met to resolve the discovery dispute. (Id. ] +2.) During this meeting, the City informed
the plaintiff that it expected to produce the responsive emails within 30 days. (Id.) After
not receiving any documents for over two months, the plaintiff filed a motion to compel
on December 9, 2020. (PI.’s Mot. Disc. Sanctions J] 13; see also Court Index #68.) On
December 21, 2020, the City objected to the production of the documents, asserting
that the emails were not relevant to the plaintiff's claims. (Pl.’s Mot. Disc. Sanctions q]
14; Court Index # 73.) On January 25, 2021, the Court held a hearing on the motion to
compel. (Pl.’s Mot. Disc. Sanctions J] 15.) On March 25, 2021, the Court issued an
order requiring the City to produce “only those emails sent by Director Kleiner during the
requested time period which relate to the plaintiff, plaintiff's Right-to-Know request, or
the production of related documents.” (PI.’s Mot. Disc. Sanctions J] 17; see also Court
Index # 96 at 4.) On April 15, 2021, the City produced documents and a privilege log to
the plaintiff in accordance with the Court's order, in which for the first time, nearly nine
months after the plaintiff's original request, the City informed the plaintiff that documents
could not be produced because “the City’s tape backups are corrupt between April 2019
through October 2019.” (PI.'s Mot. Disc. Sanctions ff] 19-20.)
Analysis
The plaintiff now moves for sanctions against the City arguing that “[e]ither (1)
During the time between the [request for production] on July 20 and the filing of the
motion to compel on December 9, the City did not take any action to retrieve Kleiner's
emails and was making misleading statements when asserting that they were ‘working
on it’; or (2) The City simply took no action whatsoever until many months after the initial
discovery request, and thus acted in a dilatory and delay-inducing, vexatious manner.”
Ortolano v. The City of Nashua / 2020-CV-00133
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