Defendant has moved to compel Plaintiff to produce: (1) any text messages Plaintiff had sent to any current or former Verizon employee, and (2) any employment applications Plaintiff had submitted to prospective employers. Counsel for Plaintiff represented that she had produced all existing documents responsive to the Defendant's requests. See Oral Arg. Tr. p. 4. Counsel for Defendant conceded that both issues have been resolved between the parties. Id. at p. 6, 18.

Based on the foregoing, I recommend that Defendant's motion to compel production of the aforesaid documents be denied as moot.

Defendant has moved to compel Plaintiff to produce any “litigations hold” notice issued to Plaintiff by his counsel. Defendant argues that Plaintiff has not produced all emails in his possession and has intentionally deleted emails from his personal email account.[1] Defendant has referred to Plaintiffs deposition testimony wherein he admitted that he would regularly delete emails. (Plaintiffs Dep. at p. 337:2–21). Additionally, Defendant asserts that it has produced emails sent by Plaintiff, which Plaintiff has likewise not produced. See Oral Arg. Trans. at p. 12–13. Defendant contends that this suggests that Plaintiff engaged in spoliation. Defendant argues that this alleged spoliation entitles it to review Plaintiff's litigation hold letter.

Generally, “litigation hold” letters exchanged between attorneys and their clients are privileged communications. See e.g. Gibson v. Ford Motor Co., 510 F.Supp.2d 1116, 1123–1124 (N.D.Ga.2007) (“these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation ... Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation”); Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D.Ill.2007) (denying plaintiffs objection to Magistrate's ruling that Target's litigation hold notices are subject to the attorney-client privilege and to work-product protection).

However, when “spoliation occurs, the letters are discoverable.” Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009); see also Keir v. Unumprovident Corp., 2003 WL 21997747 at *6 (S.D.N.Y. Aug. 22, 2003) (allowing detailed analysis of emails pertaining to defendant's preservation efforts after finding that electronic records which had been ordered preserved had been erased); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 425 nn.15–16 (S.D.N.Y.2004) (disclosing the details of counsel's litigation hold communication after discovering that at least one e-mail had never been produced).

*2 Therefore, if Defendant produces evidence to substantiate its claim of spoliation, it would be entitled to receive copies of any litigation hold letters. By definition, spoliation of evidence is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 at *8 (D.N.J. Aug. 4, 2009). Further, “the duty to preserve material evidence arises not only during litigation but also extends to that period before litigation ‘when a party should have known that the evidence may be relevant to future litigation.’ ” Id. (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)); see also Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D.Pa.1994) (stating that a duty to preserve evidence, independent from a court order to preserve evidence, arises where there is knowledge by the plaintiff of the existence or likelihood of litigation).

On the record before me, I cannot conclude that Defendant has produced sufficient evidence that would establish that spoliation has occurred. I have not been presented with the specific date that Plaintiff retained counsel or received a litigation hold letter. Therefore, I cannot ascertain as to when Plaintiff was under an obligation to preserve evidence. However, Plaintiff should be compelled to provide Defendant with the precise date that he retained counsel and/or received a litigation hold notice.[2] If Defendant then presents an email that was not produced by Plaintiff during discovery, dated after he retained counsel or received a litigation hold letter, it has established a preliminary showing of spoliation and I recommend a copy of Plaintiffs litigation hold letter be produced and furnished to Defendant.[3]

The parties dispute the availability and existence of suitable positions which would reasonably accommodate Plaintiff's medical restrictions under the Americans with Disabilities Act. Plaintiff requested business records that he contends would establish that suitable positions were available for Plaintiff. Defendant counters that it has already provided a detailed spreadsheet and witness affidavit which delineated all available positions.

During oral argument, counsel for Plaintiff conceded he would be satisfied if Defendant produced organizational charts and management phone lists for any of Defendant's locations within thirty (30) miles of his home, i.e. Defendant's Levittown, Hatboro, Norristown, and Plumstead locations. See Id. at p. 41, 52. Counsel for Defendant agreed to produce the requested documents for two locations, Levittown and Norristown. Id. at p. 73.

Therefore, the only remaining dispute on this issue is whether Defendant should be compelled to produce organizational charts and management phone lists for the Hatboro and Plumstead locations. Defendant contends that Plaintiff previously agreed to limit his requests to the Norristown and Levittown locations during the original discovery hearing before Judge Robreno. See Id. at p. 67–69. However, as Plaintiff correctly points out, his concession before Judge Robreno only applied to a specific interrogatory that is not at issue here. Id. at p. 70–71. Therefore, Plaintiff has not waived his request for the aforesaid documents.

After careful consideration, I recommend that Defendant be compelled to produce organizational charts and management phone lists for all four (4) locations listed above. “It is well recognized that the federal rules allow broad and liberal discovery.” Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir.1999). A claim that the “discovery sought is overly broad, burdensome, oppressive, vague or irrelevant is ‘not adequate to voice a successful objection.’ ” Northern v. City of Phila., 2000 WL 355526, at *2 (E.D.Pa. Apr. 4, 2000) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir.1982)). “Where a party contends that the sought discovery causes an undue burden, they must demonstrate specifically how each item of discovery is objectionable by offering evidence revealing the nature of the burden.” Id. Here, Defendant has not articulated any undue burden for producing these materials.

*3 Accordingly, I recommend that Plaintiff's motion to compel be granted, and Defendant be directed to produce organizational charts and management phone lists for Defendant's Levittown, Hatboro, Norristown, and Plumstead locations.

Plaintiff also moves for sanctions, in the form of exclusion of evidence, due to Defendant's failure to produce a certain surveillance video of Plaintiff until after his deposition was completed. Defendant admits that it withheld production of the video tape from Plaintiff even though production of said video tape was sought by Plaintiff in his requests for production of documents. However, Defendant argues that it was justified in withholding the surveillance video. Defendant supports its position with various cases which have held that surveillance video can be withheld for impeachment purposes. See Snead v. American Export–Isbrandtsen Lines, Inc., 59 F.R.D. 148, 151 (E.D.Pa.1973); Newsome v. Penske Truck Leasing Corp., 437 F.Supp.2d 431, 435–438 (D.Md.2006); Bachir v. Transoceanic Cable Ship Company, 1998 U.S. Dist. LEXIS 19528 (S.D.N.Y. Dec. 15, 1998) (concluding that withholding surveillance materials for the purpose of impeachment is permissible).

However, other courts have reached the opposite conclusion. In particular, in Gardner v. Norfolk S. Corp., 299 F.R.D. 434 (D.N.J.2014), Judge Donio concluded that surveillance materials, even if used for impeachment purposes, are still immediately discoverable. Id. at 438. The court held that “permitting parties to delay production of this relevant evidence requested in the context of the parties' discovery requests would nullify the discovery process.” Id. “Defendants in this instance have failed to demonstrate circumstances sufficient to defer production of discoverable information ... The Court therefore denies Defendants' motion and directs Defendants to produce the withheld surveillance materials.” Id ; see also Gutshall v. New Prime, Inc., 196 F.R.D. 43, 46 (W.D.Va.2000) (granting plaintiffs motion to compel production of surveillance evidence intended solely for impeachment purposes).

After careful consideration, I find Judge Donio's opinion more persuasive and applicable to this case. “[F]airness concerns weigh against the kind of sandbagging involved when the moving party sets up grounds for impeachment by using undisclosed materials in an attempt to manufacture inconsistencies.” Louisma v. Automated Fin., LLC, 2011 WL 5105377, at *3 (N.D.Ill. Oct. 27, 2011). Consequently, any and all materials should be immediately produced.

Additionally, there exists an underlying flaw in Defendant's argument. A party opposing disclosure of non-privileged information or documentation should generally file a motion for a protective order and allow the court to decide the propriety of producing the materials. In this case, Defendant did not file a motion for a protective order and unilaterally withheld the materials. This was improper. “ ‘Open discovery is the norm. Gamesmanship with information is discouraged and surprises are abhorred.’ ” Kosher Sports. Inc. v. Queens Ballpark Co., LLC, 2011 WL 3471508, at *8 (E.D.N.Y. Aug. 5, 2011) (quoting Costa v. AFGO Mech. Servs., Inc., 237 F.R.D. 21, 26 (E.D.N.Y.2004) (citation omitted)).

*4 While I am troubled by Defendant's actions, due to the differing conclusions that Courts have reached on this issue, I cannot conclude that Defendant acted in bad faith withholding the surveillance video. Therefore, I do not recommend exclusion of the surveillance video tape at this time. See Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir.2000) (holding that a finding of “bad faith” on behalf of the opposing party is a consideration for the exclusion of evidence); Quinn v. Consol. Freighlways Corp. of Del., 283 F.3d 572, 576 (3d Cir.2002) (“the exclusion of critical evidence is an extreme sanction, not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence”) (quotations and citations omitted). Moreover, any prejudice to Plaintiff can be cured by permitting him leave to depose the surveillance experts.

I have concluded that the issue of exclusion of the surveillance video tape would be more appropriate for resolution by Judge Robreno in the event that a motion in limine is filed by Plaintiff prior to trial. The Court can then determine the issue of admissibility of the surveillance video tape pursuant to the Federal Rules of Evidence. Therefore, I recommend that Plaintiff's motion for sanctions be denied.

Plaintiff also takes issue with Defendant's Amended Initial Disclosures, which were provided on July 15, 2015, or only eight (8) business days before the Court's discovery deadline. In the Amended Initial Disclosures, Defendant added nine (9) new witnesses that were not originally disclosed. Accordingly, Plaintiff has requested the opportunity to depose these newly added witnesses, or alternatively, that they be excluded from testifying at trial.

Under F.R.C.P. 26(a) a party is required to disclose the identity of any individuals who may testify in support of the party's claims or defense. If the party learns that its initial disclosures are incomplete, and if the additional information was not otherwise made known to opposing counsel during the discovery process, then the party has an affirmative obligation to supplement its disclosures “in a timely manner.” FED. R. CIV. P. 26(e)(1)(A). These discovery rules serve to “make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Norden v. Samper, 544 F.Supp.2d 43, 49–50 (D.D.C.2008) (quoting United States v. Procter & Gamble, 356 U.S. 677, 682 (1958)).

In addition, F.R.C.P. 37(c)(1) states in relevant part that “where a party fails to provide information or identify a witness as required by [the rules governing initial disclosures], the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” In considering whether the exclusion of evidence is an appropriate sanction for failure to comply with discovery duties, the Third Circuit directs courts to consider four factors: “(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.” Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir.2000).

In consideration of the foregoing, I recommend that the Court deny Plaintiff's request to exclude the witnesses at trial. Most importantly, any “prejudice” suffered by Plaintiff can be remedied by allowing him the opportunity to take the witnesses' depositions. I find that the Plaintiff's arguments on this issue are not persuasive. Plaintiff relies upon Judge Schmehl's Order in the case of Vaugh v. RHD (Civ. Action No: 1300772, E.D. Pa., September 12, 2014, Dkt. No.: 54), wherein Judge Schmehl excluded newly identified witnesses at trial. However, as Defendant correctly points out, Vaughn only dealt with the disclosure of witnesses after discovery had concluded. In this case, Defendant disclosed the witnesses prior to the discovery deadline. Therefore, they should be permitted to testify. See e.g., Lint v. County of Fayette, et al., 2011 U.S. Dist. LEXIS 112502, at * 2–3 (W.D.Pa. Sept. 30, 2011); Shumek v. McDowell, 2011 U.S. Dist. LEXIS 5125, at *11–13 (M.D.Pa. Jan. 19, 2011) (allowing witness testimony despite not being identified in Rule 26 disclosures).

*5 While exclusion is improper, Plaintiff should nonetheless be granted leave to depose the individuals added to the Amended Initial Disclosures. However, in consideration of the fact that Plaintiff has already deposed nine (9) witnesses in this matter, I recommend that the depositions be limited to no more than two (2) hours per witness.

Lastly, Defendant contends that Plaintiff's counsel, Christine Burke, Esq., should be sanctioned because she allegedly violated Pennsylvania Rule of Professional Responsibility 4.2., which states in relevant part:

P.A. R. Prof. R. 4.2.

Defendant contends that Ms. Burke violated R. 4.2 by communicating on an ex parte basis with J.D. Dennisseur, a current Area Manager for Verizon.[4] In essence, Defendant argues that any contact with a current Manager of Verizion would be a per se violation of R. 4.2. See Oral Arg. Trans. at p. 141.

Defendant's interpretation of R. 4.2 goes too far. The Third Circuit has stated that Rule 4.2 is intended to forbid ex parte communications with all institutional employees whose “acts or omissions could obligate or impute liability to Defendants with respect to the matter.” EEOC v. Ilora, Inc., 239 Fed. Appx. 728, 731 (3d Cir.Pa.2007) (emphasis added). Defendant has not alleged that Mr. Dennisseur has any knowledge or information that may “impute liability” to the Defendant in this case. In fact, Defendant did not identify Mr. Dennissuer in either its Initial Disclosures or in response to Interrogatories as an individual with knowledge of the underlying matter. See Oral Arg. Trans. at p. 132.

Moreover, Ms. Burke's contact with Mr. Dennisseur did not cause Defendant any prejudice. As admitted by Defendant at oral argument, “nothing came” of Ms. Burke's conversation with Mr. Dennisseur. Id. at p. 141. Defendant has not provided any authority to support its contention that a “technical violation” of the Pennsylvania Rules of Professional Conduct, should always result in sanctions. Therefore, even if Ms. Burke's contact was a “technical” violation of R. 4.2, sanctions would be inappropriate. See EEOC v. Hora, Inc., 239 Fed. Appx. 728, 731 (3d Cir.Pa.2007) (denying defendant's motion for disqualification because they were “not prejudiced” by the purported R. 4.2 violation). As a result, I decline to grant Defendant's motion for sanctions.[5][6]

*6 Accordingly, it is HEREBY RECOMMENDED that the Court approve the disposition of the outstanding discovery disputes as set forth herein above. In accordance with F.R.C.P. 53(f)(2), the parties have twenty-one (21) days to file objections to this report and recommendation.

By: /s/ Sidney L. Gold, Esquire

SIDNEY L. GOLD, ESQUIRE, COURT APPOIINTED DISCOVERY MASTER

Submitted this 22nd day of February, 2016

Plaintiff's counsel represented that he has produced all emails in his possession. See Oral Arg. Trans. at p. 4,

At oral argument, counsel for Plaintiff agreed that he would provide the date of the litigation hold letter. See Oral Arg. Trans. at p. 16–17.

I take no position on whether spoliation actually occurred or what the appropriate remedy would be if established.

Ms. Burke admitted at oral argument and in her written submissions that she contacted Mr. Dennissuer on an ex parte basis.

Plaintiff also moves for sanctions on the basis that Defendant did not raise this issue until after Plaintiff originally moved for sanctions. In essence, Plaintiff argues that Defendant only moved for sanctions in retribution for Plaintiff's own motion for sanctions. I have carefully considered this argument and recommend that Plaintiff's request be denied.

Both parties have argued that the legal fees incurred in connection with this report be charged to the other party. After careful deliberation, I have concluded that the parties should share the legal fees incurred by the Discovery Master in preparation of this Report and Recommendation.