Bailey v. New York Law School et al

Filing 102

OPINION AND ORDER: For the foregoing reasons, Bailey's objection is overruled and Magistrate Judge Cott's order, Doc. 93, is affirmed in its entirety. SO ORDERED. (Signed by Judge Edgardo Ramos on 1/9/2019) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

THERESA BAILEY,
Plaintiff,

OPINION AND ORDER
16 Civ. 4283 (ER)

– against –
NEW YORK LAW SCHOOL, ANTHONY
CROWELL, DAVID SCHOENBROD, ELLA
MAE ESTRADA, and BARBARA GRAVESPOLLER,
Defendants.

Ramos, D.J.:
In this case, Plaintiff Theresa Bailey, proceeding pro se, alleges that the defendants, New
York Law School and members of its faculty, failed to adequately respond to her report of a
sexual attack committed by another student and retaliated against her for reporting the attack.
On July 11, 2018, the parties appeared before Magistrate Judge Cott for a conference to address
certain discovery disputes. Doc. 88. At that conference, Judge Cott instructed the parties that
they must complete their document production by August 1, 2018, and that they could not rely
on documents not produced by them by the deadline. Doc. 88 17:4–11; 3:3–15. On August 24,
2018, Defendants informed Judge Cott that, in her cover letter attached to the documents she
produced on August 1st, Plaintiff informed Defendants that those documents do not “contain the
entire universe of facts and evidence on which [she] relies[,] but a complete record of such
evidence will be made available to [Defendants] no later than the October 1, 2018 deadline [for
the close of discovery].” Doc. 90 at 1; id. Ex. B at 1. Bailey was deposed on September 4, 2018.
Doc. 90 at 2. Defendants thus moved for an order precluding Bailey from relying upon any

documents she failed to provide to them by the date of her scheduled deposition. Id. Judge Cott
granted that motion. Doc. 93.
On September 19, 2018, Bailey informed the Court that she intended to file an objection
to Judge Cott’s order, but could not do so within the 14-day window under Rule 72(a) of the
Federal Rules of Civil Procedure because she was sick. Doc. 94. The Court thus granted her an
extension of her time to object to Judge Cott’s order to December 7, 2018. Doc. 97. Bailey
electronically filed an objection on December 7, 2018, but made her objections viewable only to
court staff, not the public. Doc. 98. As a result, Defendants did not receive her objections.
Upon order of the Court, the Clerk of the Court made Bailey’s objections publicly viewable on
January 7, 2019. Doc. 101.
When a party files an objection to a magistrate judge’s order on a non-dispositive mater,
the district judge reviewing the order must “modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). Discovery matters are generally
considered non-dispositive. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.
1990). An order is clearly erroneous when “the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.” Palmer v. Reader’s
Digest Ass’n, Inc., 1995 WL 686737, at *1 (S.D.N.Y. Nov. 20, 1995) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)); see also Khaldei v. Kaspiev, 961 F. Supp.
2d 572, 575 (S.D.N.Y. 2013). And it is contrary to law when “it fails to apply or misapplies
relevant statutes, case law or rules of procedure.” Khaldei, 961 F. Supp. 2d at 575. This is a
heavy burden for the objector, especially in the context of discovery disputes. U2 Home Entm’t,
Inc. v. Hong Wei Int’l Trading Inc., 2007 WL 2327068, at *1 (S.D.N.Y. Aug. 13, 2007).

2

Judge Cott’s order was not contrary to law. The law grants district courts wide latitude to
sanction parties for failing to obey discovery orders and deadlines, see Fed. R. Civ. P. 37(b)(2),
latitude that includes the action taken here, precluding Bailey from relying on documents about
which Defendants had no chance to depose her. Nor was it clearly erroneous. Judge Cott made
it clear to the parties, and the parties agreed, that document production had to be completed by
August 1, 2018, even if the deadline for the completion of all discovery was extended to October
1, 2018. See Doc. 88, 17:4–15, 32:4–11. It was reasonable for Judge Cott to preclude Bailey
from relying on any documents that Bailey failed to submit by her deposition, weeks after the
clear discovery deadline he put in place. Indeed, in her objection to Judge Cott’s order, Bailey
accuses Judge Cott of exhibiting prejudicial and biased behavior towards her during the
discovery process, 1 but does not identify any deficiencies with the merits of Judge Cott’s order.
For the foregoing reasons, Bailey’s objection is overruled and Magistrate Judge Cott’s
order, Doc. 93, is affirmed in its entirety.
SO ORDERED.

Dated:

January 9, 2019
New York, New York
______________________
Edgardo Ramos, D.J.

1

On October 16, 2018, Bailey sent a letter complaining of misconduct by Judge Cott to the Judicial Council of the
Second Circuit. Doc. 98 Ex. A.

3