Summary
finding that spoliation sanctions were not appropriate where plaintiff did not prove that evidence actually existed
Summary of this case from Baez v. Delta Airlines, Inc.Opinion
00 Civ. 1374 (MBM)(HBP)
August 19, 2003
MEMORANDUM OPINION AND ORDER
This is an employment discrimination action. Plaintiff, who is proceeding pro se, previously worked for defendant Liz Claiborne, Inc. ("LCI"), and alleges that she was subjected to a hostile environment and otherwise discriminated against on the basis of her race.
Plaintiff has filed a motion, Docket Item 104, in which she claims to be seeking "an Order pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining Defendants . . . to identify their defenses of poor job performance alleged against the Plaintiff Pro Se . . ." (Docket Item 104 at 1). Notwithstanding plaintiff's characterization of her motion, my review of her motion papers discloses that what she is really seeking is an order compelling responses to her second set of interrogatories. For the reasons set forth below, plaintiff's motion is granted in part and denied in part.
The present motion has its genesis in a tape-recorded conference call that I held with plaintiff and counsel for defendants in August 2002 concerning various discovery disputes. During that call, I told plaintiff she could serve a second set of interrogatories and gave her a deadline for doing so. During the call, counsel for defendants did not advise me that plaintiff had already served at least 25 interrogatories — the maximum number of interrogatories permitted by Fed.R.Civ.P. 33.
On or about August 21, 2002, plaintiff served a second set of interrogatories on defendants. If the subparts are not counted as separate questions, this second set of interrogatories consists of 58 interrogatories. If the subparts are counted, the number of interrogatories is substantially higher. Defendants have objected to the entire second set of interrogatories, contending that plaintiff had served twenty-five interrogatories even before she served her second of interrogatories. Prior to serving her second set of interrogatories, plaintiff never sought leave of Court to serve more than twenty-five interrogatories.
Defendants' objection to plaintiffs' second set of interrogatories is well founded. Fed.R.Civ.P. 33(a) limits the number of interrogatories available to each party to twenty-five, "including all discrete subparts." Nevertheless, that does not end the analysis. Plaintiff is proceeding pro se, and like many pro se litigants, she lacks the financial ability to pay the transcription fees associated with a deposition. Thus, as a practical matter, one of the principal tools for discovery is not available to her.
In an effort to ensure plaintiff has a reasonable opportunity to prepare her case, I shall grant her permission to serve an additional 75 interrogatories. All discrete subparts of these interrogatories shall count towards this numerical limit. The interrogatories are not subject to the subject matter limitation set forth in Local Civil Rule 33.3. Defendants are free to assert any appropriate objection to the interrogatories other than an objection based on Local Civil Rule 33.3 or an objection based on the number of interrogatories, provided that an objection based on the number of interrogatories may be asserted to the extent the additional interrogatories, including all discrete subparts, exceed 75.
The interrogatories should be drafted as simple questions and may seek defendants' contentions. For example, plaintiff could ask: "Identify the reasons for the termination of plaintiff's employment. If performance deficiencies contributed to plaintiff's termination, identify the specific respects in which defendants contend that plaintiff's performance was deficient." An answer to the foregoing interrogatories would inform plaintiff whether defendants are contending that plaintiff was terminated for cause and what the alleged cause was.
Plaintiff is directed serve her supplemental interrogatories with ten (10) business days of the date on which she receives this Order.
Accordingly, for all the foregoing reasons, plaintiff's motion to compel (Docket Item 104) is granted in part and denied in part. Plaintiff is granted leave to serve a total of 75 additional interrogatories within ten (10) business days of the date on which she receives this Order.
SO ORDERED