Gropper v. David Ellis Real Estate, L.P. et al

Filing 47

MEMORANDUM AND ORDER denying 28 Motion for Sanctions; granting in part and denying in part 23 Motion to Compel: For the reasons discussed, the plaintiff's motion to compel discovery (Docket no. 23) is granted in part and denied in part as se t forth above, and his application for an award of counsel fees is denied without prejudice. The defendants' cross motion for sanctions (Docket no. 28) is denied. (Signed by Magistrate Judge James C. Francis on 2/10/2014) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
DAN GROPPER,
: 13 Civ. 2068 (ALC) (JCF)
:
Plaintiff,
:
MEMORANDUM
:
AND ORDER
- against :
:
DAVID ELLIS REAL ESTATE, L.P. and :
31 UNION SQUARE WEST, LLC, d/b/a
:
BLUE WATER GRILL,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
The plaintiff, Dan Gropper, brings this action alleging that
the Blue Water Grill, a Manhattan restaurant, violated his rights
because it does not meet the accessibility requirements of the
Americans With Disabilities Act, 42 U.S.C. § 12181 et seq., and
related state and city laws.

Mr. Gropper now moves pursuant to

Rule 37 of the Federal Rules of Civil Procedure for an order
compelling

discovery

responses

and

awarding

sanctions.

The

defendants have cross-moved for sanctions.
Background
The plaintiff filed his complaint on March 28, 2013.

Before

discovery commenced, the defendants moved to stay the action on the
ground that the accessibility of the Blue Water Grill was the
subject of a parallel investigation by the United States Department
of Justice.

In a Memorandum and Order dated July 29, 2013, I
1

denied the motion, though I encouraged plaintiff’s counsel to
consider agreeing to a voluntary stay.

He did not take up my

suggestion, and on August 27, 2013, he propounded interrogatories
and document requests.

(Plaintiff’s First Request for Documents

(“Pl. Doc. Req.”), attached as Exh. B to Declaration of Glen H.
Parker dated Nov. 26, 2013 (“Parker Decl.”); Plaintiff’s First Set
of Interrogatories (“Pl. Interrogs.”), attached as Exh. C to Parker
Decl.).
In a series of e-mail communications on September 19, 2013,
counsel

for

the

respective

parties

discussed

the

fact

that

responses to the discovery requests were due on September 27, 2013.
(E-mails of Glen Parker and Ernest E. Badway dated Sept. 19, 2013,
attached as part of Exh. D to Parker Decl.).

When plaintiff’s

counsel did not receive the responses on time, he sent e-mails on
October 4, October 8, and October 10, seeking to obtain them.

(E-

mails of Glen Parker dated Oct. 4, 2013, Oct. 8, 2013, and Oct. 10,
2013, attached as part of Exh. D to Parker Decl.).

On October 10,

defendants’ counsel indicated that they had objections to many of
the requests and also advised that one of the persons responsible
for providing the requested information had experienced a family
tragedy. (E-mail of Carolyn Richmond dated Oct. 10, 2013, attached
as part of Exh. D to Parker Decl.).

When plaintiff’s counsel

offered to agree to a schedule (E-mail of Glen Parker dated Oct.
2

10, 2013, attached as part of Exh. D to Parker Decl.), defendants’
counsel requested an additional three weeks (E-mail of Ernest E.
Badway dated Oct. 10, 2013, attached as part of Exh. D to Parker
Decl.).

Accordingly, counsel entered into a written stipulation

pursuant to which the defendants were to respond to the outstanding
discovery requests by November 1, 2013.

(Stipulation dated Oct.

11, 2103, attached as Exh. E to Parker Decl.).
When plaintiff’s counsel did not receive responses on November
1, he e-mailed defendants’ counsel on November 4, asking if they
had been sent. (E-mail of Glen Parker dated Nov. 4, 2013, attached
as part of Exh. D to Parker Decl.).

Defendants’ counsel replied

that they had the deadline “calendared as November 18, 2013.”

(E-

mail of Ernest E. Badway dated Nov. 4, 2013, attached as part of
Exh.

D

to

Parker

Decl.).

Nonetheless,

on

November

6,

the

defendants provided their responses to the plaintiff’s discovery
demands.1

(Defendants’ Responses to Plaintiff’s First Request for

Documents (“Def. Doc. Resp.”), attached as Exh. G to Parker Decl.).
Considering the responses inadequate, plaintiff’s counsel sent a
deficiency letter to defendants’ counsel on November 8 and, when he

1

Apparently, the defendants provided interrogatory answers as
well as responses to document requests. However, instead of those
answers, the plaintiff has attached the interrogatories propounded
by the defendants to its motion papers. (Compare Parker Decl., ¶
12 with Exh. F to Parker Decl.).
3

received no response, sent a letter to the Court on November 13
asking for a conference.

(Letter of Glen H. Parker dated Nov. 13,

2013 “Parker 11/13/13 Letter”)).

On November 18, defendants’

counsel requested reconsideration of my order denying a stay of
this action, and I denied that application the following day.
(Letter of Ernest E. Badway dated Nov. 18, 2013; Memorandum
Endorsement dated Nov. 19, 2013). Also on November 19, I addressed
the request of plaintiff’s counsel for a conference; I indicated he
should file a formal motion and observed that attorneys’ fees would
likely be assessed against any party whose position was not
substantially justified.

(Memorandum Endorsement dated Nov. 19,

2013).
The plaintiff filed the instant motion on November 26, 2013.
He contends that the defendants waived any objections to the
requested discovery by failing to provide responses in a timely
fashion.

(Plaintiff’s Memorandum of Law in Support of Motion to

Compel and for Fees (“Pl. Memo.”) at 2-3).

The plaintiff further

argues that the defendants’ objections were improper and that their
responses, once they were provided, were incomplete and evasive.
(Pl. Memo. at 3-10).

He notes that the defendants have asserted

privilege but provided no privilege log and that they failed to
verify their interrogatory answers.

(Pl. Memo. at 10).

The

plaintiff seeks an award of attorneys’ fees in connection with his
4

motion.

(Pl. Memo. at 11).

The defendants answered the motion on December 10, 2013,
arguing that the plaintiff had failed to comply with the obligation
to meet and confer prior to filing his motion.

(Defendants’

Memorandum of Law in Opposition to Plaintiff’s Motion to Compel and
for Fees and in Support of Defendants’ Cross-Motion for Sanctions
(“Def. Memo.”) at 3, 5-6).

The defendants point out that they had

provided responses to the document requests and interrogatories and
note that they possess additional documents that they intended to
produce.
has

(Def. Memo. at 4).

“unclean

hands”

because

They also argue that the plaintiff
he

did

not

provide

responsive to the defendants’ discovery requests.
6-7).

information

(Def. Memo. at

Finally, the defendants cross-move for an award of the

attorneys’ fees incurred in opposing the plaintiff’s motion.
Discussion
A. Meet and Confer Obligations
A

motion

to

compel

discovery

“must

include

a

certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court
action.”

Fed. R. Civ. P. 37(a)(1).

Here, the plaintiff satisfied

that requirement with respect to efforts to obtain discovery
responses in the first place.

As described above, plaintiff’s
5

counsel

repeatedly

reminded

his

adversary

of

the

defendants’

obligation to produce the requested documents and interrogatory
answers, and defendants’ counsel was generally non-responsive.
Even when counsel agreed on a formal extension of the deadline, the
defendant did not comply with it.
A failure to meet and confer may be excused when to do so
would be futile. See Gibbons v. Smith, No. 01 Civ. 1224,
2010 WL 582354, at *2 (S.D.N.Y. Feb. 11, 2010);
Metrokane, Inc. v. Built NY, Inc., No. 06 Civ. 14447,
2008 WL 4185865, at *3 (S.D.N.Y. Sept. 3, 2008); Myers v.
Andzel, No. 06 Civ. 14420, 2007 WL 3256865, at *1
(S.D.N.Y. Oct. 15, 2007). Of course, futility should not
be lightly presumed. But where, as here, a party has
tried over an extended period of time to obtain full
compliance with discovery demands and has received no
firm commitment, it has no obligation to continue
negotiations that seemingly have no end. See Bell v.
Lockheed Martin Corp., Civ. No. 08-6292, 2012 WL 1677240,
at *1 (D.N.J. May 14, 2012); Bristol-Myers Squibb Co. v.
Rhone-Poulenc Rorer, Inc., No. 95 Civ. 8833, 1998 WL
2829, at *3 (S.D.N.Y. Jan. 6, 1998).
Fleisher v. Phoenix Life Insurance Co., No. 11 Civ. 8405, 2012 WL
6732905, at *2 (S.D.N.Y. Dec. 27, 2012).
Whether the parties have exhausted their meet and confer
obligations with respect to the substance of the defendants’
responses is a good deal less clear.

Plaintiff’s counsel asserts

that on November 8, 2013, two days after receiving the defendants’
responses, he sent a deficiency letter to defendants’ counsel.
(Parker 11/13/13 Letter at 1).

However, that letter has not been

submitted to the court, so it is unclear if a meaningful effort was

6

made to resolve any disagreements.

Indeed, as will be discussed

below, the failure of counsel to engage with one another impedes me
from resolving, or even identifying, outstanding disputes.
B. Reciprocal Obligations
The defendants further contend that the plaintiff’s motion
should be summarily denied because the plaintiff himself has failed
to respond to discovery requests.

Discovery is not equity: one

party’s noncompliance with discovery requirements does not excuse
the

other’s

failure

to

comply.

Each

party’s

obligation

is

independent, and any motion to compel will be determined on its own
merits.2
C. Timeliness of Defendants’ Discovery Responses
The defendants cannot plausibly argue that they responded to
the plaintiff’s discovery demands in a timely fashion.

The

responses were due on September 27, 2013, and were not provided
until November 6, 2013.

In the meantime, plaintiff’s counsel

repeatedly reminded defendants’ counsel that the responses were
overdue

and,

even

when

the

parties

entered

into

a

formal

stipulation extending the time to respond, the defendants did not
meet that deadline.

Rules 33(b) and 34 of the Federal Rules of

Civil Procedure require responses within 30 days of service of

2

Indeed, the defendants have filed a motion to compel which
will be dealt with in a separate order.
7

interrogatories or document requests, and a party who fails to
comply with that obligation may be deemed to have forfeited any
objections. Sadolfsky v. Fiesta Products, LLC, 252 F.R.D. 143, 154
(E.D.N.Y. 2008); Rahman v. Smith & Wollensky Restaurant Group,
Inc., No. 06 Civ. 6198, 2007 WL 1521117, at *2-3 (S.D.N.Y. May 24,
2007).

Nonetheless, “[c]ourts have substantial discretion in

deciding when objections should be waived.”

Enron Corp. Savings

Plan v. Hewitt Associates, L.L.C., 258 F.R.D. 149, 158 (S.D. Tex.
2009).
Here, it would be unduly harsh to deem the defendants’
objections forfeited.

First, the responses were provided within

five days of the extended deadline to which the plaintiff had
(reluctantly) agreed.

Second, some of the objections asserted by

the defendants to the scope of the discovery requests have merit,
and it would be a waste of time for all parties to engage in
production and review of irrelevant materials. See Bennie v. Munn,
No. 4:11CV3089, 2013 WL 3766537, at *2 (D. Neb. July 16, 2013)
(finding no waiver of objections for failure to make timely
response

to

overbroad

subpoena).

Accordingly,

while

the

defendants’ responses were tardy, I will not deem their objections
to have been waived.
B. Substantive Deficiencies
“General

and

conclusory

objections
8

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).

The objections

asserted by the defendants to the plaintiff’s discovery demands are
just

such

boilerplate

responses.

See

In

re

Weatherford

International Securities Litigation, No. 11 Civ. 1646, 2013 WL
5788680, at *2 (S.D.N.Y. Oct. 28, 2013); Freydl v. Meringolo, No.
09 Civ. 7196, 2011 WL 2566087, at *4 (S.D.N.Y. June 16, 2011).

The

only document request that the defendants have ever objected to
with any specificity is Request no. 44, which seeks “[c]opies of
any and all documents concerning, or that otherwise describe,
evidence, or refer to, the number of defendant’s [sic] employees
that work at the Property since 2005.”

(Pl. Doc. Req., no. 44).

The defendants characterize the information requested as “patently
irrelevant.”
2).

(Letter of Ernest E. Badway dated Nov. 18, 2013, at

It is not; under the applicable statutory and regulatory

provisions, the number of persons employed by a defendant is one of
several

factors

accommodations
achievable.”

to

be

demanded

considered
by

a

in

disabled

determining

plaintiff

are

whether
“readily

42 U.S.C. § 12181(9)(C); 28 C.F.R. § 36.104.

By the same token, many of the plaintiff’s discovery demands
are objectionable on their face.
example.

While

the

number

The request just cited is a good

of
9

the

defendants’

employees

is

relevant, the request for “any and all” documents concerning that
subject is inherently overbroad.

See Rice v. Reliastar Life

Insurance Co., Civ. A. No. 11-44, 2011 WL 5513181, at *2 (M.D. La.
Nov. 10, 2011) (finding that “a request for ‘any and all documents’
relating to a particular subject is overbroad and amounts to little
more than a fishing expedition”); Badr v. Liberty Mutual Group,
Inc., No. 3:06CV1208, 2007 WL 2904210, at *3 (D. Conn. Sept. 28,
2007) (finding request for “any and all” documents overly broad);
Pollard v. E.I. DuPont de Nemours & Co., No. 95-3010, 2004 WL
784489, at *5 (W.D. Tenn. 2004)(holding “any and all” request
ambiguous and overbroad).
documents

sufficient

to

An appropriate request would seek
identify

the

number

of

employees

at

relevant times.3
This example is by no means unique.

Request no. 7, for

instance, seeks “[c]opies of any and all documents, including
correspondence

or

other

communications,

with

any

and

all

individuals from whom the defendant has obtained, or expects to
obtain,

a

written

or

oral

statement

concerning,

otherwise

describing, evidencing, or referring to, the facts of this case,
including a copy of any statement.” (Pl. Doc. Req. no. 7 (emphasis

3

Better yet, since the information need not be absolutely
precise given the purpose for which it will be used, the parties
could be expected to stipulate to the approximate number of
employees without the need for document production at all.
10

added)). Furthermore, many requests solicit all documents relevant
to some aspect of the defendants’ property without distinguishing
between the restaurant, which is the focus of the litigation, and
the residential apartments located in the same building, which are
not relevant.

(Pl. Doc. Req. nos. 12-31).

I respectfully decline to rewrite the plaintiff’s discovery
demands, particularly in light of the fact that both prior to and
after the plaintiff’s motion to compel was filed, the defendants
produced some documents.

Instead, counsel shall comply with the

following

addressing

protocol

for

disputes

relating

to

plaintiff’s pending discovery demands:
1. By February 21, 2014, counsel for the plaintiff
and counsel for the defendants shall meet and confer
face-to-face for as long as is necessary to address
individually each and every document request.
2. By February 28, 2014, the defendants shall
produce properly verified interrogatory answers if they
have not already done so.
3. By February 28, 2014, counsel shall submit a
joint letter identifying for each individual document
request whether they have a remaining dispute and, if so,
setting forth each party’s respective position in detail.
4. By March 7, 2014, the defendants shall produce
all documents responsive to discovery requests as to
which there are no further disputes. In doing so, the
defendants shall indicate whether any responsive
documents are being withheld for any reason.
With
respect to documents produced at that time as well as
those previously produced, the defendants shall either
identify the document request to which they are
responsive or, if they are produced in the manner in
11

the

which they are kept in the regular course of business,
identify their source (e.g., name and title of custodian
and designation of file).
5. By March 7, 2014, the defendants shall produce a
privilege log identifying any documents they are
withholding on grounds of privilege or work product
protection.
C. Sanctions
Rule 37(a) requires that, when a motion to compel is granted
or discovery is provided after such a motion is filed, the court
order the party “whose conduct necessitated the motion,” its
attorney, or both “to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees,” unless the moving
party failed to make a good faith effort to obtain the discovery
without

court

justified,

or

intervention,
the

award

the

would

be

conduct
unjust.

was
Fed.

substantially
R.

Civ.

P.

37(a)(5)(A); see Alexander Interactive, Inc. v. Adorama, Inc., No.
12 Civ. 6608, 2014 WL 61472, at *7 (S.D.N.Y. Jan. 6, 2014); Oleg
Cassini, Inc. v. Electrolux Home Products, Inc., No. 11 Civ. 1237,
2013 WL 3056805, at *4 (S.D.N.Y. June 19, 2013); Underdog Trucking,
LLC v. Verizon Services Corp., 273 F.R.D. 372, 377 (S.D.N.Y. 2011).
To the extent that the plaintiff here sought a remedy for the
defendants’ failure to respond at all to the discovery requests,
the motion was filed after the defendants had responded, and the
relief requested by the plaintiff -- forfeiture of any objections

12

-- has been denied.

To the extent that the plaintiff complains of

the quality of the responses that the defendants have provided, the
magnitude of any deficiency cannot be determined until the parties
complete the interactive process described above. Accordingly, the
plaintiff’s application for an award of attorneys’ fees is denied
without prejudice to renewal once all remaining disputes relating
to these discovery requests have been adjudicated.
The

defendants’

cross-motion

for

fees

is

based

on

Rule

37(a)(5)(B), which provides that when a motion to compel is denied,
the moving party must pay the other party’s costs, including fees,
unless

the

motion

was

substantially

circumstances make an award unjust.

justified

or

other

See Novick v. AXA Network,

LLC, No. 07 Civ. 7767, 2013 WL 7085799, at *1-2 (S.D.N.Y. Nov. 6,
2013); MPD Accessories B.V. v. Urban Outfitters, No. 12 Civ. 6501,
2013 WL 5647430, at *2 (S.D.N.Y. Oct. 9, 2013).
plaintiff’s motion was warranted.
providing

any

response

to

Here, the

The defendants’ dilatoriness in

discovery

demands

justified

the

plaintiff’s request that objections be deemed waived, even though
that request was ultimately denied.

Furthermore, the defendants’

boilerplate objections, their failure to clarify what information
was being withheld on the basis of those objections, and their
failure to provide a privilege log all justified the plaintiff’s
filing his motion after receiving the initial responses.
13

The

defendants' cross-motion for sanctions is therefore denied.
Conclusion
For the reasons discussed,

the plaintiff's motion to compel

discovery (Docket no. 23) is granted in part and denied in part as
set forth above, and his application for an award of counsel fees
is denied without prejudice.

The defendants'

cross motion for

sanctions (Docket no. 28) is denied.
SO ORDERED.

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

Glen H. Parker, Esq.

Adam S. Hanski, Esq.

Parker Hanski LLC

40 Worth St., 10th Floor

New York, NY 10013

Ernest E. Badway, Esq.

Carolyn D. Richmond, Esq.

Rosemary Joyce, Esq.

Fox Rothschild LLP

100 Park Avenue, 15th Fl.

New York, NY 10017

14