Nunez v. N.Y.C. Department of Correction et al

Filing 118

MEMORANDUM AND ORDER: Accordingly, I will adopt the plaintiffs' proposed discovery plan, set forth in Appendix A to the Letter of Vasudha Talla et al. dated February 5, 2014, with the following modifications as set forth herein. The defendants have requested an order compelling the plaintiffs to identify, ninety (90) days prior to the fact discovery deadline, all use of force incidents (other than those for which the names plaintiffs have sued) that the plaintiffs intend to rely on in thei r case-in-chief at trial. The plaintiffs propose to provide this information in connection with expert disclosures and the pretrial order. It is reasonable to require the plaintiffs to reveal the scope of their case prior to the close of fact discove ry so that the defendants will have an opportunity to seek information in connection with the incidents identified. It is not practical, however, for such a disclosure to be made 90 days in advance of the fact discovery deadline. Rather, the plaintiffs shall provide the requested disclosure prior to the commencement of Phase III of the discovery plan. (Signed by Magistrate Judge James C. Francis on 2/18/2014)Copies Mailed By Chambers (djc) Modified on 2/19/2014 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MARK NUNEZ, et al.,
:
:
Plaintiffs,
:
:
- against :
:
CITY OF NEW YORK, et al.,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

11 Civ. 5845 (LTS) (JCF)
MEMORANDUM
AND ORDER

The parties to this civil rights class action have attempted,
without complete success, to structure a discovery plan within the
existing schedule that would streamline discovery and provide
breaks during which discovery would be held in abeyance while the
parties address the possibility of settlement. The plaintiffs have
proposed a schedule that would provide for their taking some 97
depositions. The defendants object that the plaintiffs have failed
to justify this number, and have instead argued that the plaintiffs
should be limited to 60 depositions, of which 35 would be limited
to 6 hours and 25 to three hours, for a total of 285 hours.
The defendants’ contention that the plaintiffs could forego
depositions of individual defendants who have filed Use of Force
Reports or been subjected to recorded investigative interviews is
unpersuasive. Where a party is going to testify, some prior report
or statement that has not been subject to cross-examination may not
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be an adequate substitute for a deposition in a case such as this
where there will be hotly contested factual disputes.
Accordingly, I will adopt the plaintiffs’ proposed discovery
plan, set forth in Appendix A to the Letter of Vasudha Talla et al.
dated February 5, 2014, with the following modifications:
1. Named plaintiffs and named defendants who were allegedly
involved in the use of force incidents at issue shall only be
deposed if they will testify at trial.

Upon notice that such a

party will not testify at trial, that person shall not be deposed.
2. Absent extraordinary circumstances, the depositions of
named plaintiffs and named defendants who were allegedly involved
in the use of force incidents at issue, as well as non-party
witnesses

testifying

about

such

specific

incidents,

shall

be

limited to four (4) hours of questioning by the party noticing the
deposition.

Counsel

defending

these

depositions

responsible for fully preparing each deponent.

shall

be

For example, prior

to the deposition, the deponent shall be shown the relevant Use of
Force

Report

and

any

other

document

likely

to

refresh

the

deponent’s recollection or to be shown to the deponent at the
deposition.
3.

The

“placeholder”

discovery plan.

depositions

are

stricken

from

the

When and if counsel identify additional proposed

deponents, I will consider whether they should be added to the
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schedule if there is a dispute.
4.

The

named

supervisory

defendants

now

scheduled

deposition during Phase II shall be moved to Phase I.

for

Their

testimony is likely important to any realistic evaluation of the
case for possible settlement.
5. A determination of whether it is appropriate to depose
Linda Gibbs is deferred until the parties make a showing whether
she possesses unique personal knowledge relevant to the issues in
the case.
The

defendants

plaintiffs

to

have

identify,

requested
ninety

an

(90)

order

days

compelling

prior

to

the

the
fact

discovery deadline, all use of force incidents (other than those
for which the names plaintiffs have sued) that the plaintiffs
intend to rely on in their case-in-chief at trial.

The plaintiffs

propose to provide this information in connection with expert
disclosures and the pretrial order.

It is reasonable to require

the plaintiffs to reveal the scope of their case prior to the close
of fact discovery so that the defendants will have an opportunity
to seek information in connection with the incidents identified.
It is not practical, however, for such a disclosure to be made 90
days in advance of the fact discovery deadline.

Rather, the

plaintiffs shall provide the requested disclosure prior to the
commencement of Phase III of the discovery plan.
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so

ORDERED.

ITED STATES MAGISTRATE JUDGE
Dated: New York, New York
February 18, 2014
Copies mailed this date:

Jonathan S. Abady, Esq.

Katherine R. Rosenfeld, Esq.

Vasudha Talla, Esq.

Emery Celli Brinckerhoff & Abady, LLP

75 Rockefeller Plaza

20th Floor

New York, NY 10019

Jonathan S. Chasen, Esq.

Legal Aid Society

199 water Street, 3rd Floor

New York, NY 10038

Mary Lynne Werlwas, Esq.

The Legal Aid Society

III Livingston Street

Brooklyn, NY 11201

William I. Sussman, Esq.

Joseph G. Cleemann, Esq.

Christopher Paul Conniff, Esq.

Amanda N. Raad, Esq.

Ropes & Gray LLP

1211 Avenue of the Americas

New York, NY 10036-8704

Arthur G. Larkin, Esq.

Diep Nguyen, Esq.

Kimberly M. Joyce, Esq.

Corporation Counsel for the City of New York

100 Church Street

New York, NY 10007

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