UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Karen Cook

v. Civil No. 06-cv-58-JD

CTC Communications Corp.

O R D E R

Plaintiff has filed an “Emergency Motion for Sanctions

Pursuant to FED. R. CIV. P. 37(c) and Request for Expedited

Rulings.” It is premised upon three alleged discovery failures.

1. November 16-17, 2006 Production of a 

Letter of March 10, 2006 

Defense counsel emailed documents to plaintiff’s counsel at

the latter’s request even though they were not due for several

days under the court’s order. The March 10th letter was the last

of the documents emailed. Only pages 1 and 2 were emailed. 

Plaintiff’s counsel called the lack of a concluding signature

page to defense counsel’s attention. Counsel’s paralegal then

faxed the signature page noting that it was numbered page 5, but

was really page 3. Further review of other documents by

plaintiff’s counsel led to the conclusion that there were missing

pages. Further inquiry resulted in production of pages 3 and 4. 

All of this took place over the course of two days one year ago. 

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Plaintiff’s counsel expressed her belief that there was no

legitimate explanation for the separation of pages and raised

questions of a violation of the Rules of Professional

Responsibility. Defense counsel found the accusations

“insulting, unprofessional and unfounded.”

2. Prenetta - Two Pages of Notes.

Two pages not produced in the June 2006 discovery were sent

to plaintiff’s counsel in October of 2007 as part of a proposed

exhibit. Plaintiff believes the two pages are relevant notes of

Prenetta about the Cook termination, while Prenetta has told

defense counsel they are not about Cook.

3. September 14, 2007 Memo.

An email was recently retrieved by use of different search

terms than the original search (according to defense counsel). 

It provides documentation of existing oral testimony. 

Plaintiff’s counsel has insinuated that the initial failure to

produce the document was again without legitimate explanation.

REQUEST FOR SANCTIONS

Plaintiff’s counsel has shown that defense counsel and their

employees have not been as careful as they should have been in

discovery. However, failing to provide five pieces of paper when

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thousands have been produced is not a capital offense. Two pages

were delivered after one day and the other three pages are simply

not that important. Plaintiff’s counsel is too quick to see a

discovery conspiracy lurking in every mistake. Zealous advocacy

should be tempered by good judgment and civility. They are

sorely lacking in this instance. 

There is no basis for sanctions. I find that the errors

were just errors; that there was no intent to deceive; and that

plaintiff’s counsel has blown these events way out of proportion. 

The motion (document no. 98) is denied. Defense counsel are

entitled to reasonable attorneys’ fees.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 31, 2007

cc: Heather M. Burns, Esq.

Lauren S. Irwin, Esq.

Mary L. Marshall, Esq.

Samantha C. Halem, Esq.

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