Defendant Ordered to Allow Informal Interview of Employee Familiar with Defendant’s Efforts to Locate Missing Email Attachment

Fischer v. UPS, 2006 WL 1046973 (E.D. Mich. Apr. 19, 2006)

In this wrongful termination case, plaintiff had requested the production of certain salary information. Defendant had produced a responsive email that referenced an attachment, but the attachment was not produced. Defendant represented that it was unable to locate the attachment. Plaintiff was unwilling to simply accept defendant’s claim that the attachment could not be located, and asked to depose someone familiar with defendant’s retrieval efforts. Ruling on plaintiff’s discovery motion, the magistrate struck a compromise, and ordered defendant’s counsel to arrange an informal telephone conference with an employee of defendant who was familiar with defendant’s efforts to locate the attachment.

Defendant objected to the order, arguing that it was unable to locate the requested email attachment, and that it was irrelevant in any event because it was only a draft of proposed salaries that was never finalized or implemented. Defendant argued that plaintiff could not rely on the document to establish that any adverse action was taken against him as a result of prior litigation he had filed against the defendant. Thus, defendant argued that it was clearly erroneous for the magistrate to require defendant to produce someone for questioning about an irrelevant document.

The district court judge overruled defendant’s objections, finding that the information requested by plaintiff, even if not admissible at trial, could reasonably lead to the discovery of admissible evidence. Accordingly, it found that the magistrate’s ruling that defendant produce someone to participate in a telephone conference regarding the email attachment was not clearly erroneous or contrary to law.

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