Winfield et al v. City Of New York

Filing 268

OPINION AND ORDER. Plaintiffs' motion to compel is GRANTED in part and DENIED in part, and the City's motion for a protective order is GRANTED. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 2/12/18) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JANELL WINFIELD, TRACEY STEWART,
and SHAUNA NOEL,
Plaintiffs,

02/12/2018
OPINION AND ORDER
15-cv-05236 (LTS) (KHP)

-againstCITY OF NEW YORK,
Defendant.
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KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

The parties in this case have had many discovery disputes. The latest one involves a
broad deposition notice served on the City pursuant to Federal Rule of Civil Procedure 30(b)(6)
(“Rule 30(b)(6)”).
As set forth in more detail in this Court’s prior rulings, 1 this civil rights action challenges
a New York City policy regarding affordable housing lotteries. The policy, which is referred to as
the “Community Preference Policy,” allocates 50% of units in affordable housing lotteries to
individuals who already reside in the Community District where the affordable housing units are
located. Plaintiffs allege that the Community Preference Policy violates the federal Fair Housing
Act (“FHA”), 42 U.S.C. § 3604 et seq., and the New York City Human Rights Law (“NYCHRL”), NYC
Admin. Code § 8-107, et seq., because it perpetuates racial segregation and disparately impacts

The facts pertaining to the underlying action have been set forth in the Court’s prior decisions. See Winfield v.
City of New York, No. 15-cv-5236 (LTS) (DCF), 2016 WL 6208564, at *1-3 (S.D.N.Y. Oct. 24, 2016); Winfield v. City of
New York, No. 15-cv-5236 (LTS) (KHP), 2017 WL 5664852, at *1-6 (S.D.N.Y. Nov. 27, 2017); see also Winfield v. City
of New York, No. 15-cv-5236 (LTS) (KHP), 2017 WL 2880556, at *1-2 (S.D.N.Y. July 5, 2017), objections overruled by
2017 WL 5054727, at *1-2 (S.D.N.Y. Nov. 2, 2017).

1

1

racial minorities. Plaintiffs also claim that the City’s decisions to establish, expand, and
maintain the policy constitute intentional discrimination.
In order to prove their case, Plaintiffs sought and were provided data maintained by the
City on individuals who have applied for housing through affordable housing lotteries and who
might have been impacted by the Community Preference Policy through lottery outcomes. The
data is housed in two databases called “Housing Connect” and “Access.” This data is being
analyzed by experts and will be the subject of expert reports.
On November 7, 2017, Plaintiffs served a Notice of Deposition (the “Notice”) pursuant
to Rule 30(b)(6) on the City. The Notice seeks various information from the City’s Department
of Housing Preservation and Development (“HPD”) concerning the Housing Connect and Access
databases and the data maintained therein from both the front-end user and back-end
perspectives, as well as information about various policies related to data and data analyses. 2
It is clear from the face of the Notice that no one person alone can testify about the breadth of
issues covered therein.
The City has designated one witness to testify as to some of the topics in the Notice but
has not yet identified witnesses to testify as to the remaining topics covered by the Notice.
Currently pending before this Court are (1) Plaintiffs’ motion to compel the City to identify

2

Because the data needed in this case is voluminous and complex, it was critical for the parties to exchange
information about it at the start of this case. For this reason, early in the case, this Court encouraged the City to
permit Plaintiffs’ counsel and their technology experts to meet informally with appropriate database managers to
facilitate the exchange of information about the location of data, the availability of data dictionaries, and
limitations of the data. The parties agreed to this suggestion and met several times to discuss data. Plaintiffs were
able to speak directly with database personnel in these meetings. This Court expressed the hope that such
informal exchange of information might obviate the need for formal depositions and/or permit more targeted and
specific formal discovery in the form of stipulated facts and/or interrogatories about the data and databases. The
Court did not, however, preclude Plaintiffs from serving a Rule 30(b)(6) Notice for testimony on these topics.

2

witnesses qualified to provide deposition testimony as to all topics contained in Plaintiffs’
Notice and (2) Defendant’s cross-motion for a protective order seeking greater specificity as to
technical data topics, precluding broad, policy-related questioning, and limiting the duration of
the deposition of individuals testifying about technical database issues. 3 For the reasons set
forth below, Plaintiffs’ motion is granted in part and denied in part, and the City’s cross-motion
is granted.
BACKGROUND
Plaintiffs’ Rule 30(b)(6) Notice seeks information falling largely into three categories: (1)
the functioning of the lottery and affordable housing marketing process from a front-end
database user perspective; (2) technical questions concerning the Housing Connect and Access
databases (i.e., back-end data questions); and (3) policies underlying the City’s data collection
and analyses. The City has objected to the Notice on various grounds, including its scope, lack
of specificity, and the relative unavailability of some information. With respect to the first
category of information, however, the City has nevertheless identified at least one witness who
can testify about HPD’s lottery and marketing processes and interaction with the two databases
from a front-end user perspective. With respect to the second category, the City has agreed to
identify knowledgeable data systems witnesses, but the parties have disputes concerning
deposition procedure and length of time for the deposition. With respect to the third category,
the City objects to the information sought on the grounds that the deposition would be unduly
burdensome insofar as the information is not relevant and the topics noticed seek information

3

The City made its oral cross-motion for a protective order during the January 25, 2018 discovery conference held
before this Court.

3

that is not reasonably available to the City. The numbered topics in Plaintiffs’ Notice fall into
these three categories as illustrated below: 4
Category One: The Functioning Of The
Lottery And Marketing Processes (i.e., frontend user questions)

(1)
The means by which HPD collects,
maintains, and organizes data concerning: (a)
Any persons who express interest in, who
register to get information about or to
prepare to apply for, who request
information about, or who apply for any
affordable housing opportunities in New York
City; and (b) Tenant or owner selection in
connection with any affordable housing
development in New York City, including all
steps involved in a lottery or other selection
procedure, and including the tracking or
documentation of lottery outcomes, and
including all types of preferences tracked or
documented.
(2)
The means by which HPD requires or
permits developers of affordable housing
units subject to lottery under the auspices of
HPD or HDC to collect, maintain, and
organize data concerning: (a) Any persons
who express interest in, who register to get
information about or to prepare to apply for,
who request information about, or who
apply for any affordable housing
opportunities in New York City; and (b)
Tenant or owner selection in connection with
any affordable housing development in New
York City, including all steps involved in a
lottery or other selection procedure, and
including the tracking or documentation of
lottery outcomes, and including all types
of preferences tracked or documented.
(4)
Workflow related to relevant
documents, including databases or other data

4

The topics numbered (6) and (8) in Plaintiffs’ Notice are not subject to a dispute; however, the City has yet to
identify one or more witnesses to provide deposition testimony concerning these topics. The Court, at the January
25, 2018 discovery conference, directed the City to do so.

4

compilations, including the sources, methods,
and means by which data are added, derived,
modified, deleted, or extracted by HPD in
relation to affordable housing lotteries.
(7)
How the data available to the City or
a related entity or to a developer relate to
and are used by any of them in connection
with the lottery process, including
determinations of eligibility and ineligibility
for apartments, and used by any of them to
comply with the rules applicable to lotteries,
including rules regarding the sequencing of
opening and evaluating applicants, and rules
regarding the treatment of different
preferences in relation to one another.
Category Two: Technical Questions
Concerning Databases (i.e., back-end
questions)

(1)
The existence of any written
documentation of relevant databases or
other documents or data compilations,
whether in the form of schema, data
“dictionaries,” field and field-value
definitions or explanations, table definitions
or explanations, or otherwise.
(2)
Explanation of the nature, purposes,
and uses of such schema, data “dictionaries,”
or similar documentation as may exist.
(3)
Explanation of the nature, purposes,
and uses of code, fields, field-values, and
tables used in and in connection with
relevant documents, including databases or
data compilations.
(4)
Workflow related to relevant
documents, including databases or other
data compilations, including the sources,
methods, and means by which data are
added, derived, modified, deleted, extracted,
or analyzed.
(5)
Relationship between and among
data in the databases or data compilations,
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including the relationship between and
among tables and the queries, code, or other
means used to generate tables.
Category Three: Policies Underlying The
City’s Data Collection And Analysis

(7)
Why the data available to the City or
a related entity or to a developer relate to
and are used by any of them in connection
with the lottery process, including
determinations of eligibility and ineligibility
for apartments, and used by any of them to
comply with the rules applicable to lotteries,
including rules regarding the sequencing of
opening and evaluating applicants, and rules
regarding the treatment of different
preferences in relation to one another.
Additional Topics:
The reasons [why] the City and any related
entity, including the New York City Housing
Development Corporation (“HDC”), 5 collect,
maintain, organize, analyze, query, or use
data concerning:
•

•

5

Any persons who express interest in,
who register to get information about
or to prepare to apply for, who
request information about, or who
apply for any affordable housing
opportunities in New York City; and
Tenant or owner selection in
connection with any affordable
housing development in New York
City, including all steps involved in a
lottery or other selection procedure,
and including the tracking or
documentation of lottery outcomes,

HPD is the agency that promulgated the Community Preference Policy and oversees the lottery and thus is
covered by the Notice. HDC is an independent public benefit corporation. The City objected to producing
witnesses who can speak for HDC, and Plaintiffs agreed to narrow their request to require the City only to identify
witnesses to testify about City agencies’ knowledge.

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and including all types of preferences
tracked or documented.
The reasons [why] the City and any related
entity, including HDC, require or permit
developers of affordable housing units
subject to lottery under the auspices of HPD
or HDC to collect, maintain, organize,
analyze, query, or use data concerning:
•

•

A.

Any persons who express interest in,
who register to get information about
or to prepare to apply for, who
request information about, or who
apply for any affordable housing
opportunities in New York City; and
Tenant or owner selection in
connection with any affordable
housing development in New York
City, including all steps involved in a
lottery or other selection procedure,
and including the tracking or
documentation of lottery outcomes,
and including all types of preferences
tracked or documented.

Category One: The Functioning Of The Lottery And Marketing Processes

As noted above, the City has identified at least one witness who will testify about HPD’s
lottery and marketing processes, including interaction with the databases from a user
perspective. This category includes the workflow related to databases as well as how HPD
and/or developers use the data available to them (1) in connection with the lottery process,
including determinations of eligibility and ineligibility for apartments; and (2) to comply with
the rules applicable to lotteries, including rules regarding the treatment of different
preferences in relation to one another. (See Doc. No. 218, Appendix D, at 1-2.) With respect to

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this category of information, the parties disagree only as to the location for the deposition. The
location dispute is addressed below.
B.

Category Two: Technical Questions Concerning Databases

With respect to Plaintiffs’ “technical” questions concerning the Housing Connect and
Access databases, the parties disagreed as to the most efficient approach for providing
Plaintiffs with the relevant information. The City contended it was impossible to prepare any
witness adequately about detailed database questions without greater specificity as to the
topics. It also asserted that even the best-prepared witness might need to research certain
questions (including by consulting with other personnel) to ensure that he/she was providing
an accurate answer. Plaintiffs suggested they could potentially follow-up with detailed
interrogatories (up to at least fifty) and requests to admit. During a conference on this issue,
the parties discussed with the Court and now have consented to a novel procedure – a
“committee” deposition involving multiple witnesses – which will be outlined in greater detail
below. Despite having consented to an information-gathering procedure to address Plaintiffs’
technical questions, the parties continue to disagree as to the specific parameters of the
committee deposition, including the number of hours permitted for it, as well as whether
follow-up written discovery should be conducted.
C.

Category Three: Policies Underlying The City’s Data Collection And Analysis

Finally, the parties disagree as to the scope of questions that may be asked of Category
Three witnesses. The City objects to designating witnesses to answer questions about why it
maintains or does not maintain certain categories of data, why it conducts certain analyses and
not others, and similar “why” questions that the City characterizes as policy questions. The City
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argues that it “has been administering affordable housing lotteries for decades” and that “it is
neither feasible nor reasonable for [the City] to determine the reasons for all the issues
outlined in the Notice.” (Id. at 3.) Moreover, the City notes that “HPD is a large organization
with an extensive mandate, and as such, it is equally not feasible or within the scope of this
litigation to assess all the instances that HPD analyzed or is in the process of analyzing
information that the City has collected and is collecting relating to affordable housing. To the
extent that relevant analyses have been identified, related documents were produced.” (Id.) In
response, Plaintiffs assert that knowledge of the policy justifications underlying the lottery and
marketing processes (i.e., the “why”) is essential to a complete understanding of the
functioning of the lottery and marketing processes themselves (i.e., the “how”). The parties
also disagree as to the location for the deposition of designated Category Three witnesses.
LEGAL STANDARDS
A.

Motions To Compel And For Protective Orders

In evaluating any discovery dispute, the Court must determine whether the information
sought is relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1) (“Rule 26”).
The party moving to compel bears the initial burden of demonstrating relevance and
proportionality. See Johnson v. J. Walter Thompson U.S.A., LLC, No. 16-cv-1805 (JPO) (JCF),
2017 WL 3055098, at *2-3 (S.D.N.Y. July 18, 2017). When the discovery sought is collateral to
the relevant issues (i.e., discovery on discovery), the party seeking the discovery must provide
an “adequate factual basis” to justify the discovery, and the Court must closely scrutinize the
request “in light of the danger of extending the already costly and time-consuming discovery
process ad infinitum.” Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No.
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15-cv-0293 (LTS) (JCF), 2016 WL 3906712, at *7 (S.D.N.Y. July 14, 2016) (quoting Freedman v.
Weatherford Int’l Ltd., No. 12-cv-2121 (LAK) (JCF), 2014 WL 3767034, at *2-3 (S.D.N.Y. July 25,
2014)).
Once relevance of the information sought or an adequate factual basis for the collateral
issue discovery has been shown, the burden falls on the responding party to justify curtailing
discovery. See Rosas v. Alice’s Tea Cup, LLC, 127 F. Supp. 3d 4, 8 (S.D.N.Y. 2015); Fireman’s Fund
Ins. Co. v. Great Am. Ins. Co. of New York, 284 F.R.D. 132, 134 (S.D.N.Y.2012). “In order to
justify withholding relevant information, the party resisting discovery must show ‘good cause,’
the standard for issuance of a protective order under Rule 26(c).” Johnson, 2017 WL 3055098,
at *3; cf. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227, 233 n.4 (E.D. Pa.
2008) (treating motion to compel and motion for protective order as “mirror-image[s]”).
“[T]he court must limit the frequency or extent of discovery when: (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.” In re Weatherford Int’l
Sec. Litig., No. 11-cv-1646 (LAK) (JCF), 2013 WL 2355451, at *4 (S.D.N.Y. May 28, 2013) (internal
quotation marks and citation omitted). In other words, “the court ultimately weighs the
interests of both sides in fashioning an order.” See Duling v. Gristede’s Operating Corp., 266
F.R.D. 66, 71 (S.D.N.Y. 2010).
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B.

Rule 30(b)(6) Depositions

Rule 30(b)(6) permits a notice of deposition to be directed to an organization. Fed. R.
Civ. P. 30(b)(6). The party seeking the deposition “must describe with reasonable particularity
the matters for examination.” Id. (emphasis added). The named organization then must
designate one or more persons to testify on its behalf concerning the topics set forth in the
deposition notice. See id. “The persons designated must testify about information known or
reasonably available to the organization.” Id. (emphasis added).
The primary purpose of a Rule 30(b)(6) deposition is to “streamline the discovery
process.” QBE Ins. Corp. v. Jorda Enter., Inc., 277 F.R.D. 676, 687 (S.D. Fla. 2012); see also Gucci
Am., Inc. v. Costco Co., No. 98-cv-5613 (RLC) (FM), 2000 WL 60209, at *3 (S.D.N.Y. Jan. 24, 2000)
(“The rule has a number of purposes, one of which is to ‘curb the ‘bandying’ by which officers
or managing agents of a corporation are deposed in turn but each disclaims knowledge of the
facts that are clearly known to persons in the organization and thereby to it.’”). The witness or
witnesses designated must be prepared to testify “fully and non-evasively about the subjects”
listed in the notice.6 See QBE Ins. Corp., 277 F.R.D. at 689.
Once a designated witness testifies on behalf of the company, the testimony is binding
on the company. See Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 268 (2d Cir. 1999); Kyoei
Fire & Marine Ins. Co., Ltd. v. M/V Maritime Antalya, 248 F.R.D. 126, 152 (S.D.N.Y. 2007). The

6

A Rule 30(b)(6) deposition notice that is overly broad may necessitate designation of multiple witnesses and
provide an avenue for getting around the presumptive ten-deposition limit in a case because one Rule 30(b)(6)
notice typically counts as one deposition, regardless of the number of corporate representatives needed to
address the topics in the notice. See Fed. R. Civ. P. 30(a)(2). At some point, however, an overly broad notice
requiring multiple witnesses to testify may be deemed contrary to Rule 30’s presumptive limit and to the goal of
Federal Rule of Civil Procedure 1, which requires the Court and the parties to construe, administer, and employ the
Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” See Fed. R. Civ.
P. 1.

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inability of a designated witness to answer questions that fall within the scope of a proper Rule
30(b)(6) notice can be tantamount to a failure to appear and may subject the company to
sanctions under Federal Rule of Civil Procedure 37. See, e.g., Black Horse Lane Assoc., L.P. v.
Dow Chem. Corp., 228 F.3d 275, 303-04 (3d Cir. 2000); Reilly, 181 F.3d at 268-69 (“When a party
fails to comply with Rule 30(b)(6), Rule 37 allows courts to impose various sanctions, including
the preclusion of evidence.”).
Discovery disputes concerning Rule 30(b)(6) depositions often focus on the particularity
of the notice. The Court must evaluate “reasonable particularity” based on the nature of the
topics listed in the deposition. “Reasonable particularity” requires the topics listed to be
specific as to subject area and to have discernible boundaries. Tri-State Hosp. Supply Corp. v.
United States, 226 F.R.D. 118, 125 (D.D.C. 2005); Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan.
2000). This means that the topics should not be listed as “including but not limited to;” rather,
they must be explicitly stated. Tri-State Hospital, 226 F.R.D. at 125. Additionally, the topics
should be substantively and temporally relevant to the claims or defenses. Where the topics
concern “discovery on discovery” and/or complex data, even greater specificity is required to
ensure that the witness can prepare for the deposition, that the deposition is productive, and
that the parties’ time is not wasted on topics that do not relate to core claims or defenses. See
EEOC v. Thorman & Wright Corp., 243 F.R.D. 421, 426 (D. Kan. 2007) (requiring “painstaking
specificity”); Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000) (same); The
Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations &
Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 51 (2018)

12

(“Discovery requests for electronically stored information should be as specific as possible;
responses and objections to discovery should disclose the scope and limits of the production.”).
Depositions of data systems witnesses generally fall into the “discovery on discovery”
category. They are typically conducted for two primary reasons: (1) to learn about where and
how ESI is created or obtained, accessed, stored, maintained, backed up and preserved, and/or
destroyed; and (2) to learn about specific software programs and data that may or will be
analyzed by experts, including sources of data, completeness of data, validity of data, meaning
of various data fields and categories, reporting capabilities, and other technical details about
the data. They serve to aid discovery and the search for relevant information and/or provide an
explanation of data produced and authentication of ESI.
Because of “the diverse and complicated ways in which database information can be
stored,” discovery disputes related to data discovery are more and more common, especially as
to the best and most efficient way to exchange information, the specificity required in a Rule
30(b)(6) notice, and the extent to which the information sought is reasonably available. See
The Sedona Conference, The Sedona Conference Database Principles Addressing the
Preservation and Production of Databases and Database Information in Civil Litigation, 15
Sedona Conf. J. 171, 177 (2014) (“Database Principles”). Despite the increasing frequency of
these disputes, there is a dearth of case law discussing how Rule 30(b)(6) is to be applied in the
context of depositions of data systems witnesses or whether 30(b)(6) depositions are the best
mechanism for learning about data systems.
It is this Court’s view that, especially with respect to depositions concerning data, it is
the joint responsibility of the parties to cooperate so that the corporate entity has a clear
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understanding of the information sought and can designate the persons most appropriate to
testify on those subjects. See Updike v. Clackamas Cnty., No. 15-cv-00723, 2016 WL 111424, at
*2-3 (D. Or. Jan. 11, 2016). The point of the deposition, after all, is not to engage in obfuscation
or game-playing, but rather to exchange accurate information in a cost-effective and efficient
manner. If parties cannot agree, the Court must balance their interests with the overall goal of
enabling the exchange of information without unduly burdening the corporation, especially if
the discovery falls in the category of discovery about discovery. Factors the Court should
consider in determining whether a Rule 30(b)(6) deposition notice satisfies the rule’s specificity
requirement include: (1) the nature of the topics; (2) whether the descriptions of the topics
include examples of questions and clarifying information such as references to specific named
policies, documents, incidents, and the like; and (3) whether a reasonable person reading the
notice would understand how to prepare for the deposition. Analysis of the “reasonably
available” standard in the data systems context also requires the Court to consider a number of
factors, including: (1) the number of data systems identified in the notice; (2) the level of
specificity required about each system; (3) the number of witnesses needed to respond to the
topics identified in the notice; (4) the costs and burden on the corporate party to adequately
prepare the witnesses; and (5) the availability of other methods to obtain all or some of the
information sought that might be less burdensome or costly, particularly in light of the number
of topics and witnesses required by the notice.

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DISCUSSION
A.

Category Two: Technical Questions Concerning Databases

The Court first addresses the parties’ disputes about the parameters of the deposition of
witnesses who will testify about technical or back-end aspects of the Housing Connect and
Access databases, whether greater specificity is required, and the extent to which the
information sought is reasonably available.
1.

Rule 26 Considerations

Plaintiffs must provide an “adequate factual basis” to justify the discovery they seek
through the noticed Rule 30(b)(6) depositions because the technical database information
sought is collateral to the claims and defenses in this action. Additionally, the Court must
closely scrutinize Plaintiffs’ request “in light of the danger of extending the already costly and
time-consuming discovery process ad infinitum.” Mortgage Resolution Servicing, LLC, 2016 WL
3906712, at *7 (internal quotations marks omitted).
Here, Plaintiffs have adequately demonstrated that they require certain collateral
discovery in order for their expert to be able to analyze the data produced by the City in this
case. The Court recognizes that structured databases, like the ones at issue in this litigation,
tend to be:
highly unique and customized to support a specific task or system owner. Thus,
in addition to the context typically required to understand the significance of a
traditional document, the ability to fully understand . . . data within a database
requires knowledge of data relationships, what the information represents, and
how it was generated. Without this information, analyzing databases is akin to
seeing a thousand-piece jigsaw puzzle without an illustration that shows the final

15

completed puzzle. The jigsaw puzzle can be assembled, but only with great effort
and with low efficiency. 7
See Database Principles at 179. Plaintiffs made sufficiently clear at oral argument that they
require certain back-end information from the City’s Rule 30(b)(6) witnesses in order to
understand the data contained in the Housing Connect and Access databases.
Because Plaintiffs have demonstrated an adequate factual basis justifying “discovery on
discovery,” the Court next must consider whether the City has demonstrated good cause for
curtailing this discovery. See Johnson, 2017 WL 3055098, at *3. The City has represented that
it cannot prepare a sole witness to respond to all of the complex questions concerning the
technical details of its databases. Accordingly, in order to answer all of Plaintiffs’ questions, the
City would bear the burden of preparing multiple witnesses for different days of deposition that
would, in all likelihood, be inefficient and unproductive in any event. It is possible that the City
might not even have the ability to adequately prepare each of these witnesses in the event of a
question that requires research or consultation with another person to ensure an accurate
answer. These burdens justify development of a non-traditional procedure to balance the
interests and needs of the parties and satisfy the goal of Federal Rule of Civil Procedure 1 as
well as the proportionality requirement of Federal Rule of Civil Procedure 26(b).
In this regard, the parties have consented, following a discussion with this Court, to a
novel procedure consisting of a “committee” deposition. Specifically, the City will identify four
witnesses who together possess the breadth of knowledge required to answer Plaintiffs’ data

“The database application may be composed of tens – or hundreds – of individual programs. The database
storage file that typically contains the information relevant to a specific legal dispute may be a single file, but more
commonly, it is composed of multiple separate data storage files in multiple locations. Large storage systems may
be composed of hundreds of separate data files.” Database Principles at 180.

7

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questions. All four witnesses shall be sworn in by a court reporter at HPD’s offices, and the City
shall designate a primary speaker to whom all questions will be addressed. That speaker may, if
needed prior to answering a question, consult with the other witnesses “off-the-record” to
confirm the accuracy of an answer or to elect to designate a co-witness to provide the answer.
The court reporter shall note the identity of the witness who supplies each answer. The Court
emphasizes that it is permitting this experimental process for the Category Two witnesses
because the parties have an interest in obtaining and providing truthful and accurate
information about back-end technical details of the City’s databases and the purpose of the
witnesses’ consultation is not evasion but ensuring accuracy. 8 Further, none of these witnesses
are fact witnesses and thus credibility is not a concern. Finally, the Court is of the view that this
approach will be the most efficient and least burdensome for the parties.
2.

“Reasonable Particularity”

Although the multi-witness approach addresses certain of the City’s concerns regarding
the breadth of and burden imposed by Plaintiffs’ Notice, the City still seeks greater specificity
with respect to the technical questions to be posed during this deposition in order to minimize
the time needed to consult off-the-record and to ensure the City is prepared to answer
Plaintiffs’ questions. The City has requested that Plaintiffs send it a list of anticipated
deposition questions two weeks prior to the scheduled deposition so that it can adequately
prepare its witnesses.

8

The parties agree to follow the normal deposition procedure with respect to the designated Category One
witness. That witness will testify individually, and the time for his deposition will be limited to seven hours.

17

As discussed above, Rule 30(b)(6)’s “reasonable particularity” requirement necessarily
must be enforced more strictly in the context of depositions of data systems witnesses so that
the entity responding to the notice can identify the appropriate witnesses and prepare them
adequately for highly technical questions. This heightened particularity requirement not only
helps the entity, but also assists the party who served the notice to obtain clear and accurate
testimony from the deponents. Factors the Court should consider in determining whether a
Rule 30(b)(6) deposition notice requires greater specificity include (1) the nature of the topics;
(2) whether the descriptions of the topics include examples of questions and clarifying
information such as references to specific named policies, documents, incidents, and the like;
and (3) whether a reasonable person reading the notice would understand how to prepare for
the deposition.
Turning to the topics Plaintiffs list in their Notice, it is apparent that they have not
described the matters for examination with reasonable particularity. Plaintiffs seek testimony
concerning, inter alia, (1) the existence of any written documentation of relevant databases or
other documents or data compilations, whether in the form of schema, data “dictionaries,”
field and field-value definitions or explanations, table definitions or explanations, or otherwise;
(2) explanation of the nature, purposes, and uses of such schema, data “dictionaries,” or similar
documentation as may exist; (3) explanation of the nature, purposes, and uses of code, fields,
field-values, and tables used in and in connection with relevant documents, including databases
or data compilations; and (4) relationships between and among data in the databases or data
compilations, including the relationships between and among tables and the queries, code, or
other means used to generate tables.
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The technical nature of Plaintiffs’ deposition topics weighs toward a need for greater
specificity; yet, Plaintiffs’ descriptions essentially summarize what would be asked of any data
systems witness in order for the requesting party to understand the data in a given database.
These generic descriptions are insufficient to adequately apprise the City of the specific types of
questions for which it will need to prepare its witnesses. Presumably, Plaintiffs’ expert has
reviewed the data produced by the City in this case and has specific questions that can be
shared with the City in advance of a Rule 30(b)(6) deposition. As the City has noted, “[t]here
are a large number of fields in the Housing Connect database, thus even identifying the fields
and tables which will be generally be [sic] the subject of the questions would help Defendant
prepare for the deposition.” (Defendant’s Letter Reply, dated Jan. 30, 2018, at 2.) Additionally,
“[s]ample questions would also be helpful, but not in place of providing some actual technical
questions.” (Id.)
Plaintiffs are thus directed to prepare a list of specific questions they wish to ask about
the Housing Connect and Access databases during the deposition. When preparing their
questions, Plaintiffs should consider the degree of particularity they hope to receive in return
through the data systems witnesses’ deposition testimony. Plaintiffs shall provide the City with
its list of questions two weeks prior to the deposition. The City shall not object to follow-up
and/or clarifying questions asked by Plaintiffs in light of the witnesses’ testimony. In other
words, Plaintiffs are not restricted to asking only the questions contained in the list provided to
the City in advance of the deposition, but rather are limited to the specific topics delineated in
their Notice as further clarified by the list of questions. The parties shall cooperate to ensure
that Plaintiffs have the information needed to analyze the data produced.
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To the extent the Notice suggests that Plaintiffs may have questions about changes to
the databases outside the period covered by the data produced, the Notice is overbroad. The
Court has limited the time period for production of data so that expert analysis can occur based
on a discrete set of data. If the Court were to permit ongoing supplements of data and
questions concerning the same, the parties would never be able to complete data discovery
and analysis given the dynamic nature of database and software updates. Thus, Plaintiffs shall
restrict their technical questions to the time period spanned by the data produced.
3.

Information “Known Or Reasonably Available”

While Plaintiffs are charged with describing the matters for examination with
reasonable particularity, the City has a corresponding obligation to designate witnesses who
will “testify about information known or reasonably available” to the City. Fed. R. Civ. P.
30(b)(6). Upon receiving Plaintiffs’ list of deposition topics, the City undoubtedly will prepare
its witnesses using information already known to the City. A closer question is what
information is “reasonably available” such that the City has an obligation to seek out
information it does not yet have. As discussed above, interpretation of “reasonably available”
in the context of data systems witnesses requires the Court to balance a number of factors
including: (1) the number of data systems identified in the notice; (2) the level of specificity
required about each system; (3) the number of witnesses needed to respond to the topics
identified in the notice; (4) the costs and burden on the corporate party to adequately prepare
the witnesses; and (5) the availability of other methods to obtain all or some of the information
sought that might be less burdensome or costly, particularly in light of the number of topics and
witnesses required by the notice.
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Plaintiffs’ Notice identifies by name two databases: “Housing Connect” and “Access.”
The City has represented that in order to provide testimony concerning these two databases
alone, it will need to prepare four witnesses from HPD. Given the substantial burden of having
to prepare four witnesses – along with at least one or two additional witnesses to address
Plaintiffs’ “non-technical” categories of information in separate Rule 30(b)(6) depositions – the
City will not be required to gather information about databases beyond Housing Connect and
Access or answer questions about other databases. Additionally, the City’s witnesses will not
be required to respond to deposition questions concerning information analyzed by HDC
because this extends beyond what the “reasonably available” standard requires given that HDC
is an independent entity. Similarly, the City’s witnesses will not be required to testify about
uses of the data outside of the affordable housing lottery process and application of the
Community Preference Policy.
4.

Remaining Issues Concerning Procedure For “Committee” Deposition

The parties dispute how much time should be allotted for the committee deposition.
Plaintiffs suggest they should be permitted an initial 12 hours of on-the-record testimony, 9
after which they may seek additional time (up to 28 hours – i.e., seven hours multiplied by four
witnesses) depending upon “how much headway [was] made.” (Plaintiffs’ Letter Response,
dated Jan. 30, 2018, at 1.) The City proposes a maximum of 9 hours of on-the-record
deposition testimony. This Court holds that the committee deposition will be limited to 12

9

The phrase “on-the-record testimony” as used herein is intended to distinguish the deponents’ actual testimony
from their off-the-record consultations (permitted as part of the experimental committee deposition process),
which will not count against the time allotted for the Rule 30(b)(6) deposition.

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hours of on-the-record testimony over the course of no more than two days. 10 This amount of
time will allow for at least one hour of off-the-record consultation time and recognizes that this
Court’s direction to Plaintiffs to provide more specific questions should limit the need for offthe-record consultation. This time limit also acknowledges the reality that, while Plaintiffs
require complete answers to complex questions, the discovery sought still is collateral to the
litigation and must not be permitted to proceed ad infinitum. See Mortgage Resolution
Servicing, LLC, 2016 WL 3906712, at *7. It also takes into account the substantial time spent by
the City providing information on an informal basis to Plaintiffs about the data, which should
have clarified many questions Plaintiffs had.
The parties disagree as to whether Plaintiffs should be permitted, after the Rule 30(b)(6)
deposition, to serve the City with requests to admit and interrogatories “relating to the
technical data elements” of the deposition. (See Plaintiffs’ Letter Response, at 1-2.) The City
objects on the basis that “[s]uch requests would be duplicative of the 30(b)(6) deposition,
which will bind Defendant to its answers on these technical issues.” (Defendant’s Letter Reply,
at 1-2.) The Court agrees with the City but only insofar as such written discovery is likely to be
unnecessary in light of the informal exchange of information and deposition. Plaintiffs have
chosen the route of a Rule 30(b)(6) deposition to obtain information about the databases and
The Court recognizes that courts typically permit seven hours per designated Rule 30(b)(6) witness. See, e.g.,
Patterson v. N. Cent. Tel. Coop. Corp., No. 11-cv-0115, 2013 WL 5236645, at *4 (M.D. Tenn. Sept. 17, 2013).
However, in this case, the “committee” of witnesses will be testifying as one, and the Court has discretion to limit
discovery. See, e.g., In Re Rembrandt Techs., No. 09-cv-00691 (WDM) (KLM), 2009 WL 1258761, at *14 (D. Colo.
May 4, 2009) (“A blanket rule permitting a seven-hour deposition of each designated [Rule 30(b)(6)] deponent is
unfair (because it rewards broader deposition notices and penalizes corporate defendants who regularly maintain
business information in silos and who therefore must either designate multiple individuals to respond or spend
time, energy, money and other resources preparing a single individual to respond) and unduly burdensome
(because of the manifest increased cost and disruption of preparing more than one person to respond to a
deposition notice).”); Mortgage Resolution Servicing, LLC, 2016 WL 3906712, at *3. In the Court’s view, 12 hours is
more than sufficient time.
10

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will not be permitted to propound further written discovery on data and database questions
absent leave from this Court. Accordingly, should Plaintiffs still wish to serve the City with
requests to admit or interrogatories concerning data issues, they shall first submit an
application to the Court explaining why such discovery is necessary and why the information
already provided formally and informally was insufficient to address their data-related
questions.
Finally, Plaintiffs propose that the two consecutive days allotted for the committee
deposition be scheduled between March 1 and 15, 2018. The City proposes that the deposition
be scheduled between March 8 and 22, 2018. Accordingly, the Court directs the parties to
confer and select two consecutive dates between March 8 and 15, 2018 on which to hold the
committee deposition.
B.

Category Three: Policies Underlying The City’s Data Collection And Analysis

In addition to seeking technical information concerning the data produced in this case,
Plaintiffs seek information about why the City and/or developers of affordable housing units
collect, maintain, organize, analyze, query, or use data concerning (1) any persons who express
interest in, who register to get information about or to prepare to apply for, who request
information about, or who apply for any affordable housing opportunities in New York City; and
(2) Tenant or owner selection in connection with any affordable housing development in New
York City, including all steps involved in a lottery or other selection procedure, and including the
tracking or documentation of lottery outcomes, and including all types of preferences tracked
or documented. Additionally, Plaintiffs seek information as to why the City and/or developers
use data “to comply with the rules applicable to lotteries, including rules regarding the
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sequencing of opening and evaluating applicants, and rules regarding the treatment of different
preferences in relation to one another.” These topics comprise the category of information to
which the City objects and for which the City now seeks a protective order.
1.

Rule 26 Considerations

The Court first addresses relevance. Why the City collects or does not collect data is
irrelevant to the core issues in the case – whether the Community Preference Policy has a
disparate impact on minorities who apply for affordable housing through the lotteries and
whether the City acted with discriminatory intent in maintaining the policy. The same is true as
to why the City creates certain reports and not others, and why the City conducts certain
analyses and not others. The reasons certain data were or were not collected is beyond what is
necessary or reasonable to seek from the City in light of the core issues in the case and the
purpose of the data depositions. The fact of the matter is that whatever data exists exists, and
all Plaintiffs truly need is to understand the data, including where and how it is collected, what
various abbreviations and fields represent, its reliability, and how it is used in housing lotteries
sufficient to enable Plaintiffs’ expert to understand it. Likewise, whatever reporting capabilities
the two databases have and whatever analyses are done in the regular administration of the
Community Preference Policy are what they are. Plaintiffs, of course, can ascertain the purpose
of a report or regularly conducted analysis to the extent needed to understand the lottery
process and how the Community Preference Policy is administered, but other policy-related
“why” questions are irrelevant.
Plaintiffs have argued that the “why” questions are needed to understand the data and
might have a bearing on intentional discrimination. The Court does not agree. Moreover, even
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if there were some remote relevance, these policy-related questions concerning data are
disproportionate to the needs of the case given all of the other discovery that has been
conducted, including depositions of fact witnesses, email, and other paper discovery. Thus,
Plaintiffs shall restrict their questions to learning the purpose or use of data related to the
Community Preference Policy and administration of the housing lotteries.
2.

“Reasonable Particularity”

The restrictions on the deposition questions noted above do not settle all issues with
respect to Category Three topics because the Court will permit questions about the purpose of
certain data and analyses. However, to the extent Plaintiffs wish to learn the City’s purpose for
using data in connection with implementing or evaluating the Community Preference Policy,
Plaintiffs’ proposed deposition topics need to be narrowly tailored to that end.
In this regard, the City asserts that Plaintiffs’ Notice is overbroad insofar as it fails to
define “affordable housing.” Plaintiffs’ listed topics encompass, among other things, rent
regulation and housing programs having nothing to do with this litigation. The Court has
considered both Plaintiffs’ and Defendant’s suggested definitions of affordable housing and
hereby adopts the City’s proposed definition because it is tailored to cover only the affordable
housing at issue in this case. Thus, the definition will be: “housing units for income-eligible
households that are located in projects subject to the Marketing Guidelines.” 11 (See Doc. No.
218, Appendix B, at 2.)
To further facilitate efficient depositions, the Court hereby directs Plaintiffs to provide
the City with more specific topics consistent with the above to enable the City to identify and

11

The parties also shall use this definition for Category One and Two witnesses.

25

prepare Category Three witnesses. Plaintiffs should provide examples of questions and
clarifying information, incorporating the City’s definition of “affordable housing,” and omitting
(1) any inquiry into the policies of HDC that do not also pertain to HPD; and (2) any inquiry that
does not concern the lottery process for affordable housing and the operation of the
Community Preference Policy.
C.

Location For Depositions

The final issue the Court addresses is the location for the depositions of Category One
and Three witnesses. As a general rule, “[t]he party noticing the deposition usually has the
right to choose the location.” See 7 Moore’s Federal Practice § 30.20 [1] [b] [ii]; Fed. R. Civ. P.
30(b)(1). The Court also notes that “[c]orporate defendants are frequently [but not always]
deposed in places other than the location of the principal place of business, especially in the
forum, for the convenience of all parties and in the general interests of judicial economy.”
Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y. Mar. 19, 1985).
The place to conduct the deposition of a corporate defendant and its agents, however, depends
upon an analysis of three factors: cost, convenience, and litigation efficiency. See Gulf Union
Ins. Co. of Saudi Arabia v. M/V Lacerta, No. 91-cv-2814 (PKL), 1992 WL 51532, at *5 (S.D.N.Y.
Mar. 9, 1992); Zurich Ins. Co. v. Essex Crane Rental Corp., No. 90-cv-2263 (SWK), 1991 WL
12133, at *2–3 (S.D.N.Y. Jan. 21, 1991); Mill–Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550–
51 (S.D.N.Y. 1989). Courts retain substantial discretion to designate the site of a deposition,
and the presumption that the plaintiff chooses the situs is merely a decisional rule “that
facilitates determination when other relevant factors do not favor one side over the other.”
Mill–Run Tours, 124 F.R.D. at 550; see also Zurich Ins. Co., 1991 WL 12133, at *2 (“the
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presumption is not a strong one and operates primarily when other factors do not favor any
particular site for depositions”).
In Buzzeo v. Board of Education the court held that the general “good cause” standard
of Rule 26(c) of the Federal Rules of Civil Procedure – as shown through an analysis of cost,
convenience, and litigation efficiency – is the appropriate standard under which to evaluate the
situs of a corporate deposition when all the parties reside in the same forum district. Buzzeo v.
Bd. of Educ., 178 F.R.D. 390, 392-93 (E.D.N.Y. 1998). Noting that the relative burden to the
defendant of producing multiple witnesses at the plaintiff’s counsel’s office was greater than
the burden on plaintiff of having just his attorney travel to the school district; the possibility
that witnesses might need to reference records on site of the corporate defendant; and that
the plaintiff did not argue that it would incur greater expenses in deposing the corporate
witnesses at their place of business, the court found that the factors balanced in favor of
holding the depositions at the defendant school district. Buzzeo, 178 F.R.D. at 393.
Here the City argues it is critical that its designated witnesses be readily available and
have access to the City’s computer platforms in the event the deposition needs to be
interrupted or issues need to be attended to during the lunch break. The Court also notes that
the City has easier access to information, if needed, to respond to Plaintiffs’ deposition
questions if the depositions are held at HPD’s offices. Plaintiffs have not explained why they
would be inconvenienced by holding the depositions at HPD’s offices, and Plaintiffs would incur
no additional costs in going to HPD’s offices. Therefore, the depositions will take place at HPD’s
offices.

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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to compel is GRANTED in part and DENIED
in part, and the City’s motion for a protective order is GRANTED.
SO ORDERED.
Dated: February 12, 2018
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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