August 08, 2020 Practice Points

Court Addresses Motion to Compel Documents That Probably, but Not Definitely, Exist

A practical approach that attorneys can take when they suspect missing documents.

By Giuseppe A. Ippolito

You represent a plaintiff in a case against a corporation. Maybe your client has alleged discrimination and retaliation in violation of Title VII. Maybe you are fighting a manufacturer of a defective product. Following a scheduling conference, you serve interrogatories and document requests. You receive a trove of information, and as you sift through it, your Spidey-sense begins to tingle. Something that logically should be there is missing. For example, you receive a copy of a product-testing report, but an email message in the discovery suggests that the report was not the first draft and that marketing pressured the engineers to make changes. In a Title VII case, you might have a final report from management about your client’s allegations, but your client insists that she sat through interviews where investigators took handwritten notes. You’re sure there are more documents that should have been produced, but you can’t prove it.

You reach out to opposing counsel about your suspicions. Counsel responds that she checked with her client. The client says that it turned over everything it had, and counsel claims she turned over everything that the client gave her. Skeptical, and certain there is more, you turn to your judge for assistance, through a status conference or a motion to compel. The judge hears opposing counsel and then shrugs, “Counsel, they say that they turned over everything. What do you want me to do?” How will you answer?

One federal court recently wrestled with this scenario. In Osucha v. Alden State Bank, No. 17-CV-1026 (LJV), 2020 WL 3055790 (W.D.N.Y. June 9, 2020), a bank teller sued her former employer under Title VII and state law for sexual harassment. During discovery, the defendants produced, among other things, the plaintiff’s personnel file and documents that a law firm generated when retained to conduct an internal investigation of the plaintiff’s allegations.

The plaintiff filed a motion to compel, insisting that the defendants had received multiple complaints and that the law firm took handwritten notes during interviews of the plaintiff and other employees. The plaintiff sought to compel the handwritten notes and all documents on which the final investigative report was based. Alternatively, the plaintiff asked the court to require sworn affidavits from the defendants and the law firm explaining whether the notes had been destroyed and if so, how and why. The defendants responded that they and the law firm took diligent steps to look for the requested documents and produced everything that they had in their possession.

The court summarized the problem inherent in a motion to compel production of documents that the responding party insists do not exist. “That lead defense counsel has produced everything given to her, and that the material [sought] remains unaccounted for, can be true at the same time, and therein lies the difficulty.” Id. at *3 (citation omitted). The court resolved this dilemma by adopting what it called an “incremental approach.” The court gave each defendant 30 days to submit a specific affidavit or declaration that would lay the foundation for further inquiry. The court required a response to four basic areas:

  1. whether the declarant denies that the documents mentioned in the bullet points above ever existed;
  2. whether the declarant takes the position that [a human resources official] either took all of the documents with her upon her termination or destroyed them herself;
  3. if the second point be answered in the negative then the declarant a) will confirm whether the declarant gave any direction to destroy the documents and b) will confirm all of the steps taken so far to locate the documents; and
  4. if the declarant does not deny the existence of the documents but otherwise claims no knowledge of their whereabouts then the declarant will answer the following question: ‘If you absolutely needed these documents as part of critical bank operations then whom would you ask and what would you do?’

Id. (citations omitted). The court reasoned that this information would enable opposing counsel to conduct meaningful additional inquiries as appropriate.

The court’s decision suggests a practical approach that attorneys can take when they suspect missing documents. Attorneys should do their best to pin down how many people were involved in creating or storing a suspected document and try to determine the custom and practice of generating or retaining a certain kind of document. This information can provide valuable clues about how unusual the absence of such documents really is. Finally, attorneys should consider asking the court to require the kind of affidavits that were required in Osucha as a helpful intermediate step and a basis for further fact finding. As the court in Osucha noted, beyond a point, “plaintiff will have to use depositions to find whatever other information might be necessary either to locate the documents or to lay the foundation for an adverse inference instruction.” Id. (citing De Espana v. Am. Bureau of Shipping, No. 03 CIV.3573(LTS)RLE, 2007 WL 1686327, at *8 (S.D.N.Y. June 6, 2007) (“Typically, the evidence used to establish relevance of missing documents is deposition testimony.”)). But the affidavits required by the Osucha court will go a long way towards streamlining the subsequent fact finding.

Giuseppe A. Ippolito is the law clerk/courtroom deputy to Magistrate Judge Hugh B. Scott in the U.S. District Court for the Western District of New York. Any opinions in this article are his own and not those of the district court or of Judge Scott.


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