*1 By letter motion dated April 29, 2019 (Dkt. 92), plaintiff Shanell Pugh-Ouza (“Plaintiff”) seeks a pre-motion conference, in anticipation of moving to compel the compliance of defendants SpringHill Suites, a/k/a SpringHill Suites Marriott (“SpringHill Suites”), Marriott Hotel Services, Inc., Marriott Worldwide Reservation Services, LLC, Mariott Resorts Hospitality Corporation, Marriott Resorts, Travel Company, Inc. (collectively, “Marriott”), Carrie Carpenter (“Carpenter”), Gina Ngeau, and Arberie Karacica (sued herein as Aubrey Karacia) (“Karacica”) (all, collectively, “Defendants”) with this Court's discovery Order of March 26, 2019 (Dkt. 89), and to compel Defendants to produce certain additional information. As the various discovery issues that Plaintiff seeks to raise have already been addressed substantively in Plaintiff's letter motion, as well as in Defendants’ opposition (Dkt. 93), Plaintiff's reply (Dkt. 94), and, for the most part, in the parties’ lengthy earlier letters that were filed prior to the Court's March 26 ruling (and as to which this Court already held a conference), no pre-motion conference is necessary at this point. Rather, the discovery issues raised by Plaintiff are resolved as stated below:

A. Karacica's Emails

In its March 26 Order, this Court directed Defendants’ counsel “to oversee a further search of Karacica's personal email account, and, if any responsive emails [were] thereby located, to produce them no later than April 12, 2019.” (Dkt. 89, at Section I(B)(4).) Plaintiff now contends that, because Defendants’ counsel was not physically “present” with Karacica when she made a further search of her emails, counsel violated this Court's requirement that he “oversee” the search process. (Dkt. 92, at 2.) Oversight, however, need not be conducted in person, and this Court is satisfied by Defendants’ counsel's representations that he did, in fact, supervise Karcica's renewed search. (See Dkt. 93, at 2.) Moreover, the mere fact that no further emails were located and produced does not mean that the search was inadequate, given that Defendants’ counsel has explained that Karacica “deleted emails as a matter of course prior to this litigation.” (Dkt. 93, at 2.) Accordingly, this Court does not find that Karacica or her counsel violated this Court's Order by conducting an inadequate search of Karacica's emails.

B. Personnel and Disciplinary Records of Front Desk Agents

Plaintiff has again sought to compel production of personnel files, disciplinary records, and related information regarding seven other front desk employees in Plaintiff's department. According to Plaintiff, these employees were “similarly situated” to her, in that they had the same type of job and reported to the same supervisor, and their personnel files and any disciplinary records relating to their employment are relevant to her claims because (a) Plaintiff was disciplined and fired for purported infractions that the other front desk agents “did with impunity,” and (b) “several of the infractions that Defendants claimed Plaintiff did[ ] were actually done by some of these other front desk agents – not by [P]laintiff.” (Dkt. 92, at 3.)

*2 Previously, Defendants agreed to produce the personnel file of one of the front desk agents in question, Michael Barreno (“Barreno”) (see Dkt. 87, at 7), and Plaintiff now concedes that such production has been made and does not appear to seek further discovery with respect to Barreno (see Dkt. 92, at 2-3). As for the remaining six employees that have been identified by Plaintiff, while this Court noted, in its March 26 Order, that Plaintiff had not pointed to any formal, outstanding document demands that sought the documents that she now requests, it nonetheless directed Defendants’ counsel to “review the deposition transcripts, to give reasonable consideration to any requests for such documents that were made by Plaintiff on the record at any depositions, and, no later than April 12, 2019, to produce the requested documents (based on the requests as framed on the record) or to set forth, by letter to Plaintiff's counsel, the nature of any objections.” (Dkt. 89, at Section I(B)(4).) Defendants apparently complied with this directive, albeit by setting forth objections, rather than by making a further production.

In particular, Defendants objected to the requested discovery on the ground that, although Barreno, like Plaintiff, was a probationary employee during the period at issue, the other identified workers were not, and that they were therefore not subject to the same performance and disciplinary standards as Plaintiff was. (Dkt. 93, at 2-3.) For this reason, Defendants argued and continue to maintain that these other employees were not “similarly situated” to Plaintiff in a material respect, undermining Plaintiff's contention that the requested documents are relevant to the claims or defenses asserted in this action. (See id.) Plaintiff, in reply, argues that “Defendants’ reliance on Plaintiff[’s] being a probationary employee is misplaced,” as “Defendants did not claim that Plaintiff was fired for being probationary,” but rather “for cause (i.e., purported excessive misconduct) – which removed Plaintiff from the probationary, at-will paradigm.” (Dkt. 94, at 3.)

Plaintiff has the burden of demonstrating the relevance of her discovery requests, and, in this instance, this would include demonstrating that the other employees in question, who were allegedly not disciplined for infractions like those charged against Plaintiff, were similarly situated to her. In light of Plaintiff's probationary status, which she does not dispute, this Court is not satisfied that she has made the necessary showing of relevance. In this regard, the Court does not understand Defendants to be arguing that “probation” equates to “at-will” employment; rather, this Court understands Defendants to be contending that the standards that probationary employees must meet in the first months of their employment (with respect to attendance, for example) are stricter than the standards that longer-term employees must meet. Although, in her reply submission, Plaintiff states that, “[a]s discussed in Plaintiff's initial submission,... Defendants’ employee handbook applied to all of [the seven identified front desk agents][ ] and all of them were subjected to the same performance standards” (id.), this Court has found no specific discussion of these points in any prior submission that Plaintiff has made, and has located no support in any of her several attached exhibits for her conclusory statement that Plaintiff and non-probationary employees were “subjected to the same performance standards.”

Moreover, Plaintiff has not laid out, with any specificity, what she is referencing when she argues that the other employees’ personnel and disciplinary records should be produced because “several of the infractions” for which Plaintiff was supposedly disciplined were not actually committed by Plaintiff, but rather by “some of these other front desk agents.” (Dkt. 92, at 3.) In her Complaint, Plaintiff alleges that, when she applied for state unemployment benefits, Defendants contested her application, claiming that she “had made a mistake at work,” when, “[i]n reality,” and as “Defendants were aware,” Plaintiff's “co-worker had made the mistake that Defendants claimed.” (Complaint, dated Feb. 25, 2018 (Dkt. 1) ¶¶ 103-07.) There is no description in Plaintiff's pleadings as to what this purported “mistake” was, or as to which employee allegedly made the mistake. There is also no explanation in Plaintiff's motion as to the basis for her expansion of this pleaded allegation to her current assertion that “several infractions” for which Plaintiff was blamed were actually committed by “other front desk agents.” In addition, Plaintiff has offered no explanation as to why, if Plaintiff was charged with one or more “infractions,” the personnel or disciplinary files of any other employees (who were supposedly not charged with those infractions) would be likely to contain discoverable information regarding this allegation.

*3 For these reasons, Plaintiff's application to compel the production of additional employee personnel files and disciplinary records is denied.

C. “Forecast” Information Showing Defendants’ Occupancy During Plaintiff's Employment

Plaintiff contends that “Defendants temporarily laid off Plaintiff in December 2015, claiming low occupancy” of the hotel where she was working as a reason for its action (Dkt. 92, at 3), and asserts that Defendants have failed to produce documents regarding the occupancy rates relied upon to reduce Plaintiff's hours. In its March 26 Order, this Court noted (as it did with respect to Plaintiff's request for documents regarding the other front desk agents, as discussed above) that Plaintiff had not shown that the documents being sought had been the subject of any formal document request, but the Court nonetheless directed Defendants to respond, either by production or stated objection, to the requests made by Plaintiff during depositions. (Dkt. 89, at Section I(B)(4).) Defendants apparently responded by producing documents relating to occupancy rates for 2016, but not for November or December of 2015, months which fell within the period of Plaintiff's employment. (See Dkt. 92, at 2; Dkt. 93, at 3.)

Defendants take the position that the only occupancy-rate documents that would be relevant here are those that relate to the period commencing January 2, 2016, given that Plaintiff was “notified by letter dated December 28, 2015 that she would be laid off and/or her hours would be reduced beginning on January 2, 2018” (Dkt. 93, at 3 (emphasis omitted)), and that she worked a full schedule prior to that date (id.). Plaintiff, however, seems to suggest that Defendants could only have made the decision to lay Plaintiff off or to reduce her hours based on occupancy-related documents generated prior to the date in December when she was notified of her imminent lay-off/hours reduction. (See Dkt. 94, at 4 (arguing that, as Plaintiff's lay-off letter was dated December 28, 2015, “Defendants would have reviewed records from November/December 2015 to determine low occupancy”).)

It appears to this Court that parties may be talking across one another on this point. Plaintiff, in her letter motion, describes her request as one for “forecasts” (Dkt. 92, at 3) – which are, by definition, forward-looking documents. If Defendants have already produced occupancy-rate forecasts for 2016 that were generated in 2015, then Defendants need not make any further production. If, on the other hand, Defendants have only produced documents generated in 2016, then they are directed to supplement their production, within one week of the date of this Order, by producing all documents showing occupancy-rate forecasts for January 2016, regardless of when those documents were created. Defendants need not, however, produce documents relating to occupancy rates for 2015, as Plaintiff has not demonstrated the relevance of such documents.

D. Information Regarding 10-12 Other Fired Employees

Plaintiff claims that Defendants have failed to produce “any information regarding the 10-12 other employees that defense witness Behar claimed Defendant Carpenter informally discussed firing in the same purported informal manner that Behar claimed occurred with Plaintiff.” (Dkt. 92, at 4.) As with the last two categories of documents discussed above, this Court noted, in its March 26 Order, that Plaintiff had not shown that she had made any formal document requests that would have encompassed the information sought, but this Court still directed Defendants to respond in writing to any such requests posed at depositions. (Dkt. 89, at Section I(B)(4).) Defendant responded by objecting to the request for documents regarding the 10-12 employees on a number of grounds, including, inter alia, the vagueness of Plaintiff's request and the lack of an adequate explanation of relevance. (See Dkt. 93, at 3-4.)

*4 This Court agrees with Defendants’ arguments as to the inadequacy of this request by Plaintiff. Plaintiff's demand for “any and all information regarding those 10-12 employees” (Dkt. 94, at 4), whose identities Behar could not even recall (Dkt. 93, at 4), is not only vague and overbroad, but of questionable relevance to any asserted claim or defense. In any event, requiring Defendants to search for “any and all information” regarding unnamed, terminated employees who may not even have been similarly situated to Plaintiff (or terminated for reasons bearing any resemblance to the reasons for Plaintiff's termination) would not be proportional to the needs of this case. See Fed. R. Civ. P. 26. Accordingly, this request by Plaintiff to compel further production is denied.

E. Karacica's Unedited Audio Recording

In its March 26 Order, which addressed an unproduced portion of an audio recording made by defendant Karacica, this Court directed Karacica, through counsel, “to secure the assistance of a forensic expert to determine whether the remaining audio may be recovered from Karacica's phone.” (Dkt. 89, at Section I(A)(2).) Specifically, this Court directed that Defendants provide Plaintiff, by April 30, 2019, “with either (a) a copy of the recovered audio, or (b) if the audio could not be recovered, then a report by the forensic expert setting forth the steps taken in the attempt to recover it.” (Id.) Defendants provided a report by a forensic expert, as directed, and this Court has reviewed that report (Dkt. 93-1) and finds it adequate to comply with this Court's prior Order.

Plaintiff, however, now complains that, while Karacica purportedly testified at her continued deposition on April 29, 2019 that her unedited recording was automatically backed up to iCloud, the forensic expert stated a contrary understanding in his report. (Dkt. 92 at 4; see also Dkt. 94-2 (expert stating that “the only source from which the complete file might be available would be if the recording had been backed up by Ms. Karacica to iCloud or iTunes[ ] [but that] [w]e were informed that she had not done so at the time the recording was made or at any time since”).) Unfortunately, this Court cannot compare Karacica's actual testimony on this subject to the statements made by the forensic expert, as Plaintiff has not provided the transcript of the relevant deposition testimony.

This Court assumes that Plaintiff has duly ordered a copy of the Karacica deposition transcript, and either has provided it to Defendants’ counsel already or will provide it promptly upon receipt. If, in fact, the transcript reveals an inconsistency between Karacica's testimony and what she told the forensic expert with respect to her use (automatic or otherwise) of iCloud storage, then Defendants’ counsel is directed to request that the forensic expert – with cooperation by Karacica, as necessary – attempt to restore the recording from iCloud storage and supplement his report with an explanation of the steps taken to do so. Any such supplementation shall be made within two weeks of the date of receipt of the deposition transcript or the date of this Order, whichever is later.[1]

F. Records Related to Complaints of Discrimination, Harassment and/or Retaliation from Other Springhill Suites Workers

Plaintiff additionally states that she now “moves to compel production of information related to complaints of discrimination, harassment and/or retaliation made by workers against Springhill Suites’ NYC staff over the last 5 years.” (Dkt. 92, at 5.) This category of information was not the subject of any previous motion to compel by Plaintiff and was not addressed by the Court's March 26 Order. Given that, with only certain specified exceptions, discovery in this case closed on February 8, 2019 (see Dkt. 73; see also Dkt. 89, at Section I(C) (“Except as expressly set forth herein ..., the request for an extension of the discovery period is denied.”); Dkt. 91 (extending discovery further, only to allow for modest rescheduling of single deposition)), and that Plaintiff filed the instant motion on April 30, 2019, this previously unraised aspect of Plaintiff's motion is untimely.

*5 Moreover, Plaintiff has not pleaded that there was widespread discrimination at her place of employment, where she, herself, worked for less than three months. For this reason, Plaintiff is not entitled to discovery regarding any and all discrimination complaints made by anyone, against anyone, at Springhill Suites, over a five-year period. Such discovery would be markedly disproportional to the needs of the case. Rather, what is relevant and discoverable are any complaints made by co-workers against the particular decision maker – defendant Carpenter – whose conduct Plaintiff has challenged here. (See Dkt. 93, at 5 (citing cases).) Defendants state, and Plaintiff does not dispute, that Defendants have searched for any employee complaints regarding Carpenter and have located no responsive documents. (Id.) At this late stage, this Court sees no reason to reopen discovery to require a far broader search.

For these reasons, Plaintiff's request to compel this additional discovery is denied, with one potential exception. According to Plaintiff, she learned, for the first time, at Karacica's April 29 deposition that Karacica “recalled that one of Plaintiff's co-workers, Dilenny Rodriguez [(“Rodriguez”)], complained of discrimination, harassment and/or retaliation due to attendance issues resulting from her son's medical/health condition.” (Dkt. 92, at 5.) Plaintiff describes these supposed complaints as “practically identical to Plaintiff's charges that, inter alia, Defendants reduced Plaintiff's work hours and subsequently fired her after she took approved medical leave due to her infant son's disabilities and related hospitalization.” (Id. (emphasis in original).) Defendants, however, describe this characterization as “disingenuous[ ]” (Dkt. 93, at 5), stating the following regarding the Rodriguez's absenteeism:

(Id. at 5-6.) Defendants additionally assert that “Plaintiff's statement that ‘Dilenny Rodriguez[ ] complained of discrimination, harassment and/or retaliation’ is a total fiction and one that will not appear in the transcript from the second day of Ms. Karacica's deposition.” (Id. at 6 n.5.)

If it appears from Karacica's testimony that Rodriguez made a discrimination, harassment, or retaliation complaint that was virtually identical to any complaint that Plaintiff has raised in this case, and if, as Plaintiff contends, Plaintiff could not have reasonably learned of this until Karacica's deposition, which was conducted after the close of other discovery, then Plaintiff may have shown good cause for an order compelling Defendants to produce documents regarding the complaint(s) made by Rodriguez and any adverse employment action (such as the institution of disciplinary charges, reduction of hours, or termination) taken by Defendants against Rodriguez. In light of the material differences in the parties’ recitations of Karacica's testimony, however, this Court cannot currently discern whether such additional discovery is, in fact, warranted.

Accordingly, this Court will reserve decision regarding whether Defendants should be compelled to produce any documents regarding Rodriguez. If Plaintiff wishes to pursue the matter, she should submit to this Court, no later than two weeks from the date of this Order, a copy of the Karacica deposition transcript from April 29, 2019. If no transcript is submitted within two weeks, then the discovery request shall be deemed denied. If a transcript is timely submitted, then this Court will issue a follow-up ruling as to whether any additional production of documents regarding Rodriguez need be made by Defendants. The parties are cautioned that, defense witness Behar claimed Defendant Carpenter informally discussed firing in the same purported i representations that the parties have made regarding the substance of Karacica's testimony. Any party that makes a knowing misrepresentation to the Court may be subject to sanction.

*6 For the reasons stated above, Plaintiff's request for a pre-motion discovery conference (Dkt. 92) is denied, as are Plaintiff's substantive discovery requests, except to the limited extent set forth herein. The Clerk of Court is directed to close the motion filed at Dkt. 92 on the Docket of this action.

SO ORDERED