Russell v. Kronos Incorporated

Background

The court held a discovery hearing on October 24, 2019 concerning disputes described in the parties’ joint discovery letter. Kronos represented that it had fully responded to Russell’s discovery requests and produced what it had. Kronos said it did not have Russell’s emails or Mike Solomon’s emails because its document-retention policy deleted all employees’ emails 30 days after termination. Kronos clarified that restoring the emails was impossible, rather than merely expensive.

Discovery of Emails and the Retention Policy

The court explained that General Order 71 is self-executing and requires Kronos to produce communications between Russell’s managers and supervisors and Kronos’s human-resources representatives concerning the factual allegations or claims. It also requires production of communications between Russell and Kronos concerning those allegations or claims. The court stated that if Kronos had complied with those requirements, it could order no further production of the communications themselves. But because the retention policy may have prevented full compliance, the court ordered Kronos to produce the policy.

Kronos argued that Russell had not diligently pursued the email discovery and had not made a formal document request. The court rejected those objections on this record, explaining that General Order 71 is self-executing and that information about the adequacy of discovery searches can be exchanged during the general meet-and-confer process without a formal request for “discovery-on-discovery.”

Job Application

Russell challenged Kronos’s failure to produce her job application. Kronos said it had conducted several searches over several months but could not locate the application. The court said it was not in a position to second-guess the diligence of Kronos’s search, but identified the missing application as another reason for ordering production of the retention policy. The court also noted that General Order 71 requires a defendant to provide the plaintiff’s personnel file.

Financial Information and Punitive Damages

Russell requested Kronos’s financial information because it was relevant to her punitive-damages claim. Kronos did not dispute relevance but conditioned production on Russell’s agreement to provide her financial information, because Kronos also sought punitive damages on counterclaims based on Russell’s alleged unlawful recording of telephone calls in 2017, under California and Massachusetts law. The court ordered Kronos to produce its financial information and held that Kronos could not condition its discovery production on its view of Russell’s reciprocal discovery obligation.

Kronos sought Russell’s financial information through a trial subpoena. Russell objected that the request was premature, irrelevant, and untimely because Kronos had not requested the documents after filing its counterclaim. The court did not preclude the discovery based on timing. It found, on the record before it, that the issue had been fairly raised before fact discovery closed, noting that Kronos learned about the recordings on June 14, 2019, the trial judge authorized the counterclaim on August 28, 2019, fact discovery ended October 15, 2019, and the joint letter was filed October 18, 2019.

The court noted that punitive damages did not appear to be available under California law for the counterclaim, but it did not decide the issue conclusively because the parties had not briefed it. Kronos also relied on Massachusetts law, which the court noted provides for punitive damages among its civil remedies. The court therefore directed the parties to confer and, if they could not resolve the issue, submit a joint letter citing relevant authority. The court also noted that Kronos sought Russell’s financial information only at trial through a trial subpoena, addressing Russell’s concern that the request was premature.

Order

The order required the parties to follow the court’s standing procedures for future discovery disputes, including a meet-and-confer process and, if necessary, a joint letter brief. The order did not conclusively resolve the availability of punitive damages under Massachusetts law. It was a discovery order rather than a decision on the underlying claims.

Disposition

The court ordered Kronos to produce its document-retention policy and its financial information, emphasized Kronos’s obligations under General Order 71, did not preclude the requested discovery of Russell’s financial information based on timing, and directed further consultation about the punitive-damages issue. The order was signed by Laurel Beeler, United States Magistrate Judge.