Alaska Employment Law

Janet Lewis sued the U. S. Air Force over discrimination and retaliation associated with her employment with several Child Development Centers in Alaska.   She sued the agency under Title VII, and civilian supervisors under various Alaska state claims.   In May, Judge John Sedwick dismissed a number of her state claims as preempted by Title VII (but not by the Civil Service Reform Act).  Lewis v. Donley, 2009 WL 1492139 (May 28, 2009), discussed here. 

Judge Sedwick has now disposed of a number of discovery issues.   For many issues (such as scope of comparators), the Order doesn’t give enough facts for the conclusions to be useful.  There are two exceptions - Sedwick’s discussions about spoliation and about limits on the number of interrogatories.

Number of interrogatories:  Rule 33(a)(1) caps interrogatories at “25 written interrogatories, including all discrete subparts.”  The government objected that Lewis submitted more than 100, when viewed properly.  Sedwick agreed with the government:

A party seeking to propound more than 25 interrogatories must secure leave of court in order to do so.   “Parties cannot evade this presumptive limitation through the device of joining as ‘subparts’ questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” . . .

While it is true that “an interrogatory containing subparts directed at eliciting details concerning the common theme should be considered a single question,” subparts seeking various, and unconnected, factual details will be considered discrete.  It appears that all the requests attached to Interrogatories 8 and 9 emanate from Lewis’ responses to requests made by the government in connection with the Lewis’ MSPB proceedings. Each “event” within the matrices attached to Interrogatories 8 and 9 involves a unique communication or incident concerning Lewis’ alleged retaliation and discrimination during a six-year period. The questions do not seek to elicit details concerning a common theme; rather, Lewis seeks to discover the government’s position regarding nearly 100 independent factual circumstances. Therefore, the court concludes that the events contained within the matrices attached to Interrogatories 8 and 9 constitute discrete interrogatories. As noted above, a party seeking to propound more than 25 interrogatories must secure leave of court in order to do so. Given that Lewis failed to move for leave to serve additional interrogatories on defendants pursuant to Rules 26(b)(2) and 33(a)(1), she is not entitled to discovery beyond the 25 interrogatory limit. Plaintiff’s motion to compel defendants to respond to the remainder of Interrogatory 8 and all of Interrogatory 9 is therefore denied.

Sedwick noted that the recipient can implicitly waive the number cap:

Although a party who selectively responds to interrogatories may be found to have waived its objection to interrogatories in excess of the limit, the fact that the government provided plaintiff with an opportunity to select the additional interrogatories to which defendants would respond precludes finding a waiver here.

Spoliation: Sedwick writes:

Generally, a duty to preserve material evidence arises not only during litigation, but also during that period before the litigation commences when a party reasonably should know that the evidence may be relevant to anticipated litigation. “A party’s destruction of evidence qualifies as willful spoliation if the party has “some notice that the documents were potentially relevant to the litigation before they were destroyed.” Moreover, because the relevance of destroyed documents “cannot be clearly ascertained because the documents no longer exist, a party can hardly assert any presumption of irrelevance as to the destroyed documents.”

Lewis v. Donley, 2009 WL 2176123 (D.Alaska July 22, 2009)(footnotes omitted)

Nicholas Kittleson represents plaintiff.  Susan Lindquist, AUSA, represents the government.  both practice in Anchorage.