The Early Bird Catches the Worm

Too Late

Author: Victoria Ferenz
Case Citation: Youssef v. Lynch, 2016 WL 183504 (D.D.C. 2016)
Employee/Personnel/Employer Implicated: Employer, Employee
eLesson Learned: Request everything you would like access to during discovery. You may introduce extrinsic evidence to impeach a witness, but not to prove specific acts of conduct to attack their character.

This case is about an FBI agent, Bassem Youssef, who claimed that Mr. Armando Fernandez, an FBI employee who served as the Chairman of the Career Board, was acting in a discriminatory manner when he did not select Mr. Youssef for the Assistant Section Chief position. The plaintiff (Youssef) was seeking subpoenas to collect documents that would implicate the truth and veracity of defendant (Mr. Fernandez), and make clear his bias. However, he did not do this until the discovery period had ended.

Plaintiff made two requests for documents: 1) any and all documents contained in defendant’s personal file; and 2) any and all documents relating to disciplinary actions or investigations related to Mr. Fernandez. The plaintiff believed that he was entitled to these documents because he could not have discovered the evidence until defendant was fired. On the other hand, the defendant argued that plaintiff should not be entitled to either category of documents because, during discovery, he never sought the material he is now seeking. Defendant explained that plaintiff could have served a document requesting documents related to his personal files or candor issues during discovery, but chose not to.

The Court determined that the plaintiff could not obtain all of the requested documents in defendant’s file. As the court explained, “…a subpoena may not be used as a substitute for civil discovery. Here, it is undisputed that Plaintiff did not request Mr. Fernandez’s personnel files during discovery, even though Plaintiff had the opportunity to do so.” Id at 2. The plaintiff is not afforded a second chance at discovery just because circumstances for the defendant changed before the case had closed. If the plaintiff wanted these documents, he should have requested them during discovery.

The court did find that the plaintiff was entitled to two letters concerning defendant’s credibility, but only to the extent that portions of the letters would provide plaintiff with a good faith basis to conduct impeachment of the defendant at a deposition or at trial. Id at 2. Although the court would not admit the letters in their entirety, because they were not wholly related the plaintiff’s claim or the facts underlying the plaintiff’s case, small portions of the letters were relevant on the basis that they implicated the truth and veracity of the defendant. The court also mentioned that, unlike the documents mentioned above, the plaintiff could not have discovered these materials during discovery. Additionally, the plaintiffs limited access to the letters would not prejudice the defendant and would not cause any undue delay. The portions of these letters admitted were limited by the Federal Rule of Evidence 608(b), which states that extrinsic evidence is not admissible to prove specific instances of a witness’s conduct to attack or support their character for truthfulness. Id at 3. The letters are only admissible to impeach the defendant, and no more.


In the end, the court granted-in-part, and denied-in-part the plaintiff’s motion for issuance of subpoenas. The plaintiff was not entitled to all of the documents in defendant’s personnel file but is entitled to portions of two letters to the extent that they would be used to impeach the defendant’s testimony.

Victoria Ferenz is a third year at Seton Hall University School of Law, focusing her studies in the area of Patent Law. She received her B.S. in BioMedical Science from Quinnipiac University. After graduation, Victoria will be clerking in the Superior Court of New Jersey.

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