Schoolcraft v. The City Of New York et al

Filing 163

LETTER MOTION for Local Rule 37.2 Conference Reply to City Defendants' 08.21.13 Motion for Relief addressed to Judge Robert W. Sweet from Suzanna Mettham dated September 9, 2013. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Thomas Hanley(Tax Id. 879761, in his Official Capacity), Thomas Hanley(Tax Id. 879761, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), New York City Police Department, Robert W. O'Hare(Tax Id. 916960, Individually), Robert W. O'Hare(Tax Id. 916960, in his Official Capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually), Richard Wall, Sondra Wilson(Shield No. 5172, in her Official Capacity), Sondra Wilson(Shield No. 5172, Individually).(Publicker, Suzanna)

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THE CITY OF NEW YORK MICHAEL A. CARDOZO Corporation Counsel Suzanna P. Mettham Assistant Corporation Counsel phone: (212) 356-2372 fax: (212) 788-9776 smettham@law.nyc.gov LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 September 9, 2013 BY ECF Honorable Robert W. Sweet United States District Judge Southern District of New York 500 Pearl Street New York, New York 10007 Re: Schoolcraft v. The City of New York, et al. 10-CV-6005 (RWS) Your Honor: I am the Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation Counsel of the City of New York, assigned to represent City Defendants in the above-referenced matter. City Defendants write in further support of their letter dated August 21, 2013 regarding certain of plaintiff’s discovery deficiencies and request that this Court order plaintiff to show cause why he has failed to comply with this Court’s Orders to produce the requested documents and information on April 10, 2013 and June 6, 2013, and further to provide a service address for Larry Schoolcraft, plaintiff’s father. City Defendants again state that they repeatedly attempted to avoid Court intervention, but plaintiff’s failure to respond to the City Defendants’ correspondence on the matter necessitated the August 21, 2013 letter. City Defendants further request until next Wednesday, September 18, 2013 to reply to plaintiff’s affirmative claims for relief as outlined in his September 9, 2013 letter, as plaintiff failed to meet and confer with City Defendants, and City Defendants believe that much of the relief requested can be agreed on by the parties, or at least narrowed in advance of this Court’s involvement. Plaintiff’s September 9, 2013 Affirmative Motions Against City Defendants By way of background, plaintiff sent a letter by email to City Defendants after the close of business on Friday, August 30, 2013 regarding certain items that he wished to have returned and regarding over 1,500 pages of documents for which he wished to have the Attorneys’ Eyes Only Designation removed. The following Monday, September 2, 2013 was Labor Day, and the Rosh Hashanah holiday followed thereafter at sundown on Wednesday, September 4, 2013. City Defendants were in the process of responding to plaintiff’s letter when the instant submission to the Court was sent without any notice whatsoever. Based on the holidays last week, City Defendants have not have a full and fair opportunity to review and consider the thousands of pages of Attorneys’ Eyes Only designated documents that plaintiff would like to have de- designated. Moreover, plaintiff did not meet and confer with City Defendants as required under the Federal Rules before filing the letter with the Court, and further, has not satisfied the meet and confer requirements as required under the Attorneys’ Eyes Only Stipulation. Therefore, City Defendants request until Wednesday, September 18, 2013 to respond to plaintiff’s affirmative requests for relief. City Defendants’ Reply in Further Support of Their August 21, 2013 Motions to Compel Frank Pallestro and Adhyl Polanco With regard to requests for discovery regarding Frank Pallestro and/or Adhyl Polanco, plaintiff again states that “other than information already provided, Officer Schoolcraft has no additional information.” Plaintiff’s Sept. 9, 2013 Letter at 6 (emphasis added). However, as described in City Defendants’ August 21, 2013 motion to this Court, plaintiff has never provided any information regarding Officer Frank Pallestro. Therefore, City Defendants merely ask that plaintiff certify in writing that he has no relevant documents, or in the alternative, point City Defendants to documents previously produced. Deposition Responses City Defendants note that plaintiff for the first time indicated in his September 9, 2013 letter that the reason he could not respond to specific questions from the deposition with reference to a specific recording was because City Defendants had not identified each individual question that needed to be answered. To the extent that plaintiff replied to the Court order with general responses belies plaintiff’s claims that he was confused about what questions needed to be answered. Had plaintiff truly no idea what responses were required, it is unclear how or why plaintiff responded in any manner to the discovery demand. Nevertheless, City Defendants list the questions and answers to which they are referring as follows: 38:8-13; 38:14-25; 44:25-45:3; 45:4-8; 45:9-19; 50:14-21; 56:4-14; 67:9-25; 69:5-10; 71:7-19; 73:4-7; 73:19-74:4; 75:3-17; 77:18-78:4; 79:14-20; 80:24-81:2; 81:9-17; 81:18-82:3; 82:4-18; 83:12-13; 121:1-5; 216:15217:1; 224:24-225:12; 229:18-24. City Defendants therefore request that the Court order plaintiff to particularly identify which specific recordings are in response to the aforementioned specific questions presented by City Defendants, and/or to which specific recording plaintiff was referring in responding to questioning during plaintiff’s October 11, 2012 deposition. With respect to plaintiff’s request for sanctions, this request is baseless. Had plaintiff simply complied with the Court’s Order at the very outset, there would be no need for the exchange of letters on this topic. Instead, it is plaintiff who has chosen to engage in “wheel spinning exercises” which does not entitle him to any cost shifting. Larry Schoolcraft City Defendants dispute that plaintiff stated on July 25, 2013 that “the address for Officer Schoolcraft’s father was the same address as the one contained in the discovery materials in this case.” Plaintiff’s Sept. 9, 2013 Letter at 6. Nevertheless, it is a red herring that plaintiff cannot point to a single document so stating this, or to a piece of discovery that has the appropriate service address to which plaintiff is referring. City Defendants merely ask that plaintiff provide, in writing, a service address for plaintiff’s father. Though we agree that Court involvement should not have been required for such a matter, plaintiff has refused, and continues to refuse such a simple and reasonable request. 2 Conclusion For the reasons stated above, City Defendants respectfully request that the Court order plaintiff to show cause why he has not provided documents that he previously represented to the Court that he would produce or information that this Court ordered him to provide. City Defendants further respectfully request that the Court order plaintiff to provide City Defendants with a current service address for Mr. Lany Schoolcraft, or that plaintiff be precluded from calling Lany Schoolcraft as a witness at trial. Finally, City Defendants request until V/ednesday, September 18, 2013 to respond to plaintiffs affirmative requests for relief in an attempt to narïow the issues for the Court's consideration in advance of that date. City Defendants thanks the Court for its time and consideration of these requests. Respectfully submitted, Suzanna Publicker Mettham Assistant Corporation Counsel Special Federal Litigation Division cc Nathaniel Smith (By ECF) Attorney for Plaintiff Gregory John Radomisli (By ECF) MRRrn Clp¿,RwRrER & BELL LLP Attorneys for Jamaica Hospital Medical Center Brian Lee (By Fax ECF) IVONE, DEVINE & JENSEN, LLP Attorneys for Dr. Isak Isakov Bruce M. Brady (By ECF) CALLAN, KOSTER, BRADY & BRENNAN, LLP Attorneys for Lillian Aldana-Bernier Walter A.Kretz, Jr. (By ECF) SEIFF KRETZ & ABERCROMBIE Attorney for Defendant Mauriello 3

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