Corley v. Vance et al

Filing 358

ORDER terminating 347 Motion to Compel. In sum, the Court ORDERS both sets of Defendants to, insofar as they rely on said objections, identify more practical methods by which Plaintiff may obtain the information he seeks and identify the means by which Plaintiff may obtain information believed to be publicly available to Plaintiff. The Court further ORDERS both sets of Defendants to respond to Plaintiff's proposed solution for his supernumerary interrogatories and to create and prov ide to Plaintiff a privilege log for materials claimed to fall within the attorney-client or work-product privileges. Separately, the Court ORDERS the NYPD Defendants to provide a log, insofar as it is practicable to do so, of any records relevant to Plaintiff's remaining claims that have since been destroyed by operation of law, including an identification of the record and the approximate date of destruction. Moreover, the Court ORDERS the NYPD Defendants, insofar as they rely on the Plan for Certain § 1983 Cases Against the City of New York as the sole reason for denying discovery of requested documents, to produce said requested documents. The Court additionally ORDERS the NYPD Defendants to respond to Plaintiff's request for identification of Officer Gregory Smith. All such orders contained herein shall be complied with no later than March 10, 2020. Finally, the post-fact discovery conference is hereby rescheduled for March 26, 2020, at 10:00 a.m. At the app ointed date and time for the conference, the Warden or other official in charge of the Federal Correctional Institution Petersburg Low in Petersburg, Virginia, shall produce inmate Royce Corley, Reg. No. 68011-054, at a suitable location within the Federal Correctional Institution Petersburg Low, equipped with a telephone, for the purpose of participating by telephone in the conference with the Court and defense counsel in the above referenced matter. At the appointed time, Defendants shall c all [phone] and enter access code 6624801. Please note, the phone conference line will not be available prior to 4:00 p.m. Counsel for Defendants must (i) transmit this Order to the Warden forthwith; (ii) contact the Federal Correctional In stitution Petersburg Low forthwith to arrange the call and to determine the telephone number at which pro se plaintiff will be reachable at the above time and date; and (iii) telephone the Court with pro se plaintiff on the line at the time and date of the conference. The Clerk of Court is directed to terminate the motion at docket entry 347. SO ORDERED. (Signed by Judge Katherine Polk Failla on 2/11/2020) Copies Mailed By Chambers. (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROYCE CORLEY,
Plaintiff,
-v.-

15 Civ. 1800 (KPF)

CYRUS R. VANCE, JR., et al.,

ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
The Court is in receipt of Plaintiff Royce Corley’s motion to compel
discovery and seek sanctions in this case. (Dkt. #347). The Court has also
received letters responding to the motion from Defendants New York County
District Attorney Cyrus R. Vance, Jr., Assistant District Attorney (“ADA”) David
Stuart, and former ADAs John Temple, Greg Weiss, and Elizabeth Pederson
(collectively, the “DA Defendants”) (Dkt. #349, 352), and from Defendants Brian
Conroy, Michael Daly, Mark Woods, Detective Jessica Sterling, Giancarlo
Cavallo, Greg Smith, and Shari C. Hyman (collectively, the “NYPD Defendants”)
(Dkt. #350, 353). More recently, the Court received a reply submission from
Plaintiff in further support of his motion. (Dkt. #356). The Court has identified
twelve challenges that Plaintiff has raised to Defendants’ discovery responses
(see Dkt. #347 at 3-8), and will address each in turn.
Plaintiff first challenges Defendants’ contention that his discovery
requests were “vague, ambiguous, overbroad, [and] unduly burdensome.” (Dkt.
#347 at 3). As Defendants point out (Dkt. #352 at 3; Dkt. #353 at 3), Plaintiff’s
remaining claims are: (a) a claim for unlawful search and seizure against the

DA Defendants and (b) claims for malicious prosecution and unlawful search
and seizure against the NYPD Defendants. Plaintiff’s discovery requests seek a
broad swath of information covering the entirety of his prior prosecution,
without any effort to tailor the requests to the three remaining claims.
Moreover, Defendants have represented that they are not in possession of most
of the documents, records, or information Plaintiff has requested (Dkt. #352-2,
#353-3), in part because much of the information was turned over to the
United States Attorney’s Office for the Southern District of New York in the
context of Plaintiff’s criminal prosecution (Dkt. #352-2). Based on its review of
the information submitted by the parties, the Court is unable to find that
Defendants’ characterization of Plaintiff’s requests as “vague, ambiguous,
overbroad, [and] unduly burdensome” is incorrect, regardless how “boilerplate
it may seem” to Plaintiff.
Plaintiff next challenges Defendants’ refusal to disclose information that
Defendants contend falls within the ambit of a protective order issued by the
Honorable Robert P. Patterson on November 4, 2013. (Dkt. #347 at 4).
Specifically, Plaintiff seeks information regarding the minor victims of his prior
conviction. In this regard, Plaintiff argues that Judge Patterson’s protective
order is inapplicable because: (i) it does not apply to civil discovery;
(ii) materials produced pursuant to the Jencks Act, 18 U.S.C. § 3500, are
always discoverable after a witness has testified on direct examination; and
(iii) the protective order was modified by the Honorable Alison J. Nathan on
January 15, 2016, to allow Plaintiff to view the information he seeks. (Id.).
2

Plaintiff is incorrect on all three counts. First, as Judge Patterson’s
November 4 order makes clear, Plaintiff is precluded from possessing the
desired information “before, during, or after trial.” (Dkt. #352-1 at 3). There is
nothing in the order that would exclude its applicability to Plaintiff’s civil case.
Second, 18 U.S.C. § 3500(a) does not provide that statements produced
pursuant to its terms become discoverable publicly, and for all time, after a
witness has testified on direct examination. See 18 U.S.C. § 3500(a) (“After a
witness called by the United States has testified on direct examination, the
court shall, on motion of the defendant, order the United States to produce any
statement (as hereinafter defined) of the witness in the possession of the United
States which relates to the subject matter as to which the witness has
testified.”). In any event, Judge Patterson’s order nonetheless controls in this
situation. Cf. United States v. Palmer, No. 10 Cr. 910 (JSR), 2011 WL 672412,
at *1 (S.D.N.Y. Feb. 14, 2011) (imposing judicial limits on review and retention
of § 3500 materials). Third, while Judge Nathan’s January 15 order did indeed
modify aspects of Judge Patterson’s order, it did not modify the earlier order to
permit Plaintiff access to the information he now seeks through his discovery
requests. It is clear that Judge Nathan’s order was limited to the question of
whether Plaintiff could have access to the § 3500 materials for the purposes of
supplementing his appeal. (Dkt. #352-2 at 5-6). Moreover, Judge Nathan’s
order expressly precludes Plaintiff from obtaining identifying information about
the minor victims. (Id. at 7-9). Finally, as Defendants explain, the § 3500
material is in the possession of either the Federal Government or Plaintiff
3

himself, and therefore Defendants cannot provide it. (Dkt. #353 at 2-3).
Defendants therefore do not contravene the Court’s discovery orders in denying
Plaintiff’s request for information covered by the two protective orders.
Plaintiff objects to what he purports to be Defendants’ reliance on
various New York State laws as well as various privileges. (Dkt. #347 at 4).
Specifically, Plaintiff challenges the NYPD Defendants’ assertion that certain
information he seeks may be protected by N.Y. Crim. Pro. Law § 160.50.1
Insofar as § 160.50 is concerned, Plaintiff has not explained — apart from a
citation to Mercado v. Division of New York Police, 989 F. Supp. 521 (S.D.N.Y.
1998), which does not stand for the broad holding Plaintiff ascribes to it — why
that state law does not prohibit disclosure of the requested information.
Moreover, Plaintiff has not presented any argument as to why the privileges to
which Defendants cite are not apt in this case. Therefore, the Court does not
see this argument as a ground on which it can find that Defendants have
violated their discovery obligations.
Plaintiff also objects to Defendants’ refusal to identify to Plaintiff “a more
practical method of obtaining the information sought.” (Dkt. #347 at 5).
Assuming there is a more practical method of obtaining the information
Plaintiff seeks, the Court sees no reason why Defendants cannot or should not
identify such a method to him. Therefore, insofar as Defendants rely on there
being a more practical method available to Plaintiff of obtaining the information

1

Plaintiff intimates that other state statutes might be implicated, but no others are
mentioned in Defendants’ objections.

4

her seeks in denying discovery, the Court ORDERS Defendants to identify that
method.
As his fifth objection, Plaintiff argues that Defendants “must provide
some details about whether they still exercise ‘constructive possession’” over
documents not in their possession, custody, or control. (Dkt. #347 at 5).
Defendants have explained in their letter responses that much of the
information Plaintiff seeks is in the possession of the Federal Government (Dkt.
#352 at 2; Dkt. #353 at 2), and the Court does not find any reason why
Defendants must explain whether they exercise “constructive possession” over
such information and documents.
Plaintiff’s sixth objection is substantially similar to his objection
regarding Defendants’ refusal to identify a more practical method of obtaining
the information sought, except it regards information that is represented to be
publicly or equally available to Plaintiff. (Dkt. #347 at 6). Insofar as
Defendants rely on such a rationale for denying discovery, the Court ORDERS
Defendants to identify the means by which Plaintiff may obtain such publicly
or equally available information.
Plaintiff briefly notes that Defendants objected to his number of
interrogatories surpassing the limit of 25. (Dkt. #347 at 6). Plaintiff has
apologized for the oversight, and has offered a remedy to Defendants that has
not received a response. (Id.). The Court ORDERS Defendants to respond to
Plaintiff’s proposed solution.

5

Plaintiff next challenges the NYPD Defendants’ statement that certain
information sought has been destroyed by operation of law, and their
concomitant non-response to Plaintiff’s request for an index of such destroyed
records. (Dkt. #347 at 6). Plaintiff contends that he may be able to make a
claim for spoliation sanctions. (Id.). Given the duration of time between
Plaintiff’s prosecution and the filing of the instant action, the Court thinks it is
unlikely that Defendants have violated their duty to preserve evidence.
Nevertheless, the Court finds it reasonable, and therefore ORDERS, the NYPD
Defendants to provide a log, insofar as it is practicable to do so, of any records
relevant to Plaintiff’s remaining claims that have been destroyed by operation of
law, including an identification of the record and the approximate date of
destruction.
Plaintiff argues that Defendants have claimed certain requested materials
are protected under the attorney-client privilege or work product doctrine, but
have not provided a privilege log to Plaintiff. (Dkt. #347 at 7). The Court sees
no reason why Defendants should not create, and Plaintiff should not be given,
a privilege log, and therefore ORDERS each group of Defendants to provide
such a log to Plaintiff.
In his tenth challenge, Plaintiff notes the NYPD Defendants’ objection
that documents responsive to Plaintiff’s Document Request No. 15, seeking “all
criminal, civil, and CCRB complaints, disciplinary records[,] and case history
for each subject are subject to a Protective Order encompassed by this
District’s ‘Plan for Certain § 1983 Cases Against the City of New York.’” (Dkt.
6

#347 at 7). That Plan, embodied now in Local Civil Rule 83.10, applies to cases
involving “represented plaintiff[s]”, which Plaintiff here is not. Therefore, the
Court finds that the NYPD Defendants may not rely on the Protective Order
connected to the Plan as a rationale for denying discovery. Insofar as the Plan
is the sole reason for denying discovery, the NYPD Defendants are ORDERED
to produce the requested documents.
Plaintiff’s penultimate challenge concerns the NYPD Defendants’ failure
to identify an Officer Gregory Smith. (Dkt. #347 at 7-8). The Court sees no
reason why Defendants, having informed Plaintiff that they would research
Officer Smith’s identity and provide further information, should not provide
that information. The Court ORDERS the NYPD Defendants to confirm Officer
Smith’s identity.
Finally, Plaintiff argues that Defendants have violated Federal Rule of
Civil Procedure 33(b)(3) by providing unsworn responses to his interrogatories.
(Dkt. #347 at 8). However, Rule 33(b)(3) says in its entirety that “[e]ach
interrogatory must, to the extent it is not objected to, be answered separately
and fully in writing under oath.” Fed R. Civ. P. 33(b)(3). As Defendants have
objected to each of Plaintiff’s interrogatories, their answers need not be sworn.
Having addressed Plaintiff’s challenges to Defendants’ objections, the
Court now turns to whether Defendants’ actions warrant sanctions.
Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes a court to
impose sanctions against a party that “fails to obey an order to provide or
permit discovery[.]” Salahuddin v. Harris, 782 F.2d 1127, 1132-33 (2d Cir.
7

1986); see also Auscape Int’l v. Nat’l Geographic Soc’y, No. 02 Civ. 6441 (LAK),
2003 WL 134989 at *4 (S.D.N.Y. Jan. 17, 2003) (quoting 8 Charles A. Wright,
Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2283, at
608 (2d ed. 1994)). “Several considerations inform a court’s decision to impose
sanctions under Rule 37, including: [i] the willfulness of the non-compliant
party; [ii] the efficacy of lesser sanctions; [iii] the duration of the
noncompliance; and [iv] whether the non-compliant party had been warned’
that noncompliance would be sanctioned.” Arrowhead Capital Fin., Ltd. v.
Seven Arts Entm’t, Inc., No. 14 Civ. 6512 (KPF), 2017 WL 1787819, at *4
(S.D.N.Y. May 2, 2017) (internal citations omitted) (collecting cases), aff’d, 739
F. App’x 701 (2d Cir. 2018) (summary order).
For all of the reasons discussed above, the Court does not believe the
circumstances presented warrant sanctions. The Court finds no indication
that Defendants have acted in bad faith or improperly in objecting to Plaintiff’s
broad discovery requests. The Court has also ordered further responses from
Defendants to ensure that Plaintiff is not deprived of the discovery to which he
is entitled. No sanctions will be entered at this time.
In sum, the Court ORDERS both sets of Defendants to, insofar as they
rely on said objections, identify more practical methods by which Plaintiff may
obtain the information he seeks and identify the means by which Plaintiff may
obtain information believed to be publicly available to Plaintiff. The Court
further ORDERS both sets of Defendants to respond to Plaintiff’s proposed
solution for his supernumerary interrogatories and to create and provide to
8

Plaintiff a privilege log for materials claimed to fall within the attorney-client or
work-product privileges.
Separately, the Court ORDERS the NYPD Defendants to provide a log,
insofar as it is practicable to do so, of any records relevant to Plaintiff’s
remaining claims that have since been destroyed by operation of law, including
an identification of the record and the approximate date of destruction.
Moreover, the Court ORDERS the NYPD Defendants, insofar as they rely on the
Plan for Certain § 1983 Cases Against the City of New York as the sole reason
for denying discovery of requested documents, to produce said requested
documents. The Court additionally ORDERS the NYPD Defendants to respond
to Plaintiff’s request for identification of Officer Gregory Smith.
All such orders contained herein shall be complied with no later than
March 10, 2020.
Finally, the post-fact discovery conference is hereby rescheduled for
March 26, 2020, at 10:00 a.m. At the appointed date and time for the
conference, the Warden or other official in charge of the Federal Correctional
Institution Petersburg Low in Petersburg, Virginia, shall produce inmate Royce
Corley, Reg. No. 68011-054, at a suitable location within the Federal
Correctional Institution Petersburg Low, equipped with a telephone, for the
purpose of participating by telephone in the conference with the Court and
defense counsel in the above referenced matter. At the appointed time,
Defendants shall call [phone] and enter access code 6624801. Please
note, the phone conference line will not be available prior to 4:00 p.m. Counsel
9

for Defendants must (i) transmit this Order to the Warden forthwith; (ii) contact
the Federal Correctional Institution Petersburg Low forthwith to arrange the
call and to determine the telephone number at which pro se plaintiff will be
reachable at the above time and date; and (iii) telephone the Court with pro se
plaintiff on the line at the time and date of the conference.
The Clerk of Court is directed to terminate the motion at docket entry
347.
SO ORDERED.
Dated: February 11, 2020
New York, New York
KATHERINE POLK FAILLA
United States District Judge

A copy of this Order was mailed by Chambers to:
Royce Corley
104 Gold Street
Brooklyn, NY 11201

10