Rivera v. Worcester et al

Filing 81

Magistrate Judge David H. Hennessy: ORDER entered granting in part and denying in part 60 Motion for Sanctions; finding as moot 62 Motion to Preclude Opinion Testimony of Detective Daniel Rosario; granting 63 Motion for Extension of Time to Complete Discovery( Motions due by 6/6/2014); denying 68 Motion to Re-Open Discovery; denying 68 Motion to Compel Production of Documents; reserving ruling on 62 Motion to Preclude Opinion Testimony of Lieutenant John Towns. Further, the clerk is directed to seal documents 62, 64 & 70 and their corresponding exhibits. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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PABLO RIVERA,
Plaintiff,

v.
CITY OF WORCESTER, et al.,
Defendants.

CIVIL ACTION
NO. 12-40066-TSH

ORDER
April 2, 2014
Hennessy, M.J.
By Order of Reference dated February 14, 2014, pursuant to 28 U.S.C. § 636(b)(1)(A)
(Docket #73), this matter was referred to me for a ruling on Plaintiff Pablo Rivera’s Motion to
Preclude Opinion Testimony of Detective Daniel Rosario and Lieutenant John Towns (Docket
#62), Motion to Extend the Time for Filing Dispositive Motions (Docket #63), and Motion to
Re-Open Discovery and Compel Production of Documents (Docket #68). Defendants have filed
responses to these motions. (Dockets #70, 72, and 71 respectively). Pursuant to the same Order
of Reference, this matter was also referred to me for a ruling on Defendants’ Motion for
Sanctions to Preclude Evidence, or, in the Alternative, to Compel Plaintiff’s Deposition (Docket
#60), which was responded to by Rivera (Docket #66). A hearing on the motions was held on
March 31, 2014. These matters are now ripe for adjudication. For the reasons stated on the
record, the Court enters the following Order:
1. Rivera’s Motion to Preclude Opinion Testimony of Detective Daniel Rosario and
Lieutenant John Towns (Docket #62) is DENIED IN PART AS MOOT. At the hearing,

Rivera’s counsel affirmatively represented that he would not use the demonstrative video
as evidence. Based on that affirmation, defense counsel agreed that she would not call
Detective Rosario as an expert witness. With respect to the Motion as it relates to Officer
Towns, the Motion is held in abeyance until the parties provide the following
information:
a. By April 15, 2014, Defendants shall set forth the exact opinion testimony that
Officer Towns will provide as well as his qualifications to give that opinion.
b. By April 29, 2014, Rivera shall respond, indicating any objections he has to
Officer Towns’ testimony as an expert.
The parties shall state in their papers whether they believe a hearing on the admissibility
of Officer Towns’ opinion evidence is necessary. Regardless of the parties’ position, the
Court will independently determine whether such a hearing is required prior to resolution
of the issue.
2. The Motion to Extend the Time for Filing Dispositive Motions (Docket #63) is
ALLOWED. Dispositive motions are due by June 6, 2014. Any opposition shall be
filed by June 27, 2014.
3. Rivera’s Motion to Re-Open Discovery and Compel Production of Documents (Docket
#68) is DENIED. The Court has concluded that Lieutenant Bates’ report does not reveal
new, relevant information and that Defendants have produced all documents at issue.
Defense counsel, however, is hereby ORDERED to identify to Rivera’s counsel where
the documents produced in relation to Officer Towns’ deposition may be found.
4. Defendants’ Motion for Sanctions to Preclude Evidence, or, in the Alternative, to Compel
Plaintiff’s Deposition (Docket #60) is DENIED IN PART AND ALLOWED IN

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PART. Any testimony or evidence that someone confessed to Rivera that they robbed
the Honey Farms store is precluded, unless:
a. Rivera is deposed by April 15, 2014, and
b. Attorney Resnic pays $150 to Bay State Court Reporting by April 15, 2014.
5. After reviewing the filings in this case, the Court was left with the mistaken impression
that Defendants had alleged that Rivera’s current counsel had intentionally altered the
surveillance video for a nefarious purpose. At the hearing, it was made clear that the
video was altered by Rivera’s counsel in the criminal case who was not Attorney Resnic
and that the alteration was made obvious and was not done with any dishonest intent. In
order to prevent anyone else from coming to the same conclusion and to avoid
besmirching the name of Attorney Resnic, the Court hereby directs the Clerk to SEAL
Dockets #62, 64, 70 and their corresponding exhibits.
Finally, the parties are reminded of their duty to comply with the Local Rules,
particularly Local Rules 7.1(a)(2) and 37.1.

/S/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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