Norton v. Town of Islip et al

Filing 292

ORDER granting in part and denying in part DEs 285 , 286 Motions for Discovery. For the reasons set forth in the attached Memorandum and Order, Norton's and the Town Defendants' motions are granted in part and denied in part. Specifica lly, Plaintiff's Motion is denied in all respects aside from the directive that the County produce the Manuals, or state in writing that they do not exist, on or before September 20, 2019. The Town Defendants' Motion is granted insofar as they are permitted to reopen Plaintiff's deposition for up to two hours, solely to question him on the contents and handling of the 65,000 pages of documents reviewed and the six items logged. This deposition must occur on or before October 4, 2019. Finally, a status conference is set for October 10, 2019 at 10:30 a.m. in courtroom 820 of the Central Islip courthouse, at which point the Court intends to either: (i) set a briefing schedule for summary judgment motions; or (ii) direct the parties to file a joint pretrial order in anticipation of trial. Ordered by Magistrate Judge Steven I. Locke on 9/4/2019. (Kantor, Jesse)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
HOWARD NORTON,
-against-

Plaintiff,

TOWN OF ISLIP, COUNTY OF SUFFOLK,
JOANNE HUML, individually and in her
official capacity as a Town of Islip Assistant
Town Attorney and Director of the Division
of Law Enforcement of the Town of Islip
Office of the Town Attorney, and RONALD
P. STABILE, JR., individually
and in his official capacity as Investigator
for the Town of Islip Office of the
Town Attorney,

MEMORANDUM
AND ORDER
04-CV-3079 (PKC)(SIL)

Defendants.
--------------------------------------------------------------x
STEVEN I. LOCKE, United States Magistrate Judge:
Presently before the Court are Plaintiff Howard Norton’s (“Plaintiff” or
“Norton”) and Defendants’ Town of Islip (the “Town”), Joanne Huml (“Huml”), and
Ronald P. Stabile, Jr. (“Stabile,” and collectively with the Town and Huml, the “Town
Defendants”) supplemental cross-motions to compel compliance with this Court’s
October 16, 2018 Amended Memorandum and Order (“10/16/18 Mem. and Order”)
granting in part and denying in part both Plaintiff’s omnibus motion to compel,
Docket Entry (“DE”) 267, and the Town Defendants’ cross-motion to compel, DE [268].
See DE [279] (the “10/16/2018 Mem. and Order”). See DE [285] (“Pltf.’s Motion”); DE
[286] (“Town Defs.’ Motion”). For the reasons set forth below, both motions are
granted and part and denied in part as detailed herein.

I.

Background
This action (referred to herein as “Norton II”) is one in a series of civil rights

lawsuits commenced by Norton against the Town, various Town officials, and the
County of Suffolk (the “County”). The Court assumes familiarity with the extensive
history of the Norton litigations and, thus, only provides a summary of the facts and
procedural history relevant to the disposition of the instant motions.
In 1997, the Town commenced a criminal action against Plaintiff relating to
his use of certain real property within the Town as a two-family dwelling allegedly
violating the last issued certificate of occupancy.

See Memorandum and Order

(“3/27/2009 Mem. and Order”), DE [104], at 3-4. One year later, Norton commenced
an action under 42 U.S.C. § 1983 concerning that prosecution (“Norton I”). Id. at 5.
As part of discovery in Norton I, a privilege log was created for documents dated
September 14, 1988 through February 26, 1999. In 2000, the Honorable E. Thomas
Boyle, United States Magistrate Judge, conducted an in-camera review of the
documents listed on the aforementioned privilege log and found that all but a handful
of the documents were protected by the attorney-client privilege and/or work-product
doctrine. See 98-cv-6745, August 22, 2000 Order (“8/22/2000 Order”), DE [42]. Judge
Boyle’s finding was subsequently affirmed by the then-assigned District Judge
Nicholas G. Garaufis. See 98-cv-6745, DE [67].
In January 2003, Judge Garaufis issued a judgment in Norton I for Plaintiff
holding that the Town had denied him procedural due process, and that the certificate
of occupancy that formed the basis of the criminal action was not the last validly
issued certificate of occupancy. See 3/27/2009 Mem. and Order at 6. The Town,

2

however, did not initially withdraw the criminal action against Norton, and the
criminal matter was not dismissed until April 23, 2003. Id.
In 2004, Plaintiff commenced this malicious prosecution action (Norton II),
largely over the Town’s continuance of the criminal case despite the Court’s decision
in Norton I. Discovery was halted early on and subsequently stayed until 2012. See
DE [149]. After initial dispositive motion practice, Plaintiff’s federal claims against
the individual Town Defendants were dismissed on either absolute or qualified
immunity grounds. But Norton’s state-law malicious prosecution cause of action
against the individual Town Defendants and his Monell claims against the Town and
County remain. 1
Discovery resumed, and in 2013 counsel for both parties entered into a
Privilege Log Stipulation (the “Stipulation”), agreeing that documents subject to
either work product protection or the attorney-client privilege need not be logged as
it would be “unduly burdensome.” See DE [249-2]. The Stipulation also states,
however, that a privilege log is unnecessary for those documents “unless requested
by either party in writing identifying the documents to be logged.” Id.
On April 17, 2015, Plaintiff moved to compel the Town Defendants to disclose
three documents, which had been previously deemed privileged by Judge Boyle. See
Motion for Discovery re: Waiver or Loss of Privilege (“4/17/2015 Letter Motion”), DE
[210].

The Court conducted an in-camera review of the three documents, and,

although agreeing with Judge Boyle that the documents were privileged, found that
1 On March 21, 2005, this action was reassigned from Magistrate Judge Boyle to Magistrate Judge
William D. Wall. See Electronic Order dated March 21, 2005. On July 31, 2014, this action was then
reassigned from Magistrate Judge Wall to this Court. See Electronic Order dated July 31, 2014.

3

the privilege had been waived because the documents were shown to other Town
officials who were not on a “need to know” basis, as well as potentially the public.
See Memorandum and Order (“9/18/2015 Mem. and Order”), DE [221]. As a result,
the Town Defendants were directed to produce the documents. See Electronic Order
dated 3/3/2016. The Town Defendants moved for reconsideration, which was denied
by this Court, see DEs [222], [227], and later filed Rule 72 Objections to this Court’s
decision to presently-assigned District Judge Pamela K. Chen. See DE [231]. Judge
Chen adopted this Court’s findings and directed the Town Defendants to produce the
documents. See Electronic Order dated 3/3/2016. Norton subsequently demanded
that documents subject to either work product protection or the attorney-client
privilege be memorialized in a privilege log on December 9, 2015. See Declaration of
Rick Ostrove, DE [248-1], at Ex. 6, at 9.
Plaintiff then moved to compel the Town Defendants to cure deficiencies in the
Norton I privilege log for withheld documents dated September 14, 1988 through
February 26, 1999 and produce a log for withheld documents dated February 27, 1999
through April 23, 2003 (the date that the criminal action was dismissed). See April
5, 2016 Letter Motion, DE [239]. Norton argued, in part, that he had “a number of
reasons to believe waiver ha[d] occurred,” including the Court’s prior ruling that
privilege on three documents had been waived. Id.
On March 9, 2017, the Court granted Norton’s motion to compel.
See Memorandum and Order (“3/9/2017 Mem. and Order”), DE [256]. The Court
directed the Town Defendants to produce privilege logs for withheld documents for
both periods. See id. The Court dictated that the revised logs should detail where

4

each document was kept, include all individuals who had access to the documents
and when that access was provided. See id. Further, the Court instructed that the
logs must outline for each document and handwritten note: (i) the date of creation;
(ii) the identity of each person who created and received the document, including
those copied on it, and the title of each individual; (iii) a more elaborate description,
without revealing the substance of the communications, about the basis of the
privilege(s); (iv) the subject matter of the document; (v) the privilege(s) being
asserted; (vi) where each document was kept; and (vii) each person who has been
given access to each of the document’s locations and the date that access was
provided. See id. On April 7, 2017, in response to the March 9, 2017 Order, the Town
Defendants provided Norton with both a privilege log for withheld documents dated
February 27, 1999 through April 23, 2003 (the “Town of Islip’s Privilege Log”) and a
supplemental Norton I privilege log for withheld documents dated September 14,
1988 through February 26, 1999 (the “Town of Islip’s Supplemental Norton I Privilege
Log”).
On November 27, 2017, Plaintiff filed another motion to compel. See Plaintiff’s
Omnibus Motion to Compel, DE [267]. Norton argued, inter alia, that the Town
Defendants had violated the March 9, 2017 Order, thereby waiving privilege because:
(a) The logs failed to properly set forth which individuals had access
to the privileged documents;
(b) Individuals lacking a need-to-know had access to the documents;
(c) The logs failed to identify the author, date of creation or subject
matter of certain documents;
(d) The logs excluded certain documents from the Town’s prosecution
file; and
(e) The assertion of a good faith defense to Plaintiff’s state-law
malicious prosecution claims results in a waiver of privilege.

5

See Plaintiff’s Memorandum of Law in Support of Omnibus Motion (“Pltf.’s Omnibus
Mem.”), DE [267-67].
Norton also requested further responses to, inter alia, the following requests
to the County:
(a) Document Request No. 39: Any Suffolk County District
Attorney’s Office criminal action training related documents for
County or Town personnel, including, but not limited to manuals,
policies, memorandum, guidance material, and the like.
(b) Document Request No. 40: Any Suffolk County District
Attorney’s Office criminal action related documents for County or
Town supervisory personnel, including, but not limited to
manuals, Policies, memorandum, guidance material, and the like.
(c) Interrogatory No. 7: State whether the County has a system
for processing Complaints concerning State Court criminal
prosecutions by Suffolk County towns and villages, and if so,
describe the process in specific factual detail.
(d) Interrogatory No. 14:
State whether [the County has]
know[ledge of] the process for the review of accusatory
instruments issued in the Town or Islip Office of the Town
Attorney and the Town Attorney's office Code Enforcement
Division, and if so, include the names of any specific persons who
would review such accusatory instruments, including the identity
of any manuals, memorandum training and guidance material
reflecting State Court Policies, State Policies, County Policies or
Town Policies and any like material concerning the extent of
State Court review of Accusatory instruments prior to
arraignment of defendants.
(e) Interrogatory No. 15: State and describe in specific factual
details all actions [the County] took concerning Plaintiffs criminal
prosecution.
(f) Interrogatory No. 16: State whether [the County] know[s] the
type of certificate of occupancy or certificate of compliance records
which the Town of Islip used and uses to commence and to
continue criminal court proceedings and the process and
procedure the Town has used and uses in obtaining such records;
and if so identify and describe the same.
6

(g) Interrogatory No. 22: Describe all manuals, State Law, County
Code, Town Code, State Policy, State Court Policy, County Policy,
Town Policy, process and procedure, memorandum, training and
guidance material, and the like by which Suffolk County District
Attorney's office personnel receive and record Complaints
regarding private property.
See Pltf.’s Omnibus Mem. at 30-38. Norton further demanded “all Town, Town Code
§ 68-40 prosecution/court related documents.” 2

See id. at 32.

The County had

responded to the above by alternately: (i) objecting based on the requests being
overbroad, unduly burdensome, not relevant, and because the relevant timeframe
was not sufficiently defined; or (ii) claiming that the documents were not in their
possession. See id. at 30-38. Finally, Plaintiff demanded a further deposition of the
County’s Rule 30(b)(6) witness. See id. at 34-35.
The Town Defendants opposed Norton’s motion and cross-moved seeking, inter
alia, a log of documents in Norton’s possession that had been withheld based on
privilege. See the Town Defendants’ Memorandum of Opposition and Notice of Joint
Cross Motion, DE [268].
In its October 16, 2018 Amended Memorandum and Order, the Court first held
that the Town’s revised privileged logs failed to adequately provide details of who was
provided access to the subject documents and when this access was granted, but that
the logs otherwise satisfied the March 9, 2017 Order. See 10/16/18 Mem. and Order
at 16-18. Thus, the Court directed the Town Defendants to “serve revised privilege
logs accompanied with affidavits from an individual or individuals with knowledge

This demand originally consisted of Document Requests 3, 4, and 24 (seeking various documents
identified by the Town in its interrogatory responses), but was subsequently narrowed to a single
inquiry. See Pltf.’s Omnibus Mem. at 32.

2

7

setting forth where each document was kept, including all individuals who had access
to the documents and when that access was provided,” but declined to find that
privilege had been waived. See id. at 20. In accordance with the Court’s directive,
the Town served a declaration (the “Graham Decl.”) from assistant town attorney
William Graham (“Mr. Graham”). See DE [281-1]. The Graham Declaration details
the investigation he performed to determine both where the at-issue documents were
stored as well has who had access to them. See generally id. This “investigation
included a review of a lengthy documentary record and interviews with various
current and former Town Attorneys and personnel.” 3 Id. ¶ 3. According to Mr.
Graham, all logged documents (dating back as far as Norton’s 1988 Article 78
proceeding, and also including his criminal prosecution file and the Norton I files)
were kept securely either in the Town Attorney’s office or, briefly, with the law firm
of Rosenberg Calica & Birney LLP (“RCB”). Id. ¶ 6-7. 4 In addition, Mr. Graham
details the measures taken to ensure the security of the documents and describes who
had access to each category of relevant files. See id. ¶ 14-22. Finally, in response to
Plaintiff’s instant motion, Mr. Graham submitted a supplemental declaration
clarifying some issues raised by Norton in his current motion. See DE [286-1] at 1-2
(“Graham Supp. Decl.”).
With respect to the County, the Court concluded that Norton was entitled to,
inter alia, supplementary responses to Interrogatories Nos. 7, 14, 15, 16 and 22, and

Mr. Graham conferred with Town personnel dating back to 1988, including discussions with six
former and current Town attorneys. See Graham Decl. ¶ 18.

3

This determination was made after “multiple and repeated searches by Town officials.” Graham
Decl. ¶¶ 7-8.

4

8

Document Demands Nos. 39 and 40, along with the narrowed document request
previously consisting of Demands Nos. 3, 4, and 24. See id. at 25. In addition, the
Court permitted Plaintiff to continue the County’s 30(b)(6) witness’s deposition for a
period of five hours, with questions limited to: (i) the County’s policies and practices
during the period of 1990 to 2001; and (ii) documents exchanged after the initial
examination. See id. Accordingly, the County served supplemental responses to the
relevant interrogatories and document requests on December 13 and 14, 2018. See
DE [285-8] (the “County’s Supplemental Interrogatory Responses”); DE [285-9] (the
“County’s Supplemental Document Responses,” and together with the County’s
Supplemental Interrogatory Responses, the “County’s Supplemental Responses”).
Finally, the Court directed Plaintiff to produce a privilege log – conforming to
the same requirements of the Town Defendants’ log – of all withheld documents in
Norton’s possession that had been withheld based on privilege. See id. at 26. 5 Thus,
on December 14, 2018 – after a review of approximately 65,000 pages of documents,
supervised by attorney Jonathan Messina (“Mr. Messina”) – Plaintiff produced a
privilege log that included six responsive documents consisting of 21 pages, some of
which were also shown to Norton’s brothers. See DE [286-1] at 16-22 (“Plaintiff’s
Log”). Plaintiff’s did not produce any additional documents. See the Town Defs.’
Motion.
Consistent with this action’s litigious history, both Norton and the Town
Defendants now argue that the October 16, 2018 Amended Memorandum and Order

5 The remaining directives contained in the October 16, 2018 Amended Memorandum and Order are
not relevant for the purpose of the instant motions.

9

has not been complied with.

Specifically, Plaintiff contends that the Graham

Declaration fails to satisfy the Court’s directives because he lacked the requisite
knowledge concerning the documents, contradicts previous representations by the
Town Defendants, and fails to account for the entirety of the applicable period. See
Pltf.’s Motion. Norton further asserts that the County’s Supplemental Responses
remain deficient and that the County’s Supplemental Interrogatory Responses are
unverified. See id.
In their cross-motion, the Town Defendants argue that it is implausible that a
review of 65,000 pages of documents could result in a log consisting of only six
documents and no further production, and that privilege has likely been waived with
respect to any documents that were shown to Norton’s brothers. See the Town Defs.’
Motion. However, in an effort to mitigate the risk of infringing on the privilege
between Norton and his lawyers, the Town Defendants do not seek a ruling that a
waiver occurred with respect to documents shown to Plaintiff’s brothers, and instead
request an opportunity to continue Norton’s deposition solely to question him with
respect to the items listed on Plaintiff’s Log in addition to the nearly 65,000 pages of
unlogged and purportedly unresponsive documents. See id. Norton counters that the
documents shown to his brothers remain protected by virtue of the joint defense
and/or common interest doctrines. See DE [288] (“Pltf.’s Opp.”). Plaintiff further
objects to another deposition, contending that there has been “more than an ample
opportunity to question [Norton] about any relevant questions or concerns.” See id.
n. 1.

10

II.

Legal Standards for Discovery Requests
A.

General Discovery Standards

Pursuant to Federal Rule of Civil Procedure 26:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.
Fed. R. Civ. P. 26(b)(1).
Information “is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Vaigasi v. Solow Mgmt. Corp., No. 11-cv-5088, 2016 WL
616386, at *11 (S.D.N.Y. Feb. 16, 2016) (quoting Fed. R. Evid. 401).
B.

Document Demands

Rule 34 requires a party to produce all responsive documents within the scope
of Rule 26 that are in its possession, custody or control. See Fed. R. Civ. P. 34(a) (“A
party may serve on any other party a request within the scope of Rule 26(b) … to
produce and permit the requesting party or its representative to inspect, copy, test,
or sample the following items in the responding party’s possession custody or control:
(A) any designated documents or electronically stored information ….”). However,
“courts should not grant discovery requests based on pure speculation that amount
to nothing more than a fishing expedition ….” Collens v. City of New York, 222 F.R.D.
249, 253 (S.D.N.Y. 2004) (internal quotation and citation omitted); see also Tottenham

11

v. Trans World Gaming Corp., No. 00-cv-7697, 2002 WL 1967023, at *2 (S.D.N.Y.
June 21, 2002) (“Discovery requests cannot be based on pure speculation or
conjecture”) (internal citation omitted). Finally, it is well-established that “[m]otions
to compel are left to the court’s sound discretion.” Mirra v. Jordan, No. 13-cv-5519,
2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016); see also Liberty Mut. Ins. Co. v.
Kohler Co., No. 08-CV-867, 2010 WL 1930270, at *2 (E.D.N.Y. May 11, 2010) (“a
motion to compel is entrusted to the sound discretion of the district court”).
C.

Interrogatories

Federal Rule of Civil Procedure 33 permits a party to serve no more than 25
written interrogatories, including discrete subparts. Fed. R. Civ. P. 33(a)(1). An
interrogatory may relate to any matter that may be inquired into under Rule 26(b)(1).
The general aim of this discovery device is to “expeditiously narrow the scope of the
litigation, reduce the element of surprise, serve as admissions for trial, and in a
significant matter avoid unnecessary discovery and minimize expense.” Trueman v.
New York State Canal Corp., No. 09-cv-049, 2010 WL 681341, at *2 (N.D.N.Y. Feb.
24, 2010). To that end, the responding party is required to answer each interrogatory
“separately and fully under oath.” Fed. R. Civ. P. 33(b)(3). Thus, the Rule explicitly
requires the responding parties to “provide the best answer they can based upon
information within their possession.” Trueman, 2010 WL 681341, at *2 (citing Fed.
R. Civ. P. 33(b)(3)).
To ensure that each interrogatory is answered “separately” and “fully,” see Fed.
R. Civ. P. 33(b)(3), the responding party is required “to make an inquiry and obtain
information to answer the interrogatories … fully and completely ….” Edebali v.

12

Bankers

Standard

Ins.

Co.,

No.

14-cv-7095,

2016

WL

4621077,

at

*2

(E.D.N.Y. Sept. 6, 2016) (internal quotation and citations omitted). Where a party,
despite conducting a diligent inquiry, is nevertheless unable to provide a responsive
answer, any efforts used should be set forth in detail to ensure a sufficient response
is interposed. Id. Further, “an answer to an interrogatory must be completed within
itself and, it should be in a form that may be used at trial.” Id. As a result,
“[r]eference to depositions, other answers to the interrogatories, other document
production, the complaint itself, or any other documents are improper and thus
unresponsive.” Trueman, 2010 WL 681341, at *3.
III.

Discussion
Applying the standards listed above, and for the reasons set forth below, both

Plaintiff’s and the Town’s Motions are granted in part and denied in part. The Court
considers each motion in turn.
A.

Norton’s Motion

Plaintiff’s Motion – seeking a ruling that both the Graham Declaration and
County’s Supplemental Responses are insufficient – rests on his argument that
neither the Town Defendants nor the County adequately complied with the October
16, 2018 Amended Memorandum and Order. The Court disagrees.
i.

The Town’s Privilege Logs

The Court first concludes that Mr. Graham’s investigation and resulting
declarations satisfy the requirements of the Court’s October 16, 2018 Amended
Memorandum and Order, directing the Town Defendants to “serve revised privilege
logs accompanied with affidavits from an individual or individuals with knowledge

13

setting forth where each document was kept, including all individuals who had access
to the documents and when that access was provided.” 10/16/18 Mem. and Order at
20. As an initial matter, the Court is satisfied that Mr. Graham’s investigation
renders him competent to describe the storage and access of the documents at issue.
Mr. Graham attests that he conducted an investigation that included a review of a
lengthy documentary record, and interviews with various former and current Town
Attorneys and personnel, including Vincent Messina, Hon. Robert Quinlan, Robert
Cimino, Alicia O’Connor, Mea Knapp, and John DiCioccio. See Graham Decl. ¶¶ 3,
18. It would present an undue burden to require the Town Defendants to wrangle
every employee who has been involved in the decades-long dispute with Plaintiff,
especially when Mr. Graham avers that he engaged in an extensive inquiry to garner
the information required to assess the validity of the privilege assertions. Thus, the
Court rejects Norton’s contention that Mr. Graham cannot speak to the Town’s
procedures because he has only been in his position for two years, see Pltf.’s Motion
at 1-2, in light of his sworn statement demonstrating his knowledge of not only the
Town’s general practices and policies with respect to securing documents, but also in
regard to how the Norton litigation files have been maintained.
Turning to the substance of the declaration, Mr. Graham asserts that “multiple
and repeated searches” establish that all of the logged documents were kept at the
Town Attorney’s office for the entire relevant period, aside from briefly being securely
transferred to RCB’s office to be logged in response to the March 9, 2017

14

Memorandum and Order. See Graham Decl. ¶¶ 6-8, 13. 6 Mr. Graham continues to
describe the layout of the Town Attorney’s office, states that no visitors are given
access to the files without being accompanied by authorized personnel, and states
that the door to the back office is locked if there is nobody present at the front desk.
See id. ¶¶ 10, 20. Moreover, Graham specifies by name which town personnel had
access to each of the Article 78, criminal prosecution, and Norton I files. See id. ¶¶ 14,
16, 17.

In short, Mr. Graham has described in detail where the logged documents

were stored and who had access to them.
Norton also argues that the Graham Declaration conflicts with prior
representations and sworn testimony concerning the storage of the documents. See
Pltf.’s Motion at 2.

Again, the Court disagrees.

Plaintiff first claims that Mr.

Graham’s assertion that the documents were always kept at the Town Attorney’s
office is belied by Huml’s and Stabile’s previous deposition testimony that the
relevant criminal prosecution files were maintained by the Division of Law
Enforcement (“DLE”) in a separate building. See Pltf.’s Motion at 2. The testimony
relied on by Norton, however, discusses the general practices of the DLE, and does
not speak to the Norton files specifically, which Mr. Graham explicitly states were
continuously stored in the Town Attorney’s office. See Pltf.’s Motion, Exs. 4-5; see
also Graham Decl. ¶ 6 (“All of the documents logged … were contained in, and only

6 Insofar as Norton contends that documents were sent to Reisman Perez Reisman (“RPR”), a second
law firm, in addition to RCB, undermining Mr. Graham’s assertion that he has the requisite knowledge
of how the files were maintained, see Pltf.’s Motion at 3, the Court is satisfied with the Town
Defendants’ representation that the RCB attorneys who represented the Town in Norton I were
previously with RPR (such that the Graham Declaration refers collectively to the two firms as RCB),
thus explaining the discrepancy.

15

in, the secure files of the Town Attorney’s Office”). Moreover, Mr. Graham states that
in 1996-97 (Norton’s criminal prosecution was pending from 1997-2003), the DLE
moved to the same location as the Town Attorney, and that even before the move,
prosecutors were stationed in the same building. See Graham Supp. Decl. ¶ 3.
Norton next claims that Mr. Graham’s assertions with respect to who had
access to the logged documents conflicts with prior representations made at oral
argument before Judge Chen on March 3, 2016. See Pltf.’s Motion at 2; Exhibit 7 (the
“Hearing Transcript”). This argument is similarly misplaced. The discussion before
Judge Chen concerned the Building Department’s files (in addition to the three
documents, for which privilege was preciously deemed waived, that have already been
produced pursuant to the March 3, 2016 Electronic Order), and the fact that a broad
array of building department officials had access thereto. See Hearing Transcript.
The Hearing Transcript does not discuss the logged documents addressed in the
Graham Declaration (i.e., the Town Attorney’s litigation files on Norton’s Article 78
proceeding, his criminal prosecution, or the Norton I documents), for which Mr.
Graham describes the secure method in which they are stored as well as who had
access to them.
The Court further rejects Norton’s argument that Mr. Graham fails to account
for the storage of his criminal prosecution files from 2003-2013, as he explicitly states
that all of the logged documents were securely maintained in the Town Attorney’s
office. See Graham Decl. ¶ 6; see also Graham Supp. Decl. ¶ 2 (“To be clear, after the
criminal prosecution was completed in 2003 [the documents] were kept in the Town
Attorney’s Office”). To the extent Norton argues that Mr. Graham “fails to confront

16

the Town’s subject matter waiver,” Pltf.’s Motion at 3, that issue is unrelated to the
complained-of Graham Declaration, and the Court declines to rehash the waiver
issues addressed in its October 16, 2018 Amended Memorandum and Order. See
10/16/18 Mem. and Order at 16 (Concluding that despite the logs’ failure to provide
sufficient detail regarding access to the subject documents, they “otherwise satisfy
the March 9, 2017 Order and waiver based on the assertion of a good faith defense or
various purported deficiencies within the logs is inappropriate”). 7 Accordingly, the
Court concludes that Mr. Graham’s declarations, which are based upon a detailed
investigation into the preservation of the litany of files concerning Norton’s various
proceedings, sufficiently satisfy this Court’s directives set forth in the October 16,
2018 Amended Memorandum and Order.
ii.

The County’s Supplemental Responses

Turning next to Norton’s assertion that the County’s Supplemental Responses
remain deficient, the Court concludes that the County has answered the
interrogatories to the best of its ability and produced all of the responsive documents
in its possession, custody, or control. Plaintiff essentially appears to be seeking
documents and information concerning the County’s participation in the Town’s
criminal prosecution of Norton – to which the County repeatedly represents it had
effectively no involvement. To that end, the Court is satisfied that the County has

To that end, the Court notes that it is in receipt of Plaintiff’s July 25, 2019 letter, DE [290], asserting
that a recent decision from the Southern District of New York should guide the Court’s decision herein.
See In re Keurig Green Mountain Single Serve Coffee Antitrust Litig., No. 14-md-2542, 2019 WL
2724269 (S.D.N.Y. July 1, 2019). In In re Keurig, the court held that the defendants’ assertion of a
good faith defense rendered their communication with counsel waived. See id. at *4. Here, the Court
has already explicitly declined to find a waiver on this ground. See 10/16/18 Mem. and Order at 16.
Accordingly, Plaintiff’s reliance on In re Keurig is misplaced.
7

17

provided Plaintiff with the extent of its discoverable information, save one set of
documents identified below.
a.

Interrogatories

With respect to Interrogatory 7, relating to the County’s system for processing
Complaints concerning State Court criminal prosecutions by Suffolk County towns
and villages, the County responded that “complaints” may be made to the District
Attorney’s Office, at which point they are evaluated and sent to the appropriate
bureau. See County’s Supplemental Interrogatory Responses. Plaintiff now argues
that this response fails to adequately describe the entire process. See Pltf.’s Motion
at 4. If Norton wanted to further understand the details of the County’s procedures
in this regard, he should have inquired during the 30(b)(6) deposition, as the Court
agrees with the County that such minutia is difficult to relay through an
interrogatory response.
As for Interrogatory 14, inquiring whether the County has knowledge of the
process for the review of accusatory instruments issued by the Town, the response
indicating that the District Attorney’s office is aware that such a process exists, but
that the County relies on the Town’s attorneys for their expertise concerning local
codes and ordinances, is adequate.

See County’s Supplemental Interrogatory

Responses. Plaintiff contends that the response is deficient because it names no
individuals and fails to identify any documents. See Pltf.’s Motion at 4. In light of
the County’s representation that the Town handles the accusatory instruments at
issue, however, it is logical that the County is unaware of any persons or documents
that might be identified in this regard.

18

With respect to Interrogatory 15, asking for details of what actions the County
took with respect to Norton’s criminal prosecution, the County states that “the
District Attorney’s Office did not directly supervise matters filed and prosecuted by
the Town Attorney’s Office, including the prosecution of the plaintiff.” See County’s
Supplemental Interrogatory Responses. Norton argues that this response does not
answer the question posed. See Pltf.’s Motion at 4. The County’s answer is sufficient.
The response effectively states that the County took no actions concerning Plaintiff’s
criminal prosecution, as such matters are within the Town’s purview. Similarly, the
County’s response to Interrogatory 16 – inquiring as to the type of certificate of
occupancy compliance records that the Town uses to commence and continue criminal
court proceedings, and the process the Town uses in obtaining such records –
sufficiently establishes that the Town alone could provide details in this regard. To
the extent Plaintiff had further questions concerning the County’s past practice
(discontinued as of 2006) of occasionally designating municipal attorneys as Special
Assistant District Attorneys, see County’s Supplemental Interrogatory Responses,
that inquiry also should have been pressed at the 30(b)(6) depositions.
As for Interrogatory 22, asking for a description of manuals and other training
materials by which the District Attorney’s office receives and records complaints
regarding private property, the Court initially agrees with the County that this
request is largely indecipherable as it appears to ask whether “complaints are
recorded through a manual.” In any event, the County’s reference to its supplemental
response to Interrogatory 7, indicating that complaints received by the District
Attorney are sent to the appropriate bureau, see County’s Supplemental

19

Interrogatory Responses, should have provided Norton with a foundation for which
he could have expanded his inquiry during the 30(b)(6) depositions. 8
Finally, the Court rejects Plaintiff’s argument that the County has failed to
verify its interrogatory responses. See Pltf.’s Motion at 5. Attached to Norton’s own
Motion are the County’s verifications of both its original responses and its
supplemental responses to the interrogatories at issue.

See DE [285-10].

Accordingly, based on a review of the relevant demands, the Court concludes that the
County has adequately answered Plaintiff’s interrogatories, and at the very least
provided sufficient guidance for inquiries that should have been further addressed
through depositions. See Trueman, 2010 WL 681341, at *2.
b.

Documents

Turning to the outstanding document requests, the Court accepts the County’s
representation that it has produced all relevant documents in its possession or
control. With respect to Requests 3, 4, and 24 – ultimately seeking “all Town, Town
Code § 68-40 prosecution/court related documents” – the County has unequivocally
stated that it “is not in possession of the requested documents.” See County’s
Supplemental Document Responses.

Further, the County claims that these

documents are not under its control and posits that Plaintiff should seek these
documents from the Town considering it is the party who might possess them. See
DE [287] (the “County’s Opp.”) at 4. Norton argues that he “should not be required
to go to the Town for documents that he has been requesting from the County for

8

In addition, the lack of a definition for “Complaint” in this context renders the inquiry vague.

20

years.” See Pltf.’s Motion at 5. This contention misses the mark. Initially, the Court
notes that Plaintiff does not dispute the County’s assertion that the “documents
sought, if they exist[], are … public records.” See County’s Supplemental Document
Responses. Thus, coupled with the County’s representation that it does not possess
or control the documents, Norton can just as easily obtain the documents on his own
absent production by the County. See Krause v. Buffalo & Erie Cty. Workforce Dev.
Consortium, Inc., 426 F. Supp. 2d 68, 90 (W.D.N.Y. 2005), aff'd, 425 F. Supp. 2d 352
(W.D.N.Y. 2006) (“[it] is well-established that discovery need not be required of
documents of public record which are equally accessible to all parties”) (quoting
Securities and Exchange Commission v. Samuel H. Sloan & Co., 369 F. Supp. 994,
995 (S.D.N.Y. 1973)). Moreover, Plaintiff provides no explanation for why he insists
on procuring these documents from the County instead of the Town, which is also a
party to this action. Accordingly, in light of the County’s representations that it
neither possesses nor controls the requested documents, and because the documents
are purportedly a matter of public record, the Court concludes that the County has
met its burden.
As to Document Requests 39 and 40 – seeking “criminal action-related
documents” including manuals, Policies, memorandum [sic], guidance material, etc.
for County or Town personnel and supervisors – the County states that no District
Attorney “personnel were involved in the prosecution of the plaintiff, and no training
materials or manuals were ever provided to the Islip Town Attorney’s Office at any
time.” See County’s Supplemental Document Responses. Norton asserts that even if
the foregoing response is true, that his request is not concerned with what was

21

provided to the Town, but rather what existed and, thus, was potentially not shared
with the Town when it should have been. See Pltf.’s Motion at 5. Although the
County disputes the relevance of these materials, it does not object to producing the
District Attorney’s Office Operations and Procedures Manual (the “Manuals”) for the
years 1997 through 2003, should they exist. See the County’s Opp. The County’s
Supplemental Document Responses, which are dated December 14, 2018, indicate
that the District Attorney’s office was searching for such Manuals, but it appears that
nothing has been produced to date. Thus, the Court directs the County to produce
the Manuals on or before September 20, 2019 or represent in writing by that date
that no such documents exist. 9
Accordingly, Plaintiff’s Motion seeking to compel compliance with the Court’s
October 16, 2018 Memorandum and Order is denied in all respects, save the
production of the Manuals by the County as set forth above.
B.

The Town Defendants’ Motion

Turning

to

the

Town

Defendants’

arguments

concerning

purported

inadequacies with Plaintiff’s Log, the Court concludes that although there is no
evidence to support a finding that Norton – under the supervision of Mr. Messina –
failed to include any privileged but otherwise responsive documents in his log, the
Town Defendants shall be permitted to reopen Norton’s deposition for up to two

Norton argues that limiting the request from 1997-2003 is insufficient because he has a pending
declaratory judgment claim that involves continuing violations. See Pltf.’s Motion at 5. The County
correctly asserts, however, that the Amended Complaint only seeks declaratory relief with respect to
past conduct, and requests no prospective relief in this regard. See County’s Opp. at 4-5; Amended
Complaint, DE [5], Sixth Cause of Action, ¶¶ 172 -174. Accordingly, producing the Manuals, should
they exist, for the period of 1997-2003, will suffice.
9

22

hours, but only to inquire about the 65,000 pages of documents at issue – both logged
and unlogged. 10

The Town Defendants contend that it “strains credulity” that

Plaintiff’s review of these files resulted in no further production and only six
responsive documents being logged. See Town Defs.’ Motion at 4-5. The Town
Defendants find it particularly troubling that no letters between Norton and his
counsel were produced or logged, when they would certainly be covered by the various
document requests. See id. at 5. In response, Plaintiff reiterates that Mr. Messina
certified that he oversaw the lengthy search for responsive documents and vetted the
collection and production process. See Plft.’s Opp. at 1-2; see also DE [286-1] at 22
(Mr. Messina’s certification accompanying Plaintiff’s Log). Norton further asserts
that the documents consisted largely of “pleadings, appeal filings, copies of printed
cases, Bates-stamped documents already produced, and irrelevant documents related
to Norton III.” See Plft.’s Opp. at 2. Finally, Plaintiff affirms that the “review
produced no letters … during the period relevant to the privilege log.” Id.
Here, although the Court is sympathetic to the Town Defendants’ doubts that
a review of 65,000 pages of documents could result in no responsive documents being
produced, with only six being logged as privileged, such concerns are speculative.
Indeed, the Town Defendants present no evidence substantiating their belief that
additional responsive documents have been withheld.

As a result, the Court

concludes that it is inappropriate to compel Plaintiff to produce documents that his

10 Because the Town Defendants do not seek a privilege waiver with respect to documents shown to
Norton’s brothers, the Court need not address whether the common interest doctrine is applicable
herein. See Town Defs.’ Motion at 5 (“the Town Defendants … respectfully request a less drastic
remedy [than a ruling that privilege has been waiver for documents shown to Plaintiff’s brothers]”).

23

counsel certifies do not exist. See Alvarado v. GC Dealer Servs. Inc., No. 18-cv-2915,
2018 WL 6322188, at *2 (E.D.N.Y. Dec. 3, 2018) (denying motion to compel because,
inter alia “Plaintiff has repeatedly stated … that the Requested Documents do not
exist”); Carling v. Peters, No. 10-cv-4573, 2011 WL 3678839, at *4 (S.D.N.Y. Aug. 19,
2011) (“Other than speculation … [the defendant] offers no evidence that [the
plaintiff’] possesses [the requested] documents”); Madden v. Abate, No. 09-cv-145,
2010 WL 11610365, at *2 (D. Vt. Dec. 22, 2010) (denying motion to compel because
the plaintiff “insofar as she represents that she has already produced all responsive
documents, should be taken at her word”); Moll v. Telesector Res. Grp., Inc., No. 04cv-805S, 2010 WL 4642931, at *3 (W.D.N.Y. Nov. 17, 2010), vacated in part, 760 F.3d
198 (2d Cir. 2014) (denying the plaintiff’s motion to compel despite the argument that
“there must have been” responsive documents, relying on the defendant’s
representation that a reasonable search found no responsive documents).
Notwithstanding the foregoing, the Court concludes that an additional
deposition of Norton is appropriate. “Pursuant to Rule 30(a)(2)(A)(ii), leave of Court
is required to conduct a deposition when ‘the deponent has already been deposed in
the case ….’” Ganci v. U.S. Limousine Serv., Ltd., No. 10-cv-3027, 2011 WL 4407461,
at *2 (E.D.N.Y. Sept. 21, 2011).

To that end, “[c]ourts will typically reopen a

deposition where there is new information on which a witness should be
questioned…. Where the deposition is reopened because of newly discovered
information, the questioning of the witness is limited to those questions relating to
the newly produced information.” Id. (internal citations omitted). Here, in light of
the extensive volume of purportedly unresponsive documents consisting of 65,000

24

pages reviewed by Norton and his counsel, and because some of the items logged were
shown to Plaintiff’s brothers – purportedly due to their need to protect their interest
in the subject property – the Court will permit the Town Defendants to depose
Plaintiff for up to two additional hours, but solely to question him on the contents
and handling of the 65,000 pages reviewed and six documents logged. This deposition
must occur on or before October 4, 2019.
IV.

Conclusion
For the reasons set forth above, Norton’s and the Town Defendants’ motions

are granted in part and denied in part. Specifically, Plaintiff’s Motion is denied in all
respects aside from the directive that the County produce the Manuals, or state in
writing that they do not exist, on or before September 20, 2019.

The Town

Defendants’ Motion is granted insofar as they are permitted to reopen Plaintiff’s
deposition for up to two hours, solely to question him on the contents and handling of
the 65,000 pages of documents reviewed and the six items logged. This deposition
must occur on or before October 4, 2019. Finally, a status conference is set for
October 10, 2019 at 10:30 a.m. in courtroom 820 of the Central Islip courthouse, at
which point the Court intends to either: (i) set a briefing schedule for summary
judgment motions; or (ii) direct the parties to file a joint pretrial order in anticipation
of trial.
Dated:

Central Islip, New York
September 4, 2019

/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

25