[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. The court permitted spoliation interrogatories.
A prior blog on Li is available here: Consulting an Attorney Did Not Trigger the Duty to Preserve (Feb. 19, 2025).
Defendants’ Interrogatory 20 asked:
To the extent YOU deleted, destroyed, or threw away, directed anyone else to delete, destroy, or throw away, or are aware of anyone else deleting, destroying, or throwing away ANY DOCUMENTS called for by any of DEFENDANTS’ document requests, describe in detail when, why, and how such documents were deleted, destroyed, or thrown away.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025).
Plaintiff’s supplemental response stated:
Plaintiff objects to this interrogatory as compound. With waiving said objection Plaintiff responds that although March 10, 2023, is the first time she contemplated/anticipated filing a lawsuit against Defendants, she can state that dating back to the time she first sought legal advice in December 2022 she has not intentionally concealed or destroyed documents she understood were relevant to her reports of discrimination/retaliation. Further, since filing her lawsuit she has not intentionally concealed or destroyed documents she understood were relevant to her lawsuit. Nor did she direct anyone to do so. Nor is she aware of anyone doing so. She can further state that she is not aware of any document that is lost or cannot be found other than handwritten edits made by either her or Grace Chen on draft communications relating to her reports of discrimination/retaliation.
Id.
Defendants’ Interrogatory No. 22 asked:
Identify each and every DOCUMENT or other piece of tangible evidence relevant to Plaintiff’s claims and Defendants’ defenses which has been lost, destroyed, or cannot be found.
Id.
Plaintiff’s supplemental response stated:
Plaintiff objects to this interrogatory as compound. With waiving said objection Plaintiff responds that although March 10, 2023, is the first time she contemplated/anticipated filing a lawsuit against Defendants, she can state that dating back to the time she first sought legal advice in December 2022 she has not intentionally concealed or destroyed documents she understood were relevant to her reports of discrimination/retaliation. Further, since filing her lawsuit she has not intentionally concealed or destroyed documents she understood were relevant to her lawsuit. Nor did she direct anyone to do so. Nor is she aware of anyone doing so. She can further state that she is not aware of any document that is lost or cannot be found other than handwritten edits made by either her or Grace Chen on draft communications relating to her reports of discrimination/retaliation.
Id.
Defendants moved to compel answers.
Her response to rog 20 limits her answer to December 2022 to the present, adds intentionality, and changes the subject from documents requested by Defendants to documents she understood were relevant to her lawsuit.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025).
The Li court ruled that:
The [court] GRANTS Defendants’ motion to compel and ORDERS Plaintiff to answer these rogs. Her response to rog 20 limits her answer to December 2022 to the present, adds intentionality, and changes the subject from documents requested by Defendants to documents she understood were relevant to her lawsuit. Similarly, her response to rog 22 limits her answer to December 2022 to the present and adds intentionality.
Id.
Cf. Court-Ordered Production of a “Destruction/Unavailable” Log (Oct. 18, 2024).
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