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
1
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
2
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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