1994. Compl. ¶ 15. Plaintiff was visually impaired when she was hired, and defendants were aware of her impairment. Id. ¶¶ 11-12. She was provided clerical support staff to assist her. Id. ¶ 13.
When CFSA switched their e-mail to an internet based e-mail system in April 2005, the changes did not include a suitable accommodation that would permit Plaintiff to access the new system through screen-reading software. She alleges that from April 2005 through the present, following her disclosures that she needed to be accommodated regarding the changes in CFSA's computer system, she was subjected to an increasingly hostile work environment. Id. ¶¶ 15-23.
On August 8, 2005, plaintiff filed a formal grievance with CFSA management outlining issues she had with her supervisor, defendant Heather Stowe. Id. ¶ 25. Plaintiff claims that defendant Uma Ahluwalia, Stowe's supervisor, refused to investigate the issues she raised. Id. ¶ 26. After Ahluwalia held a meeting with plaintiff and Stowe, plaintiff claims that both she and Stowe were moved to different positions and she herself was demoted. She again requested an investigation. Id. ¶ 29.
On October 24, 2005, plaintiff filed a charge of discrimination with the D.C. Office of Human Rights and the Equal Employment Opportunity Commission. Id. ¶¶ 32-33. She received a right to sue letter on April 6, 2007. Id. ¶ 36. Plaintiff filed this lawsuit on October 2, 2006. Defendants' motion to dismiss was denied in December 2007, and cross motions for summary judgment were also subsequently denied pending the outcome of discovery disputes.
The discovery dispute at issue here involves plaintiff's interrogatories and requests for production of documents. Plaintiff acknowledges that defendants provided some answers, as well as supplemental answers to interrogatories. Defendants also produced copies of some of plaintiff's old e-mails from her deleted electronic file folder. In January 2008, defendants, however, informed plaintiff that copies of e-mails from defendants Stowe and Ahluwalia had been deleted from the agency's e-mail system and could not be produced. See Pl. Mot. to Compel & for Sanctions at 7. While plaintiff acknowledges that defendants provided numerous documents, plaintiff claims that defendants did not provide e-mail communication with Deloitte consultants regarding FACES.NET, the new e-mail system.
On April 14, 2008, plaintiff sent a detailed letter to defendants' counsel outlining unresolved discovery issues. Id. at 8. Defendants responded that a more thorough search was being conducted. After more back and forth between the parties' attorneys about documents over the course of several weeks, defendants produced 500 megabytes of e-mail and other electronically stored files. Id. After reviewing those files, plaintiff determined that additional information likely existed and requested more information from defendants. Id. at 10. Defendants said that more information would be forthcoming by August 1, 2008, but that they opposed further depositions. Defendants provided supplemental discovery on August 13, 2008, but plaintiff claims that it did not fully address her request. After a request by plaintiff, defendants sent an e-mail on August 25, 2008, stating that defendants had fully complied with all discovery requests. Id. at 10-11. Plaintiff's motion to compel and for sanctions followed.
A. Motion to Compel and Motion for Leave to File Sur-Reply
At the outset, the Court GRANTS the defendants' motion for leave to file its sur-reply. Given the disposition of the motion to compel and for sanctions, plaintiff's request to file a response to the defendant's sur-reply is moot.
Plaintiff argues that defendants have refused to supplement and correct prior responses to discovery as required by Federal Rule of Civil Procedure 26(e).*fn1 Specifically, plaintiff alleges that defendants have flatly refused to search for and provide certain information that plaintiff has requested and have opposed continuing the deposition of the CFSA Technology Director and taking depositions of Deloitte consultants who can explain late-produced information and any information responsive to plaintiff's supplementation request.
Plaintiff asserts that defendants' main objection - that discovery is closed - provides no defense to the requirement to supplement. "Rule 26 provides no exception for documents found after discovery deadlines have passed." Klonoski v. Mahlab, 156 F.3d 255, 268 (1st Cir. 1998), superseded on other grounds. Once a party learns that a response to discovery is incomplete or incorrect, there is an absolute obligation to supplement. See Fed. R. Civ. P. 26(e)(1)(A). "To the extent the rules contemplate additional material that a party finds after . . . provid[ing] discovery to the other side, the rules require prompt supplementation of its ...