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Zelaya v. UNICCO Service Co.

January 28, 2010


The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court


This matter comes before the Court on plaintiff Blanca Zelaya's Motion to Compel [43]. Upon consideration of the motion, the opposition and reply thereto, and the entire record herein, the Court concludes that plaintiff's motion should be denied with respect to Document Request No. 12 and Interrogatory No. 6 with conditional leave to file an renewed motion to compel. Furthermore, plaintiff's motion will be granted with respect to all of the requested privilege log documents, except for privilege log document 20, and plaintiff will be granted conditional leave to file a renewed motion to compel.


Plaintiff Blanca Zelaya brought this action against her former employer UNICCO Service Company and her former supervisor Carlos Alarcon. She alleges discrimination and retaliation against her based on her gender. (See generally Compl. ¶¶ 15--60.) In the motion before the Court, she seeks to compel production of documents she requested from defendants during discovery. (Pl.'s Mem. of P. & A. [43-1] at 1.)

Two groups of documents are currently at issue. First, plaintiff's Interrogatory No. 6 and Document Request No. 12 demand all claims of gender discrimination against UNICCO and its employees from January 1, 2004 until the time of the discovery request, January 9, 2009. (Pl.'s First Req. for Produc. of Docs. [43-3] at 5, 12; Pl.'s First Set of Interrogs. [43-4] at 4, 8--9.) In their response of February 27, 2009, defendants objected to plaintiff's request as overbroad. (Defs.' Resps. to Req. for Produc. [43-5] at 15--16; Defs.' Resps. to Interrogs. [43-6] at 23--25). The parties subsequently agreed to limit discovery of gender discrimination claims to UNICCO's East Region, which includes the area where plaintiff was employed, Washington, D.C. (Defs.' Opp. [44] at 5; Pl.'s Reply [47] at 13.) They also limited the temporal scope of discovery to the term of plaintiff's employment with UNICCO. (Id.) Defendants submitted supplemental responses on May 8, 2009 (Defs.' Supplemental Resps. to Req. for Produc. [43-7]), in which they produced what they claim are the only three allegations of sexual harassment that conform to the parties' discovery agreement. (Defs.' Opp. [44] at 8.)

Plaintiff now desires company-wide complaints, in particular those that were handled in whole or in part by supervisors in UNICCO's Boston headquarters. (Pl.'s Mem. of P. & A. [43-1] at 13--14.) Additionally, defendants redacted names from the three claims they produced, and plaintiff requests unredacted versions of those documents. (Pl.'s Reply [47] at 14.) The parties have engaged in discussion via letter and telephone conference to resolve the disputes at issue here. (Letters between Counsel [43-9]; Defs.' Opp. [44] at 5 n.4.) Defendants object that plaintiff's request is overbroad and encompasses irrelevant material. (Defs.' Opp. [44] at 6--9.) They further argue that plaintiff's request violates their existing discovery limitation agreement. (Id. at 5--6.)

The second area of dispute encompasses sixteen documents over which defendants assert the attorney-client privilege.*fn1 (Pl.'s Mem. of P. & A. [43-1] at 1, 9-- 12.)


A. Interrogatory No. 6 and Document Request No. 12

1. Legal Standard

Federal Rule of Civil Procedure 26(b) sets forth the applicable standard for permitting discovery:

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. FED. R. CIV. P. 26(b)(1).

Thus, the "general rule in legal actions is to favor broad disclosure." CFTC v. McGraw-Hill Cos., 390 F. Supp. 2d 27, 31 (D.D.C. 2005). Absent a valid claim of privilege or an unduly burdensome request, "[a] request for discovery should be allowed 'unless it is clear that the information sought can have no possible bearing' on the claim or defense of a party." Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 652 (D. Kan. 2004) (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689--90 (D. Kan. 2001)).

The parties frame their arguments within the inquiry of whether "other supervisor" evidence-evidence of "discrimination [against non-parties] at the hands of supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff"-is relevant in this case and therefore discoverable. Sprint/United Mgmt. Co. v. Mendelsohn, 128 S.Ct. 1140, 1143 (2008) (assessing relevance under Federal Rules of Evidence 401 and 403); see FED. R. CIV. P. 26(b)(1).

Whether "other supervisor" evidence is relevant "is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." Sprint, 128 S.Ct. at 1147. Other factors to be considered are "whether such past discriminatory behavior by the employer is close in time to the events at issue in the case [and] whether the same decisionmakers were involved...." Elion v. Jackson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008).

Within the "other supervisor" evidence inquiry lies the question of whether, in a non-class action employment discrimination suit, the plaintiff may obtain discovery of information from outside the unit that employed her. The decision in Owens v. Sprint sets forth the relevant standard:

In the absence of any evidence that there were hiring or firing practices and procedures applicable to all the employing units, discovery may be limited to plaintiff's employing unit. Discoverymay be expanded from the Plaintiff's employing unit, however, if the plaintiff can show the requested information is "particularly cogent" to the matter or if the plaintiff can show a "more particularized need for, and the likely relevance of, broader information." Owens, 221 F.R.D. at 654 (citing Heward v. W. Elec. Co., No. 83-2293, 1984 WL 15666, at *6 (10th Cir. July 3, 1984); ...

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