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Morales v. Zondo, Inc.

United States District Court for the Southern District of New York

May 3, 2001, Decided ; May 4, 2001, Filed

00 Civ. 3494 (AGS)

Opinion

 [*51] MEMORANDUM ORDER

ALLEN G. SCHWARTZ, DISTRICT JUDGE:

In this action, plaintiff Ivelisse Morales ("plaintiff") asserts claims for pregnancy and gender discrimination arising out of her employment with defendant Zondo, Inc. ("defendant"). Plaintiff now moves to compel discovery, for certain rulings on admissibility, and for sanctions against defendant's counsel as a result of his conduct at the deposition of defendant's principal. For the reasons set forth below, the motions are granted in part and denied in part.

I. Motion to Compel

A. Identity of Employees

Plaintiff requests that the court compel defendant to produce (i) the names of two individuals whose identities were redacted from two of defendant's "Employee Warning Notices," and (ii) the identity of present or former employees of defendant who were "excessively tardy, absent, or insubordinate, or who made excessive [**2]  or unauthorized personal telephone calls, and any documents reflecting same." (Memorandum of Law in Support of Plaintiff's Motion to Compel Discovery and for Costs/Sanctions ("Pl. Mem.") at 13-14.)

The Court denies this request. The Court previously ruled at the pretrial conference on February 7, 2001 that, on grounds of relevance and the employees' own privacy, defendant was not required to disclose the names of the two individuals who received "Employee Warning Notices." The Court declines to alter that decision here. Plaintiff has failed to set forth any reason why the identity of these employees is relevant to the prosecution of her employment discrimination action. She claims their identities are necessary to prove disparate treatment by defendant and that plaintiff's discipline and termination were a pretext for discrimination. (Pl. Mem. at 10.) However, the mere fact that certain employees have not been identified by name does not preclude an inquiry into the circumstances of their employment, and the possibility of disparate treatment. As defendant points out, plaintiff has been aware for several months of the number of instances in which other employees received warning notices [**3]  during the time plaintiff was employed at the company, the nature of the violations which prompted the warnings, the language and content of those warnings.  [*52]  (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Compel Discovery and for Sanction ("Def. Mem.") at 2.) Plaintiff does not indicate that she intends to contact either of the employees in question, depose them, or conduct any other form of discovery. Plaintiff also had the opportunity, prior to the close of discovery, to inquire into the employment and/or termination of such employees via interrogatory and at the deposition it conducted of defendant's principal. (Deposition of Robert Elizondo dated Jan. 19, 2000 ("Elizondo Dep.") at 140:22-143: 10.)

On the same basis, the Court declines to order defendant to provide plaintiff with the identity of those employees who were "excessively tardy, absent, or insubordinate, or who made excessive or unauthorized personal telephone calls." (Pl. Mem. at 2; Declaration in Support of Motion to Compel Discovery and for Sanctions ("Diederich Decl."), Ex. 2.) However, to the extent not already provided, the Court directs defendant to furnish plaintiff with any documents [**4]  reflecting such judgments, e.g. additional warning notices or disciplinary records, as such documents are clearly discoverable and may be relevant to plaintiff's case.

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204 F.R.D. 50 *; 2001 U.S. Dist. LEXIS 5679 **; 50 Fed. R. Serv. 3d (Callaghan) 209; 85 Fair Empl. Prac. Cas. (BNA) 1399

IVELISSE MORALES, Plaintiff, -against- ZONDO, INC. d/b/a ECCLISSI STERLING SILVER, Defendant.

Disposition:  [**1]  Plaintiff's motion to compel discovery, for certain rulings on admissibility and for sanctions against defendant's counsel as result of his conduct at deposition of defendant's principal granted in part and denied in part.

CORE TERMS

deposition, sanctions, employees, documents, questions, answers, exhibits, coach, compel discovery, fee arrangement, deponent, policies, costs

Civil Procedure, Costs, Costs Recoverable, Depositions & Transcripts, Discovery, Methods of Discovery, General Overview, Depositions, Oral Depositions, Criminal Law & Procedure, Trials, Witnesses, Presentation, Legal Ethics, Client Relations, Attorney Fees, Discovery & Disclosure, Misconduct During Discovery, Attorneys