Moroughan v. The County of Suffolk et al
Filing
263
ORDER granting, in part, 246 Motion to Compel. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/22/2018. (McCuiston, Hannah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THOMAS M. MOROUGHAN,
Plaintiff,
DECISION
AND ORDER
-againstCV 12-512 (JFB) (AKT)
THE COUNTY OF SUFFOLK, SUFFOLK
COUNTY POLICE DEPARTMENT,
SUFFOLK DETECTIVES RONALD TAVARES,
CHARLES LESER, EUGENE GEISSINGER,
NICHOLAS FAVATTA, and ALFRED CICCOTTO,
DETECTIVE/SGT. WILLIAM J. LAMB, SGT.
JACK SMITHERS, SUFFOLK POLICE OFFICERS
WILLIAM MEANEY, ENID NIEVES, CHANNON
ROCCHIO, and JESUS FAYA and SUFFOLK
JOHN DOES 1-10, THE COUNTY OF NASSAU,
NASSAU COUNTY POLICE DEPARTMENT,
SGT. TIMOTHY MARINACI, DEPUTY CHIEF OF
PATROL JOHN HUNTER, INSPECTOR EDMUND
HORACE, COMMANDING OFFICER DANIEL
FLANAGAN, DETECTIVE/SGT. JOHN
DEMARTINIS, NASSAU POLICE OFFICERS
ANTHONY D. DILEONARDO, EDWARD BIENZ
and JOHN DOES 11-20,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
I.
PRELIMINARY STATEMENT
The history of discovery and extensive motion practice in this case is well-known and
well-documented and the Court will not repeat that chronology here. Instead, the Court focuses
on the motion by counsel for defendant Nassau County to re-open discovery at this point in this
case. See DE 246.
At the February 13, 2018 Motion Hearing/Status Conference, Plaintiff’s counsel advised
the Court that he had been served by Nassau County’s counsel just the day before with a
purported demand for production of documents directed to the Internal Affairs Unit (“IAU”) of
the Suffolk County Police Department. See February 13,2018 Civil Conference Minute Order
[DE 241]. Plaintiff’s counsel also stated that he was made aware that Nassau County’s counsel
was attempting to serve deposition notices for two members of the Suffolk County Board of
Review. Id. Plaintiff objected on both counts. The Court informed Nassau County’s counsel
that discovery was closed and had been for some time. Consequently, if counsel intended to
pursue this issue, the Court informed him that he would have to file a motion seeking to re-open
discovery and meet the threshold criteria for establishing good cause as to why such relief should
be granted at this juncture.
II.
THE PARTIES’ CONTENTIONS
Counsel for Nassau County, Christopher Clarke, Esq., asserts that the County should be
permitted the additional discovery sought here because the “discovery demand and deposition
subpoena mirror plaintiff’s subpoena served upon Nassau IAB Detective Distler which resulted
in Nassau’s motion to quash filed on June 15, 2015.” DE 246.
In 2015, Nassau County argued
that the IAU materials sought by the plaintiff were privileged and not subject to disclosure. Id.
According to Attorney Clarke, based upon the February 5, 2018 decision issued by this Court
denying Nassau’s motion to quash and directing that Detective Distler be presented for
deposition, he proceeded to (1) serve demands on Suffolk County for its Internal Affairs Unit
documents relating to this case and (2) serve a subpoena to depose Suffolk’s lead investigator.
Id. Attorney Clarke maintains that discovery is ongoing and not closed and that “there has been
no delay from Nassau in seeking this discovery . . . and no realistic concern of any delay in this
case.” Id.
2
Plaintiff’s counsel opposes the motion, pointing out that this case was commenced some
six years ago and that after “years of discovery, the day before the parties appeared before Judge
Joseph F. Bianco on February 13, 2018 to have a summary judgment motion schedule set,
Nassau advised that it intended to depose an investigator from the Suffolk IAB. . .” DE 250.
Counsel further argues that defendant Nassau County received back in September 2015 the
audio-recordings of the Suffolk IAU interviews which it is now purportedly seeking in its first
document request. Plaintiff’s counsel adds that “[i]n fact, these were produced before Mr.
Clarke’s office started representing Nassau, and plaintiff utilized transcripts of these recordings
during numerous depositions.” Id. (emphasis in original).
Ultimately, plaintiff’s counsel argues that Nassau County had ample opportunity to
pursue the evidence it now seeks during the multi-year course of discovery. Plaintiff maintains
that Nassau County has not shown the requisite good cause to justify the re-opening of discovery
at this late date and has not met the six-part test articulated by this Court in Pharmacy Inc. v. Am.
Pharm. Partners, Inc., CV 05-776, 2008 WL 4415263, at *3 (E.D.N.Y. Sept. 24, 2008).
III.
APPLICABLE LEGAL STANDARD
“‘A party seeking to reopen discovery bears the burden of establishing good cause and
discovery should not be extended when there was ample opportunity to pursue the evidence
during discovery.’” Leong v. 127 Glen Head Inc., CV 13-5528, 2016 WL 845325, at *3
(E.D.N.Y. Mar. 2, 2016) (quoting Thieriot v. Jaspan Schlesinger Hoffman LLP, No. 07-CV5315, 2010 WL 4038765 (E.D.N.Y. Sept. 30, 2010)); see Burlington Coat Factory Warehouse
Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir. 1985) (denying plaintiff’s request to reopen discovery when plaintiff had “ample time in which to pursue the discovery that it now
3
claims is essential”).
The decision whether to reopen discovery is within a district court’s discretion. Krawec
v. Kiewit Constructors Inc., No. 11-CV-123, 2013 WL 1104414, at *8 (S.D.N.Y. Mar. 1, 2013);
see Wingates, LLC v. Commonwealth Ins. Co. of Am., No. 14- CV-2119, 2015 WL 5692303, at
*3 (2d Cir. Sept. 29, 2015) (summary order) (finding no abuse of discretion in the district court’s
“refus[al] to allow [the plaintiffs] to reopen discovery for the purposes of disclosing an expert
witness pursuant to Federal Rule of Civil Procedure 26(a)(2)”); see generally Wills v. Amerada
Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004) (stating that a district court has “broad discretion to
direct and manage the pre-trial discovery process.”). “As a general rule, discovery should only
be re-opened for good cause, depending on the diligence of the moving party.” Krawec, 2013
WL 1104414, at *8 (citing Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)); see,
e.g., Bakalar v. Vavra, 851 F. Supp. 2d 489, 493 (S.D.N.Y. 2011) (“In deciding whether to
reopen discovery, courts consider whether good cause exists.”) (citing Gray v. Town of Darien,
927 F.2d 69 (2d Cir. 1991)); see Marshall v. Starbucks Corp., No. 11-CV-02521, 2013 WL
123763, at *2 (S.D.N.Y. Jan. 8, 2013) (same).
In analyzing a request to re-open discovery, courts apply the following six-part test:
1) whether trial is imminent, 2) whether the request is opposed, 3)
whether the non-moving party would be prejudiced, 4) whether the
moving party was diligent in obtaining discovery within the
guidelines established by the court, 5) the foreseeability of the need
for additional discovery in light of the time allowed for discovery by
the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.
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Pharmacy, Inc., 2008 WL 4415263 at *3 (citations omitted); accord Bakalar v. Vavra, 851 F.
Supp. 2d 489, 493 (S.D.N.Y. 2011). The Court will address each of these factors with respect to
defendant Nassau County’s motion to re-open discovery.
IV.
DISCUSSION
A.
The Timing of Trial
No trial date has been set by Judge Bianco. In fact, the parties had a schedule in place for
briefing summary judgment motions when the instant issue arose. Plaintiff does not contest this
fact. Consequently, the first factor weighs in defendant Nassau County’s favor. See Spencer v.
Int’l Shoppes, Inc., 06 Civ. 2637, 2011 WL 3625582, at * 2 (E.D.N.Y. Aug. 16, 2011); Thieriot,
2010 WL 4038765, at *61; Pharmacy Inc., 2008 WL 4415263, at *4.
B.
Whether the Motion Is Opposed
There is no question that plaintiff vigorously opposes defendant Nassau County’s motion
to re-open discovery. Nassau County’s counsel here attempts to limit the sphere of consideration
to defendant Suffolk County as the repository of the documents at issue. DE 246. Specifically,
Attorney Clarke states that “the test should be resolved in Nassau’s favor because Suffolk . . . has
1
Counsel for the Nassau County defendants relies upon this Court's decision in
Thieriot in terms of the six-part test to re-open discovery. However, counsel can take no solace
from Thieriot since the Court there denied the defendants' motion to re-open discovery to add to
witnesses, having found that defendants had ample time during the normal course of discovery to
locate and depose these two witnesses.
In total, Nassau County’s counsel cites just two cases in the totality of his motion. The
second case, Spencer v. Int’l Shoppes, Inc., 2011 WL 3625582 is distinguishable as well. There,
plaintiff suffered a stroke in July 2011. Two weeks later, plaintiff sought to re-open discovery,
asserting that a related state court litigation actually caused the stroke. The discovery sought
related to the stroke and went directly to plaintiff's claim for damages. Unlike the instant case,
this Court found that the discovery sought was not foreseeable, was directly relevant to the
plaintiff's claim for damages, was diligently sought, and was not prejudicial to the non-movant.
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not objected to the discovery demands at issue and has agreed to accept service of Nassau’s
subpoena and has confirmed via email that Sergeant Lynch is available for deposition as
noticed.” Id. Suffolk County’s sudden change of heart and new-found willingness to cooperate
– contrary to its earlier posture regarding any disclosure of Nassau County’s IAU Report – is not
the deciding factor here. There is no such limitation in the second prong of the standard set out
in Pharmacy, Inc. and Nassau County’s counsel has provided no case law supporting this myopic
and disingenuous view. Consequently, plaintiff’s emphatic opposition to the relief sought by the
Nassau County defendants results in this factor favoring the plaintiff.
C.
Prejudice to the Non-moving Party
Defendant Nassau County’s counsel points out that the only non-moving party to claim
prejudice is the plaintiff and “that objection is limited only to meritless concerns of delay.” Id.
According to Attorney Clarke, “[s]ince Suffolk has not objected, has accepted service and
confirmed attendance, relevance and discoverability are moot issues, and delay is not a concern.”
The Court disagrees. Delay may not be a concern to Nassau County, but it is of understandable
concern to the Plaintiff. Likewise, Suffolk County’s about-face and willingness to assist Nassau
County at this juncture are irrelevant to the analysis of this third prong of the test for re-opening
discovery. There is no doubt that re-opening discovery will cause plaintiff to incur costs and
expenses associated with reviewing documents which Nassau County is requesting as well as
preparation for and attendance at requested depositions of the Suffolk County investigators
responsible for the IAU Report. Moreover, if defendants are permitted to conduct depositions,
new information will likely be disclosed which the plaintiff has had no opportunity to explore
and/or rebut. The prejudice to the Plaintiff here is not only the further postponement of this six6
year old case, but the toll on the memories of witnesses as this case lags. As a result, the Court
finds that this factor slightly favors the plaintiff.
D.
Diligence of Defendant Nassau County and Foreseeability of Need
The Second Circuit has emphasized that “a finding of ‘good cause’ depends on the
diligence of the moving party.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.
2000). The diligence and foreseeability factors here weigh against defendant Nassau County.
The real issue here boils down to the strategic decision Nassau County’s counsel made in 2015
not to seek the discovery currently at issue here because doing so, in counsel’s reasoning, would
have run contrary to the litigation position the County had taken, namely, that its own Internal
Affairs documents were privileged and not discoverable. This was a calculated risk and decision
which the County undertook knowingly and freely. A review of some of the chronology of this
case is warranted in order to place into context Nassau County’s current contentions on this
motion.
• At the April 6, 2012 Initial Conference, the Court addressed the respective Internal
Affairs Unit Reports as follows:
Plaintiff’s counsel seeks the Internal Affairs Reports prepared by the respective police
departments in both counties. With regard to Nassau County, Attorney Ferguson stated
that the police department has 18 months from the date of the underlying incident to
complete the report and, consequently, Nassau has four more months for completion of
that report. Counsel for Suffolk County will get back to me expeditiously with a response
as to the timeframe in which Suffolk expects to finish its report. After some discussion
regarding the case law addressing production of internal affairs reports, I stated to
counsel that this production would likely be required, even in redacted form, solely to
the respective parties in this case for purposes of this litigation only, and subject to a duly
executed Stipulation and Order of Confidentiality. Plaintiff’s counsel stated that he
was reserving his right to take depositions of the authors of the respective reports
once they are completed. Counsel for Suffolk County stated that he did not see any
purpose in examining the authors of the report when the report itself contains
statements of witnesses, etc. I advised counsel that we will see where this issue takes
us as the case progresses and that, once again, the parties have an obligation to confer
in good faith under Local Civil Rule 37.3 to try to resolve any discovery disputes before
seeking Court intervention.
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DE 13 (emphasis added). As this Order reflects, the productions of the respective
Internal Affairs Reports from both Counties were an issue from the very first
appearance of the parties before the Court. It was clear from the outset that
plaintiff’s counsel intended to depose the authors of the respective reports and at
least one party, Suffolk County, objected. At that time, among other deadlines, the
Court set the fact discovery cut-off at November 30, 2012. Id.; DE 14.
•
Both IAU Reports were taken up again at the August 23, 2012 Status Conference.
The Civil Conference Minute Order of that date reflects the discussion:
3. With regard to the still pending Internal Affairs Reports, counsel for the Suffolk
County defendants stated that in communicating with Suffolk County Police Department,
he was advised that the report is still being worked on, but that it is expected to be
completed in the short-term. Suffolk’s counsel will continue to meet and confer with
plaintiff’s counsel regarding the disclosure of the contents of the report... With regard to
the Internal Affairs Report of the Nassau County Police Department, I noted that the 18
month preparation period is expiring this month. However, Attorney Ferguson stated that
he does not know when the report will be completed but that he has been advised the
report is being worked on. I have directed counsel for the Nassau County
defendants and the Suffolk County defendants to discuss with plaintiffs’s counsel
any issues they have regarding the disclosure of the reports to plaintiff’s counsel
once they are completed, subject to a Stipulation and Order of Confidentiality. If
the parties are unable to work out any disclosure issues, then plaintiff’s counsel may
apply to the Court for relief. Counsel for the Suffolk County defendants did note that he
has provided some materials which are included in the IA Report to plaintiff’s counsel
while the report is still awaiting completion.
DE 31 (emphasis added). Because of additional issues which had arisen in the case,
the Court also extended fact discovery for an additional 90 days to February 28,
2013. DE 32.
•
In Plaintiff’s December 14, 2012 letter motion [DE 52] to compel production from
defendant Nassau County, plaintiff challenged Nassau County’s response to
Document Request No. 1 of plaintiff’s second request for production of documents
and things. The Court points out that in its response, Nassau County states that its
IAU Report was produced to all other parties on September 7, 2012.
•
At the February 5, 2013 Status Conference, since the Suffolk County IAU Report
still had not been served, I directed counsel for Suffolk County to speak with those
preparing the report and report back to the Court at the earliest possible time the
projected date for completion and service of that Report. DE 61. Based on the
number of depositions the parties were contemplating, as well as some issues
obtaining records from non-parties, the Court extended the fact discovery deadline
once again, up to and including June 28, 2013. The parties were put on notice
that this date would not be further extended. Id.
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•
By letter dated February 8, 2013, counsel for the Suffolk County defendants advised
the Court that the anticipated date for completion of the IAU Report was March 15,
2013. DE 64.
•
At the July 9, 2013 Status Conference, the Court notified all counsel that it had
received an ex parte application from the Suffolk County District Attorney’s Office
seeking to permit the Nassau County Attorney’s Office and the Suffolk County
Attorney’s Office to disclose their respective Internal Affairs Reports encompassed
by the Stipulation of Confidentiality to the Suffolk County District Attorney’s Office.
Counsel for defendant DiLeonardo raised an objection and stated her intention to file
a motion in opposition to such disclosure. DE 100.
•
On July 11, 2013, counsel for defendant DiLeonardo filed a letter motion stating that
the Suffolk County District Attorney's Office ex parte application was now moot
since the Nassau County Police Department had turned over the Nassau IAU Report
to the Suffolk County District Attorney's Office pursuant to a grand jury subpoena
served upon the Nassau County Police Department. DE 102. DiLeonardo’s counsel
requested an Order directing the Suffolk County District Attorney’s Office to return
the IAU Report and to provide the names of all individuals who viewed the report
and its contents. In addition, counsel requested that the Court issue an Order
immediately enjoining the use of and dissemination of the Report until such time as
the Court could rule upon the pending motion. Id.
•
Counsel for the Suffolk County defendants filed a letter on July 16, 2013 stating that
the Suffolk defendants were taking no position regarding the Suffolk District
Attorney’s request that the terms of the Confidentiality Order be extended to the
Suffolk D.A.’s Office. Counsel added that “[i]t is our understanding that the
application by the District Attorney does not include a specific request for the actual
production of the report. To the extent that the ex parte order can be construed to
include such a request, the defendants wish to make clear to the Court and the
parties that we respectfully reserve our rights to be heard and, if necessary, object
to any such production, whether in this Honorable Court or in response to the
service of a New York State Grand Jury subpoena.” DE 103.
•
In a September 25, 2013 Status Report to the Court, plaintiff’s counsel stated, among
other things, that “[e]ven though the SCPD IAB Report has not yet been completed,
the parties have agreed to resume depositions of the remaining named Suffolk
defendants, subject to Plaintiffs reservation of rights to conduct supplemental
depositions limited to any new information contained in the IAB Report.” By that
date, four of the seven named Nassau County defendants had been deposed.
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•
On March 20, 2014, the Court granted yet another extension of the discovery
deadline upon application by plaintiff’s counsel, with no objections filed by
defendants’ counsel. The deadline was extended to May 19, 2014. DE 122
•
On May 7, 2014, Frank Schroeder, Esq., new counsel for defendant Deputy Chief of
Patrol John Hunter moved for an extension of the discovery deadline asserting that
his firm had recently been brought into the case (actual appearance was entered on
December 6, some six months prior) and noted that the other parties consented to the
request. Attorney Schroeder also pointed out that “all parties are still awaiting
receipt of the Suffolk County Police Department’s Internal Affairs Report. Once this
document is released, there will likely be additional discovery and investigation
needed.” DE 128. An extension was granted to November 1, 2014.
•
The law firm of Leahey & Johnson, P.C., by Peter Johnson, Esq. and Christopher
Clarke, Esq., came into the case on September 24, 2014 in place of the attorneys
from the Office of the Nassau County Attorney. DE 150.
•
New counsel immediately requested an extension of the discovery deadline which
Judge Bianco granted, putting depositions over from October to December 2014 and
extending the existing discovery deadlines by 60 days. Judge Bianco also set a
briefing schedule for plaintiff’s motion to amend. Electronic Order of
September 29, 2014.
•
Plaintiff’s counsel advises on December 2, 2014 that depositions of the Suffolk
County defendants have been completed, but the Suffolk County IAB Report has still
not been produced.
DE 160.
•
On May 20, 2015, after having denied the motion by the Suffolk County District
Attorney’s Office to quash the subpoena served by plaintiff’s counsel, the Court
completed its in camera review and directed that the production of the designated
documents be made within 14 days. DE 182.
•
At the May 20, 2015 Motion Hearing/Status Conference, after being advised that the
SCPD IAU Report still had not been turned over after years of delay, the Court
directed that the Report was to be in the hands of the parties by July 6, 2015 at the
latest or the Court would take further action. DE 183. A deadline of September 8,
2015 was set for completion of all fact depositions. All counsel were directed not to
delay any further depositions while awaiting productions of other documents.
Counsel for the Nassau County defendants stated that his clients were opposing any
deposition of Sgt. Distler, author of Nassau’s IAU Report, and would be filing a
motion to quash the subpoena served. Counsel was directed to file the motion
promptly given the schedule. The Court set September 11, 2015 for the next
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conference and advised that an expert discovery schedule would be set at that time,
along with a deadline for submitting pre-motion conference requests to Judge Bianco
for intended summary judgment motion practice. Id.
•
The Nassau County defendants moved on June 15, 2015 to quash the subpoena for
Sgt. Distler’s personal notes related to the IAU investigation report as well as for her
deposition. DE 188. In the motion, Attorney Clarke noted that Nassau County had
previously produced its IAU Report essentially containing all the information
plaintiff needed. Counsel maintained that the Distler notes were covered by law
enforcement privilege and therefore were immune from discovery. In addition,
defendant’s counsel argued that plaintiff had and would be deposing some of the fact
witnesses whom Sgt. Distler interviewed in preparing the IAU Report, thus making
the additional discovery unnecessary and duplicative. Id.
In opposing the motion, plaintiff’s counsel argued that Nassau’s assertion of law
enforcement privilege was without merit since Nassau previously disclosed the IAU
Report to all parties in the case without ever having asserted law enforcement
privilege. Likewise some of the defendants had made it known that they intended to
challenge the trustworthiness of Sgt. Distler’s IAU Report at trial. DE 194.
•
On September 4, 2015, in anticipation of the September 11, 2015 status conference,
plaintiff submitted a discovery update and also requested an extension of the
discovery deadline based upon some unfortunate personal circumstances plaintiff’s
counsel had experienced. DE 196. The Court granted the request for an extension
and also postponed the conference pending the determination of the outstanding
motions. DE 197.
•
Two weeks later, on September 16, 2015, the Court granted plaintiff’s motion to
compel the records of the disciplinary hearing of defendant DiLeonardo [DE 141] to
the extent of directing Nassau County to provide the materials for an in camera
review. DE 198. On October 27, 2015, the Court granted plaintiff’s motion to
establish deposition dates for certain witnesses and issued those dates, designating
the remaining depositions as “Court-ordered” and ordering that the last of the
depositions be concluded during the week of December 7, 2015. DE 202.
•
On December 1, 2015, Attorney Clarke filed a letter motion seeking an extension of
the deadline to complete non-party Jillian Bienz’s deposition until mid-January 2016
since new counsel had been retained by Ms. Bienz. DE 204. That application was
granted by Eletronic Order on December 3, 2015.
•
The Court issued its ruling on March 31, 2016 concerning Nassau County’s motion
to quash with regard to Sgt. Distler’s notes and deposition, directing that the notes be
submitted for in camera review, that the defendants advise whether they intended to
challenge the trustworthiness of the IAU Report prepared by Sgt. Distler and that
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Attorney Grandinette submit a list of intended deposition topics for Sgt. Distler’s
deposition if the examination were permitted to go forward. DE 217.
•
On April 10, 2016, counsel for defendant Hunter confirmed that he was reserving his
client’s right to challenge the admissibility of the Nassau IAU Report. DE 218.
Counsel for the Suffolk County defendants followed suit on April 11, 2016. DE 219.
•
In response to Judge Bianco’s request for a status update on January 27, 2017,
plaintiff’s counsel advised Judge Bianco that all depositions had been completed
except for the continued deposition of ADA Pearl; that there were several discovery
motions pending before the undersigned; that plaintiff had retained a toxicology
expert and had also submitted a request for a proposed expert discovery schedule to
the undersigned. DE 227
•
On April 21, 2017, plaintiff’s counsel advised this Court that the attorneys for
Nassau and Suffolk Counties had agreed to commence expert discovery on the
limited area of the plaintiff’s toxicology expert. DE 228. Counsel requested
approval of the proposed expert discovery schedule. The Court approved that expert
discovery schedule on May 15, 2017. DE 229.
•
On July 21, 2017, counsel for Nassau County advised the Court that, sadly, his father
had passed away unexpectedly. DE 230. Based on those circumstances, counsel
requested an extension of the expert discovery deadline, which this Court granted on
July 24, 2017.
•
Almost two months later, counsel for defendant Hunter asked the Court for a further
two-week extension of the expert discovery deadline on September 11, 2017 because
of personal issues with his expert, including the fact that the expert resides in Florida,
does not fly, would have to be presented by videoconference and was in the throes of
a Category 5 hurricane. DE 231. Notwithstanding plaintiff’s opposition [DE 232],
the Court granted the motion. DE 235.
•
On January 17, 2018, plaintiff’s counsel sought a conference with this Court and
noted the following, among other things:
Other than the pending applications referenced above, no additional fact or expert
discovery remains outstanding. Accordingly, Plaintiff is requesting a final discovery
conference, so that the parties can determine what if any affect your Honor’s rulings may
have on an anticipated summary judgment briefing schedule. Lastly, Plaintiff, with all
parties’ consent, will be requesting a pre-trial conference before Judge Bianco shortly
after the filling of this application.
DE 236. The same day, plaintiff’s counsel filed a letter request to Judge Bianco for a
pre-motion conference, “on consent of all counsel” except defendant Hunter’s
attorney, for purposes of making a summary judgment motion. DE 237. The request
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was granted by Judge Bianco that same day. On January 18, 2018, this Court set an
in-person conference for February 13, 2018.
•
On February 6, 2018, this Court issued an Order, denying Nassau County’s motion to
quash the subpoena served on Sgt. Distler, directing that Sgt. Distler’s notes, with
certain designated exceptions be produced and that Sgt. Distler appear for a
deposition. DE 239.
•
Judge Bianco set a briefing schedule for summary judgment motions on February 13,
2018. DE 240. That same day, at a motion hearing/status conference, this Court
issued its rulings on the pending motions to compel production of the Second
Indemnification Hearing of defendant DiLeonardo and for the records of the NCPD
disciplinary hearing for DiLeonardo. DE 241. At that time, plaintiff’s counsel
advised that he had been given a copy of a demand served by Nassau County’s
counsel for the production of documents from the Suffolk County Internal Affairs
Unit as well as deposition notices for two members of the Suffolk County Board of
Review.
At the outset, the Court addresses some of the wording utilized by Nassau County’s
counsel in the motion. For example, counsel states that the Court “authorized Nassau to move to
re-open discovery” and “authorized Nassau to file a motion to re-open discovery for the purpose
of the limited disclosure sought from Suffolk. . . .” DE 246. The reality is that the Court did not
“authorize” anything – it permitted Nassau to make the motion, pointing out that counsel had to
show good cause for the failure to timely request the information now sought – effectively by
prevailing on the six-part test to re-open discovery under existing Second Circuit case law.
The docket entries set forth here show a number of things relevant to the Court’s
consideration of this motion. It is clear, for example, that plaintiff originally sought the IAU
Reports from both Nassau and Suffolk Counties in early 2012. At the April 6, 2012 Initial
Conference, plaintiff’s counsel reserved his right to take the depositions of the authors of those
Reports as soon as they were completed. Consequently, the parties were aware from the outset
that plaintiff attached great significance to these Reports. Ironically, counsel for the Suffolk
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County defendants objected at that time to any deposition of the author of the subject SCPD IAU
Report – a position which has shifted most recently.
The Nassau County IAU Report was provided to all parties on September 7, 2012. By
contrast, the Suffolk County Police Department continued to delay completion and/or production
of its IAU Report for more than four years, although counsel for the Suffolk defendants did
produce some materials utilized in the Report while awaiting completion of the Report.2 In a
September 23, 2013 Status Report to the Court, plaintiff’s counsel stated that despite the lack of
completion of the Suffolk IAU Report, the parties agreed to resume depositions of the remaining
Suffolk defendants, subject to a reservation of rights to conduct supplemental depositions limited
to any new information contained in the Suffolk IAU Report.
After appearing in the case as new counsel for defendant Deputy Chief Hunter on
December 6, 2013, Attorney Frank Schroeder filed a letter dated May 7, 2014 requesting a fourth
extension of the discovery deadline to get up to speed and noting that the parties still had not
received the Suffolk County IAU Report. Schroeder noted that there would likely be a need for
additional discovery once the Report was available. Four months later, in September 2014,
Attorney Clarke came into the case as substituted counsel for the Nassau County defendants and
requested a fifth extension of the discovery deadline, which Judge Bianco granted for 60 days.
On December 23, 2014, plaintiff’s counsel informed the Court that the depositions of all
Suffolk County defendants had been completed, but that the Suffolk IAU Report had still not
been provided. As a result, the Court granted a sixth extension of the discovery deadline. Then,
2
In a February 8, 2013 letter to the Court, counsel for the Suffolk County defendants
advised that the anticipated date for completion of Suffolk’s IAU Report was March 15, 2013.
Obviously, that did not occur and the Report was delayed for several additional years.
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after being advised at a motion hearing on May 20, 2015 that the Suffolk IAU Report had still
not been provided to the parties – more than three years after this case had been commenced and
more than two years after the County represented that the Report would be issued by March 15,
2013 -- the Court directed that the Report was to be in the hands of the parties by July 6, 2015 or
the Court would take further action to address the failure to comply. The Court granted a seventh
extension of discovery and set a deadline of September 8, 2015 to complete all fact depositions.
That deadline was extended for the eighth time to December 11, 2015 due to the unfortunate
personal circumstances of plaintiff’s counsel.
In his April 21, 2017 letter to the Court, plaintiff’s counsel advised that the attorneys for
both Nassau and Suffolk Counties had agreed to an expert discovery schedule on the limited
issue of plaintiff’s toxicology expert. The Court approved the expert discovery schedule which
concluded expert discovery by September 14, 2017. On July 21, 2017, counsel for Nassau
County requested an extension of the deadline for expert rebuttal reports and depositions based
on counsel’s bereavement circumstances. The Court granted the request, as it did the later
September 11, 2017 request for an extension sought by counsel for defendant Hunter. The Court
set the extended deadline for expert discovery at October 27, 2017. On January 17, 2018,
plaintiff’s counsel submitted a letter request for a pre-motion conference to Judge Bianco for
purposes of making a motion for summary judgment. Judge Bianco set the briefing schedule in
place on February 13, 2018.
Given the totality of these circumstances, the Court finds that the Nassau County
defendants were not diligent in pursuing the discovery they now seek. Attorney Clarke does not
contest the fact that all of the defendants had copies of the audio recordings of the Suffolk IAU
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interviews before he even came into the case in 2014. Thus, all of the parties knew to a large
extent the contents of witness statements and what, if anything, would be necessary for the
defense of the case as to those statements. Consequently, the Nassau County defendants had
ample opportunity to pursue this particular evidence for several years during the regular fact
discovery period, both through their prior counsel and their current counsel.
Although Nassau County’s counsel insists throughout his motion that “discovery is not
closed,” repeating that mantra does not make it so. The fact discovery deadline had been
extended more than nine times as detailed above and the posture of the case at the time of the
February 13, 2018 conference belies defendants’ argument. Expert discovery had been
completed and the parties had been given a schedule by Judge Bianco for briefing summary
judgment motions.
Attorney Clarke’s repeated attempts to minimize the significance and impact of the
choices he made on behalf of his clients on these issues in 2015 and thereafter is unavailing. For
example, arguing that the discovery demand and deposition subpoena he served on Suffolk
County in February 2018 simply “mirror plaintiff’s motion to quash filed on June 15, 2015" [DE
246] misses the point – plaintiff’s motion was filed timely in 2015. Nassau’s counsel knew well
this was an issue in 2015 and logic dictated that there was a 50-50 chance that the motion to
compel the Distler notes and deposition would be granted. Nassau’s counsel made the strategic
decision to assert arguments that the materials subpoenaed from Nassau County at that time were
privileged and not subject to disclosure. The SCPD IAU Report was not hidden or unknown to
the Nassau County defendants or any other party for that matter. The relevance of the Report and
the potential need for the Report were certainly foreseeable. Counsel for Nassau County had
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every opportunity to argue in the alternative on his motion to quash the Distler notes and
deposition testimony, to move to reserve his clients’ rights and options if the Court ultimately
denied the motion, or to seek a stay until the motion was decided. He did none of those things.
Litigation strategy is often based on a calculated risk. Counsel undertook that risk here. That
decision has consequences.
With expert discovery completed and a briefing schedule in hand for summary judgment
motion practice, the contention of Nassau County’s counsel that fact discovery was still ongoing
lacks candor. Defendants’ counsel is a seasoned litigator and knew exactly what the case status
was on June 15, 2015, let alone February 13, 2018. Moreover, the Court made clear that with the
exception of the Court’s rulings on certain outstanding discovery motions, fact discovery had
long been closed.3 The demand by Nassau County’s counsel was not one of those exceptions.
Creating a unique interpretation of the fact discovery deadline and attempting to place the onus
on the Court rather than take responsibility for the strategic decision counsel made some two
years earlier does not excuse counsel’s failure to deal with this issue in a timely manner.
The fifth factor assesses the foreseeability of the need for additional discovery in light of
the time allowed for discovery. See Pharmacy, Inc., 2008 WL 4415263 at *3. A reasonable
litigator could have and should have foreseen the need for the discovery now sought in the event
the Court denied the motion to quash the subpoena for Sgt. Distler’s notes and deposition. As
3
It is significant to note that less than a month before, on January 17, 2018, plaintiff’s
counsel submitted a letter to the Court stating that “no other fact or expert discovery remains
pending.” DE 235. On that basis, counsel asked for a final conference. No other party filed a
response to DE 235, including any objection, opposition, or refutation of the accuracy of that
statement.
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noted previously, plaintiff’s counsel made clear in the very first discovery conference with the
Court the significance of the IAU Reports from both Nassau and Suffolk Counties.
The Court further points out that defendants’ counsel made no attempt to obtain any
permission or authorization from the Court before serving the February 2018 demands and
deposition notices now at issue. Instead, counsel made an end-run, presumably in anticipation
(or hope) that plaintiff’s counsel would not balk at the late service out of time. Counsel’s
persistence that “fact discovery is on-going in this matter” [DE 246] is crucial to his justification
for these actions. The reality, however, is that there is no justification. The circumstances in
which counsel finds himself are of his own making. Distilled to their essence, the arguments
here seek to absolve the Nassau County defendants from accountability for the litigation strategy
they elected in 2015. Having considered these facts, the Court finds that the Nassau County
defendants were not diligent in pursuing this discovery despite the foreseeability that the
discovery could lead to relevant evidence. Consequently, this factor favors the plaintiff.
E.
Likelihood of Relevant Evidence
Nassau County’s counsel maintains that “the two separate, independent investigations of
the police officers conducted by the separate law enforcement agencies is undeniably relevant....”
DE 246. However, counsel never states with any specificity why the SCPD investigation is
relevant, except to refer broadly to “plaintiff’s multiple claims of conspiracy between various
defendants....” Id. Instead, Nassau’s counsel relies on the fact that the Court found relevant the
notes and potential deposition testimony of Sgt. Distler and believes the Court should draw the
same conclusion regarding the SCPD investigator’s information, even though the Court has never
seen it. The Court is not in a position to do so without more information, although the Court
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does not doubt that some of the information may be pertinent. For these reasons, this factor is
neutral as to both sides.
F.
Balancing the Factors
The Court does not condone the Nassau County defendants’ actions here with regard to
the lack of diligence in seeking the discovery which is the subject of this motion. However, the
Court also finds that under Second Circuit case law, the circumstances of this case do not warrant
the “drastic remedy” of preclusion of this discovery. See, e.g., Torres v. Dematteo Salvage Co.,
Inc., CV 14-774, 2016 WL 845326, at *6 (E.D.N.Y. Mar. 2, 2016); Sci. Components Corp., No.
03 CV 1851, 2008 WL 4911440, at *4 (E.D.N.Y. Nov. 13, 2008); see generally Valentin v. Cty.
of Suffolk, 342 F. App’x 661, 662 (2d Cir. 2009) (summary order) (“The district court recognized
that defendants’ late disclosure of their expert violated its expert discovery deadline. But rather
than preclude the testimony, the court opted to impose the lesser sanction of requiring defendants
to produce their expert for a deposition at Valentin’s request. The court’s decision to impose a
less drastic sanction than preclusion was within its discretion.”). Defendants’ motion to reopen
discovery is therefore granted.
Having considered the relevant factors, the Court reluctantly finds that discovery should
be re-opened for a limited purpose. Notwithstanding the delinquency of the Nassau County
defendants, as unsatisfactory as it is, a trial date has not been set and the prejudice to the plaintiff
can be offset to a degree here. Moreover, “such prejudice [does] not outweigh the other factors.”
Sci. Components Corp., 2008 WL 4911440, at *4. However, Nassau County is not to be
rewarded for its dilatory conduct either. Counsel for Suffolk County shall respond to Nassau
County’s document request and produce responsive documents (that are not objected to) to all
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parties by July 5, 2018. Nassau County’s counsel will be permitted to depose one and only one
investigator. That deposition must be completed no later than July 24, 2018. All counsel are on
notice that these dates will not be extended. The cost of providing a transcript of this deposition
to all the parties shall be borne by the Nassau County defendants.
Once the investigator’s deposition has been concluded, to the extent plaintiff’s counsel
believes in good faith that plaintiff must explore further discovery based on the information
obtained -- and if counsel can make a good cause showing for doing so – the Court will permit
plaintiff’s counsel to file a letter motion expeditiously (no later than 10 days after the
investigator’s deposition) addressing the issue.
V.
CONCLUSION
For the foregoing reasons, the Nassau County defendants’ motion to re-open discovery
[DE 246] to the limited extent set forth above is GRANTED. Counsel for Suffolk County shall
respond to Nassau County’s document request and produce responsive documents (that are not
objected to) to all parties by July 5, 2018. Nassau County’s counsel will be permitted to depose
one and only one investigator. That deposition must be completed no later than July 24, 2018.
SO ORDERED:
Dated: Central Islip, New York
June 22, 2018
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge
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