VERONICA RAYNOR, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants Civil Action No. 14-750 (RC) United States District Court, District of Columbia Filed May 06, 2020 Contreras, Rudolph, United States District Judge ORDER Granting in Part and Denying in Part Plaintiff's Motion to Compel Re Document No.: 256 I. INTRODUCTION *1 On February 4, 2020, Plaintiff filed the Motion to Compel before the Court seeking “(1) the litigation hold sent to Saint Elizabeths Hospital personnel after this lawsuit was filed, (2) Cassandra Jackson for deposition about certain missing records, and (3) Enyioma Anyatonwu for re-deposition with regard to allegations that she was blamed for the death of Mr. Griffin.” Pl.’s Mot. to Compel (“Pl.’s Mot.”) at 1, ECF No. 256; see also Pl.’s Reply in Support Mot. to Compel (“Pl.’s Reply”), ECF No. 260. Plaintiff bases her motion primarily on evidence that a number of documents, including shift reports, assignment sheets, security checks, and a Code Blue sheet, remain missing from Defendants’ production. Defendants oppose. See Defs.’ Opp'n to Pl.’s Mot. to Compel (“Defs.’ Opp'n”), ECF No. 258. For the reasons stated below, the Court will grant in part and deny in part Plaintiff's motion. The present motion represents the eleventh Motion to Compel after the Court ordered “that discovery in this matter shall close on September 15, 2017” more than two years ago. Min. Order (Feb. 28, 2017). Over this period of time, the Court has endeavored to judiciously resolve the parties’ disputes, holding regular status conferences and hearings on the myriad discovery disputes. See, e.g., Min. Order (July 7, 2017); Min. Order (Dec. 4, 2017); Min. Order (Nov. 15, 2019). The Court is hopeful that this Order will resolve the last outstanding issues and finally bring discovery in this case to a close. II. ANALYSIS 1. Litigation Hold Letter Generally, litigation “hold letters are not discoverable, particularly when a party has made an adequate showing that the letters include material protected under attorney-client privilege or the work-product doctrine.” See Major Tours, Inc. v. Colorel, No. CIV 05-3091(JBS/JS), 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009) (citing In re eBay Seller Antitrust Litigation, No. 07-CV-01882 (RS), 2007 WL 2852364, at *2 (N.D Cal. Oct. 2, 2007)). However, if a party can make a preliminary showing of spoliation, courts may order production of a hold letter. See Little Hocking Water Ass'n, Inc. v. E.I. Dupont de Nemours and Co., No. 2:09-CV-1081, 2013 WL 5311292, at *3 (S.D. Ohio Sept. 20, 2013) (citing Major Tours, Inc., 2009 WL 2413631, at *2). Whether a party has made a preliminary showing of spoliation “is a highly fact-bound inquiry that involves considerations of proportionality and reasonableness.” Id. at *4 (quoting Tracy v. NVR, Inc., No. 04-cv-6541L, 2012 WL 1067889, at *9 (W.D.N.Y Mar. 26, 2012)). Plaintiff contends the Court should order production of the litigation hold letter “[i]n order to properly support her spoliation motion.” Pl.’s Mot. at 3. In support of her argument, Plaintiff states “that the District denied having the January 31, 2012 (i) assignment sheets, (ii) security checks, and (iii) shift reports for the last 4 years and then suddenly produced (i) and (ii) on February 11, 2020 certainly raises a significant question” about Defendants’ maintenance of files. Pl.’s Reply at 2. Defendants argue that there is no relationship between the litigation hold letter and “the purportedly ‘missing’ documents from among” the tens of thousands of records produced. Defs.’ Opp'n at 7. Defendants also invoke the general rule that litigation hold letters are privileged. Id. at 8 (citing Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D. Ill. 2007), aff'd, 580 F.3d 485 (7th Cir. 2009)). *2 On balance, the Court finds that the general rule is applicable to this case. Although Defendants have not made any showing that this particular litigation hold letter contains privileged material, Plaintiffs have not made a preliminary showing of spoliation sufficient to override the general rule. While the production of documents in February of this year certainly raises questions about Defendants’ preservation and search for documents, Plaintiff's showing that a handful of documents cannot be located amongst the thousands produced does not compel production of a likely privileged record. Nor has Plaintiff demonstrated sufficient need for the letter to support her spoliation motion. Plaintiff already knows when the litigation hold letter would have issued, that the documents were not produced, and that the documents, to the extent they exist, should have been preserved. Defendants do not assert that the documents at issue need not be preserved as a result of this litigation. Thus, it is not clear why Plaintiff needs the litigation hold letter to pursue a spoliation claim. Accordingly, the Court will not order production of the litigation hold letter. 2. Deposition on Missing Records Plaintiff argues she should be allowed to depose either Cassandra Jackson or another designee about Defendants’ maintenance of files and search for documents. Plaintiff states that, for the last four years, Defendants denied having assignment sheets, security checks, and shift reports from January 31, 2012. Pl.’s Reply at 2. Recently, however, on February 11, 2020, Defendants produced the relevant assignment sheets and security checks. Id. Plaintiff further explains that although Defendants maintained before the Court that there was no missing Code Blue document in this case, deposition testimony has revealed that a “Code Blue Sheet” was in fact completed. Id. at 2–3. Defendants argue that the request for further depositions about allegedly missing documents is untimely and that the existence of requested documents was already a 30(b)(6) topic. Defs.’ Opp'n at 4–5. Defendants also state that Cassandra Jackson “is only responsible for patient medical records” and that she would therefore not know about nursing records. Id. at 5. The Court finds Plaintiff's argument for an additional deposition compelling. Whether or not “the existence of requested documents” was already a 30(b)(6) topic, Defendants’ production of documents on February 11, 2020 raises new questions about document preservation and production. Key nursing records, like those produced in February, should have been given to Plaintiff far earlier—Plaintiff is entitled to explore why they were not. Defendants’ previous denial to this Court that the Code Blue Sheet existed raises further questions given the deposition testimony that suggests it does exist. To accommodate Defendants’ assertion that Cassandra Jackson would not know about these records, the Court will order a limited 30(b)(6) deposition about the search for and production of the allegedly missing records. 3. Re-Deposition of Enyioma Anyatonwu Finally, Plaintiff asks to re-depose Enyioma Anyatonwu based on an email that suggests she was being blamed for Mr. Griffin's death shortly after he passed. Plaintiff argues a re-deposition is warranted because (1) Ms. Anyatonwu is a named Defendant, (2) Plaintiffs did not have an opportunity to depose her on this issue, and (3) the information sought is not unreasonably cumulative. Pl.’s Mot. at 6. Defendants note that Plaintiff possessed this email prior to deposing Ms. Anyatonwu and simply failed to question her about it. Defs.’ Opp'n at 1. As such, Defendants argue such a discovery request is untimely. See id. at 3. The Court agrees with Defendants. Generally, courts disfavor repeat deposition. See Scott v. Abernathy Motorcycle Sales, Inc., No. 18-cv-1077-STA-jay, 2020 WL 1666945, at *2 (W.D. Tenn. Apr. 3, 2020); Chavez v. Arancedo, No. 17-20003-Civ-Torres, 2018 WL 3474697, at *3 (S.D. Fla. July 19, 2018). Plaintiff had the email at issue when she deposed Ms. Anyatonwu the first time, and although Plaintiff claims she was unable to review all the documents prior to the deposition, Pl.’s Mot. at 5-6, she cannot explain why she decided to take the deposition prior to completing review of the documents. That was a strategy decision with which Plaintiff must now live. The Court will not order a re-deposition on a topic that could have been addressed the first time. See U.S. v. Philip Morris USA Inc., No. 99-2496 (GK), 2004 WL 5643766, at *1 n.1 (D.D.C. July 22, 2004) (“Defendants conducted [the] deposition in a manner and means which they deemed appropriate, and as such this Court finds that Defendants are not entitled to ... re-depose ... concerning any matters which could have been addressed at the time” of the first deposition). III. CONCLUSION *3 For the foregoing reasons, it is hereby ORDERED that Plaintiff's Motion to Compel is GRANTED IN PART AND DENIED IN PART. It is FURTHER ORDERED that Defendants shall produce a designee for a limited 30(b)(6) deposition about the search for, and production of, allegedly missing records specified in Plaintiff's Motion to Compel. It is FURTHER ORDERED that in all other respects, Plaintiff's motion is DENIED. SO ORDERED.