IN response to the federal court’s show cause order, attorney Stephen Nutting, who represents Imperial Pacific International LLC, said the court instead should schedule a discovery conference.
District Court for the NMI Chief Judge Ramona V. Manglona has ordered IPI to show cause in writing why the court should not enter an order imposing a $2,000 per day sanction on IPI until it complies to a discovery order in a lawsuit filed by its former employee, Joshua Gray.
Gray is alleging discrimination based on race and retaliation for his complaints about IPI’s employment practices.
Represented by attorneys William Fitzgerald and Bruce Berline, Gray has asked the court to issue an order awarding him damages and other relief as the court deemed appropriate.
In a recent status report, Gray notified the court of IPI’s failure to comply with the court’s discovery order.
He moved the court to impose further sanctions on IPI or to issue a show cause order for IPI’s failure to comply with the court order.
According to Nutting, IPI has filed the amended declarations by IPI human resources manager Redie Dela Cruz and former IPI chief executive officer Donald Browne, “describing the efforts made to locate hard discovery in this action.”
Nutting said Dela Cruz and Browne “indicated that they have conducted a diligent search, and…while they could not guarantee there were no responsive documents at IPI remaining, that they have worked diligently to locate them.”
For months, Nutting said, the plaintiff continued to complain of IPI’s failings to produce any electronically stored information or ESI especially “WeChat,” which apparently was the backbone of the company’s communications.
“For this same period of time, IPI has asked the plaintiffs to meet and confer to discuss operative search terms with which to conduct the necessary searches,” Nutting said.
At the last hearing on the motion to compel, this was again raised by IPI, he added.
“At that time, counsel for Mr. Gray responded that ‘this is not the way it works.’ IPI respectfully submits that this is exactly the way this works,” Nutting said.
He added that the court should schedule a discovery conference to resolve the issue.
In a declaration, Brandon Benson, IPI’s current information technician, makes clear that “it is not possible for us to locate and retrieve responsive ESI discovery without agreed upon search terms and the custodians of relevant ESI to be identified,” Nutting said.
“It will be helpful if both parties could meet and work to agree on search terms for both locating files, and to locate documents within the files. Without that, we are really unable to proceed with electronic discovery,” Nutting added.
He said IPI is willing to conduct ESI discovery to the extent that it is not “[o]verly broad, oppressive, burdensome, and seeking material not relevant to Mr. Gray’s claim, or if the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”
Nutting said, “The matters before the court may better be assessed [in a discovery conference] than through the motions to compel, and for sanctions, which have overwhelmed this proceeding to date.”
Nutting asks the court to deny the plaintiff’s motion for sanctions and to compel discovery, and to set the matter for a discovery conference.
A hearing has been scheduled by the court for March 4 at 1:30 p.m.
