Perry v. New Haven

Filing 34

ORDER withdrawing 24 Motion to Compel; granting 27 Motion to Compel. Signed by Judge Donna F. Martinez on 9/6/12. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RONALD PERRY,

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Plaintiff,
v.
CITY OF NEW HAVEN,
Defendant.

CASE NO. 3:11CV1485(RNC)

RULING ON MOTION TO COMPEL
Pending before the court are the defendant's Motions to
Compel, docs. #24 and #27, pursuant to Fed. R. Civ. P. 37.1
Plaintiff Ronald Perry, a New Haven police officer, brings
this case against defendant City of New Haven under 42 U.S.C. §
1983 alleging that he was denied promotion to the rank of
detective on the basis of his race in violation of his
Fourteenth Amendment right to equal protection of the laws.
(Doc. #1.)

In May 2012, the defendant filed its first Motion to

Compel arguing that plaintiff failed to respond to discovery
requests.
responses.

(Doc. #24.)

The plaintiff subsequently served his

(See docs. #25 and #26.)

In July 2012, the defendant filed a second Motion to Compel
arguing that certain responses were incomplete or nonresponsive.

1

District Judge Robert N. Chatigny referred the case to the
undersigned to supervise discovery and resolve discovery
disputes. (Doc. 22.)

(Doc. #27.)

In August 2012, the court heard oral argument on

the motions.
A motion to compel is entrusted to the sound discretion of
the district court.
Cir. 2003).

In re Fitch, Inc., 330 F.3d 104, 108 (2d

At oral argument, the defendant stated that it no

longer needed to pursue its first Motion to Compel because the
plaintiff had served responses (which are now the subject of the
second motion).

The first Motion to Compel, doc. #24, is

withdrawn.
The court rules on the second Motion to Compel, doc. #27,
as follows:
1.

Interrogatory Nos. 6 and 7 are granted absent

objection.
2.

Interrogatory No. 12 is granted.

Plaintiff shall

describe any fee arrangement he has made with counsel in this
matter.

Fee arrangements generally are not privileged, see

Vingelli v. United States, 992 F.2d 449, 452-53 (2d Cir. 1993),
and "'whether the fee is fixed or contingent'" is relevant to an
award of attorney's fees under 42 U.S.C. § 1988, see Tucker v.
City of New York, 704 F. Supp. 2d 347, 354 n.5 (S.D.N.Y. 2010)
(quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v.
County of Albany, 522 F.3d 182, 186-87 n.3 (2d Cir. 2008)).
3.

Interrogatory Nos. 13 and 14 and Production Request No.

11 are granted.

To the extent that plaintiff objects to these
2

requests on the basis of some privilege,2 he shall produce a
privilege log "that will enable other parties to assess the
claim" of privilege.

Fed. R. Civ. P. 26(b)(5)(A).

To the

extent that defendant denies that responsive documents exist, he
shall provide a statement under oath stating so and describing
his search efforts.
4.

Interrogatory No. 15 is granted absent objection.

Plaintiff shall produce a supplemental damages analysis.

If

plaintiff alleges any economic loss, including but not limited
to medical bills, back pay, or loss of earning capacity, he must
provide a computation of those damages.

If plaintiff seeks only

non-economic damages, then he must fully set forth each category
of non-economic damages he claims (e.g, emotional distress or
damage to reputation).

He shall specify the evidence he might

use to support each claim and shall list witnesses he might call
to support the claims.
5.

Interrogatory No. 18 is granted.

The names, dates of

treatment and diagnoses of medical providers who treated the
plaintiff for emotional distress are relevant within the meaning
of Rule 26(b)(1) to his damages claim of emotional distress.
2

The basis of the plaintiff's objections to Interrogatory
Nos. 13 and 14 is uncertain. In his responses and opposition to
the motion, he asserted the work product privilege. In
contrast, at oral argument, the plaintiff's counsel suggested
that perhaps the objection referred to some communication
between the party and his counsel subject to attorney-client
privilege.
3

The plaintiff correctly argues that because he alleges only
"garden variety" emotional distress, he has not waived the
psychotherapist-patient privilege.
Cir. 2008).

In re Sims, 534 F.3d 117 (2d

However, the psychotherapist-patient privilege

protects "confidential communications between a licensed
psychotherapist and her patients in the course of diagnosis or
treatment," Jaffee v. Redmond, 518 U.S. 1, 15 (1996), and does
not extend to information regarding the occurrence of treatment,
including "whether a psychotherapist treated [him], the dates of
such treatment, and the length of treatment on each date."
United States v. Sturman, No. 96 CR. 318, 1998 WL 126066, at *4
n. 6 (S.D.N.Y.

Mar. 20, 1998).

See also Jackson v. Chubb

Corp., 193 F.R.D. 216, 219 n.4 (D.N.J. 2000) (identity of health
care provider and dates of treatment not privileged); Vanderbilt
v. Town of Chilmark, 174 F.R.D. 225, 230 (D. Mass. 1997) ("Facts
regarding the very occurrence of psychotherapy, such as the
dates of treatment, are not privileged.").
Plaintiff shall comply with Interrogatory 18.3

To the

extent that no relevant medical providers exist, plaintiff shall
so swear under oath.

3

In its brief and at oral argument, the defendant indicated
that, at this time, it is not pursuing Production Request No.
14, which seeks the treatment records related to Interrogatory
No. 18. However, it reserved its right to do so if the
responses to Interrogatory No. 18 or deposition testimony place
the plaintiff's emotional state at issue. See Jacobs v.
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6.

Production Request No. 1 is granted.

The request seeks

a document that plaintiff specifically references in the
complaint.

Plaintiff objected:

"Not applicable."

As

plaintiff's counsel conceded at oral argument, the basis of this
objection is baffling.

Plaintiff shall produce the document(s)

or, if they do not exist, plaintiff shall so swear under oath.
7.

The nonchalant approach to discovery taken in this case

by counsel for the plaintiff has frustrated the Rule 37
objective of resolving discovery disputes "without court action"
and the overarching objective articulated in Rule 1 of
"secur[ing] the just, speedy and inexpensive determination of
every action."

Pursuant to Rule 37(a)(5), plaintiff's counsel

shall pay defendant's reasonable expenses incurred in making the
Motions to Compel, docs. #24 and #27.
SO ORDERED at Hartford, Connecticut this 6th day of
September, 2012.
____________/s/______________
Donna F. Martinez
United States Magistrate Judge

Connecticut Cmty. Technical Coll., 258 F.R.D. 192, 197 (D. Conn.
2009).
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