18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 699 distribution and dispensing of opioids. Because there was no valid basis for the refusal to produce the documents, Plaintiffs requested a sanction of additional Rule 30(b)(6) deposition time, reopening of other depositions, new depositions of additional witnesses, and a fine of $10 per page of non-produced discovery. Id. at 9. The Court found that sanctions were warranted, but determined that Plaintiffs’ requests were not appropriate. Accordingly, the Court granted sanctions in the form of additional Rule 30(b)(6) deposition time and additional time for two fact witness depositions. Ina, et al. v. CV Sciences, Inc. , 2021 U.S. Dist. LEXIS 131884 (D. Nev. July 14, 2021). Plaintiff, an investor, filed a securities class action alleging that fraudulent omissions led to Defendant CV Sciences, Inc.’s stock price dropping after the failure to obtain certain patents needed to launch its products. Plaintiff filed a request for production of documents and interrogatories to all Defendants, including CV Sciences, Inc. and the individual Defendants, Michael Mona, Jr., and Michael Mona III. The Monas sought and received a 30-day extension from Plaintiff, and subsequently filed untimely answers that largely copied and pasted from CV Science’s responses. Plaintiff thereafter moved to compel production of the Monas’ alleged deficient responses. The Magistrate Judge recommended that the District Court find that the Monas had waived any objections to Plaintiff’s requests and that they incur sanctions. Per Rule 72, the Monas objected to the Magistrate Judge’s recommendation. The Court overruled the objection and adopted the Magistrate Judge’s recommendation. The Magistrate Judge had relied on six factors to evaluate whether good cause existed to excuse the Monas’ conduct including the length of delay, the reason for delay, the existence of bad faith, prejudice to the party seeking waiver, the nature of the request, and the harshness of imposing sanctions. Id . at *6. In analyzing the good cause factors, the Magistrate Judge determined that the conduct required that they receive sanction. The Monas contended that the Magistrate Judge failed to consider all the correct factors in determining whether good cause excused their untimely acts, but argued that some factors should be weighed more heavily than others in her review. The Court declined to undertake a de novo review of the findings simply because the Monas disagreed with the Magistrate Judge’s findings. The Court opined that there was no precedent that gave greater weight to the harshness of the result than the Court’s other good cause considerations, and the Court therefore accepted the Magistrate Judge’s analysis. CV Science also objected to the Magistrate Judge’s finding that the Court should deny its motion for a protective order, as it failed to identify an error of law or mistake of fact. The Court held that even if the company was aware that the Monas had waived their objections, it was well aware that Plaintiff sought the same documents from all Defendants. For these reasons, the Court adopted the Magistrate Judge’s findings. Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO, et al. v. City Of New York , 2021 U.S. Dist. LEXIS 7591 (S.D.N.Y. Jan. 14, 2021). Plaintiffs, a union and two employees of the New York City Fire Department (“FDNY”), filed a class action alleging that Defendant discriminated against employees seeking promotions on the basis of their race and gender in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, the New York State Human Rights Law, and the New York City Human Rights Law. Id. at *1-2. Plaintiffs alleged that Defendant passed over female and minority FDNY Emergency Medical Services Bureau (“EMS”) employees who sought promotions above the rank of lieutenant. During the discovery process, Plaintiffs deposed Chief Jerry Gombo, who was the Assistant Chief of EMS during a portion of Plaintiffs’ proposed class period, i.e. , 1996-2017. Id. at *5. Chief Gombo confirmed that he was promoted to Assistant Chief in the mid-1990s, but he could not recall the exact year. Plaintiffs subsequently served a supplement request for production of documents seeking documentation confirming Chief Gombo’s date of promotion, and when Defendant did not initially respond to this request, Plaintiffs filed a motion for sanctions seeking an adverse inference that Chief Gombo was the Assistant Chief of EMS during the relevant class period. The Court denied Plaintiffs’ motion for sanctions. With respect to the motion, the Court noted that an adverse inference was “an extreme sanction” that aims to “restore the prejudiced party to the position they would have been in if the information had been produced.” Id. at *9-11. The Court reasoned that, as a threshold matter, Plaintiffs’ motion must be denied because it failed to point to a previous order directing Defendant to comply with the discovery request. Even if Plaintiffs had satisfied this prong, the Court further held that Plaintiffs could not demonstrate prejudice as required by Rule 37 because they actually received the information they sought. Specifically, the Court found that Defendant’s opposition to the motion at issue contained exhibits indicating that Chief Gombo was promoted to Assistant Chief in 1994. Id. at *11-12. Since Defendant provided Plaintiffs with the information they sought