Mitchell v. National Railroad Passenger Corporation, CA 01-1866 (RWR/JMF) ECF (D. D.C. 8/20/2003)
| Decision Date | 20 August 2003 |
| Docket Number | CA 01-1866 (RWR/JMF) ECF. |
| Parties | ELAYNE R. MITCHELL, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
I previously granted in part and denied in part Plaintiff's Motion to Compel Defendants' Discovery Responses. Plaintiff has now moved for attorneys fees.
When a motion to compel is granted in part and denied in part, the court is obliged to apportion the fees and costs incurred in "relation to the motion among the parties and persons in a just manner." Fed.R.Civ.P. 37(4)(C). The party compelled can, however, escape liability by establishing that its resistance to the discovery was substantially justified. Fed.R.Civ.P. 37(4)(A). I have defined the term "substantial justification" as follows:
By substituting "substantial justification" for good faith, Fed.R.Civ.P. 37(a)(4)(A) objectifies the controlling standard by forcing judicial consideration of the state of law when the motion to compel is made and opposed. If there is an absence of controlling authority, and the issue presented is one not free from doubt and could engender a responsible difference of opinion among conscientious, diligent but reasonable advocates, then the opposing positions taken by them are substantially justified.
Athridge v. Aetna Cas. & Sur. Co., 205 F.R.D. 200, 205 n. 1 (D.D.C. 1998).
The question presented is, therefore, whether the defendant's position was substantially justified, as I have defined that term, as to each issue raised. In my opinion of July 15, 2002, I identified those issues as follows:
a. The duties of Paul Bello, an employee who survived the restructuring that resulted in plaintiff's termination;
b. The consequences, if any, of previous Amtrak restructuring efforts on Amtrak employees who are members of protected classes;
c. Amtrak's hiring and firing of other members of protected classes during plaintiff's employment;
d. All other complaints of discrimination, if any, against Amtrak during the period of plaintiff's employment;
e. The availability of information regarding a prior class action filed in this court, in which plaintiff was a class member;
f. Whether certain materials produced by a consultant from Amtrak are protected by the attorney-client or work product privileges;
g. Whether severance agreements with other employees were discoverable;
h. Whether the discovery cutoff date bars any additional discovery;
i. Whether plaintiff should be permitted to take two additional depositions.
I will address each of these issues in turn in order to ascertain whether Amtrak's position as to that issue was substantially justified.
In its opposition to plaintiff's motion, Amtrak indicated that, despite its objections, it had provided information about restructuring in 1998, 1999, 2000 and 2001. Defendant's Opposition to Plaintiff's Motion to Compel at 6. Plaintiff replied that she still wanted information as to restructurings "between 1996 and 1999." Plaintiff's Reply in Support of Her Motion to Compel Discovery Responses at 2. She also insisted that she was entitled to "information concerning the current duties performed by Paul Bello, a younger, white, male, non-disabled employee who was not "restructured" out of his job when plaintiff was." Id. Plaintiff wanted to know why Bello was retained when she was not and whether Bello was performing any of her duties. Id.
I concluded that plaintiff was entitled to the information she sought. Mitchell v. Nat'l. R.R. Passenger Corp, 208 F.R.D. 455, 457 (2002). However, in opposition to plaintiff's petition for attorney fees, Amtrak now tells me for the first time that it had produced Bello's file, which contained a job description and that Bello was scheduled for a deposition.
We cannot proceed in this fashion. Parties should not be bringing to my attention significant information bearing on a discovery request after I have ruled upon it. The Supreme Court has admonished judges not to permit the litigation pertaining to attorney fees to take longer than the litigation itself. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). I cannot be faithful to that responsibility if I permit parties to raise, during fee proceedings, factual issues that require a hearing to resolve. These issues should have been raised when I was resolving the discovery dispute itself. I will, therefore, not consider information brought to my attention for the first time after I have ruled on the discovery dispute.
Considering only the information that was before me when I ruled, I must find that Amtrak did not provide any justification in its original documents for its resistance to plaintiff's discovery as to the additional restructurings or Bello's job duties. That being the case, I cannot find that Amtrak's position was substantially justified.
Amtrak opposed providing any information about hiring within the Human Resources Department during the period of time plaintiff worked there because she complained of being terminated. Amtrak cited no authority for the distinction it drew between hiring data and termination data. Plaintiff relied on an Eight Circuit case in which the court concluded that it would be "hard to see how evidence which suggests that [the defendant] discriminated against blacks in hiring would be irrelevant to the question of whether it fired a black employee because of his race." Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102 (8th Cir. 1988). I reached the same conclusion and I am still convinced that a pattern of not hiring qualified African Americans might bear on the motive or intent that accompanies the firing of an African American. I persist in that view and cannot find that Amtrak's contrary position, unsupported by a reference to any case, let alone controlling authority in this jurisdiction, could be described as substantially justified.
Amtrak cited a 1983 District Court case in support of its assertion that "discrimination claims filed against Amtrak are not probative of whether defendants discriminated against plaintiff when she was terminated." Defendants' Opposition to Plaintiff's Motion to Compel at 11. Nevertheless, Amtrak produced the one discrimination claim filed against Amtrak in 2000 and represented that no other claims regarding the Human Resources Department had been filed in 1999 and 2000.
I have concluded in three published opinions, all cited in my opinion in this case, that other claims of discrimination against a defendant are discoverable if limited to the same form of discrimination claimed by plaintiff, to the same department or agency where plaintiff worked, and to a reasonable time before and after the discrimination complained of. Mitchell, 208 F.R.D. at 458. Those opinions are, in turn, based on what I believe to be controlling authority in this jurisdiction. My opinions are quickly available and, while I am hardly infallible, I would expect a conscientious advocate to distinguish these opinions or convince me that I am wrong. Simply ignoring these earlier decisions does not provide Amtrak with the substantial justification it needs.
I appreciate, however, that despite its objection, Amtrak produced the only discrimination complaint in the Human Resources Department in 2000 and represented that there were none in 1999 and 2000. Thus, the only real difference between the parties concerned the temporal scope of discovery. Plaintiff sought complaints filed in the period from 1996-2000. She got the complaints filed from 1999-2000 but not the complaints (if any) filed from 1996-1998.
By its very nature, discovery generates an attitude among lawyers of demanding more than they want in the hopes of getting what they need. Plaintiff demands data for 10 years and defendant offers two years, and both hold their breath until a judge is forced to find some middle ground. As suggested in my Memorandum Opinion, the limits on the scope of discovery in Title VII cases are a function of the facts of the case and, therefore, it is impossible to gather the cases and make a lapidary judgment as to what is or is not reasonable. Mitchell, 208 F.R.D. at 488. In the absence of controlling authority, whether or not the scope suggested by the party resisting discovery is deemed reasonable, and, therefore, substantially justified, cannot be stated with the requisite certainty that should accompany a judicial determination awarding attorneys fees and costs. This is not to say that absurd limitations will never be condemned. Rather, it is to say that when both sides proposed reasonable limits, their equipoise demands that the parties be left where the court found them and that there not be any fee shifting.
In this case, I cannot say that the temporal limitations Amtrak proposed were unreasonable. Therefore, I will not condemn them as substantially unjustified, even though I expanded the temporal scope of discovery beyond what the Amtrak conceded.
Defendant prevailed in the dispute over information regarding a previous class action in which plaintiff, as a class member, sued Amtrak.
I conducted an in camera review of the document Amtrak claimed was privileged and found nothing in it that was protected by either of the privileges claimed. In my view, neither the attorney-client nor work product privileges should have been asserted in the first place, even if one allows for the caution with which lawyers should act when deciding to hand over possibly privileged documents. There is nothing in the document that could possibly disclose trial strategy or reveal what a...
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