Schoolcraft v. The City Of New York et al

Filing 225

DECLARATION of Suzanna Publicker Mettham in Support re: 223 MOTION to Compel Graham Rayman to Produce Documents.. 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), 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), 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). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Mettham, Suzanna)

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EXHIBIT I THe Grrv oF NEW Yonr MICHAEI, A, CARDOZO Lnw Dap¡.RTMENT Corporalion Counsel IOO CHURCH STREET NEV/ YORK, NY IOOOT Ass i s lan Suzanna Publickcr t Corpora I i on C oun se I phone: (212) 788-l 103 lax. (212)788-9776 spublick@law nyc,gov May 28,2013 BY HAND DELIVERY 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 Citv of New York. ef al l0-cv-600s (Rws) Your Honor: I am the Assistant Corporation Counsel in the ofhce 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 regarding certain of plaintiffs discovery deficiencies and request that this Court order plaintiff to show cause why he has failed to comply with this Court's Order to produce the requests documents on April 10,2013.' By way of background, City Defendants moved to compel plaintiff to produce certain discovery on March 1,2013, Following written motion practice, an oral argument was held on April 10, 2013. At that conference, Your Honor granted City Defendants'motion in part2 and compelled plaintiff to produce outstanding documentary evidence within three weeks of that conference, by May 1,2073. Thereafter, on April26,2013, the undersigned wrote to plaintiff, memorializing the results of the April lOth conference and reminding plaintiff that discovery responses were due by May 1,2013. By email dated }i4ay 2,2073, plaintiff s counsel, Nathaniel Smith, indicated that he believed that "that the parties were to discuss exchanging the discovery by May 8th," (emphasis added). As the undersigned was on trìal, Senior Counsel Rachel SLtig-âtr'Weiss responded to Mr. Smith's email, a[ain stating the Court's April 1Oth Orders and indicating that as a courtesy, City Defendants would agree to give plaintiff until May 8,2013 to provide responses, On May 8,2013, plaintiff responded in part to City Defendants' demands, but plaintiff continues to refuse to produce documents which this Court previously ordered produced. City Defendants attempted to avoid unnecessary litigation by repeatedly imploring I The undersigned will be out of the offlrce from June 6th through June 26rh.I respectfully request that any reply and/or oral argument be held before that day, or in the alternative, be held in abeyance until my return. ' This Court denied City Defendants' demand for attorney billing records. plaintiff to provide the requested documents by May 22, 2013 to avoid Court intervention' Plaintiff refused to respond. First and arguably most importantly, though City Defendants expressþ moved to compel all statements made by plaintiff to the media, and the Court expressly granted that relief on April 10,2013, plaintiff has utterly failed to respond to this discovery demand and alleges that he instead "maintains an objection" to the production of this information. For all the reasons set forth in City Defendants' motion to compel dated March I, 2013, in City Defendants' reply dated April 4, 2013, and stated orally at the April 10, 2013 conference, City Defendants are entitled to the discovery of this material, and it should be provided immediately. Second, City Defendants' March I,2013 motion to compel included discovery demands regarding evidence of "whistle-blowing" allegations related to Adhyl Polanco and Frank Pallestro, mentioned in plaintiffls Second Amended Complaint. In plaintiffs March 27,2013 opposition to that motion, plaintiff indicated that he had no objection to producing these documents. However, no records have been received regarding Adhyl Polanco or Frank Pallestro to-date. City Defendants are entitled to the discovery of this material, and it should be provided immediately. l, 2013 motion to compel included demands for plaintiff s deposition. City Defendants outlined these requests responses to requests made during in a letter to Mr. Gilbert dated December 19, 2012, which demanded that plaintiff review his deposition transcript "and, in each instance where plaintiff did not specifically identify those recordings supporting his claim, identify with particularity the recordings referenced by plaintiff as responsive to City Defendants' questions." Annexed hereto is a copy of City Defendants' December lg, 2012 letter to plaintiff. City Defendants were forced to take this step, since, during plaintifls deposition, he repeatedly responded to questioning by stating that he had no independent recollection, but could only answer the question by listening to his over I50 recordings. Furthermore, plaintiff could not narrow the scope of the recordings he was referring to by even providing a range of dates andlor file names for the recordings. Plaintiff has provided dozens of hours of recordings in this matter, and therefore, plaintiff s deposition would span at least a week if City Defendants were required to play each recording in order to refresh plaintiff s recollection. Finally, City Defendants served plaintiff with City Defendants' Third Set of Requests for Production of Documents on March 26,2013, Pursuant to F.R.C.P.33 and 34, plaintiffs responses thereto were due on or about April 29, 2073, within thirty (30) days of service, However, City Defendants only received ptuintiftt responses today, May 28, 2013.3 City Defendants are reviewing plaintiffls responses, which do not appear to be substantive, and reserve the right to move to compel complete responses thereto after the parties have had an Third, City Defendants' March opportunity to meet and confer. 3 Pursuant to F.R.C,P. 33 and 34, because plaintiff failed to either respond, or seek an enlargement of time in which to respond, to City Defendants discovery requests, any such objections have now been waived. 2 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 produced documents that this Court ordered him to provide. City Defendants thanks the Court for its time and consideration of these requests. Respectfully submitted, Suzanna Assistant Corporation Counsel Special Federal Litigation Division cc Nathaniel Smith (By Fax 212-346-4665) Attorney for Plaintiff 111 Broadway, Suite 1305 New York, New York 10006 Gregory John Radomisli (By Fax212-949-7054) MRRrm ClpRRwnrpn & Beì-L LLP Attorneys for Jamaica Hospital Medical Center 220 East 42nd Street l3th Floor New York, NY 10017 Brian Lee (By Fax 516-352-4952) IVONE, DEVINE & JENSEN, LLP Attorneys for Dr, Isak Isakov 2001 Marcus Avenue, Suite Nl00 Lake Success, New York I1042 Bruce M. Brady (By Fax 212-248-6815) CALLAN, KOSTER, BRADY & BRENNAN, LLP Attorneys for Lillian Aldana- Bernier 1 'Whitehall Street New York, New York 10004 Walter Aoysius KreÍz , Jr. (By Fax 212-371-6883) SEIFF KRETZ & ABERCROMBIE Attorney for Defendant Mquriello 444 Madison Avenue, 30th Floor New York, NY 10022 3

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