Brown v. Clayton et al

Filing 55

RULING on Pending Discovery Motions denying 34 Motion for Sanctions; denying 36 Motion for Sanctions; granting 48 Motion to Compel; denying 48 Motion to Preclude. Signed by Judge Holly B. Fitzsimmons on 7/31/12. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE BROWN

:
:
:
v.
:
:
OFFICER IVAN J. CLAYTON, ET AL:

CIV. NO. 3:11CV714 (JCH)

RULING ON PENDING DISCOVERY MOTIONS
Plaintiff brings this civil rights action pursuant to 42
U.S.C. §1983, alleging excessive force and unreasonable search
and seizure in violation of the United States Constitution.
[Compl. Doc. #1]. Defendants are police officers for the City of
Bridgeport.

Pending is plaintiff’s Motion for Sanctions [Doc.

#34, 36], on which oral argument was held May 31. On July 11,
defendants’ Motion to Compel and/or Preclude Expert Disclosures
was referred and is considered below. [Doc. #48].
Plaintiff’s Motion for Sanctions [Doc. #34, 36]
Plaintiff moves pursuant to Fed. R. Civ. P. 37(a)(4) and
(5) for an order sanctioning defendants’ counsel, Betsy Edwards,
for her conduct at the May 4, 2012 deposition of Officer Ivan
Clayton, including defendants’ failure to produce requested
Schedule A documents for the deposition. [Doc. #34].

On May 6,

2012, plaintiff supplemented the motion and provided a copy of

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the deposition transcript for the Court’s consideration. [Doc.
#36].

In addition to attorney’s fees and costs, plaintiff seeks

an order that defendants produce all the documents requested in
Schedule A and an order to continue the deposition of Officer
Clayton within one week of the production of the Schedule A
documents.

For the reasons stated below, plaintiff’s Motion for

Sanctions [Doc. #34 and 36] is DENIED.
Federal Rule of Civil Procedure 37(a)(2) provides in
pertinent part that
(A) [i]f a party fails to make a disclosure
required by Rule 26(a), any other party may
move to compel disclosure and for appropriate
sanctions . . . . The motion must include a
certification that the movant has in good faith
attempted to confer with the person or party
failing to make the discovery in an effort to
secure the information or material without
court action.
Fed. R. Civ. P. 37; see Daval Steel Products, a Div. of
Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir.
1991) (stating that “Rule 37(a) clearly envisions some judicial
intervention between a discovery request and the imposition of
sanctions”).
Local Rule 37 provides, in pertinent part, that
[n]o motion pursuant to Rules 26 through 37,
Fed. R. Civ. P., shall be filed unless
counsel making the motion has conferred with
opposing counsel and discussed the discovery
issues between them in detail in a good
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faith effort to eliminate or reduce the area
of controversy, and to arrive at a mutually
satisfactory resolution.
D. Conn. L. Civ. R. 37(a)(2);

see Travelers Indem. Co. v.

Metropolitan Life Ins. Co., 228 F.R.D. 111, 115 (D. Conn. 2005).
The meet-and-confer requirement mandates that:
[Parties must] meet, in person or by
telephone, and make a genuine effort to
resolve the dispute by determining . . .
what the requesting party is actually
seeking; what the discovering party is
reasonably capable of producing that is
responsive to the request; and what specific
genuine issues, if any, cannot be resolved
without judicial intervention.
Messier v. Southbury Training School,

No. 3:94-CV-1706, 1998 WL

841641, *3 -4 (D. Conn. 1998) (quoting Deckon v. Chidebere, No.
93Civ7845 (LMM)(BAL), 1994 WL 494885, at *5 (S.D.N.Y. Sept. 9,
1994)). Plaintiff did not comply with the “meet and confer”
requirement nor has plaintiff propounded a reasonable
explanation for why he should be excused from complying with
Rule 37(a)(2) and Local Rule 37(a)(2)1.

“Courts have excused a failure to meet and confer in situations
where to do so would be clearly futile, or exigent time
constraints mandate immediate action.” Excess Ins. Co., Ltd. v.
Rochdale Ins. Co., 05 CIV. 10174, 2007 WL 2900217 (S.D.N.Y. Oct.
4, 2007)(citations omitted).
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The failure to follow the meet and confer requirement is a
sufficient basis for denying the motion for sanctions2. Myers v.
Andzel, 06 CIV. 14420 (RWS), 2007 WL 3256865 (S.D.N.Y. Oct. 15,
2007)(denying plaintiff’s motion under Fed. R. Civ. P. 37
because plaintiff failed to meet and confer with defendant).
Any effort to renew the motion to compel production of
documents on Schedule A and/or to continue the deposition of
defendant Clayton must comply with Fed. R. Civ. P. 37(a)(2) and
D. Conn. L. Civ. R. 37(a)(2).

The parties will contact the

Court to schedule a discovery conference before filing any
further discovery motions on this issue.
Accordingly, plaintiff’s Motion for Sanctions [Doc. #34
and 36] is DENIED.
Defendants’ Motion to Compel and/or Preclude Plaintiff’s
Expert Disclosures [Doc. #48]
Defendants move for an order compelling plaintiff to
produce expert reports pursuant to Fed. R. Civ. P. 26(a)(2)(B)
and the Court’s case management order or, in the alternative, to
preclude plaintiff from offering expert testimony at trial.
2

The

The Court cautions the parties that “[f]ailure to hold a good
faith conference is ground for the award of attorney's fees and
other sanctions.” Krishnakumar v. Dunkin' Donuts, Inc.,
00CIV.1755(WHP)(DFE), 2000 WL 1838319, *1 (S.D.N.Y. Dec. 12,
2000)(citing 28 U.S.C. § 1927; Apex Oil Co. v. Belcher Co., 855
F.2d 1009, 1019–20 (2d Cir.1988).
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scheduling order required that plaintiff disclose his expert’s
reports on or before April 15, 2012. Defendants were required to
depose plaintiff’s experts within thirty days thereafter.
#22].

[Doc.

On May 7, 2012, plaintiff disclosed Richard Siena, an

expert witness in police practices. [Doc. #48].

On May 14 and

17, 2012, respectively, plaintiff disclosed treating physicians
Dr. Katz and Dr. Gladstein.

[Doc. #48].

No expert reports were provided with these disclosures.
Defense counsel notified plaintiff on May 8 and May 16 that
defense counsel believed plaintiff’s expert disclosures to be
inadequate under Fed. R. Civ. P. 26(a) and Judge Hall’s
Scheduling Order Regarding Case Management Plan [Doc. #22 at 1].
Federal Rule of Civil Procedure Rule 26(a)(2)(B) provides,
in pertinent part,
Unless otherwise stipulated or ordered by the
court, this disclosure must be accompanied by a
written report--prepared and signed by the
witness--if the witness is one retained or
specially employed to provide expert testimony
in the case or one whose duties as the party's
employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the
witness in forming them;
(iii) any exhibits that will be used to
summarize or support them;

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Fed. R. Civ. P. 26(a)(2)(B)(i-iii)

Judge Hall’s Scheduling Order [Doc. #22] mandates that,
[a]n expert witness is anyone, including a
treating physician, who may be used at trial to
present evidence under Rules 702, 703, or 705 of
the Federal Rules of Evidence. Unless otherwise
ordered, a party intending to call such a
witness must disclose a report signed by the
witness containing the information required to
be disclosed by Fed. R. Civ. P. 26(a)(2)(B).
[Doc. #22 at 1]
Accordingly, plaintiff will provide the required expert
reports within fourteen days or these witnesses will be
precluded from offering expert testimony at trial.

The parties

are encouraged to meet and confer pursuant to Rules 37(a)(1).
Any request for an extension of time must be made before the
deadline expires and must be made pursuant to D. Conn. L. Civ.
R. 73.

Counsel will contact the Court to schedule a conference

prior to filing any further discovery motions on this issue.

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D. Conn. L. Civ. R. 7(b)(3) states in relevant part
“[a]ll motions for extensions of time, whether
for consideration by the Clerk or a Judge, shall
include a statement of the moving counsel that
(1) he or she has inquired of opposing counsel
and there is agreement or objection to the
motion, or that (2) despite diligent effort, he
or she cannot ascertain opposing counsel’s
position.”

D. Conn. L. Civ. R. 7(b)(3)
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Thus, defendants’ Motion to Compel [Doc. #48] is GRANTED.
Defendants’ Motion to Preclude [Doc. #48] is DENIED at this
time.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly
erroneous" statutory standard of review.

28 U.S.C. ' 636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such,

it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 31st day of July 2012.

___/s/________________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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