membership and power by installing the [U]nion as the collective bargaining representative of workers, both at the [Met] and elsewhere, without having to undergo a statutorily-approved, NLRB-supervised, secret-ballot election.
Some of the union staff's servers have not been programmed to automatically retain e-mails indefinitely. All staff will now make the necessary adjustments to reprogram their servers to retain all e-mails on the server automatically.
[A]fter Mr. Granfield admitted that all of his files had not been examined, we asked your firm to review all of the union's files to bring the defendants into compliance with their discovery obligations. Your letter does not state whether a union-wide review of files by an attorney has taken place. Please confirm that, subsequent to October 16, 2001, such a review has been conducted.
Based on Mr. Granfield's failure to turn over files for review that likely contained responsive documents, and based on the *197 revelation at Mr. Diaz's deposition that Mr. Diaz and other Local 100 officers create “weekly reports” of their activities that have never been turned over to the Met, we have serious concerns about the completeness of the entirety of defendants' production. Although this is the third time that we have written you about this matter, you still have not provided us with any assurance that an attorney has reviewed all the Union's files to determine if they contain documents responsive to the Met's discovery requests.
As noted in our previous correspondence, the weekly reports submitted by Local 100 officers and employees to the union are clearly covered by document requests dating back to May 2000. Nevertheless, the weekly reports for Mr. Diaz and Mr. Hoffman were not produced until November 26, 2001, after their non-production was exposed at Mr. Diaz' deposition. Weekly reports for Dahlia Ward, Michelle Travis and Amanda Ream were not produced until December 5, 2001, and only after we reminded you, once again, of your discovery obligations. Today you informed me *199 for the first time that Mr. Bitterman and Mr. Granfield filed activity reports with the International Union and that they are “trying” to obtain copies of these reports. You also stated that you did not know if Mr. Tamarin filed such reports with HEREIU. Needless to say, defendants should have kept copies of the reports submitted to the International Union as they are clearly responsive to a number of our document requests. Moreover, these reports should have been produced (and subsequently updated) in response to our initial document requests and in response to our subpoena to the International. Finally, at this stage in the game, you should know whether Mr. Tamarin filled out such reports when he was President of Local 100. Please produce these reports immediately. As with the agendas and minutes referenced above, Mr. Tamarin's reports should be produced before his deposition begins.
Finally, although we cannot at this point determine how much prejudice has been suffered by the Met due to the improper destruction and withholding of critical evidence, if, upon deposing the people knowledgeable about defendants' document retention, production and lack thereof, we learn that it is necessary, we will move for preclusion or judgment against defendants. We sincerely believe that defendants' willful failure to comply with their obligations is of the severest nature and may demand that remedy once we learn the full extent of the prejudice thereby imposed on the Met.
We understand your response to mean that Mr. Bitterman did fill out weekly reports (as did all the other officers and employees of Local 100), but that these reports simply cannot be found at either the offices of the International Union and Local 100. Please clarify: whether Mr. Bitterman filled out weekly reports, and, if so, where these reports were filed and what efforts have been undertaken to locate them. Also, please clarify whether, aside from Mr. Bitterman, you have produced *208 all the weekly reports for all the union employees or officials who worked on the campaign against the Met.
Finally, we note that we are still waiting to receive from you a number of documents as well as responses to discovery challenges. Your attempt to dismiss as “peripheral” documents still withheld by defendants is disingenuous. But more importantly, your assessment of their importance is irrelevant and immaterial given that the Court ordered you to produce specific categories of documents by dates certain last week and ordered you to produce all documents responsive to the Met's document requests by last Thursday, January 10.
provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. The term “response” includes answers to interrogatories and to requests to admit as well as responses to production requests.
[a]ny attorney or other person admitted to conduct cases in any court of the United States ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
It is not an excuse that defense counsel did not know about the retention of the cover sheets. Counsel had a duty to explain to their client what types of information would be relevant and responsive to discovery requests and ask how and where relevant documents may be maintained. The client is charged with knowledge of what documents it possesses. It was not their option to simply react to plaintiff's fortuitous discovery of the existence of relevant documents by making disjointed searches, each time coming up with a few more documents, and each time representing that that was all they had. Under the federal rules, the burden does not fall on plaintiff to learn whether, how and where defendant keeps relevant documents.
For more than a year, [defendant] has spent all of its time and effort trying to obtain from [plaintiff] the production of documents that comply with its first document request and responses to comply with its first set of interrogatories. Numerous calls, letters, conferences, court appearances and the filing of motions were necessary before [plaintiff's] counsel deemed it appropriate to offer last-minute, inadequate explanations for its failure to comply with discovery and this Court's orders. To state that the cost associated with the above is great is to have a penchant for the obvious which I will not indulge in.
End of Document.