Diaz v. Local 338 of the Retail, Wholesale, Department Store Union, United Food and Commercial Workers

Filing 30

ORDER: SO ORDERED that upon consideration of deft's objections and plaintiff's response thereto, and reconsideration of Magistrate Judge Locke's order, deft's objections are overruled. The time within which the parties must " ;meet and confer * * * and * * * submit a confidentiality order for [Magistrate Judge Locke's] review[,]" (Report at 5-6), in accordance with Magistrate Judge Locke's order is extended to September 8, 2014. Any request for an extension of that time shall be made directly to Magistrate Judge Locke. Ordered by Judge Sandra J. Feuerstein on 9/3/2014. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------)(

CARLDIAZ,

Plaintiff,

ORDER
13-CV-7187 (SJF)(SIL)

-againstLOCAL 338 OF THE RETAIL, WHOLESALE
DEPARTMENT STORE UNION, UNITED
FOOD AND COMMERCIAL WORKERS,
Defendant.

------------------------------------------------------------){

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y

*

SEP 03 Z014

LONG ISLAND Oi'FI.:::I

FEUERSTEIN, District Judge:

Pending before the Court are objections by defendant Local338 of the Retail, Wholesale
Department Store Union, United Food and Commercial Workers ("defendant") to so much of an
order of the Honorable Steven I. Locke, United States Magistrate Judge, dated August 21, 2014,
as: (1) granted the branches of the motion ofp1aintiffCarl Diaz ("plaintiff'') seeking to compel
defendant to produce (a) discovery concerning his national originlethnicity discrimination claims,

(b) "the personnel files for the 21 individuals referenced in defendant's papers, subject to a
confidentiality order***[,]" (Order at 5), and (c) "the personnel files of John DiMartino, Elena
Dundon, John Durso, and Murray Morrisey, four individuals whom [plaintift] claims were
directly involved in the decision to fire him[,]" Uli); and (2) denied defendant's (a) application
for a stay of discovery, and (b) request to limit review of the personnel files to "attorneys' eyes
only[,]" Uli).

For the reasons stated herein, defendant's objections are overruled.

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I.

DISCUSSION
A.

Standard of Review

28 U.S.C. § 636(b)(1 )(A) permits a district judge to "designate a magistrate judge to hear
and determine any [nondispositive] pretrial matter," not otherwise expressly excluded therein.
Any party may serve and file objections to a magistrate judge's order on a nondispositive pretrial
matter within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(a).
Upon consideration of any timely interposed objections and "reconsider[ation]" of the magistrate
judge's order, 28 U.S.C. § 636(b)(l)(A), the district judge must modify or set aside any part of
the order that "is clearly erroneous or contrary to law." Id.; see also Fed. R. Civ. P. 72(a). A
party may not assign as error any defect in a magistrate judge's order to which he or she has not
timely objected. Fed. R. Civ. P. 72(a).

B.

Objections

Defendant contends, inter alia: (1) that in denying its request for a stay of discovery
pertaining to plaintiff's national origin/ethnicity discrimination claims, Magistrate Judge Locke
(a) "ignore[d) case law favoring a stay of discovery where a wholly dispositive motion is
pending[,]" (Obj. at 2), and (b) "disregarded" or did "not sufficiently consider[]" "additional
factors favoring imposition of a stay[,]" (Obj. at 3), i.e., the breadth of discovery, the burden of
responding to the discovery sought and the risk of unfair prejudice to the party opposing the stay;
(2) that Magistrate Judge Locke's denial of its request to limit the review of personnel files to
"attorney's eyes only" is "contrary to law" because such limitations are "routinely applied to
records of this type[,]" which "contain highly personal and confidential documents* * *[,]" (Obj.
at 4); and (3) that Magistrate Judge Locke erred in compelling it to produce the personnel files of
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four (4) of its executive officers because those files are "not reasonably calculated to lead to the
discovery of admissible evidence in this matter, [and] the costs of disclosure outweigh any
benefit to Plaintiff[,]" (Obj. at 5).
As set forth below, none of the branches of Magistrate Judge Locke's order to which
defendant objects are clearly erroneous or contrary to law.

1.

Stay of Discovery

Defendant has not shown good cause for staying discovery during pendency of its motion
to dismiss. See Chesney v. Valley Stream Union Free Sch. Dist. 236 F.R.D. 113, 115 (E.D.N.Y.
2006) ("Under Federal Rule of Civil Procedure 26(c), a district court may stay discovery during
the pendency of a motion to dismiss for 'good cause shown."'); Spencer Trask Software and
Information Services. LLC v. RPost International Ltd, 206 F.R.D. 367, 368 (S.D.N.Y. 2002)
("Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, a court has discretion to stay
discovery 'for good cause shown."') "[T]he mere filing of a motion to dismiss the complaint
does not constitute 'good cause' for the issuance of a discovery stay[,]" Chesney, 236 F.R.D. at
115; see also Hong Leong Finance Ltd. (Singapore) v. Pinnacle Performance Ltd, 297 F.R.D. 69,
72 (S.D.N.Y. 2013) ("A motion to dismiss does not automatically stay discovery, except in cases
covered by the Private Securities Litigation Reform Act."); Spencer Trask, 206 F.R.D. at 368
("[W]hile discovery may in a proper case be stayed pending the outcome of a motion to dismiss,
the issuance of a stay is by no means automatic." (quotations and citation omitted)), and
defendant has not "made a strong showing that the plaintiff's .[national origin/ethnicity
discrimination] claim[s] [are] unmeritorious," Chesney, 236 F.R.D. at 115; see also Hong Leong.
297 F.R.D. at 72 ("[A] motion for a stay [must] be supported by substantial arguments for
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dismissal , * * * or-in what we view as an equivalent formulation-that there has been a strong
showing that the plaintiff's claim is unmeritorious." (quotations and citation omitted)),
particularly since, inter alia, Magistrate Judge Locke has recommended that the branch of
defendant's motion to dismiss seeking dismissal of those claims be denied. See Spencer Trask,
206 F.R.D. at 368 ("[A] court should* * *consider the strength of the dispositive motion that is
the basis of the discovery stay application.") Moreover, defendant's conclusory allegations: (I)
that plaintiff's requests are "unduly overbroad" and seek "such a large quantity of documents * *
*,production of which will be time-consuming and burdensome***[,]" (Obj. at 3); and (2) that
it will "suffer injury from the unnecessary release of large swaths of information" should the
national origin/ethnicity claims be dismissed, fub), are insufficient to establish good cause for
staying discovery in this case. See John Wiley & Sons. Inc. v. Book Dog Books. LLC 298
F.R.D. 184, 186 (S.D.N.Y. 2014) ("Where a party objects to a discovery request, the objecting
party bears the burden of demonstrating specifically

* * * how each question is overly broad,

burdensome or oppressive by submitting affidavits or offering evidence revealing the nature of
the burden.

* * * General and conclusory objections as to relevance, overbreadth, or burden are

insufficient to exclude discovery of requested information." (quotations, brackets and citations
omitted)); Barella v. Village ofFreepo!1, 296 F.R.D. 102, 105 (E.D.N.Y. 2013) ("The party
objecting to the discovery demands must, with some degree of specificity, illustrate the nature
and extent of the burden of production."); Chesney. 236 F.R.D. at 115 ("[G]ood cause requires a
showing of facts militating in favor of the stay." (quotations and citation omitted)).

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2.

Personnel Files

Defendant has also not shown, inter alia: (I) good cause for limiting the production of the
personnel files at issue to "attorneys' eyes only" or for prohibiting the disclosure of the personnel
files of the four (4) "executive officers," see Duling v. Gristede's Operating Com., 266 F.R.D.
66, 71 (S.D.N.Y. 2010) ("The party seeking a protective order bears the burden of establishing
that good cause for the order exists."), or (2) that "based on the balance of interests the [personnel
files] should not be disclosed," Collens v. City of New York, 222 F.R.D. 249,253 (S.D.N.Y.
2004), or should be limited to "attorneys' eyes only." See Duling. 266 F.R,.D. at 71 ("Although
the burden is on the movant to establish good cause for the entry of a protective order, the court
ultimately weighs the interests of both sides in fashioning an order.")
Although "[a]n employer has an interest in maintaining the confidentiality of employee
personnel files[,]" Barell!!, 296 F.R.D. at 106; see also McDonnell v. First Unum Life Ins. Co,
No. 10 cv 8140,2012 WL 13933, at* 2 (S.D.N.Y. Jan. 4, 2012) (accord), balancing against that
interest is "the interest of a disparate treatment plaintiff in gathering statistical evidence [or other
evidence of discrimination]." Duck v. Port Jefferson Sch. Dist., No. CV07-2224, 2008 WL
2079916, at* 4 (E.D.N.Y. May 14, 2008); see also Wright-Jackson v. HIP Health Pl;m, No. 07
Civ. 1819,2009 WL 1024244, at* 6 (S.D.N.Y. Apr. 15, 2009) ("Regarding personnel records of
third parties, courts have been careful to balance the privacy interests of the non-party employee
against the party's need for information.") Thus, "personnel files of comparable employees are
discoverable in an employment discrimination lawsuit, * * * subject to a protective order."
Dzanis v. JPMorgan Chase & Co, No. 10 Civ. 3384, 2011 WL 5979650, at* 2 (S.D.N.Y. Nov.
30, 2011); see also Barella, 296 F.R.D. at 106 ("[T]here is no rigid rule prohibiting discovery of
employee personnel files. *

* * Indeed, in most cases, a protective order can appropriately
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remedy privacy concerns arising from discovery of personnel records." (quotations and citations
omitted)); Duling, 266 F.R.D. at 72-73 ("[C]ourts have generally characterized personnel files as
confidential and found it appropriate to enter protective orders governing their use in litigation
because of the inherent potential for harm or embarrassment if the information they contain is
revealed.") In addition, personnel files of individuals alleged to have engaged in the purported
discrimination, or to have "played a significant role in the decision or incident that gives rise to
the lawsuit(,]" Dzanis, 2011 WL 5979650, at* 4, such as the four (4) "executive officers" at
issue in this case, are discoverable, subject to an appropriate protective order. See,~ id.; cf.
Vitale v. GST BOCES, No. 12-cv-6694, 2014 WL 3385212, at* 3 (W.D.N.Y. July 9, 2014)
(finding that the plaintiffs request for the personnel files of two (2) supervisory employees who
were not shown to have engaged in the discrimination at issue, or to have played a significant
role in the decision or incident giving rise to the lawsuit, was inappropriate).
Defendant has not demonstrated, inter alia, a "particular need" for an "attorneys' eyes
only" limitation on the disclosure of the personnel files as issue, Duling, 266 F.R.D. at 71 ("Good
cause is established by demonstrating a particular need for protection." (quotations and citation
omitted), i.e., that the confidentiality order to which the personnel files will be subject pursuant
to Magistrate Judge Locke's order will not adequately protect the privacy interests of its
employees.

See,~

Barel!!!, 296 F.R.D. at 106 (permitting disclosure of employees' personnel

files under protective order that permitted the employer to redact the personal information of
those employees and directed that the files be sealed and that the plaintiff not show them to any
other person or entity); Duling, 266 F.R.D. at 77 (finding that "the conflicting interests are
appropriately balanced * * * by a protective order that: (I) permits designation of the complete
contents of the personnel files as confidential; [and] (2) provides that the personnel files may be

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disclosed to the Court, counsel and their employees and parties in th[e] action

* * *. ")

Defendant's conclusory contention that disclosure of the personnel files at issue must be limited
to '"attorney's eyes only' in order to protect the privacy interests of the nonparties[,]" (Obj. at 4),
and its unsubstantiated allegation that it "has a duty to prevent unnecessary disclosure of personal
information" because plaintiff "uttered words that were deemed to be threats to

* * * Elena

Dundon, and her family[,]" (]Q,), are insufficient to warrant an "attorneys' eyes only" limitation,
especially since any potential injury to Ms. Dundon can be remedied by redacting any identifying
information, e.g., address, telephone number, social security number, etc., from her file.
Accordingly, defendant's objections are overruled.

II.

CONCLUSION
Upon consideration of defendant's objections and plaintiff's response thereto, and

reconsideration of Magistrate Judge Locke's order, defendant's objections are overruled. The
time within which the parties must "meet and confer * * * and

* * * submit a confidentiality

order for [Magistrate Judge Locke's] review[,]" (Report at 5-6), in accordance with Magistrate
Judge Locke's order is extended to September 8, 2014. Any request for an extension of that
time shall be made directly to Magistrate Judge Locke.

SO ORDERED.

s/ Sandra J. Feuerstein
J

SANDRA J. FEUERSTEIN
United States District Judge
Dated: September 3, 2014
Central Islip, New York

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