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)
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
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