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

Filing 88

MEMORANDUM AND ORDER: The plaintiffs and defendants' applications are granted in part and denied in part as indicated above. (Signed by Magistrate Judge James C. Francis on 5/17/2013) (lmb)

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

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

This is a prisoners’ civil rights case in which twelve present
and former inmates allege that they were subjected to a pattern and
practice of excessive force by employees of the New York Department
of Correction (“DOC”) in violation of the Constitution and federal
and state law.
relief

on

a

The plaintiffs seek declaratory and injunctive

classwide

basis1

as

well

as

damages

for

their

individual injuries. Both parties seek to compel certain discovery
from the other.
Background
A.

Factual Background

This is the sixth federal class action brought against the
City of New York (“City”) in twenty-five years that alleges the use
of excessive force in jails operated by the DOC.

(Second Amended

Complaint (“2d Am. Compl.”), ¶¶ 1-3, 5); see Ingles v. Toro, No. 01
Civ. 827 (S.D.N.Y.) (use of excessive force in all DOC jails);

1

The class includes present and future inmates in all New
York City jails except the Eric M. Taylor Center (“EMTC”) and the
Elmhurst and Bellevue Prison Wards.
1

Sheppard v. Phoenix, No. 91 Civ. 4148; Jackson v. Montemango, No.
85 CV 2384 (E.D.N.Y.) (use of excessive force in Brooklyn House of
Detention); Reynolds v. Ward, No. 81 Civ. 101 (S.D.N.Y.) (use of
excessive force in Bellevue Prison Psychiatric Ward); Fisher v.
Koehler, No. 83 Civ. 2128 (S.D.N.Y.) (use of excessive force in
Correction Institution for Men, now known as Eric M. Taylor
Center).

The plaintiffs contend that the orders and settlement

agreements entered into in those prior lawsuits no longer protect
DOC inmates against the use of unnecessary and excessive force
beyond the confines of EMTC and the hospital prison wards. (2d Am.
Compl., ¶ 4).

They claim that the DOC jails “remain afflicted by

the same culture of violence, the same failure of accountability,
and the same deliberate indifference and active acceptance” of the
use of unnecessary and excessive force, and that “[c]onditions in
the jails have deteriorated markedly.”
The

defendants

include

(2d Am. Compl., ¶ 5).

uniformed

correction

officers,

supervisory staff, wardens of several DOC facilities, high-ranking
officials at DOC, and the City.
The

complaint

alleges

(2d Am. Compl., ¶¶ 10-28).

that

despite

training

DOC

staff

supposedly receives and despite the placement of video cameras in
some parts of the DOC jails, DOC correction officers continue to
use unnecessary and excessive force, often in unmonitored areas.
(2d Am. Compl., ¶¶ 5, 30-31, 62-65, 69-70, 74, 78-83, 90-98, 105108, 114-115, 118, 123-125, 131-132, 137-140, 146-149, 154-157,
162-165).

DOC captains are alleged to have ordered, participated,

or otherwise witnessed these incidents and taken no steps to
2

prevent injuries to the inmates.

(2d Am. Compl., ¶¶ 36, 67, 69,

76, 83, 93, 103, 112, 118, 121, 128, 139-140, 144, 157, 160, 171).
As a result of these incidents, inmates have suffered from a
range of injuries, many of which required emergency medical care or
hospitalization and resulted in severe and permanent injury.
Am. Compl., ¶ 32).

(2d

Individual plaintiffs have suffered physical

injuries, such as multiple fractured ribs, pleural effusion, and
traumatic

hemothorax;

orbital

fracture

requiring

surgery;

perforation of the tympanic membrane causing diminished hearing and
tinnitus; acute mandibular fracture requiring the jaw to be wired
shut for three months; fractured bones including the wrist, jaw,
and nose; nerve damage; facial laceration requiring stitches; and
severe concussion causing permanent neurological damage.

(2d Am.

Compl., ¶¶ 32, 71-73, 84-86, 99-100, 109-100, 110, 116, 119, 126,
133, 150, 159, 166).

They also continue to suffer emotional

injuries, such as flashbacks, nightmares, cold sweats, anxiety,
depression, insomnia, and post-traumatic stress disorder.

(2d Am.

Compl., ¶¶ 66, 87, 101, 126, 134, 143, 151, 159, 169).
Further, DOC staff purportedly falsify documents or fabricate
claims against the inmates in order to cover up these incidents (2d
Am. Compl., ¶¶ 33-36, 95, 102, 111, 117, 120, 127, 140-142, 157158, 170), and the investigations conducted by DOC are allegedly
unreliable, “crediting the most outlandish staff accounts and
attributing blame to, and punishing, the victims of assaults rather
than the perpetrators.”

(2d Am. Compl., ¶¶ 5, 35).

The plaintiffs contend that the supervisory defendants and
3

high ranking DOC officials know about this pattern and practice of
the

use

of

excessive

force

in

DOC

facilities

and

the

sham

investigations, yet fail to curb such practices, and instead,
perpetuate such conduct.

(2d Am. Compl., ¶¶ 37, 40-46, 51, 54).

Moreover, the plaintiffs allege that “the worst violators” of DOC’s
use of force policy are not disciplined or fired but, in some
cases, are promoted.
B.

(2d Am. Compl., ¶¶ 5, 39, 50).

Procedural History

On August 18, 2011, plaintiff Mark Nunez filed a pro se
complaint, alleging the use of excessive force at a DOC facility.
The First Amended Complaint was filed by counsel on May 24, 2012,
asserting, among other things, class and individual claims against
the City as well as staff, supervisory personnel, and high ranking
officials at the DOC, alleging a pattern or practice of the use of
excessive force and deliberate indifference to this pattern.

On

September 4, 2012, the Second Amended Complaint was filed. A class
was certified by stipulation and order on January 7, 2013.
On September 6, 2012, the plaintiffs served their first set of
document requests relating to class certification, and each named
plaintiff served an individual discovery request. (Letter of Katie
Rosenfeld and Vasudha Talla dated March 22, 2013 (“Pl. March 22
Letter”) at 1).

On December 21, 2012, the defendants served their

first set of interrogatories and document requests.
First

Set

of

Interrogatories

and

Request

for

(Defendants’
Production

of

Documents to Plaintiffs (“Def. 1st Interrog. and Doc. Req.”),
attached as Exh. A to Letter of Arthur G. Larkin dated March 22,
4

2013 (“Def. March 22 Letter”)). The plaintiffs served a second set
of document requests related to their class allegations on February
7, 2013.

(Pl. March 22 Letter at 1).

The plaintiffs and defendants have filed letter applications
seeking to compel the other party to respond to their discovery
requests, and a status conference was held before me on April 18,
2013.

Currently, there remain numerous outstanding discovery

disputes.

(List of Outstanding Discovery Disputes (“List of

Disputes”), attached as Exh. A to Letter of Katherine R. Rosenfeld
and Vasudha Talla dated May 2, 2013 (“Pl. May 2 Letter”)).

I will

address each in turn.
Discussion
A.

Legal Standard

Generally, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense.”

Fed. R. Civ. P. 26(b)(1).

relevance,

for

concept.”

Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004);

purposes

of

discovery,

“Although not unlimited,
is

an

extremely

broad

see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (relevance is “construed broadly to encompass any matter
that bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case”).

Indeed,

“the ‘right of litigants to discover and present relevant evidence
in civil litigation is given great weight in federal courts.’”
Mays v. Town of Hempstead, No. 10 CV 3998, 2011 WL 4345164, at *2
(E.D.N.Y. Sept. 15, 2011) (quoting Apicella v. McNeil Laboratories,
5

Inc., 66 F.R.D. 78, 82 (E.D.N.Y. 1975)).

Moreover “[r]elevant

information need not be admissible at the trial if the discovery
appears

reasonably

calculated

admissible evidence.”

to

lead

to

the

Fed. R. Civ. P. 26(b)(1).

discovery

of

The burden of

demonstrating relevance is on the party seeking discovery.

See,

e.g., Mandell v. Maxon Co., No. 06 Civ. 460, 2007 WL 3022552, at *1
(S.D.N.Y. Oct. 16, 2007).
“Once relevance has been shown, it is up to the responding
party to justify curtailing discovery.”

Fireman’s Fund Insurance

Co. v. Great American Insurance Co. of New York, 284 F.R.D. 132,
134 (S.D.N.Y. 2012) (internal quotation marks omitted).

“[T]he

court must limit the frequency or extent of discovery” where:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.
Fed. R. Civ. P. 26(b)(2)(C). “General and conclusory objections as
to relevance, overbreadth, or burden are insufficient to exclude
discovery of requested information.”

Melendez v. Greiner, No. 01

Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003).
Rather, “[a] party resisting discovery has the burden of showing
‘specifically how, despite the broad and liberal construction
6

afforded the federal discovery rules, each interrogatory is not
relevant or how each question is overly broad, burdensome or
oppressive, . . . submitting affidavits or offering evidence
revealing the nature of the burden.’”

Vidal v. Metro-North

Commuter Railroad Co., Civil No. 3:12CV248, 2003 WL 1310504, at *1
(D.

Conn.

March

28,

2013)

(alteration

in

original)

(quoting

Compagnie Francaise d’Assurance Pour le Commerce Exterieur v.
Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1982)).
B.

Plaintiffs’ Discovery Demands
1.

Use of Force Files Including Media Files Involving
Named Defendants2

The plaintiffs seek Use of Force (“UOF”) files involving the
named defendants, and in particular the media contained in the
files such as the surveillance videos of the incidents and audio
recordings of MEO-16 interviews.3

(Pl. March 22 Letter at 2 &

n.1). The defendants have agreed to produce (1) all UOF files, but
not media, involving the named defendants from January 1, 2000, to
December 31, 2009, and (2) all UOF files including media for all
incidents occurring after January 1, 2010, to the present. (Letter
2

Plaintiffs’ Class Certification Discovery Requests Numbers
1-2; Plaintiffs’ Individual Discovery Request Number 14. (List of
Disputes at n.3; Pl. March 22 Letter at 2 n.1).
3

MEO-16 interviews are conducted by DOC’s Investigation
Division (“ID”) pursuant to Mayoral Executive Order 16, which
requires City employees to give sworn testimony relating to their
performance of official duties. (Pl. March 22 Letter at 2 n.2).
While ID investigators prepare written summaries of the MEO-16
interviews, the plaintiffs allege that the summaries are “often
riddled with errors and omissions,” and therefore they need the
actual audio of the interviews to have a complete and accurate
understanding of the contents of these interviews. (Pl. March 22
Letter at 2 n.2)
7

of Arthur G. Larkin dated May 1, 2013 (“Def. May 1 Letter”) at 1).4
According to the defendants, this production would consist of
approximately 2,000 UOF files in which the named defendants were
involved, including approximately 900 files containing media.
(Def. May 1 Letter at 1).

It would, however, exclude media, if

they exist, for 1,100 pre-2010 UOF incidents involving the named
defendants and 198 UOF incidents that occurred prior to January 1,
2000, involving the named defendants.

(Def. May 1 Letter at 2).

The defendants argue that post-2010 UOF incidents are the most
relevant to the plaintiffs’ claims and that the burden of searching
and producing old UOF files and media is substantial.

(Def. May 1

Letter at 2; Transcript of Civil Cause for Status Conference dated
April 18, 2013 (“Tr.”) at 46).

The plaintiffs contend that the

media contained in all UOF files involving the named defendants are
relevant to both their class and individual claims.
Letter at 1).

(Pl. May 2

They argue that “the only way to properly analyze

the underlying UOF incident and corresponding investigation is to
review the videos, photographs and recorded MEO-16 interviews used
in the investigation” (Pl. March 22 Letter at 2), and that an
independent review of the media would enable them to assess both
the individual defendants’ credibility as well as the efficacy of
the DOC’s investigation process (Pl. May 2 Letter at 1).

The

plaintiffs have met their burden of establishing the relevance of
4

The defendants have agreed to produce media contained in all
UOF files involving the named plaintiffs, involving Class A UOF
incidents, and from a select list of UOF files that the plaintiffs
will request after they conduct an initial review of the UOF files
produced by the defendants. (Pl. March 22 Letter at 2).
8

the media contained in the UOF files involving the defendants.
Similarly, UOF files involving the named defendants regarding
incidents prior to 2000 are also relevant to the plaintiffs’
claims.

UOF incidents involving the named defendants that predate

2000 would support the plaintiffs’ assertion that “the worst
violators of the [DOC]’s written use of force policy are not
seriously disciplined or fired; instead, the same persons who were
. . . cited administratively for excessive force violations when
they were correction officers or captain are . . . deputy wardens,
wardens, and in some cases stand near the top of the [DOC]’s
administrative hierarchy.”

(2d Am. Compl., ¶ 5; Pl. May 2 Letter

at 2). In addition, this material is reasonably calculated to lead
to discovery of evidence to support the plaintiffs’ claims against
the supervisory defendants and the City.

(Pl. May 2 Letter at 2;

Letter of Katie Rosenfeld and Vasudha Talla dated April 12, 2013
(“Pl. April 12 Letter”) at 12 n.10).

When asserting a Monell

claim, plaintiff is required to prove a pattern or practice, and
therefore “[t]he date[s] of the incidents do not render the records
less likely to lead to evidence admissible at trial.”

Frails v.

City of New York, 236 F.R.D. 116, 118 (E.D.N.Y. 2006) (rejecting
defendant’s proposed ten-year limitation to production of documents
relating to Monell claim); see Bradley v. City of New York, No. 04
Civ. 8411, 2005 WL 2508253, at *2 (S.D.N.Y. Oct. 3, 2005) (pattern
of complaints over twenty-year period is “highly relevant”).
Accordingly, UOF files involving the named defendants prior to 2000
are relevant.
9

The defendants argue that burden of searching for media
contained in UOF files is substantial because they are not stored
in a centralized location, requiring counsel to identify which
files contain media, obtain the media from various DOC facilities,
and copy them.

(Def. May 1 Letter at 2).

This burden, however,

appears to be in part the defendants’ own making. In producing UOF
files predating 2010, the defendants chose to produce files that
were in the Law Department’s possession from prior litigation and
did not contain media, rather than to search DOC’s files.
May 1 Letter at 2).

(Def.

The plaintiffs have offered to identify which

of the UOF files that have already been disclosed contain media
(Pl. May 2 Letter at 1-2), and the defendants have agreed that if
the plaintiffs identify which files contain media, they will
retrieve

and

produce

the

media.

(Tr.

at

31).

Moreover,

plaintiffs’ counsel represents that based on their prior experience
with DOC, during “at least some of the relevant period,” media are
stored centrally as digital files and are easy to obtain and copy.
(Pl. May 2 Letter at 2; Tr. at 6-7).
are

directed

to

produce

all

UOF

Accordingly, the defendants
files

involving

the

named

defendants and the media contained in those files as identified by
the plaintiffs.
2.
The

Confidentiality Designation

plaintiffs

object

to

the

designation of documents as confidential.
3).

The

defendants

have

agreed

to

defendants’

categorical

(Pl. March 22 Letter at
attempt

to

resolve

any

differences with the plaintiffs on this issue, and if unsuccessful
10

would move for a protective order pursuant to the procedures
outlined in the Amended Protective Order Concerning Confidential
Information.

(Letter of Arthur G. Larkin dated April 12, 2013

(“Def. April 12 Letter”) at 4; Amended Protective Order Concerning
Confidential Information, attached as Exh H to Pl. April 12 Letter,
¶ 5).

I shall reserve decision with the understanding that if the

parties are unable to resolve this issue among themselves, the
defendants may move for a protective order.
3.

Location of Stationary Cameras5

The defendants have agreed to produce schematic drawings of
the jails that identify the locations of stationary cameras to the
extent that they exist.

(Tr. at 46).

Accordingly, this issue is

resolved.
4.

24-Hour Reports6

The plaintiffs seek 24-Hour Reports7 that “‘reflect[] UOF,
Allegations of UOF and/or Unusual Incidents involving any inmates”

5

Plaintiffs’ Class Certification Discovery Requests Number 2;
Plaintiffs’ Individual Discovery Requests Number 12.
(List of
Disputes at n.4; Pl. March 22 Letter at 3 nn.5 & 12).
6

Plaintiffs’ Second Set of Document Requests (Relating to
Class Allegations) Number 4.
(List of Disputes; Pl. March 22
Letter at 5 n.8).
7

24-Hour Reports are brief summaries of UOF incidents or any
“unusual incidents” in the jails made immediately after the
incident that identify the inmates and the staff involved, the type
of force used, and the injuries sustained. (Pl. April 12 Letter at
12; Def. April 12 Letter at 5; Tr. at 9).
These Reports are
circulated throughout DOC and are provided to DOC’s top supervisors
on a daily basis. (Pl. April 12 Letter at 12).
11

from July 2008 to December 2009.8
at 9-10).

(Pl. April 12 Letter at 12; Tr.

They assert that these Reports will provide “a snapshot

back in time” about the individuals involved in these incidents and
the types of incidents that occur at DOC facilities, and are
necessary

to

prove

a

longstanding

practice

of

deliberate

indifference by the supervisory defendants and Monell liability
(Tr. at 9, 42; Pl. April 12 Letter at 12).

As discussed, in the

context of discovery for Monell claims, documents prior to the
incident complained of may be relevant, and here the plaintiffs
allege to have been subjected to the use of excessive force as
early as 2009.

(Pl. April 12 Letter at 12).

Accordingly,

documents dating back a little over a year to the first alleged
incident are relevant.

See, e.g., Mays, 2011 WL 4345164, at *3

(finding “documents dating back seven (7) years . . . both relevant
and reasonable regarding a pattern and practice claim”); Younger v.
City of New York, No. 03 Civ. 8985, 2006 WL 1206489, at *1
(S.D.N.Y. May 2, 2006) (fact that records date back more than ten
years “does not preclude relevance for purposes of discovery” when
pursuing Monell theory).
The defendants argue that the 24-Hour Reports “[s]tanding
alone . . . are of little value” without the corresponding UOF
files, which they are not producing during that time frame except
for UOF incidents involving the named defendants.
Letter at 5; Tr. at 33-34).

(Def. April 12

They also contend that since they will

8

The defendants have agreed to produce 24 Hour Reports from
January 2010 and forward. (Pl. April 12 Letter at 12; Tr. at 9).
12

be producing all UOF files for incidents from 2010 to the present
as well as 2,000 UOF files involving the named defendants that
occurred before 2010, all of which contain 24-Hour Reports to the
extent that they exist, that the production of these additional
Reports is cumulative.

(Def. April 12 Letter at 5).

In light of the limited scope of the plaintiffs’ request, its
relevance to the plaintiffs’ claims, and that the fact the Reports
are electronically stored and readily retrievable (Tr. at 10), the
plaintiffs’ application is granted.
5.

Communications Between DOC and Government Entities9
and Inmates Arrested for UOF Incidents10

The plaintiffs seek non-privileged communications about UOF
incidents at DOC facilities between DOC and government agencies
responsible for criminal justice policy and oversight, and between
DOC and prosecutorial agencies responsible for investigating and
prosecuting misuse of force.11
10).

(Pl. April 12 Letter at 13; Tr. at

Specifically, they request “any communication[] that go to

the knowledge [or] the state of mind or [] the summary of use-offorce incidents and reporting of [those] incidents to any of these

9

Plaintiffs’ Second Set of Document Requests (Relating to
Class Allegations) Number 12. (Pl. April 12 Letter at 13 n.11).
10

Plaintiffs’ Second Set of Document Requests (Relating to
Class Allegations) Number 21. (Pl. March 22 Letter at 5 n.15).
11

These entities include “the Office of the Criminal Justice
Coordinator, the Office of the Mayor, the Office of the Deputy
Mayor for Health and Human Services, the DOI, the United States
Department of Justice, any United States Attorney’s Office or the
offices of the Bronx County, Queens County, Kings County, Richmond
County, or the New York County District Attorneys.” (Pl. April 12
Letter at 13 n.11).
13

agencies.”

(Tr. at 10).

This information, they contend, is

reasonably calculated to lead to evidence that is relevant to the
City’s knowledge of and deliberate indifference to unconstitutional
use of force practices as well as the supervisory defendants’
knowledge, state of mind, and conduct.

(Pl. April 12 Letter at

13).
The defendants have agreed to produce responsive documents if
the plaintiffs limit their demands to communications between the
“Commissioner’s office and the Chief of Department’s office, . . .
or others above the rank of chief . . . [and] a specific subset of
agencies, DOI, U.S. Attorney, Bronx DA’s office;” otherwise, they
contend that the plaintiffs’ request is prohibitively burdensome.
(Tr. at 34-35).

The plaintiffs have agreed to limit their request

to communications that can be obtained through “some kind of
electronic discovery with a limited set of search terms designed to
specifically address only use-of-force incidents and only to those
agencies.”

(Tr. at 11, 42).

In addition, the plaintiffs suggest that their request for
information about inmates arrested in DOC facilities during the
period between January 1, 2007, and the present stemming from UOF
incidents may be covered by their request for DOC’s communication
with prosecutorial agencies.

(Tr. at 11).

The defendants contend

that UOF files will note whether inmates were arrested and the
plaintiffs can seek documents related to the arrest from the
appropriate courts. (Tr. at 35). However, the UOF files from 2007
to 2010 that the defendants are disclosing are limited to incidents
14

that involve the named defendants, and may not include other UOF
incidents that resulted in inmate arrests.
Since it appears that the parties are in agreement that the
scope

of

the

plaintiffs’

request

should

be

narrowed

using

appropriate search terms, the parties are directed to engage in a
cooperative effort to set the parameters for these searches.
22R Forms12

6.

The plaintiffs seek 22R Forms13 for each individual defendants.
(Pl. March 22 Letter at 6).

The defendants contend that to the

extent that these forms exist for an individual defendant, they are
contained

in

the

officer’s

personnel

files

which

they

have

produced, and object to generating new 22R Forms solely for this
litigation.
creating

(Def. April 12 Letter at 9).

these

documents

for

each

defendant

They claim that
is

burdensome,

requiring them to call different divisions within DOC and manually
generate the forms.

(Def. April 12 Letter at 9).

“‘[A] request for documents does not include the obligation to
create information of documents which a party does not control or
posses.’”

Vanbrocklen v. Gupta, No. 09-CV-00897, 2011 WL 6012489,

at *6 (W.D.N.Y. Nov. 7, 2011) (quoting UB Foundation Activities,
Inc. v. IT Healthtrack, Inc., No. 04-CV-443S, 2009 WL 4042937, at
*5 (W.D.N.Y. Nov. 19, 2009)); see also R.F.M.A.S., Inc. v. So, 271
12

Plaintiffs’ Individual Discovery Requests Number 16.
of Disputes at n.5).
13

(List

A 22R Form is a form that lists the disciplinary history of
an officer and is generated by DOC when a disciplinary proceeding
is commenced against the officer. (Def. April 12 Letter at 9; Pl.
March 22 Letter at 6).
15

F.R.D. 13, 44 (S.D.N.Y. 2010) (“The discovery tools . . . do not
provide any obvious basis for plaintiff to serve defendants with a
request to create new documents to help plaintiff understand the
existing evidence. . . . A responding party has only a limited
obligation to organize requested documents in the manner preferred
by the requesting party, and the Federal Rules evince a concern
that discovery tools not be used to unduly shift the burden of
analyzing evidence from the requesting party to the responding
party.” (internal footnotes omitted)).

Since the plaintiffs have

the

files

individual

defendants’

personnel

which

include

the

defendants’ disciplinary history and since the basis for requesting
22R Forms is merely that they are an “easy-to-understand [] list or
index” of the defendants’ disciplinary history (Tr. at 13), the
plaintiffs’ request is denied.

However, if the defendants create

22R Forms for individual defendants in the future, they must serve
a timely supplemental discovery response that includes the newlygenerated forms.

Robbin & Myers, Inc. v. J.M. Huber Corp., 274

F.R.D. 63, 77 (W.D.N.Y. 2011) (noting that when party “at a later
time creates another responsive document which the party then
knows, or reasonably should know, is materially within the scope of
the earlier request most certainly ‘learns’ of the existence of the
document thereby triggering the duty to timely serve a supplemental
response bringing the fact of its creation and existence to the
attention of the adversary party”).

16

Logbooks, Rosters, Sign-In Sheets, and Photographs14

7.
In

order

to

identify

unnamed

John

Doe

defendants,

the

plaintiffs seek logbooks, rosters, sign-in sheets, and photographs
of DOC staff who were at the DOC facility during, before, and after
the

eight

UOF

incidents

where

there

are

still

unidentified

defendants. (Pl. March 22 Letter at 7; Tr. at 13-17).

As to the

logbooks, rosters, and sign-in sheets, the defendants contend that
this

request

should

incidents occurred.
allege

that

the

be

limited

(Tr. at 37).

unidentified

to

the

time

period

when

the

However, since the plaintiffs

defendants

were

not

necessarily

assigned to the area where the incidents took place or were working
at the DOC facility either just before or after the tours during
which

the

incidents

occurred

(Tr.

at

14),

their

request

is

reasonably calculated to lead to the identification of the John Doe
defendants

and

inappropriate.

the

limitations

the

defendants

propose

are

See Medina v. Gonzalez, No. 08 Civ. 1520, 2010 WL

3744344, at *12-13, 17 (S.D.N.Y. Sept. 23, 2010) (noting that court
ordered production of roster and photograph of all DOC staff
working at facility on day of incident to allow plaintiff to
identify potential witnesses and John Doe defendants).
As to the photographs of DOC staff, the defendants suggest
preparing photographic arrays, which they would be willing to
provide

to

plaintiffs’

plaintiffs’
deposition,

counsel
to

in

advance

“insure

14

the

of

the

individual

integrity

of

the

O. Sanders Interrogatories Numbers 12-13; O. Sanders
Document Requests Numbers 4-6, 21-22. (Pl. March 22 Letter at 7;
List of Disputes at n.6).
17

identification process.”

(Tr. at 37-38).

Since the plaintiffs’

objection to the use of photographic array was that the defendants’
originally proposed to present them at the plaintiffs’ depositions
(Tr. at 15), and the defendants have now agreed to provide them in
advance, this dispute is resolved.
Similarly, in order to identify potential detainee witnesses,
the plaintiffs seek logbooks showing movement of inmates within the
facility and photographs of inmates in the housing area and medical
clinics on the dates of the UOF incidents involving the individual
plaintiffs.

(Pl. March 22 Letter at 7; Tr. at 16).

The defendants

contend that the UOF files contain any statements by inmates whom
staff

interviewed

or

requested

to

interview,

and

that

the

plaintiffs’ request therefore seeks a “‘needle in a haystack,’ []
the lone inmate witness who will corroborate plaintiff’s version of
events, but who, somehow was not known to DOC staff or anyone else
when the incident happened.”

(Def. April 12 Letter at 10).

However, the defendants’ position is belied by their own objection
to the plaintiffs’ response to their interrogatory that seeks the
identities of witnesses to UOF incidents when the plaintiffs
directed the defendants to UOF and ID investigation files.
March 22 Letter at 2).

(Def.

According to the plaintiffs, there is at

least one inmate witness whose name did not appear in the UOF file.
(Tr. at 17).
basis

to

To the extent that the plaintiffs have a good faith

believe

that

there

were

inmate

witnesses

to

a

UOF

incident, the defendants shall provide the requested information to
facilitate identification.
18

8.

Verifications

The defendants have agreed to provide verifications for each
individual defendant’s interrogatory response at that defendant’s
deposition.
C.

(Tr. at 22-23).

Defendants’ Discovery Demands
1.

As

Witnesses to UOF Incidents

discussed,

the

defendants

object

to

the

plaintiffs’

response to their interrogatory seeking the identities of witnesses
to UOF incidents.

(Def. March 22 Letter at 2).

The plaintiffs

contend that they have provided the names or physical descriptions
of

additional

witnesses

who

were

not

identified

in

the

DOC

investigation to the extent that they are aware of any. (Pl. April
12 Letter at 3).

If the plaintiffs later identify any witness to

a UOF incident that has not been previously disclosed, they must
provide this information.
2.
The

Injuries

defendants,

through

interrogatories,

seek

a

list

of

injuries that the plaintiffs are claiming, any treatment they
received,15 and their medical providers for the past ten years.16
(Def. March 22 Letter at 2; Tr. at 20-21).

The plaintiffs contend

that they have listed each facility that has provided them medical
treatment for the injuries that they have sustained as a result of
a UOF incident and have agreed to identify and provide releases for
all of their medical providers within the last ten years.

(Pl.

15

(Def. 1st Interrog. and Doc. Req., Interrogatories, ¶ 4).

16

(Def. 1st Interrog. and Doc. Req., Interrogatories, ¶ 7)
19

April 12 Letter at 4; Tr. at 24-25).

They assert that the “most

practical method for accurately identifying the injuries” sustained
by the plaintiffs is for the defendants to obtain the medical
records documenting those injuries and their treatment. (Pl. April
12 Letter at 4).
Further, the plaintiffs argue that the interrogatories seeking
a list of injuries and treatment exceed the scope of questions
permitted by Rule 33.3 of the Local Rules of the United States
District Courts for the Southern District of New York (“Local Civil
Rules”).

(Pl. April 12

Letter at 4).

Under Local Civil Rule

33.3(a),
[u]nless otherwise ordered by the Court, at the
commencement of discovery, interrogatories will be
restricted to those seeking names of witnesses with
knowledge of information relevant to the subject matter
of the action, the computation of each category of damage
alleged, and the existence, custodian, location and
general description of relevant documents, including
pertinent insurance agreements, and other physical
evidence, or information of a similar nature.
See Kunstler v. City of New York, No. 04 Civ. 1145, 2006 WL
2516625, at *5 (S.D.N.Y. Aug. 29, 2006) (noting that “Rule 33.3
presumptively limits interrogatories to request for witness names,
computation of damages, and the location, custodian and general
nature of pertinent documents”). A list of the plaintiffs’ alleged
injuries and treatment is presumptively excluded by Local Civil
Rule 33.3, and the defendants acknowledge that they will have to
review the medical records and depose the plaintiffs in any event.
(Tr. at 24).

Accordingly, the defendants’ application is denied.

See Kunstler, 2006 WL 2516625, at *5 (denying defendants’ request
20

to compel response to interrogatory because “descriptions of the
nature and extent of injuries, medical diagnoses, the course of
treatment,

and

prescriptions

are

ordinarily

more

efficiently

obtained through the production of pertinent medical records and
through depositions” and exceed scope of Local Civil Rule 33.3).
The

defendants

also

seek

information

as

to

whether

any

plaintiff has applied for Medicare or Medicaid within the past ten
years, and, if so, when and in what jurisdiction,17 and request
releases for plaintiffs’ Medicare or Medicaid records.18

(Def.

March 22 Letter at 6). The plaintiffs object on relevance grounds,
contending that the Medicare or Medicaid records only list monetary
reimbursements,

and

that

the

relevant

information

that

the

defendants seek can be obtained through the medical record releases
that they have agreed to provide.

(Pl. April 12 Letter at 6).

The

defendants have not articulated how Medicare or Medicaid records
will provide any other information that will not be provided by the
medical records for which they will have releases.

Accordingly,

these requests are denied. See Duncan v. City of New York, No. 12
CV 1565, 2013 U.S. Dist. LEXIS 1162, at *3-4 (E.D.N.Y. Jan. 28,
2013) (declining defendants’ request for access to, among other
things, plaintiffs’ Medicare and Medicaid records).
3.
The

Employment Records

defendants

seek

information

about

the

plaintiffs’

17

(Def. 1st Interrog. and Doc. Req., Interrogatories, ¶ 10).

18

(Def. 1st Interrog. and Doc. Req., Document Requests, ¶ 16).
21

employers for the past ten years19 and request releases for the
plaintiffs’ employment records.20

They claim that plaintiffs’

employment information is relevant to the plaintiffs’ claims of
emotional injuries as well as to the plaintiffs’ credibility if,
for example, the plaintiffs did not file tax returns or were fired
from a job for any reason, especially for acts of dishonesty.
(Def. March 22 Letter at 3).
The plaintiffs claim only “garden-variety emotional distress
damages” (Pl. April 12 Letter at 5; Tr. at 44), and where the
plaintiffs do not assert a claim for severe emotional injury,
employment records are not relevant.

See Duncan, 2013 U.S. Dist.

LEXIS 11162, at *4-5.
To

the

extent

that

the

defendants

seek

to

compel

the

plaintiffs to respond to their interrogatory about the plaintiffs’
prior employment because it may be relevant to the plaintiffs’
credibility, it is beyond the scope of Local Civil Rule 33.3.
to

the

request

for

releases,

while

“‘[p]arties

may

As

utilize

discovery to obtain information for impeachments purposes, . . .
particularly for uncovering prior acts of deception’ . . . , such
discovery relating to a witness’ credibility ‘must be reasonably be
likely to lead to admissible evidence.’”

Currie v. City of New

York, No. 10 CV 486, 2012 WL 832256, at *2 (E.D.N.Y. March 12,
2012) (alteration in original) (quoting Bolia v. Mercury Print
Productions,

Inc.,

No.

02-CV-65107T,

2004

WL

2526407,

at

*2

19

(Def. 1st Interrog. and Doc. Req., Interrogatories, ¶ 6).

20

(Def. 1st Interrog. and Doc. Req., Document Requests, ¶ 12).
22

(W.D.N.Y. Oct. 28, 2004)).

Further, “[c]ourts have required

parties to establish good cause where discovery is sought solely to
unearth potential impeachment material, and have not found such
cause where the request is speculative.” Dzanis v. JP Morgan Chase
& Co., 10 Civ. 3384, 2011 WL 5979650, at *6 (S.D.N.Y. Nov. 30,
2011) (internal citation omitted) (collecting cases).

Here, the

defendants have not provided any specific basis that justify
seeking impeachment evidence in the plaintiffs’ employment records.
See id. (denying request for employees’ personnel files because
plaintiff

only

identifies

generic

ways

in

which

evidence

in

personnel file could be used to impeach witness, and noting that
plaintiff’s “argument theoretically requires a court to order
disclosure of personnel files -- or, for that matter, any set of
documents -- wherever a requesting party speculates that they may
contain impeachment evidence. Such a conclusion would run afoul of
the ‘good cause’ requirement in Rule 26(b)(1)” of the Federal Rules
of Civil Procedure); Lev v. South Nassau Communities Hospital, No.
10 CV 5435, 2011 WL 3652282, at *2 (E.D.N.Y. Aug. 18, 2011)
(denying request for plaintiff’s prior employment record because,
among other things, defendants have not alleged nor provided any
evidence that plaintiff made misrepresentation during course of
previous employment).
3.

Sealed Arrests21

The parties disagree about the disclosure of the plaintiffs’

21

(Def. 1st Interrog. and Doc. Req., Interrogatories, ¶ 13;
Def. 1st Interrog. and Doc. Req., Document Requests, ¶¶ 1, 18-19).
23

sealed arrest records.

(Def. March 22 Letter at 4-5; Pl. April 12

Letter at 7-9; Tr. at 18-19, 27-28).
New York Criminal Procedure Law (“CPL”) § 160.50(1) provides
that “[u]pon the termination of a criminal action or proceeding
against a person in favor of such person . . . the record of such
action or proceeding shall be sealed.”

“The purpose of the

provision is to ensure ‘that one who is charged but not convicted
of an offense suffers no stigma as a result of his having once been
the object of an unsustained accusation.’”

MacNamara v. City of

New York, 04 Civ. 9612, 2006 WL 3298911, at *1 n.1 (S.D.N.Y. Nov.
13, 2006) (quoting Matter of Hynes v. Karassik, 47 N.Y.2d 659, 662,
419 N.Y.S.2d 942, 944 (1979)).

It protects “important privacy

interests, and a strong policy of comity between state and federal
sovereignties impels federal courts to recognize state privileges
where this can be accomplished at no substantial cost to federal
substantive and procedural policy.”
Civ.

2274,

2012

WL

2125989,

at

Ligon v. City of New York, 12
*2

(internal quotation marks omitted).

(S.D.N.Y.

June

12,

2012)

While federal law governs

discoverability, privileges, and confidentiality, and “[s]tate
statutory privileges . . . must yield when outweighed by a federal
interest in presenting relevant information to a trier of fact,”
“the policies underlying state evidentiary privileges must still be
given serious consideration, even if they are not determinative.”
Crosby v. City of New York, 269 F.R.D. 267, 274 (S.D.N.Y. 2010)
(internal quotation marks and footnotes omitted).
therefore

balance

the

deference
24

to

be

The court “must

accorded

state-created

privileges with the need for the information sought to be protected
by the privilege.”

Id. at 275 (internal quotation marks omitted);

accord Ligon, 2012 WL 2125989, at *2.
The defendants argue that sealed arrests are relevant to the
plaintiffs’ claims for emotional damages and cite to decisions in
false arrest cases.

(Def. March 22 Letter at 4; Tr. at 27).

In a

false arrest claim, prior sealed arrests may be relevant to
emotional damages because “‘a person who has previously been
incarcerated may suffer less damage as a result of subsequent
wrongful incarceration’ than a person incarcerated for the first
time.”

Cicero v. City of New York, 11 CV 360, 2011 WL 3099898, at

*3 (E.D.N.Y. July 25, 2011) (quoting Green v. Baca, 226 F.R.D. 624,
627 (C.D. Cal. 2005)); see Schiller v. City of New York, Nos. 04
Civ. 7922, 04 Civ. 7921, 05 Civ. 8453, 2006 WL 3592547, at *8
(S.D.N.Y. Dec. 7, 2006) (agreeing that “documents detailing [the
plaintiff’s] prior arrest experiences, previous, previous arrest
processing, and criminal court proceedings are relevant to refute
[his] claims regarding the cause and extent of emotional distress
damages

attributable

to”

false

arrest)

(second

alteration

in

original) (internal quotation marks omitted)); see also Ligon, 2012
WL 2125989, at *2 (limiting disclosure of prior sealed arrests to
“prior arrest records and paperwork only for charges of trespass or
related crimes” in false arrest for trespass case (emphasis in
original)); Kapiti v. Kelly, No. 07 Civ. 3782, 2008 WL 1882652, at
*2 (S.D.N.Y. April 28, 2008) (sealed arrests may be relevant to
whether defendants had probable cause for plaintiff’s arrest). The
25

defendants

argue

that,

like

in

false

arrest

cases,

prior

incarcerations “will bear directly on whether the incidents at
issue caused the ‘emotional’ injuries [the plaintiffs] claim to
have suffered, or whether their multiple incarcerations for varying
lengths of times contributed to these claimed injuries.”
March 22 Letter at 4).

(Def.

However, the defendants have not explained

how the plaintiffs’ previous incarceration would have any bearing
on the plaintiffs’ alleged emotional distress from being subjected
to the use of excessive force.
To the extent that the defendants argue that prior sealed
arrests may have resulted in the plaintiffs’ being in the custody
of DOC, the plaintiffs have agreed to provide releases for all
records held by DOC concerning the plaintiffs except for documents
related to the underlying arrests, charges, or criminal proceedings
that are sealed.
defendants’

(Pl. April 12 Letter at 9).

contention

that

prior

sealed

Further, the

arrests

may

have

information that bear on the plaintiffs’ credibility, such as gang
membership or the making of false statements during an arrest (Def.
March

22

Letter

at

4-5),

the

defendants

have

access

to

the

plaintiffs’ misdemeanor and felony convictions which would likely
contain this information.

Accordingly, the defendants have not

made a sufficient showing to overcome the deference to be accorded
to state-created privileges.
The plaintiffs also object to the defendants’ interrogatories
that request the plaintiffs to list their criminal history, arguing
that these interrogatories are impermissible under Local Civil Rule
26

33.3(a)

and

that

this

information

can

be

more

accurately obtained through document requests.
Letter at 6).

readily

and

(Pl. April 12

The plaintiffs surmise that this request is “driven

by an inappropriate desire to create potential impeachment material
gratuitously.”

(Pl. April 12 Letter at 6 n.5).

The defendants

have

their

pertaining

narrowed

request

to

information

to

convictions outside of New York City because it is difficult for
them to search national database for this information. (Tr. at 2526).

To the extent that the defendants seek information about the

plaintiffs’ convictions outside of New York City, the plaintiffs
shall provide it.
5.

Criminal Records22

The defendants request that plaintiffs’ counsel be required to
contact each and everyone of the plaintiffs’ lawyers in prior
criminal action to obtain non-privileged responsive material.
(Def. March 22 Letter at 5).

The plaintiffs object on the grounds

that this request is overly broad and unduly burdensome.

(Pl.

April 12 Letter at 9-10).
In a prior class action suit alleging a pattern or practice of
the use of excessive force by the DOC, the Honorable Denny Chin,
former-U.S.D.J.,

limited

a

similar

request

to

production

of

documents “relating to convictions not more than ten years old (a)
punishable by imprisonment in excess of one year and/or involving
dishonesty

or

false

statements,

and

(b)

involving

acts

of

violence.” (Order dated Aug. 16, 2004, Ingles v. City of New York,
22

(Def. 1st Interrog. and Doc. Req., Document Requests, ¶ 1).
27

No. 01 Civ. 8279 (S.D.N.Y.) (“Aug. 16 Order”), attached as Exh. C.
to Def. March 22 Letter, ¶ 1).

If the plaintiffs were not in

possession of such responsive documents, they were directed to
identify their defense lawyers and request them to produce these
documents.

(Aug. 16 Order, ¶ 3).

If the former defense lawyers

declined to produce documents, then the burden was placed on the
defendants to subpoena the former lawyers as non-party witnesses.
(Aug. 16 Order, ¶ 4).

This appears to be a sensible course,

balancing the defendants’ need and the burden on the plaintiffs.
6.

Parole Records23

The defendants seek releases for each of the plaintiff’s
parole records.

(Def. March 22 Letter at 6).

The defendants

represent that eleven of the twelve plaintiffs appeared before the
Parole Board and two of the plaintiffs were found to have violated
the conditions of parole and were re-arrested.
Letter at 6; Tr. at 26).

(Def. March 22

The defendants argue that parole board

records are relevant to credibility because the plaintiffs may have
admitted to criminal acts. (Def. March 22 Letter at 6; Tr. at 26).
The plaintiffs respond that because the defendants would not
be allowed to introduce extrinsic evidence such as parole hearing
transcripts to attack the plaintiffs’ credibility under Rule 608(b)
of

the

Federal

undiscoverable.

Rules

of

Evidence,

this

information

is

(Pl. April 12 Letter at 11); Equal Employment

Opportunity Commission v. First Wireless Group, Inc., 225 F.R.D.
404, 406 (E.D.N.Y. 2004) (dismissing defendant’s argument that
23

(Def. 1st Interrog. and Doc. Req., Document Requests, ¶ 17).
28

plaintiffs'

tax returns were relevant to credibility under Rule

608(b) because

that rule bars introduction of extrinsic evidence

to impeach witness' credibility).

Likewise, they argue that Rule

609 of the Federal Rules of Evidence only allows introduction of
criminal conviction,

not of a parole hearing transcript.

(Pl.

April 12 Letter at 11).
Since the defendants have access to records of the plaintiffs'
underlying conviction as well as to records of any re arrest that
might have led to a parole violation,

they have the information

necessary to impeach the plaintiffs without the parole records.
Accordingly, this request is denied.
D.

Sanctions

The

defendants

Federal

Rules

of

seek

sanctions

Civil

under

Procedure.

Rule

Since

37 (a) (5)
the

of

the

defendants'

application has been granted only in part and since the plaintiffs'
position was generally substantially justified,
request for sanctions is denied.

See Fed.

R.

the defendants'
Civ.

P.

37 (a) (5)

(sanctions warranted only if motion for disclosure of discovery is
granted or requested discovery is provided after motion was filed) .
Conclusion
The plaintiffs and defendants'

applications are granted in

part and denied in part as indicated above.
SO ORDERED.

~
.

C'~O-M-uJa

JE:­

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
29

Dated:

New York, New York
May 17, 2013

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 Soc ty

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. Savino, Esq.

Corporation Counsel for the City of New York

100 Church Street

New York, NY 10007

Andreas Koutsoudakis, Esq.

Julie Schatz, Esq.

Koehler & Isaacs LLP

61 Broadway, 25th Floor

New York, NY 10006

Alezander Peltz, Esq.

Peltz & Walker

222 Broadway, 25th Floor

New York, NY 10038

30