Bellinger v. Barnhart

Filing 175

ORDER re 158 , 161 , 170 , concerning plaintiff's document discovery. See attached Memorandum and Order. Ordered by Chief Magistrate Judge Steven M. Gold on 8/11/2011. (O'Connor, Erin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CELIA BELLINGER,
Plaintiff,
- against -

MEMORANDUM
AND ORDER
CV-06-321 (CBA)

MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
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Gold, S., U. S. Magistrate Judge:
On July 5, 2011 I issued an Order in response to an application from plaintiff extending
the time for completing depositions to August 31, 2011. Docket Entry 161. Plaintiff filed
objections contending that the Order improperly denied her the opportunity to discover three
categories of documents. Docket Entry 165, ¶ 8. By Order dated August 2, 2011, United States
District Judge Amon correctly noted that I had not denied plaintiff’s application for discovery of
these documents, but instead had not ruled on it at all, and directed that I consider and rule upon
the application. Docket Entry 170.
My Order of July 5, 2011 was issued in response to plaintiff’s letter application of June
20, 2011, Docket Entry 158. The final few sentences of the last paragraph of that letter refer to
the three categories of documents identified by plaintiff in her appeal. More specifically,
plaintiff’s letter stated as follows:
Ms. Mahoney must make available to my office for inspection and
copying the email that she was ordered to produce as a result of the
court’s rulings on Plaintiff’s Second Document Request. I am
available to review all of those emails any day next week along
with any other documents that she has been ordered to produce but
has not turned over. Another remaining item are the court ordered
subpoenaed documents which must be obtained from the Office of

Personnel Management pursuant to judicial subpoena. There are
also some smaller items such as missing documents from OPF files
which I have identified as missing but have not as of yet received
and similar types of outstanding items.
Docket Entry 158 at 2. As Judge Amon correctly pointed out, I did not address these document
demands in my Order of July 5, 2011.
Defendant has submitted a letter opposing the additional document production sought by
plaintiff. Docket Entry 173. Defendant argues, as it did in response to plaintiff’s letter of June
20, that the time set by the Court for completing discovery has passed, and that plaintiff should
be denied the opportunity to seek additional document discovery now. I share defendant’s
concern that the discovery phase of this case has gone on for far too long. Nevertheless, for the
reasons stated in my Order of July 5, I decline to refuse plaintiff the opportunity to complete the
remaining limited discovery she apparently seeks.
Accordingly, counsel shall arrange a mutually convenient time between now and August
31, 2011 for plaintiff’s counsel to inspect the emails described in the paragraph that begins on
page two and continues on the third page of defendant’s letter of August 5, 2011. The Court
understands this to address what plaintiff refers to as the “second category” of documents in her
appeal from my Order of July 5, 2011. If plaintiff needs additional time to review the
documents, and the pre-trial phase of the case is still proceeding, counsel shall cooperate in
finding mutually convenient times for plaintiff’s counsel to conduct her review.
Plaintiff next asks that I issue a subpoena to the Director of the National Personnel
Records Center. The proposed subpoena is annexed as Exhibit C to plaintiff’s objections.
Docket Entry 165-4. The subpoena directs disclosure of all documents in the personnel files of

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eleven federal employees, including but not limited to any warnings issued, disciplinary actions
commenced, and evaluations received. I presume that the subpoena plaintiff seeks is the same
one I indicated I would approve and “so order” during the conference held in this case on June
15, 2010. See Tr., Docket Entry 140, at 12-14. If the subpoena plaintiff now seeks is different,
defendant shall promptly so advise the Court. It is not clear to me why, having obtained leave of
court to subpoena the records at issue more than a year ago, plaintiff did not do so at that time.
Nevertheless, unless defendant indicates by August 18 that the subpoena plaintiff seeks now is
materially different from the one I previously approved, I will “so order” the subpoena.1
Although it is not entirely clear from her submission objecting to my Order of July 5, it
appears that plaintiff seeks issuance of the subpoena as a means of obtaining documents she
claims are missing from the personnel files produced by defendant in discovery.2 To the extent
plaintiff contends that there are documents missing and wishes to attempt to obtain them from
defendant, plaintiff may submit a letter to defendant by August 24 identifying the documents she
contends are missing from defendant’s production. Defendant shall either produce the missing

1

Plaintiff has submitted the subpoena she seeks as Exhibit C to her objections, Docket
Entry 165-4. The subpoena calls for my signature, and also indicates that I will have it served.
While I am prepared, subject to the condition stated in the text, to “so order” the subpoena, I have
no intention of arranging for service. My chambers will have the signed subpoena available for
plaintiff’s counsel on August 19, assuming defendant has not objected on the ground indicated in
the text by that date, and plaintiff will arrange for service of the subpoena if she chooses to do so.
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The lack of clarity referred to in the text derives from plaintiff’s identification of four
categories of discovery, with the disputed document demands identified as the second, third and
fourth categories (Docket Entry 165, ¶ 8), and her subsequent discussion of only a second and
third category of documents (Docket Entry 165, ¶¶ 11-14), with the second category of
documents seeming to relate to the second category of discovery, but the third category of
documents, the subpoenas, seeming to relate to the discussion of the fourth category of discovery,
the “missing documents,” and there being no further discussion of what “missing documents”
plaintiff seeks.
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documents, confirm that a diligent search for the documents has been made and the documents
cannot be found (if a diligent search was made in the past, confirmation of that fact will suffice),
or state that the inference that documents are missing is incorrect and explain why that is so, by
September 9, 2011.
All depositions shall proceed as previously scheduled regardless of any pending appeals,
motions or contentions that documents have not been produced. The Court understands that the
existing schedule is set forth in plaintiff’s letter dated July 18, 2011, and that all scheduled
depositions will be completed by August 29, 2011. Docket Entry 164. I also understand that
there is a pending dispute concerning paragraphs five through eight of plaintiff’s Rule 30(b)(6)
deposition notice, and that plaintiff’s response to defendant’s motion concerning that notice is
not due until August 19, 2011. The only depositions that will be permitted after August 29, 2011
will be those, if any, plaintiff is permitted to take with respect to the disputed aspects of the Rule
30(b)(6) notice.
SO ORDERED.
/s/
STEVEN M. GOLD
United States Magistrate Judge

Brooklyn, New York
August 11, 2011
U :\bellinger 081011.w pd

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