United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO COMPEL
F. Martinez United States Magistrate Judge.
plaintiff brings this action against his former employer
alleging race and age discrimination and retaliation in
violation of 42 U.S.C. § 1981, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 621 et seq., and the Connecticut Fair
Employment Practices Act, Conn. Gen. Stat. § 46a-60.
Pending before the court is the plaintiff's motion to
compel. (Doc. #28.) The court heard oral argument
on June 15, 2017. The motion is granted in part and denied in
part as follows:
Request for Production 17: During oral argument, counsel
stated that the parties had resolved this request except as
to one individual, Juliette Sabo. As to Sabo, the request is
granted in part and denied in part. The defendant shall
produce any documents that mention or concern (1) this case;
(2) the plaintiff, Megan Moore, Britney Roach, Austin
Watkins, or Julie Pinard; and (3) Sabo's dishonesty,
misconduct, reprimands, and/or discipline. 2. Interrogatory 2
and Requests for Production 4 and 14: During oral argument,
the plaintiff reformulated and significantly narrowed the
requests to seek complaints of retaliation or discrimination
on the basis of age or race in the past 5 years involving the
same decisionmakers as in this case. The defendant objects on
the grounds of undue burden and relevance.
defendant stated during oral argument that responding to the
requests would be unduly burdensome because the responsive
information is stored offsite and is not maintained on an
electronic database that can be searched. "Under
well-settled law, the party resisting production bears the
responsibility of establishing undue burden."
Michanczyk v. Metropolitan Life Ins. Co., No.
3:05CV1903, 2007 WL 926911, at *2 (D. Conn. Mar. 26, 2007).
The defendant has made no showing as to the nature and extent
of the actual burden it would face in responding to the
plaintiff's requests. See, e.g., In re
Application of Bloomfield Inv. Res. Corp., 315 F.R.D.
165, 168 (S.D.N.Y. 2016) (overruling burdensomeness objection
where objecting party did not "present particularized
evidence in their briefing that production of the . . .
records would be unduly burdensome or costly, such as an
affidavit of a person with knowledge of the record keeping
system explaining in detail the basis of the
objection"); Schiavone v. Northeast Utilities Serv.
Co., No. 3:08CV429, 2010 WL 382537, at *1 (D. Conn. Jan.
27, 2010)("a party objecting to a discovery request on
the grounds that the information sought is unduly burdensome
must go beyond the familiar litany that requests are
burdensome, oppressive or overly broad and submit affidavits
or other evidence revealing the nature of the burden.");
In re In-Store Advertising Sec. Lit., 163 F.R.D.
452, 455 (S.D.N.Y. 1995) ("If a party resists production
on the basis of claimed undue burden, it must establish the
factual basis for the assertion through competent
evidence."). The defendant's burdensomeness
objection is overruled.
defendant also argues that information regarding prior
complaints is not relevant. The plaintiff contends that the
information is relevant to the defendant's motive and
intent and to the plaintiff's argument that the
defendant's reasons for firing him were pretextual. The
court agrees. "Evidence relating to company-wide
practices may reveal patterns of discrimination against a
group of employees, increasing the likelihood that an
employer's offered explanation for an employment decision
regarding a particular individual masks a discriminatory
motive." Moll v. Telesector Res. Grp., Inc.,
760 F.3d 198, 204 (2d Cir. 2014) (quoting Hollander v.
Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990)).
See Lieberman v. Gant, 630 F.2d 60, 69 (2d Cir.
1980)("Evidence of general patterns of discrimination by
an employer is relevant even in an individual disparate
treatment case."); Carter v. Logan Bus Co., No.
15CIV5217ENVJO, 2016 WL 5231800, at *2 (E.D.N.Y. Sept. 21,
2016) (affirming magistrate judge's order requiring
discovery concerning other employees and noting that
"[d]efendants seem to confuse pattern-or-practice
discrimination claims, which are not at issue in this case, .
. . with the routine use of circumstantial evidence of a
pattern of discrimination to support an individual disparate
treatment claim, see Hollander, 895 F.2d at
84-85."); Sasikumar v. Brooklyn Hosp. Ctr., No.
09 CV 5632, 2011 WL 1642585, at *3 (E.D.N.Y. May 2, 2011)
(holding that "courts in this circuit have repeatedly
found similar complaints of discrimination by corporate
employers to be relevant and discoverable" and granting
motion to compel defendant to produce complaints by employees
of defendant's nursing department alleging discrimination
and/or retaliation based on national origin, race, color or
age for the years 2001 to 2005); Culkin v. Pitney Bowes,
Inc., 225 F.R.D. 69, 71 (D. Conn. 2004) ("Evidence
of general patterns of discrimination by an employer is
clearly relevant in an individual disparate treatment case
and is therefore discoverable pursuant to Fed.R.Civ.P.
plaintiff seeks the ages and race of employees listed on two
documents (SS01169 and SS01128-29). The motion is granted.
plaintiff's request for fees and costs is denied. Where,
as here, a motion to compel is granted in part and denied in
part, the court has discretion to apportion fees.
See Fed.R.Civ.P. 37(a)(5)(C). In this case, each
party should bear its respective motion costs and fees.
See Mayo-Coleman v. Am. Sugar Holding,
Inc., No. 14CV0079(PAC)(KNF), 2016 WL 7378767, at *1
(S.D.N.Y. Nov. 16, 2016) (declining to award of
attorneys' fees where motion to compel only partially
successful); MASTR Adjustable Rate Mortgages
Trust 2006-OA2 v. UBS, Real Estate Securities Inc.,
No. 12 Civ. 7322(HB)(JCF), 2013 WL 5437354, at *2 (S.D.N.Y.
Sept. 27, 2013) ("when motion is granted in part and
denied in part, award of expenses is discretionary");
Pegoraro v. Marrero, 281 F.R.D. 122, 134 (S.D.N.Y.
2012) (declining to award fees).
U.S. District Judge Robert N. Chatigny
referred the motion to the undersigned. See doc.
This argument was not made in the