Osucha v. Alden State Bank

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Ashley Osucha,

Decision and Order

Plaintiff,

17-CV-1026 (LJV)

v.

Alden State Bank et al.,

Defendants.

I. INTRODUCTION AND BACKGROUND

From about 2008 until about 2017, plaintiff Ashley Osucha worked at defendant Alden State

Bank (the “Bank”) and held two job titles: Teller and Head Teller. In her complaint, plaintiff asserts

that two of the Bank’s officers, defendants Richard Koelbl and John Koelbl, sexually harassed her

for several years and discriminated against her with respect to wages, promotions, and other

available benefits. Plaintiff has claims against defendants under several statutes, including Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17; and the New York

State Human Rights Law (“NYSHRL”), N.Y. Executive Law §§ 290–301. For the sake of brevity,

familiarity with the case is otherwise presumed, including with the details of plaintiff’s allegations of

sexual harassment, a hostile work environment, and retaliation.

On February 26, 2020, plaintiff filed a motion to compel more detailed responses to various

document requests and interrogatories that she had served. (Dkt. No. 45.) Because of the number

of issues contained in the motion, the Court will address each component of the motion below. The

Court held oral argument on the motion on May 13, 2020. (Dkt. No. 53.) For the reasons below,

the Court grants plaintiff’s motion in part, without costs to any party.

II. BACKGROUND

The pending motion is the second motion to compel that plaintiff has filed in the past year.

Plaintiff filed the first motion on June 11, 2019. (Dkt. No. 29.) On December 12, 2019, the Court

issued a Decision and Order (the “Prior Order”) that adjudicated the first motion. (Dkt. No. 42.)

Among other issues addressed, the Court directed defendants to produce certain files created by

Bank counsel Hodgson Russ LLP during an internal investigation of plaintiff’s allegations.

How defendants responded to the Prior Order now is the focus of the pending motion to

compel. According to plaintiff, defendants responded to the Prior Order by producing the

following documents:

• Portions of documents that had been held by Hodgson Russ, LLP, relative to Ashley

Osucha (10 pages total); Pages O003682–O003691.

• Personnel File of Jamie Hey; Pages O003692–O003982.

• Personnel File of Kaitlyn Chadbourne; Pages O003983–O004120.

• Personnel File of Julie Osucha; Pages O004121–O004333.

• Portions of documents that had been held by Hodgson Russ, LLP, relative to Carolyn Sure

Aldinger.

(Dkt. No. 45-1 at 2.) Plaintiff considers this document production inadequate. In particular,

plaintiff has submitted her own affidavit as well as the affidavit of one of defendants’ former

officials, Carolyn Sue Aldinger, to provide direct personal knowledge “that the following documents,

at least at some point, existed”:

• Carolyn Sue Aldinger’s typed summaries of interviews with Plaintiff and Kaitlyn

Chadbourne, created on or about August 13, 2015, which Carolyn Sue Aldinger gave to

Hilde Neubauer, Esq., Vice President/Compliance Officer/General Counsel. See Osucha

Aff. ¶ 5 (Dkt. 29-14); Aldinger Aff. ¶ 7 (Dkt. 29-12);

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• Handwritten notes taken by Emina Poricanin, Esq., a Hodgson Russ, LLP, attorney during

an August 20, 2015 interview of Carolyn Sue Aldinger. See Aldinger Aff. ¶¶ 8-9 (Dkt. 29-

12).

• Handwritten notes taken by Emina Poricanin, Esq., a Hodgson Russ, LLP, attorney during

an August 21, 2015 interview of Plaintiff. See Osucha Aff. ¶¶ 13-14 (Dkt. 29-14).

• Carolyn Sue Aldinger’s memorandum concerning August 28, 2015 interviews of Jamie Hey

and Julie Osucha, which Carolyn Sue Aldinger gave to Hilde Neubauer, Esq., Vice

President/Compliance Officer/General Counsel. See Aldinger Aff. ¶ 12 (Dkt. 29-12).

• A September 3, 2015 complaint of Jamie Hey prepared by Carolyn Sue Aldinger, which

Carolyn Sue Aldinger gave to Hilde Neubauer, Esq., Vice President/Compliance

Officer/General Counsel. See Aldinger Aff. ¶ 13 (Dkt. 29-12).

• A September 11, 2015 memorandum concerning the complaint of Jamie Hey prepared by

Carolyn Sue Aldinger, which Carolyn Sue Aldinger gave to Hilde Neubauer, Esq., Vice

President/Compliance Officer/General Counsel. See Aldinger Aff. ¶ 14 (Dkt. 29-12).

(Id. at 4–5.) Plaintiff wants to know what happened to the above summaries, notes, and

memoranda. “If these notes no longer exist, Plaintiff is entitled to sworn statements from

Defendants and their attorneys, Hodgson Russ, LLP, setting forth the chain of custody and

circumstances surrounding the destruction of such notes. This is necessary so that there is no

misunderstanding relative to investigation-related documents, such as what happened to them—

were they destroyed, were they given to someone, etc. Once this has been established,

Plaintiff will seek the appropriate relief for spoliation/destruction of evidence.” (Id. at 6–7.)

Defendants respond to plaintiff’s concerns about the summaries, notes, and memoranda by

answering those concerns partially but directly. Defendants assert that they found the answer to

plaintiff’s concerns while defending a related case filed on the same day involving the same bank

defendant, the same discovery, and nearly identical allegations by Aldinger—also a client of

plaintiff’s counsel. See generally Aldinger v. Alden State Bank, WDNY Case No. 17-CV-1024 (GWC).

In the Aldinger case, defendants purportedly discovered “that Carolyn Sue Aldinger, who was the

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Branch Administration / Human Resources room/ Security Officer at Alden State Bank during the

times of the alleged sexual harassment in the instant matter before this Court, failed to keep and

maintain many of the records, which are now being sought despite it being her job to keep and

maintain such files. It was discovered by Alden State Bank after Ms. Aldinger’s termination that

she did not keep records as required. Ms. Aldinger’s failure to keep and maintain records, as part

of her job, is one of the main reasons that disclosure has been so difficult.” (Dkt. No. 49 at 4–5.)

In addition to the documents highlighted with bullet points above, plaintiff argues that a

number of interrogatories and document requests either have not been addressed or have been

addressed inadequately. The Court will address each allegedly unresolved request below.

III. DISCUSSION

Taken together, Rules 33, 34, and 37 allow the Court to compel discovery including

documents or other things. “Motions to compel and motions to quash a subpoena are both

entrusted to the sound discretion of the district court. This principle is in keeping with the

traditional rule that a trial court enjoys wide discretion in its handling of pre-trial discovery, and its

rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion.”

Am. Sav. Bank, FSB v. UBS PaineWebber, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation and

editorial marks and citations omitted).

With respect to the documents highlighted in the bullet points above, the Court is having

some trouble crafting a remedy. Plaintiff’s counsel’s other client, Aldinger, generated much of the

material and has hinted at what might have happened to it when she noted that the Bank’s attorneys

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or officials “told me that I should not have interviewed Jaimie Hey and Julie Osucha.” (Dkt. No.

29-12 at 5.) Aldinger would appear to be in the best position to describe what happened to the

material and to respond to defendants’ allegations that she failed to keep and to maintain much of

this material. At the same time, defendants appear not to have denied that the material existed at

some point and might still exist; the Court knows only that lead defense counsel here has asserted—

sincerely, as far as the Court can tell—that she has produced everything that was given to her. That

lead defense counsel has produced everything given to her, and that the material in the bullet points

remains unaccounted for, can be true at the same time, and therein lies the difficulty. Cf. Buffalo

Carpenters Pension Fund v. CKG Ceiling & Partition Co., 192 F.R.D. 95, 99 (W.D.N.Y. 2000) (no award

of costs where defense counsel “was continually told that the missing documents could not be

found [at another law firm]. The court does not fault [counsel] or defendants for the delay in

producing the missing boxes of documents.”).

An incremental approach to the problem should help for now. Within 30 days of this

Decision and Order, each defendant1 will submit to plaintiff either a sworn affidavit or a declaration

made under 28 U.S.C. § 1746. Each affidavit/declaration will address the following: 1) whether the

declarant denies that the documents mentioned in the bullet points above ever existed; 2) whether

the declarant takes the position that Aldinger 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

1 In the case of Alden State Bank, the person who will do this for the institution will be someone who would

satisfy the criteria of Rule 30(b)(6).

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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?” Cf. Just v. Landmark

Temporaries, Inc., No. 97 CIV. 4399 (SAS), 1998 WL 167328, at *1 (S.D.N.Y. Apr. 8, 1998) (court

ordered “a sworn affidavit attesting to the fact that the handwritten notes were missing”). Once

each affidavit/declaration is submitted, 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. Cf. 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.”) (citation omitted).

After oral argument, defendants tried to anticipate what the Court might direct by

volunteering a collection of affidavits that tracked the discussion at oral argument. (Dkt No. 54.) In

response to today’s Decision and Order, supplemental affidavits might be necessary, but any

supplemental affidavits do not need to repeat information already provided that directly addresses

the Court’s directives.

Plaintiff has raised concerns about a number of document requests that she served on

defendants and that defendants, in her view, answered inadequately. The Court briefly will address

each request.

• Request No. 5: Plaintiff sought “All documents in Defendants’ possession or control

relating to Defendants’ policy, procedure, and/or practice with respect to which

ALDEN STATE BANK officers, directors, and/or employees are authorized to

receive complaints of discrimination, hostile work environment, and/or retaliation,

including but not limited to any communications made by Defendants to Plaintiff

concerning to whom Plaintiff was to bring her complaints of discrimination, hostile

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work environment and/or retaliation.” (Dkt. No. 45-3 at 11.) In response,

defendants produced copies of termination policies, disciplinary procedures,

retention policies, and the 2014 through 2018 versions of the employee handbook.

(Id. at 16.) Plaintiff now objects that defendants failed to specify which portions of

the employee handbooks are responsive and that defendants did not produce older

versions of the employee handbook dating back to the start of plaintiff’s

employment in 2008. The objection is sustained in part. According to the

complaint, the alleged improper conduct began in 2011. If defendants have the 2011

through 2013 versions of the employee handbook then those versions need to be

produced. The objection is otherwise overruled. Versions of the employee

handbook predating 2011 are not relevant to the allegations in the complaint. Cf. Old

Republic Nat’l Title Ins. Co. v. Kensington Vanguard Nat’l Land Servs. of TX LLC, No.

3:17-CV-1014-D, 2017 WL 8677358, at *3 (N.D. Tex. July 7, 2017) (ordering

production of older handbooks that applied to the employees in question).

Additionally, unless the employee handbooks contain no headings or pagination at

all, they likely contain some kind of table of contents that would direct the reader to

the procedure to be followed for making a complaint. That direction would suffice

under Rule 33(d).

• Request No. 7: Plaintiff sought “Any writing constituting any finding, administrative,

and/or judicial finding or decision, including, without intending to limit, any finding

of probable cause or reasonable cause to believe that Defendants discriminated,

harassed, and/or retaliated against any employee on any basis including but not

limited to sex, race, and/or age for the period from January 1, 1995 to the conclusion

of this action.” (Dkt. No. 45-3 at 12.) Defendants responded that they “are not in

possession of any administrative or judicial finding or decision.” (Id.) Plaintiff

objects on two grounds: Defendants answered only about administrative and judicial

findings but not about “any finding”; and defendants answered about what they have

in their possession without addressing what documents might be in the possession of

Bank counsel Hodgson Russ LLP. The objection is overruled. Plaintiff has not

identified what sort of “finding” would have occurred apart from an administrative

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(e.g., Equal Employment Opportunity Commission) or judicial finding. Plaintiff also

has not identified what finding Hodgson Russ LLP would have that defendants

would not have. The better approach at this point would be to question defendants

through depositions as to whether any arbitrator or adjudicative body ever found

them liable for discrimination.

• Request Nos. 9–10: Plaintiff sought “[a]ll manuals, handbooks, policies, procedures,

notebooks, notices, directives, communications to employees, and communications

to and from the Board of Directors including but not limited to the Alden State

Bank Branch Policy and Procedure Manual and all supervisors’ manuals, notebooks,

and/or other written materials referring or relating to Defendant’s policies,

procedures and/or programs, pertaining to” 52 categories of office practice including

hiring, appraisal, training, ethics, evaluations, benefits, and even office gym usage.

(Dkt. No. 45-3 at 13–15.) Plaintiff further sought “[a]ll memoranda or other

documents regarding the training of any employees and/or members of the Board of

Directors with regard to discrimination, harassment, hostile work environment,

retaliation, and supervision, including but not limited to the dates of each training,

notification of training, attendance list, syllabi, materials distributed, and evaluation

forms.” (Id. at 16.) Defendants responded by providing employee handbooks;

termination policies; disciplinary procedures; online training records for 2015

through 2019; and affirmative action plans for 2009 through 2019. (Id. at 16–17.)

Plaintiff objects that defendants have not confirmed by affidavit that they have no

other responsive documents; that they failed to produce policies concerning

employee benefits; and that they have not furnished training records for all members

of the Board of Directors. The objection is sustained in part. Defendants will need

to furnish documents that governed plaintiff’s benefits while she worked there. The

objection is otherwise overruled. Nowhere in the complaint does plaintiff allege that

the Board of Directors actually knew of plaintiff’s concerns or that defendants had

an obligation to report all allegations to the Board of Directors. Plaintiff may revisit

this portion of the request if further discovery shows that defendants had an

obligation to report all sexual-harassment allegations to the Board of Directors and

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failed to do so, or if specific Directors had actual knowledge and chose not to take

action. As for any objections about confirming via affidavit that all documents have

been produced, defendants and defense counsel already are under the obligations set

forth in Rule 26(e) and 26(g). Sanctions can be considered later if the need arises.

• Request Nos. 14–17: Plaintiff sought all documents that defendant submitted to the

EEOC concerning her charge of discrimination. Defendants produced the position

statement that they submitted to the EEOC, which included exhibits covering

employee handbooks, organizational charts, policies and procedures, Aldinger’s

personnel file, compensation analysis results, and other documents. (Dkt. No. 45-3

at 9.) One exhibit to the position statement, an Exhibit O, was a bank compensation

survey. Plaintiff apparently has not received this bank compensation survey and

wants a copy. Defendants are directed to produce the bank compensation survey

unless they intend to assert privilege. Plaintiff objects further that she has received

one undated organizational chart but not other organizational charts. For the

calendar years 2011 through 2016, defendants are directed to produce whatever

information about their organizational structure would show everyone in the chain

of command with respect to a complaint of sexual harassment or discrimination.

Regarding plaintiff’s request about wage and salary information, the objection is

sustained in part. Defendants will produce whatever Wage and Salary

Administration Program was in effect between 2011 and 2016. Defendants further

will produce the name, age, experience at hiring, title at hiring, salary at hiring, and

benefits at hiring for all hirings between 2011 and 2016. Plaintiff’s objections for

these requests are overruled in all other respects.

• Request Nos. 26–32: Plaintiff requested full documentation of plaintiff’s performance

reviews, salary history, raises, and benefits. (Dkt. No. 45-3 at 24.) Plaintiff further

sought documentation related to affirmative action plans dating back to January 1,

1974 and related to employee handbooks dating back to January 1, 1995. (Id. at 25.)

Additionally, plaintiff sought full schematic drawings of every floor of the bank

building including the locations of the security cameras; plus documentation of the

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retention policies for video recordings. (Id. at 24–25.) Defendants produced

plaintiff’s W-2 forms and personnel file along with employee handbooks as

described above. Defendants objected to production of schematic drawings as

irrelevant. Plaintiff now objects that defendants provided W-2 forms only for 2015

through 2017. Plaintiff also argues that the schematic drawings and the video

retention policies are relevant to show where the allegedly offensive conduct

occurred. The objections are sustained in part. If defendants have not yet done so

then they must provide W-2 forms for each year of plaintiff’s employment. The

objection about other employment documents is overruled without prejudice;

plaintiff will need to be more specific in the future about what is missing from her

personnel file. The other objections are overruled. As noted above, plaintiff has

been given a number of employee handbooks and affirmative action plans. Plaintiff

has not shown the relevance of seeking documents dated decades before she ever

worked with defendants. Plaintiff also has not shown the relevance of the schematic

drawings. The alleged conduct either happened or did not. Providing details about

the bank building down to the location of security cameras seems unlikely to change

the preponderance of the evidence and, if it did, would compromise bank security to

the point of putting proportionality in question.

• Request Nos. 34–35: Plaintiff requested all notes, minutes, agendas, attendance

records, and other documents from the Board of Directors, the Board

Compensation Committee, and the Board Audit Committee from 2008 through the

present. Defendants objected to the requests in their entirety, and plaintiff believes

in the relevance of the requests pertaining to how Bank officials handled complaints

of discrimination and what training they received. The objection is sustained in part.

To take a stepwise approach to establishing relevance and proportionality,

defendants will produce the documents requested only to the extent that they

mention plaintiff by name or clearly refer to plaintiff in all but name. The objections

are overruled in all other respects.

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• Request Nos. 37–42: Plaintiff requested full documentation of who owns stock in the

Bank and how ownership has changed over time, with no time limitation. (Dkt. No.

45-3 at 27.) Plaintiff further requested full documentation of every life insurance

plan or 401(k) plan issued, in some instances going as far back as 1995. (Id. at 28.)

As part of the request, plaintiff wanted documents “including but not limited to the

401k Plan, selection of the 401k vendor, the 401k administrator(s), monitoring of

401k investments, complaints relative to the 401k vendor, communications between

Defendant and any 401k vendor, any amendments, and payroll posting 401k

reports.” (Id.) Defendants objected to any production, and the Court agrees.

Granular detail such as the selection of the 401(k) administrator might have occurred

years before plaintiff ever worked at the Bank and would have nothing to do with

whether defendants made lewd comments and pushed plaintiff out the door for

complaining about them. Plaintiff’s objections are overruled without prejudice to

revisiting these requests if plaintiff can lay some foundation for them that respects

proportionality.

• Request Nos. 44–46: Plaintiff requested documentation about the value of free

checking accounts to employees; about continuing education courses offered to

employees; and about disability insurance offered to employees. (Dkt. No. 45-3 at

29–30.) Defendants objected to any production, and the Court agrees. The

complaint makes no mention at all of these very specific benefits, let alone any

mention that defendants specifically denied them to plaintiff. Plaintiff’s actions are

overruled without prejudice to revisiting these requests if plaintiff can lay some

foundation for them that respects proportionality.

• Request Nos. 51–52: Plaintiff requested “[d]ocuments demonstrating the qualifications

needed to be a member of the Alden State Bank Board of Directors, the names of all

members of the Alden State Bank Board of Directors, the qualifications of each

member of the Alden State Bank Board of Directors, and the period of time each

member held such position as an Alden State Bank Board Director for the period

from the inception of the Alden State Bank Board of Directors to the conclusion of

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this action, including but not limited to description of the position of member of the

Alden State Bank Board of Directors, Alden State Bank Board of Directors minutes,

resumes of potential and new members of the Alden State Bank Board of Directors,

press releases announcing new members of the Alden State Bank Board of

Directors, determination by Alden State Bank Board of Directors to offer board

position to potential board member; offer by Alden State Bank Board of Directors

of board position to potential board member, and resignation (voluntary or

involuntary) as a member of the Alden State Bank Board of Directors.” (Dkt. No.

45-3 at 31–32.) In response, defendants produced a biography of the newest

Director; a list of current Directors; and a copy of the bank’s bylaws. Plaintiff

objects that the documents produced do not show how the Bank goes about

recruiting Directors and deeming them qualified. Plaintiff’s objections are overruled;

the Court does not want to see this case sidetracked with mini-litigation over how

the Bank should choose Directors. Cf. Tumbling v. Merced Irr. Dist., 262 F.R.D. 509,

525 (E.D. Cal. 2009) (document production restricted to the Board members

accused in the complaint). Plaintiff further sought “[a]ny and all documents showing

proof of purchase for JOHN KOELBL’s purchase of sponge candy in Spring 2015,

including but not limited to [purchases] from Henry’s Candy & Gifts, including but

not limited to receipts, bank statements, credit card statements and/or expense

statements.” (Id. at 32.) Defendants objected to this request in its entirety. The

information sought does not bear directly on any element to be established before a

jury and borders on extrinsic evidence in violation of Rule of Evidence 608(b).

Nonetheless, the Court will sustain plaintiff’s objection in part. If the individual

defendant named made the purchase in question with a credit card then the

defendant is directed to request an archived credit card statement from the credit

card company. Plaintiff’s objection otherwise is overruled.

Besides the document requests described above, plaintiff has lodged objections about how

defendants responded to nearly all of her interrogatories. After reviewing plaintiff’s objections and

the parties’ motion papers, the Court finds that plaintiff has not made enough of a showing that

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defendants violated the letter or the spirit of Rule 33(d). In nearly every instance, defendants

furnished business records that would appear to allow plaintiff to find the necessary answers, as

permitted under Rule 33(d). The Court overrules plaintiff’s objections but without prejudice to

explain in more detail how defendants violated Rule 33(d).

IV. CONCLUSION

Plaintiff’s motion to compel (Dkt. No. 45) is granted in part and denied in part as explained

above. No costs are awarded to any party. The Court’s decision to deny portions of plaintiff’s

motion without prejudice must not be construed as a decision to delay depositions until the

resolution of some future filing.

SO ORDERED.

__/s Hugh B. Scott________

Hon. Hugh B. Scott

United States Magistrate Judge

DATED: June 9, 2020

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