U.S. Postal Service Sanctioned for Discovery Violations Against Former Employee
In Adcox v. U.S. Postal Service, Case No. 15-9258 (D. Kansas, Nov. 22, 2016), Plaintiff, a rural mail carrier, sued Defendant for gender discrimination, harassment, retaliation and hostile work environment alleged between 2010 and 2012. She filed her case on September 11, 2015. During discovery, Plaintiff had difficulty obtaining discovery responses from Defendant; she had requested mail count documents, documents relating to leave requests and attendance, documents pertaining to her unofficial personnel file and that of her former supervisor, Randy McHenry, documents pertaining to allegations of misdelivered mail, documents pertaining to “damaged arrow keys,” and documents pertaining to Plaintiff’s mail delivery route.
Defendants responded to most discovery requests with statements that it either had no responsive documents or that it did not retain the information sought. Plaintiff believed the documents did not exist based on this responses and so did not file a Motion to Compel until after depositions were taken in September 2016. There, Plaintiff learned of litigation holds and retention policies related to the documents she sought. She file a Motion to Compel and a Motion for Sanctions, alleging that the documents were either destroyed or have “not been diligently located.” Defendant countered that it had produced more than 7,000 pages of documents and that the litigation holds were narrowed to timekeeping records, and so did not apply to many of the categories of documents sought by Plaintiff.
After the filing of the Motion, Defendants produced unofficial personnel records for Plaintiff and for McHenry, which was after the close of discovery. The court granted Plaintiff’s motion in part to give her the opportunity to review the files and to conduct limited further discovery related to what she found therein. The court denied the motion to the extent that it sought documents not in Defendants’ possession; however, the court ordered Defendant to “extensively research” the existence of documents sought in the motion and either produce them or submit a verified statement clarifying whether they do or do not exist.
The court denied the sanctions motion in part and granted it in part. As Defendant produced the personnel files Plaintiff requested only after the filing of her motion, the court found that Defendant should have been aware that such files existed and Plaintiff was prejudiced by the withholding of the files, because if she had received them sooner, she could have taken depositions based upon what she found within. The court looked at FRCP 37(a)(5)(A), which required the court to impose sanctions if discovery is submitted after the filing of a Motion to Compel. The court also looked to FRCP 37(e) to determine the appropriateness of being sanctioned for discovery violations, stating in a footnote that although FRCP 37(e) applies to ESI, the discovery sought by Plaintiff was a combination of physical documents and electronically stored documents. The court ordered Defendants to pay the costs associated with any additional depositions and extended the discovery deadline.