Schoolcraft v. The City Of New York et al

Filing 271

ENDORSED LETTER addressed to Judge Robert W. Sweet from Ryan G. Shaffer dated 9/18/2014 re: 1) Plaintiff's failure to comply with the Court's 8/29/14 Order and 2) Plaintiff's untimely disclosure of no less than seventeen individuals whom he claims, for the very first time, "may have information relevant to this action". ENDORSEMENT: Treat as motion to compel and to bar not previously disclosed witnesses returnable 9-24. So ordered. (Signed by Judge Robert W. Sweet on 9/19/2014) (ajs)

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THE CITY OF NEW YORK

LAW DEPARTMENT
ZACIIAR\'W. Ct\Trrnn

RY ANG. SH1\FH:K
Seninr Cuun~el

I 00 CITURCTJ ST!< F.F.T

('011>oratirm Coum·11/

NEW YORK, NY 10007

E·mail: rshattcr<f!llaw.nyc.gov
Phom:; (212) 356-23&6

Fax: [phone]

RY FAX
Honorable Robert W. Sweet
Unikd Stc.ttes Disltid Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

Re:
Your Honor:

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Schoolcrull v c;1y ul"New Yo'k el aL, 10 Civ. 6005 (R

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As one of the Senior Counsels representing City defendants in the above<!f~/9~ l j
referenced matter l write concerning: I) plaintiffs failure to comply with the Court's Augusl 29,
2014 Order directing him "updale his discovery respcmstls pertaining to his linmicfal and
physical/emotional damages within two weeks"; and 2) plaintiff's untimely disclosure of no less
than seventeen individuals whom he claims, for the very first time, "may have information
relevant to this action".
I.

Pluintiff's Failure to Comply with the Court's August 29, 2014 Order

Ryw•lY ofb<lckground on June 16, 2014, City defendants requested that plaintiff
supplement his prior discovery responses concerning his alleged financial harm sLiffered <ls n
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result of the October 31, 2009 incidcnt.
Nonetheless, plaintiff has not supplemented with
uddiLiomll lax returns or reletises f<w sume since Lhut time.
City defendants June 16, 2014 letter sought supplemental responses rngarding
"attempts to secure other employment and/or to mitigate [plaintiffs] alleged damages since
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On December 5, 2011 City cfofendunts served plaintiff with their first set of interrogatories and
document requests which sought, in part, the aforementioned infonnatinn pertaining lo plaintiff's
finuncitil hunn/dmnuges. Thereafter, plaintiff responded by providing releases for same on Api-il
9, 2012.

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October 31, 2009, including but not limited to; all corresponc..lence 01· other documents plaintiff
has sent to or received from uny employment agencies, search firms or other outplacement firms,
any documents which rellect the dates upon which plaintiff has had contact with such ugencie:-;
or firms, and any documents concerning any job prospects such agencies or l"1rn1s have made
known to plaintiff; all employment udvertiserntmt phtintilT has placed or to which plaintiff has
responded; and ull con-espondence resurnes, reference letters or other documents plaintiff has
sent to or receive<l. from any prospective employers, all documents concerning nay offers of
employment plaintiff has received from any prospective employers und all documents
concerning plaintiffs responses to any offers of r;:mploymtmt he has received."
On July 29, 2014 City defendants wrote the Court requesting an Order to compel
plaintiff to supplement his previous responses und specifically referred to their June 16, 2014 to
which plaintiff failed to ri:spond.. On August 29~ 2014 the Court granted City ddendants' July
29, 2014 reguesl to compel plaintiff to respond by directing him to '"update his discovery
responses pertaining to his financial and physical/emotional damages with.in two weeks".
Nonetheless, plaintiff foiled to adequately update his responses. Jnsteud, on Septe111.ber 12, 2014,
plaintiff simply sluled "since the pl<.tinliff wus last <leposed. he has received no addiliona] wages
or other inwme fron1 employment and has not received any additional governmental benefits
other than those associated with his position as a Police Officer with the NYPO or his benefits as
a military veteran." It is clear that such a response is inadequate as it does not comply with the
Court's Order. Moreover, on September 10, 2014, plaintiff's counsel indicated that while he was
aware that tax returns and releases for tax returns were previously provided, he would not be
providing any updated returns or releases because plaintiff has a new attorney who was not privy
to those prior productions,
Plaintiff should not be permitted to shield himself from complying with a Court's
Order merely because he obtains new counsel who disagrees with prior counsels' decisions lo
disclose certain documents. Accordingly, City defendants respectfully request that the Court
compel plaintiff to provide updated releases for his tux returns and other information and
documenl<tlion n:lating to his economic damages within three days.
II. PlllintitI's Untimely Disclosure of Witnesses

As an additional matter, rather than comply with the Court's August 29, 2014
Order to supplement his financial and medical disclosures, plaintiff viewed the Court's Order as
carte blanche to identify witnesses upon which he proposes to rely 2 despite the fact that
discovery dosed on July 25; 2014, und the uddilionul fact that he was directed to identify any
and all witnesses which he sought to rely upon no later than February 21, 2014. See January 15,
2014 Comt Transcript at p. 8:8-13 annexed hereto as Exhibit "A". Plaintiff i;annot now cluirn
th<tt he we.ts unuwure or his obligution to identify these witnesses by that time, as his own Court
filings bchc such an allegation. See Docket Entry No. 218, T,eUer Response from Plaintiff at p. 2
(" ... the plaintiff is required to make that designation by February 21, 2014."
To be clear, none of the newly identified witnesses arc related to plaintiff'~ claims
medical, or emutional damages.

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or financial,

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The purpose behind the Court's Order thut phtintiff identify any and all witnesses
no later than February 21, 2014 (and consi!:ilt;mt with F.R.C.P 26) was to provide defendants with
an opportunity to depose those witnesses. However) plaintiffs untimely disclosure of no less
than sevenleen i.tdditional witnessos nearly two months after the completion of foL:t discovery,
provides 110 opportunity to do so. Plaintiffs tactic of "litigation by surprise" i!'i not in keeping
with the Federal Rules, is a blatant violution of' this Court's prior orders, and should not
permitted. Plaintiff disingenuously told the Court that the he could not have identified the
witnesses uny sooner because the Court previously denied his request for discovery that would
have resulted in the witnesses being identified for him. Ile argues this despite the fuel Lhat he
never moved for reconsideration of the Court's Order denying the c_fo;covery 1·oquests, and the
fact that the September 12, 2014 letter in which he identifies the witnesses states that their
inlim1rntion was obtained in part from documents that were produced on or about October 9,
2012. Moreover, one of the witnesses, a "Tyrell or Tyron Gardenhire" has been known to
plaintiff since approximutely October 2009. Accordingly, City deforn.fo.nts request that tho Court
preclude plaintiff from telying on any of the individuals identified in his September 12, 2014
letter.
City defonchmts thank the Court for its time and consideration of these matters.

cc:

Nathaniel Smith (By E-M,til)
Attorney/hr PLaint!fT
111 Uroadway, Suite 1305
New York, New York 10006
Gregory John Radomisli (Uy E-Mail)
& Br:1.1, LLP
Attorneys/or Jamaica Hospital lvfedical Center
220 .East 42nd Street 13th Floor
New York, NY 10017
MARTIN CLKAltWATKR

llrian Lee (Uy .E-Mail)
IV ONE, DRVTNR & JENSEN, LLP
Attorneys.fin· Dr. Isak l~akov
200 I Marcus A venue, Suite NI 00
I ,ake Success, New York l l 042
llruce M. llrady (Uy U-Mail)
CALLAN, KOSTER, BRADY & BRENNAN, LLP

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A ttorney.rfor Lillian Aldana~llernier
l Whitehall Street
New York, New York 10004

Walter i\. Kretz , Jr. (lly E-Mail)
SCOPPETTA SRTFF KRETZ & ABERCROMBIE
Attorney.fiJr D~fi!.ndant Mautiello
444 Madison Avenue, 30th 1"1oor
New York, NY 10022

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