Schoolcraft v. The City Of New York et al

Filing 220

FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Robert W. Sweet from Ryan G. Shaffer dated February 18, 2014. 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), Joseph Goff(Tax Id. 894025 Individually), Joseph Goff(Tax Id. 894025 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(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), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually). (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shaffer, Ryan) Modified on 2/19/2014 (db).

THe Crrv oF NEW Yonx

L¡.W DNP¡.RTMENT

ZACHARY W, CARTER

CHURCH STREET
NEW YORK, NE\ry YORK IOOOT
IOO

Corporalion Counsel

RYAN G. SHAFFER
Assislanl Corporation Cou nse I
E-mail : rshaffer@law,nyc, gov
Phone: [phone]
Fax', [phone]

February 18,2014

BY ECF
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

Re:

of New Y

S

l0 cv 6o0s (Rws)
Your Honor:

I

am the Assistant Corporation Counsel in the office of Zachary W, Carter,
Corporation Counsel of the City of New York, assigned to represent the City Defendants abovereferenced matter. City Defendants write to respectfully request that the Court issue a Protective
Order precluding plaintiff from conducting untimely depositions and generally seeking discovery
in an untimely and improper manner.
Notic es of Denosition
As the Court is no doubt aware, this matter has been pending for nearly four
years. During that time, plaintiff was provided with the identities of countless individuals in
accordance with defendants' discovery obligations. Additionally, unlike many plaintiffs, since
plaintiff was a member of the NYPD, he actually worked with many of the witnesses and
defendants, and thus, did not have to wait for initial disclosures or discovery responses to
discover their names, Moreover, plaintiff has sought and received multiple extensions of time to
complete discovery, but to date has conducted only a handful of depositions. Nonetheless,
twenty-nine days before the scheduled close of discovery, plaintiff served a notice of deposition
and subpoenas seeking to depose seven NYPD employees (some of whom are defendants in this
action) ànd two Emergency Medical Techniciansl . Plaintiff does so despite the fact that he has

I

Plaintiffs notice of deposition lists Emergency Medical Technicians Sal Sangianetti and
Jessica Marquez and was served upon counsel for the City Defendants. However, Sangianetti
and Marqu ez were not acting on behalf of defendant City of New York on October 37, 2009, are
not represented by this office for purposes of this litigation, and City Defendants have therefore
rejected service of those subpoenas,

been aware of the identities of all but one of the individuals he wishes to depose since at least
October 31, 2009, plaintiff himself identified six of the aforementioned nine witnesses in his own
initial disclosures in May 2071, and the fact that discovery in this action is set to close on March
14, 2014. For the reasons set forth herein, City Defendants request that the Court preclude
plaintiff from engaging in what can amount to nothing more than discovery by ambush and deny
him the ability to conduct the aforementioned depositions and engage in any additional
unreasonable discovery practices.

"Generally, discovery requests are to be made sufflrciently inside the discovery
period to allow for a response prior to the discovery cut-off date, Discovery requests which are
served too late in the discovery period to allow for a timely response, have been disallowed." See
Jones v. Hirschfeld, 01 Civ. 7585 (PKL),2003 U,S. Dist LEXIS 10370 at n,13, (S.D'N.Y' June
lg, 2003) internal citations omitted. Here, 29 days prior to the close of discovery, when
discovery has been pending for over three yearc, and plaintiff has routinely sought extensions of
the discovery deadline, he seeks to depose individuals whose identities he has had for no less
than three years, Moreover, rather than even try to confer with the defendants about mutually
ded for a schedule of nine additional depositions that begin on
ys after the service of that witness's subpoena) and conclude less
i,n.

To be clear, had plaintiff so much as given City Defendants any sort of notice
about his intention to depose these witnesses in advance of last week, City Defendants would
have made their best efforts to arrange the schedules of both counsel and witnesses to
accommodate such a request, even if all depositions were planned to go forward in February and
March, The problem lies in the fact that plaintiff sprung these nine depositions on counsel with
less than three weeks to prepare and produce all witnesses, while also complying with plaintiff s
outrageous and voluminous documentary demands, as described below. Given that defendants
would need, and are certainly entitled to, prepare each witness for what will no doubt amount to
a lengthy deposition, it is clear that plaintiff s notice of deposition is untimely and should be
disallowed,2 Accordingly, it is respectfully requested that the Court preclude plaintiff from
conducting any further depositions including the ones noticed on February 13.
Demands

On top of the aforementioned notices of deposition, plaintiff also chose, on the
eleventh hour, to bombard City Defendants with an additional one hundred and seven (107)
requests for production of documents and eight (8) interrogatories. Of the one hundred and
fifteen (1 15) additional discovery requests, fifty-four were received on February 7,2014, and the
2

In the limited instances where plaintiff has actually conducted depositions in this case, he has
conducted examinations lasting seven hours consisting largely of irrelevant and harassing
questions. Rather than adjourn the depositions in light of plaintiffls counsels' conduct,
defendants have endured these depositions so as not to further delay discovery in this action.
Nonetheless, plaintiffls counsel now believe it is appropriate to conduct nine depositions in a
period of thirteen days on one week notice.

2

remainder were received on February 14,2074. Similar to how plaintiff has chosen to bombard
the defendants with depositions on the eve of the discovery deadline, he has also chosen to serve
an umeasonable amount of written discovery requests in what can only be characterized as
discovery by ambush

Moreover, a cursory review of the written demands indicates that many are
duplicative of previous requests that have already been responded to, or repetitive within the
same supplemental demand, See Plaintifls Supplemental Discovery Demands annexed hereto as
exhibits A and B, For example, document requests 2,5,75,26,27,40, and 4l from the
supplemental requests dated Fèbruary 7th 2074 have already been responded to. Similarly, it
upp.urr that the supplemental request Nos, I through 51 dated February 14,2014 are identical to
the 5l requests served on February 7th, Finally, many of the requests seek information wholly
irrelevant to the claims in this action, For example, request No. 45 asks for "The row-tow logs
for the 81't Precinct for the period from January 2006 through January 1,2010." Four years of
logs relating to the towing oiillegally parked vehicles in the 8l't Precinct is clearly irrelevant to
this action and such requests are an inappropriate litigation tactic, attempting to overwhelm City
Defendants in the last weeks of discovery. Additionally, prior to the most recent discovery
requests plaintiff propounded nineteen (19) interrogatories on City Defendants. Therefore the
'interrogatories
contained within the February 7'h and l4th requests take
eight (8)- additional
(25) allowed by Fed. R' Civ. P. 33(a)(l).
plaintiff beyond the twenty-five
Accordingly, even if the Court were to allow plaintiff to conduct discovery in the
manner which he has chosen he should be required to review the materials he already has, and
further ensure that his demands are not repetitive. Additionally, and for the same reasons that
plaintiff should be precluded from conducting the aforementioned depositions, he should be
precluded from seeking any further written discovery. This is especially so since plaintiff has had
all of the information necessary to tender the instant demands for several years, Finally, and
because discovery in this matter has been ongoing for over three years, City Defendants submit
that no further extensions of discovery should be granted'
Thank you for your attention to these matters'

Submitted,

tion Counsel

J

cc

Nathaniel Smith (By ECF)
Attorney for Plaintiff
Broadway, Suite 1305
New York, New York 10006

III

Gregory John Radomisli (By ECF)
MRRrn CleRRwRren & BPLL LLP
Attorneys for Jamaica Hospital Medical Center
220East 42nd Street l3th Floor
New York, NY 10017
Brian Lee (By ECF)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
2001 Marcus Avenue, Suite Nl00
Lake Success, New York 11042
Bruce M. Brady (By ECF)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys þr Lillian Aldana- Bernier
I Whitehall Street
New York, New York 10004

V/alter A.Kretz, Jr, (By ECF)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444 Madison Avenue, 30th Floor
New York, NY 10022

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