Sharon KORMENDI, Plaintiff, v. COMPUTER ASSOCIATES INTERNATIONAL, INC., Defendant No. 02Civ.2996(LAK)(DFE) United States District Court, S.D. New York October 21, 2002 Eaton, Douglas F., United States Magistrate Judge MEMORANDUM AND ORDER *1 I am responding to the October 17 joint letter from Mr. Ranni and from Mr. O'Brien of Nixon Peabody's Garden City office. (I direct Mr. O'Brien to advise me, Judge Kaplan, the Clerk of the Court and Mr. Ranni whether all future mailings in this case should be sent to the Garden City office.) In the joint letter, defendant asks me to reconsider and clarify certain paragraphs of my September 20 Memorandum and Order (the “Order”). I have reconsidered them, and I now issue the following rulings. 1Plaintiff's Document Requests # 6 and # 7 sought all documents relating to compensation and benefits for 12 named men and 7 named women. I narrowed this information to “an affidavit stating how many weeks of pay were given in severance for each person listed.” Severance pay was the topic of a New York Times article in March 2001, which is annexed at the end of the exhibits to the October 17 joint letter. Computer Associates fired plaintiff in January 2001, allegedly for poor performance. The Times article reports “Bob Gordon, a company spokesman,” as saying that, in January 2001, the company terminated about 316 employees and, because of poor performance, about 240 of them did not receive severance pay. The Times explains: “The company's employee handbook says workers will receive two weeks of severance pay for each year they have worked for the company unless they are fired for poor performance.” According to the Times, Henry Crouse, a former regional vice president, says that, in January 2001, the company's Human Resources Department directed him to lay off employees by means of false claims of poor performance, so they would be denied severance pay. If this is true, the company's motivation may have been solely a dishonest attempt to save money. But plaintiff alleges that there may have been an additional motivation—- to use false claims of poor performance as a pretext for gender discrimination. I think plaintiff is entitled to learn the severance pay given to the 7 named women and to compare it to the severance pay given to those of the 12 named men who have left the company. If the defendant claims that plaintiff's samples do not provide a meaningful comparison, defendant is free to provide further samples. One comparison that might be meaningful would be the percentages of women in (a) the 240 persons denied severance pay in January 2001, (b) the 76 persons granted severance pay in January 2001, and (c) the persons (like plaintiff) who were denied severance pay in January 2001 but were later offered it. Such information would be more easily sought in a Rule 30(b)(6) deposition rather than in documents requests. On reconsideration, I will limit Document Requests # 6 and # 7 to those of the 19 named persons who left the company during the period from 1/1/97 through 9/30/02. Therefore, I modify my rulings as follows: Document Request # 6: By 10/31/02, defendant shall provide an affidavit stating how many weeks of pay were given in severance for each of the 12 named men who left the company during the period from 1/1/97 through 9/30/02. *2 Document Request # 7: By 10/31/02, defendant shall provide (a) all of the requested documents pertaining to plaintiff; and (b) an affidavit stating how many weeks of pay were given in severance for each of the 7 named women who left the company during the period from 1/1/97 through 9/30/02. If plaintiff desires information relating to compensation, salary increases, insurance plans, etc. as to the named individuals, plaintiff must contact each of them to see if they are willing to sign authorizations so that she may obtain this information. With respect to Document Requests # 2, # 6 and # 17 “(a),” plaintiff now wishes to add a 13th man, Kurt Seibert. I will permit Mr. Ranni to add Kurt Seibert to those Requests and to the affidavit he is preparing pursuant to the second paragraph of my September 20 order. 2Document Requests # 10 and # 29 concern the defendant's documents maintained pursuant to EEOC reporting requirements. Defendant writes that the EEOC requires it to file EEO–1 reports for each of its 85 facilities throughout the United States, but that plaintiff worked only at the headquarters in Islandia, New York and at the New York City facility. Plaintiffs wants demographic information concerning the entire company. On reconsideration, my rulings are: Document Request # 10: By 10/31/02, defendant shall provide documents maintained pursuant to EEOC reporting requirements for the period from 1/1/99 through 12/31/01 for its facilities in Islandia and New York City. Also by 10/31/02, defendant shall provide an affidavit listing the number of women and the number of men employed by the defendant nationwide as of the same or comparable dates in 1999, 2000, and 2001. Document Request # 29: By 10/31/02, defendant shall provide its EEO–1 reports for the period from 1/1/99 through 12/31/01 for its facilities in Islandia and New York City. Document Requests # 17 “(b)” and # 22 sought documents concerning discrimination complaints by the 7 named women. More recently, plaintiff has sought to add an 8th person, Bruce Hegg, who is the husband of one of the women; he was fired recently, allegedly in retaliation for complaining about discrimination against his wife. I will allow plaintiff to add his name, even though it appears that plaintiff herself did not complain about discrimination before she was fired. My September 20 Order limited Request # 17 “(b)” to the period from 1/1/99 through 12/31/01 but did not specify any time limit for Request # 22. In the October 17 joint letter, defendant points out that Ms. Burckle left the company in 1986, and I agree that is too remote in time. On the other hand, I find that the information about Mr. Hegg and about the other women (including those terminated in 1997 and 1998) is relevant to the subject matter of this action and appears reasonably calculated to lead to the discovery of admissible evidence. See Rule 26(b)(1). Therefore, I modify my rulings as follows: *3 Document Request # 17 “(b)”: This request shall be deemed to include Bruce Hegg. By 10/31/02, defendant shall provide all of the requested documents for the period from 1/1/97 through 9/30/02. Document Request # 22: This request shall be deemed to include Bruce Hegg. By 10/31/02, defendant shall provide all of the requested documents for the period from 1/1/97 through 9/30/02. With respect to Requests # 17 “(b)” and # 22, defendant may provide an affidavit with respect to any complaint that was settled pursuant to a signed confidentiality agreement, in which case the affidavit shall provide the name of the complainant, the date of his or her first complaint (whether written or not), the date of any Charge of Discrimination filed with the EEOC or similar state or local agency, the date on which the complaint was settled, the date on which the confidentiality agreement was signed, the text of the confidentiality language, and the caption, court and index number of any lawsuit. As to Document Request # 31, my September 20 Order said: “By 10/18/02, defendant shall provide all e-mail messages mentioning plaintiff for the period from 1/1/00 through 1/31/01, excluding any communications between defendant and its attorneys. Plaintiff must pay the cost of the e-mail search.” In the October 17 joint letter, defendant says it “has no method to locate and reconstruct e-mails mentioning plaintiff for the listed period, and its document retention policy calls for employees to retain e-mails for a period of only thirty (30) days. In any event, CA already has sought to collect e-mails from those persons who were involved in plaintiff's termination, and has produced those that exist.” Plaintiff is free to ask for the names of those persons, and to suggest others who might have saved relevant e-mails. Plaintiff has little incentive to demand expensive searches, since plaintiff must pay the cost of the e-mail search. In the October 17 joint letter, plaintiff writes, prematurely: “Should Defendant be unable to produce these records, Plaintiff should be entitled to Defendant being precluded from raising these documents in evidence in the future as well as a missing evidence charge.” If defendant should seek to offer testimony describing the contents of a destroyed e-mail, plaintiff would then have a ripe controversy and could then apply to Judge Kaplan for whatever relief she seeks.