Schoolcraft v. The City Of New York et al

Filing 487

MEMO ENDORSEMENT on re: 485 Letter filed by Adrian Schoolcraft, re: August 18, 2015 and August 21, 2015 Letters. ENDORSEMENT: So ordered. (Signed by Judge Robert W. Sweet on 9/1/2015) (ajs)

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Case 1:10-cv-06005-RWS Document 485 Filed 08/25/15 Page 1of4 LAW Ol'l'lCE OF NATHANIEL NA THA NlKL B. SMJTH n.a.tbMnlth@~_tnaiLcotn -·---- ~ 7- ~ ~~ ---::----.~ ·.~-~~-"··.~ ' l J ~ >., ~ t· ~ '·~ . f ~I r· .--. i :-- • 1 "' 1 l B. 100 WALL STREET - 23'd Fir. NEw Yoax4\NE Yoirn: 1000::. ' :-:~-·=1 ' I : ' · . ·: e-' .· •1·'··':.. ·... ,.,, ,,_, FH.EO ·1'\lf ,, "" I {II .1\..•, . . .. . . - ~ \. ~ •. + . 1 \ I'-··--- ·----~- Tin.. :..?12-221*700~ FAX. 212·2U0-10HO ~ .kDt1fl1 I\ 1.1AI~L n.-_~·-~j'f)~_t ~ I SMITH ATTORNEY AT I.AW -~ 3:± ~ ~'} Au.~6s1\zs:°Qof5 1 ' . . "" ...--·--·· , .. f·:.:l. t i1 I .. f . : ~ . i i ~-~~~ :. Honorable Robert R. Sweet United States District Com1 Judge Southern District of Ne\\' York 500 Pearl Street Nev,: York, New York I 007 .... l >. · fl J ·~~' ~~ ~ ,. ' / . '~ ·~~ W"il-4! lJUDGE S'.Ji~~r~~~~.:_:i~.~ .__ ;: :::; ::; ~~ \!, . :.'1' ... Schoolcraji v. The City of Nt:::w York, et al., 10-cv-6005 (RWSJ(DCFJ Di:ar J Sweet: On behalf of the plaintift~ l am writing to the Court in response to Alan Scheiner's August 18, 2015 and August 21, 20 l 5 letters to the Court. In his 1 August l 8 h letter, Mr. Scheiner complains, on behalf of City Defendants, that plaintiff named two police practices experts on our Proposed Pretrial Order as potential witnesses to be called at trial. Jn his August 21 ;t letter, he complains, on behalf of the Ci Defendants, JHMC and Dr. Isakov, about the proposed pre-trial order filed by the plaintiff. \Vhile all of these issues should have, in the first instance, been resolved by all counsel conducting a good faith meet-and-confer, Mr. Scheiner has instead determined to pepper the Court with his objections and a result, we are required to respond. needless letters. 71u~ August !811; Letter A the Two l:~rpert.<; City Defondants argue that since both expe11s authored plaintiff's expert report on police practices, testirnony from both experts would be cumulative and inadmissible at trial. The City Defendants' demand that plaintiff's Proposed Pretrial Order list >o t~ 7- V) f!?,/-1.s vo- Case 1:10-cv-06005-RWS Document 485 Filed 08/25/15 Page 2 of 4 ') LAW OF'FlCE OF' NA THANIEL 13. SMITH only one police practices expert is without merit and should be denied. First, the Proposed Pretrial Order clearly states that the list of witness names provided by all parties are witnesses that the party mav call or seek to call to trial. If one expert covers the subject matter plaintiff seeks to introduce in his case in chiet: there will be no need to call a second expert. Certainly, the Court would disallow duplicate or cumulative testimony - an issue that can readily be resolved at trial by proffer. There is no good reason to disallow a witness simply on what one party thinks may be grounds for objection two months prior to trial. Second. City Defendants knO\v full well that plaintiff's two police practices experts bring di fforent experience and expertise to the issues of police practice in issue here. City Defendants deposed each of plaintiff's police practices experts separately and sought to highlight specific and distinct areas of expertise of the two experts. Defendants now seek to game any pcrcei vcd distinctions between plaintiffs police practices expens by excluding one at trial. The Court should deny this motion. In the very unlikely event that the plaintiff ,vill repeat with one expert the testimony of another expert, we are confident that the Court will be able to manage the introduction of evidence during the trial in the typical ways by directing the parties to avoid repetition. But that decision cannot in any meaningful way be made at this juncture, vvhere neither expert has testified. lmpo11antly, we note that the City Defendants fail to point to any specific evidence that they content wi II necessarily be repeated at trial. The August 2 About the Plain!i[fs Proposed Pre-Trial Order The City Defendants claim that the plaintiff's filing of his proposed pre-trial order was ''late" yet they ignore several impm1ant facts. First, the version that the defendants unilaterally filed contains plaintiff's contentions as well as a list of witnesses and exhibits as of that date, and thus the City Defendants' argument that they have been prejudiced ides over the fact that they knew of and had this information at the time. Second, the City Defendants do 11ot mention the fact that three days before the deadline, the City Defendants dumped several hundred pages of newly produced materials into the plaintiff's lap. And to compound the document production stunt, City Defendants had the temerity to fault the plaintiff for not being ready to forward with the filing and to object to any kind of extension, despite being required by the City Defendants' o\vn delays in producing documents Case 1:10-cv-06005-RWS Document 485 Filed 08/25/15 Page 3 of 4 3 LAW 01•v1cg OP NATIL\.NIEL B. in discovery. Third, the City De fondants claim that the plaimiff failed to sufficiently identifv trial exhibits. While it is certainlv correct that there were an isolated . number of exhibits that \\'ere not, in the light of the defendants' comments, suf1iciently identified, vast portions of the exhibits were properly identified. For example, our designations of ''PDX" or "PMX'' or "POX'' refer to plaintiffs deposition exhibits, or plaintiff's exhibits filed in support of or in opposition to the motions f(Jr sLm1mary judgment. Since the deposition exhibits were provided to the defendants in discovery and at the depositions and since the exhibits in support of plaintiff's motion fcJr summary judgment and in opposition to the defendants' motions for summary judgment were served and filed in this action, the claims that the defondants do not have the exhibits and thal they are insufficiently identified should be rejected. And to the extent that we have not sufficiently identified a document, we have undertaken to do so and \vill continue to do so. Indeed, the defendants have noted in their pre-trial order that they intend to move in limine on September 2015 to exclude documt~nts not sufficicnlly identified and we are continuing t.o undertake to resolve any legitimate concern that a party may have regarding the identity of exhibits. . Fourth, the defendants have failed to provide proper designations in their pre-trial order, which we intend to address in our motion in limine. For example, the City Defendants have suggested that they may want to read the deposition of the plaintiff's father. (Defendants' JPTO, date filed, 8-14-15 at p. 15 & 17 n. 15.} Similarly, the Medical Defendants have stated that they "may" seek to offer deposition testirnony of numerous witnesses at trial. (Id at 19. ). The Court's Individual Rules, bo\;.,T·ver, specifically require ""la] designation by each party of deposition testimony to be offered in its case in chief, with any cross-designations other party.'' (Individual Rule 3 (ix).) The defentlants, in and objections by violation of this rule and established practice, have failed fo tlcsignate by page and line those specific portions that they "may'' wan I to read to the jury, an obvious departure from rcqui red practice and the Court's lndi vi dual Rules. another example, the City Defendants have designated as their Trial Exhibit J-6 a recording mad\.' by the plaintiff on October 31, 2009 of his tour that is over sevc.·n hours long, we contend that the Citv dav. Since the n;'.ConJi ... Defendants have failed to sufficiently identify vvhich portions of the entire, daylong recording they will seek to offer into evidence. Similarly, the Medical Defendants have failed to sufficiently identify their exhibits. See, e.g. Defendants' . . -----------------~--·-·· Case 1:10-cv-06005-RWS Document 485 Filed 08/25/15 Page 4 of 4 4 LAW OPP!CE OP NATHANIEL B. SMITH JPTO, date filed R- I 4 l 5, at p. 4 l (unspecified ''records of' Dr. Lamstein and Dr. Sure). As noted, it is plaintiffs position that all these types of issues should be addressed in a mecHmd-confcr, not an endless stream of letters to the Court. * * * The City Defendants repeatedly claim prejudice but offer nothing concrete to support it. Indeed, it appears that the City Defendants' recent letter-writing campaign has little to do with the proffered merits and more to do with the City Defendants' real agenda, which is to delay the Octoher 19, 2015 trial date. See Scheiner Letter, dated August 21, 2015. alp. 3 (suggesting a conference "to discuss when a rrial could reasonable be had in light of plaintiff's delays.'') For all these reasons, the re4uest to strike the plaintiff's August 20. 2015 filing should be denied and the Court should direct the pat1ies to meet and confer at mutually convenient date before the motions in limine are due on September 7, 2015 to resolve any remaining issues on the pre-trial order submission. For reasons far too obvious to the Court, the suggestion that the trial should be moved must rejected. Respectfully submiued, Nathaniel B. Smith By ECF All Counsel

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