Barnes v. Williams et al

Filing 42

OPINION AND ORDER re: 36 LETTER MOTION for Extension of Time addressed to Judge P. Kevin Castel from Eugene M. Bellin dated May 17, 2017, filed by Richard Barnes, 35 LETTER MOTION to Compel Plaintiff Richard Barnes to Produc e Cell Phone Number(s) and Carrier(s) addressed to Judge P. Kevin Castel from Joshua Weiner dated May 16, 2017, filed by The City of New York. Defendants' application to compel plaintiff to identify his cell phone number(s) and car rier(s) during the periods from May 14, 2015 through May 16, 2015 and from February 16, 2017 through April 24, 2017 is granted. After plaintiff discloses his cell phone number(s) and carrier(s), defendants are directed to (1) ascertain whether the c arrier retains the content of text messages, and (2) provide plaintiff with a copy of any subpoena at least fourteen days before it is served on the carrier. The parties' joint application to extend the deadlines for fact and expert discovery t o August 18, 2017 and September 29, 2017, respectively, is granted. The Clerk of the Court is directed to mark docket items 35 and 36 closed, and as further set forth herein. (Expert Discovery due by 9/29/2017. Fact Discovery due by 8/18/2017.) (Signed by Magistrate Judge Henry B. Pitman on 7/7/2017) Copies Transmitted By Chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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RICHARD BARNES,
Plaintiff,
-against-

16 Civ. 2571 (PKC) (HBP)
OPINION
AND ORDER

DERRICK WILLIAMS, in his
individual capacity, et al.,
Defendants.

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PITMAN, United States Magistrate Judge:

This matter has been referred to me for general pretrial supervision, and I write to resolve a discovery dispute
among the parties and to address a scheduling issue.
This is a civil rights action brought pursuant to 42
U.S.C.

§

1983.

In pertinent part, plaintiff alleges that on or

about May 15, 2015, while engaged in a conversation with Joselin
Cabrero outside of a Manhattan bar, defendant police officers
falsely arrested him for choking Cabrero.

Defendants contend

that probable cause existed for plaintiff's arrest because
eyewitnesses had advised them that plaintiff was dragging,
pulling and choking Cabrero, although Cabrero has denied that
plaintiff choked her.

Immediately after plaintiff's arrest, both

plaintiff and Cabrero were taken to the 14th Precinct; plain-

tiff's cell phone was taken from him while he was at the precinct; Cabrero was allowed to keep hers.

There appears to be no

dispute that plaintiff and Cabrero were romantically involved
both before and after the events of May 15, 2015.

Both plaintiff

and Cabrero have been deposed in this matter.
In their current application, defendants seek an Order
directing plaintiff to disclose his cell phone number(s) and
carrier(s) for the periods from May 14, 2015 through May 16, 2015
and from February 16, 2017 through April 24, 2017.

The former

period encompasses the period of the events giving rise to this
action; the latter time period encompasses the time period in
which plaintiff and Cabrero were deposed.

In her deposition

testimony, Cabrero admitted that she attempted to send text
messages to plaintiff while both were at the 14th Precinct.

She

also admitted to sending text messages to plaintiff after she had
been subpoenaed to give a deposition.
Defendants appear to be seeking the content of the text
messages between plaintiff and Cabrero.

Defendants appear to

believe that this information will contradict plaintiff and
Cabrero's deposition testimony concerning the events preceding
plaintiff's arrest or otherwise impeach plaintiff and Cabrero's
credibility.

There is no definitive information at this time as

to whether the content of text messages is available from plain2

tiff's carrier, although there is unsworn information from a
third party that the carrier does not retain the content of text
messages.
Defendants' application to compel plaintiff to identify
his cell phone number(s) and Carrier(s) during the time periods
identified above is granted.

This information is not privileged

and its production is not unduly burdensome.

See Moll v. Tele-

sector Resources Group, Inc., 04-CV-0805S(Sr), 2017 WL 2241967 at
*1 (W.D.N.Y. May 23, 2017).

This Order is without prejudice to

plaintiff's right to move to quash any subpoena that defendants
may serve on plaintiff's cell phone carrier.

Although it is easy

to hypothesize a number of potential issues with any subpoena
defendants may serve on plaintiff's carrier, see Moll v. Telesector Resources Group, Inc., supra, 2017 WL 2241967 at *2, it is
more prudent to await defendants' actual issuance of a subpoena
rather than to address hypothetical document requests. 1

After

plaintiff discloses his cell phone number(s) and carrier(s),

1

If the carrier does not retain the contents of text
messages, it is difficult to conceive of language that properly
and meaningfully limits the subpoena to relevant information.
Defendants are probably entitled to know with whom plaintiff
spoke concerning his arrest, but they are not entitled to know
the identities of every one with whom plaintiff communicated
concerning any subject during the defined time periods.
In any
event, the burden of drafting an appropriate subpoena rests with
defendants in the first instance.
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defendants are directed to (1) ascertain whether the carrier
retains the content of text messages, and (2) provide plaintiff
with a copy of any subpoena at least fourteen days before it is
served on the carrier.
The parties' joint request to extend the deadlines for
fact and expert discovery is granted.

The deadline for the

completion of fact discovery is extended to August 18, 2017; the
deadline for the completion of expert discovery is extended to
September 29, 2017.
Accordingly, for all the foregoing reasons, defendants'
application to compel plaintiff to identify his cell phone
number(s) and carrier(s) during the periods from May 14, 2015
through May 16, 2015 and from February 16, 2017 through April 24,
2017 id granted.

After plaintiff discloses his cell phone

number(s) and carrier(s), defendants are directed to (1) ascertain whether the carrier retains the content of text messages,
and (2) provide plaintiff with a copy of any subpoena at least
fourteen days before it is served on the carrier.

The parties'

joint application to extend the deadlines for fact and expert
discovery to August 18, 2017 and September 29, 2017, respec-

4

tively, is granted.

The Clerk of the Court is directed to mark

docket items 35 and 36 closed.
Dated:

New York, New York
July 7, 2017
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel

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