Hutter v. Schriro et al

Filing 251

ORDER granting in part and denying in part 228 Motion to Compel; granting in part and denying in part 244 Motion to Stay. First, Counsel shall inform the Court promptly if they represent Ms. Mello and/or Ms. Cooke. Plaintiff's motio n to compel (dkt. no. 228) is granted in part and denied in part. Defendants shall produce to Plaintiff no laterthan August 28, 2020, the Department of Corrections' Duty Roster for 2013 and 2014 and all affidavits filed in support of the City� 39;s requests to be relieved of further efforts to identify John Does (other that those of Officers Vega and Cannon), as previously ordered (dkt. no. 186). The Court acknowledges that, in thisorder, it changed the dates of the Duty Rosters required from 2013and 2019 to 2013 and 2014 in light of Mr. Hutter's release from custody in September of 2014. To the extent that there are no additional affidavits in support of the motion, counsel shall file an affidavit explaining why the search rel ated only to the van driver and not to the other John Does. Defendants shall also produce to Plaintiff no later than August 28 job numbers and duty identifications, including those for Mod 2 in the RNDC, for 2013 and 2014, as ordered in dkt. no. 184. Defendants shall submit, no later than August 17, an affidavit explaining the apparent discrepancies Mr. Hutter identifies between the documents attached as Exhibits C and D, including the documents hand-numbered 106, 107, and 108, to his reply (dkt. no. 241), including why documents said to be missing became found. Counsel shall confer with Plaintiff and inform the Court by letter no later than August 17 of the status of the responses to the interrogatories propounded by Plaintiff (beginni ng at dkt. nos. 120 and 161) and the subpoenas issued by Plaintiff (e.g., dkt. entries dated 10/2/19, 5/21/20, 6/16/20, 7/15/20). Defendants' motion to extend the stay (dkt. no. 244) is granted in part and denied in part. The blanket stay on th is action is lifted and Defense counsel shall proceed with the matters set out above and with other paper discovery. Depositions shall be stayed. Finally, and in light of the above, the Court withdraws its prior order relieving the City of further ef forts to identify the John Does (dkt. no. 136). The Clerk of the Court is respectfully directed to mail a copy of this order to Mr. Hutter. SO ORDERED.. (Signed by Judge Loretta A. Preska on 7/29/2020) (ks) Transmission to Docket Assistant Clerk for processing.

Case 1:16-cv-06586-LAP Document 251 Filed 07/29/20 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN HUTTER,
Plaintiffs,
No. 16 Civ. 6586 (LAP)

-against-

ORDER

COMMISSIONER DORA SCHRIRO, et
al.,
Defendants.

LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is the Defendants’ motion to continue the stay of
this action (dkt. no. 244) together with various discovery requests
and inquiries by Plaintiff (dkt. nos. 238, 241, 245).

Also before

the Court is Plaintiff’s motion to compel, Defendants’ opposition,
and Plaintiff’s reply.

(Dkt. nos.

228, 229, 230, & 234.)

All are

granted in part and denied in part.
a. Discovery
In an order dated April 7, 2020 (dkt. no. 236), Plaintiff was
ordered to, among other things, to inform the Court of: (1) the
relevance of documents dated after his release from

Department of

Corrections’ custody in September of 2014; (2) which documents he had
previously requested were not covered in affidavits submitted by
defense counsel; (3) which documents previously said to have been
lost have been produced by the defense; (4) why the motor vehicle
logs produced with respect to July 21, 2013-October 14, 2013 were not

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Case 1:16-cv-06586-LAP Document 251 Filed 07/29/20 Page 2 of 7

responsive;

and

(5)

the

expenses

and

costs

he

was

requesting

reimbursement for.
In his response (dkt. nos. 238 and 240), Plaintiff referred to
expenses of “parties that researched, made phone calls, and sent
money to Plaintiff in assistance to filing the motion to compel.”
also mentions telephone expenses and postage.

He

To the extent that

Plaintiff continues to seek reimbursement of such expenses, he shall
inform the Court of the basis for the request and shall be more
specific about the exact expenses.

The Court notes, however, that,

among the remedies for failure to comply with discovery obligations,
is reimbursement of expenses that would not otherwise have been
incurred.
In his reply (dkt. no. 241), Plaintiff states that counsel has not
yet filed a notice of appearance with respect to the persons who are
subject to Plaintiff’s Notice to Compel, Ms. Brenda Cooke and Ms.
Laura Mello.

He also asks that Defendants be ordered to respond to

the subpoenas he has issued.
Plaintiff also states that the Duty Roster ordered to be produced
(dkt. no.186) and the “[j]ob numbers, duty identifications, including
those of mod 2 in the RNDC,” ordered produced in dkt. no. 184, have
not been produced.
Plaintiff also takes issue with Defendants’ search for records
identifying additional John Does.

As Plaintiff points out, the

Declaration of Correction Officer Israel Vega (dkt. no. 163-1) notes
at paragraph 4 that he “conducted searches for transportation records,

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Case 1:16-cv-06586-LAP Document 251 Filed 07/29/20 Page 3 of 7

transportation

logbooks,

and

ambulance

logbooks,

related

to

the

transportation of inmates, on or about August 29, 2013, between
Elmhurst Hospital and Rikers Island.”

Similarly, the Declaration of

Correction Officer Alesia Cannon (dkt. no. 163-2) states at paragraph
4 that she “conducted searches for schedules of Correction Officers
assigned to the transportation of inmates, on or about August 29,
2013, between Elmhurst Hospital and Rikers Island.”

Plaintiff thus

seems to be correct that Officers Vega and Cannon only looked at
records relating to transport personnel, not the other records that
would identify the other John Does.
The documents attached as Exhibits C and D to Plaintiff’s reply
seem to indicate a discrepancy between the log pages initially
produced and some later-produced pages purporting to be the same and
perhaps initially said to be missing.

Specifically, “the new pages

of logbook records, number 106, 107, 108, are all from 2013, all of
them show a shield number, and are all the same records that were
being sought throughout the affidavits, that stated they can’t be
located” in the affidavit at dkt.no. 163-2.
Mr.

Hutter

also

states

that,

other

than

the

Declarations

of

Officers Vega and Cannon, no other affidavits in support of the
Defendants’ motion to be relieved of further efforts to identify John
Does have been sent to him, as ordered (dkt. no. 186).
b. Stay
Defendants ask that the recently-expired stay be continued in light
of the COVID-19 pandemic.

Counsel notes that Law Department attorneys

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Case 1:16-cv-06586-LAP Document 251 Filed 07/29/20 Page 4 of 7

are working remotely because of the pandemic and consequently do not
have access to the same assistance that they would have if they were
working from their offices. (See dkt. no. 244.) The Court recognizes
the case management issues created by the COVID-19 pandemic, but
notes that many attorneys have found ways successfully to manage
their cases despite those inconveniences.

Accordingly, counsel's

request to extend the blanket stay is denied and counsel shall proceed
with addressing the issues discussed in this order and with other
paper discovery. Depositions, however, will remain stayed.
c. Motion to Compel
Mr. Hutter has moved to compel production of certain documents
requested by subpoena, specifically, Employee Duty Rosters and EHPW
logbooks

(transportation

records).

Defendants

have

objected

to

producing those documents for time periods when Mr. Hutter was not
in custody and have proffered that certain other documents were
destroyed.
As noted above, the Court has asked Mr. Hutter to explain why
documents created long after his release might be relevant, and he
has not done so.

Accordingly, Defendants’ objection to producing

documents from 2017 and 2019 is sustained.
With respect to the Duty Rosters, Defendants point to dkt. no. 163
as an affidavit that those documents were lost in a flood. As noted
above, however, dkt. no. 163, relates to a search for transportation
records, not Duty Rosters (and not the Employee Legal Schedules
Defendants substitute for Duty Rosters.)

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Accordingly, the motion is

Case 1:16-cv-06586-LAP Document 251 Filed 07/29/20 Page 5 of 7

granted with respect to Duty Rosters for 2013 and 2014 (but not 2017
or 2019).
Finally, the Declarations of Officers Vega and Cannon do relate to
the unsuccessful search for transportation records, so the motion is
denied as to the transportation records.
II.

CONCLUSION

First, Counsel shall inform the Court promptly if they represent
Ms. Mello and/or Ms. Cooke.

Plaintiff’s motion to compel (dkt. no. 228) is granted in part
and denied in part. Defendants shall produce to Plaintiff no later
than August 28, 2020, the Department of Corrections’ Duty Roster
for 2013 and 2014 and all affidavits filed in support of the City’s
requests to be relieved of further efforts to identify John Does
(other that those of Officers Vega and Cannon), as previously
ordered (dkt. no. 186).

The Court acknowledges that, in this

order, it changed the dates of the Duty Rosters required from 2013
and 2019 to 2013 and 2014 in light of Mr. Hutter’s release from
custody in September of 2014.

To the extent that there are no

additional affidavits in support of the motion, counsel shall file
an affidavit explaining why the search related only to the van
driver and not to the other John Does.
Defendants shall also produce to Plaintiff no later than August
28 job numbers and duty identifications, including those for Mod
2 in the RNDC, for 2013 and 2014, as ordered in dkt. no. 184.
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Case 1:16-cv-06586-LAP Document 251 Filed 07/29/20 Page 6 of 7

Defendants shall submit, no later than August 17, an affidavit
explaining

the

apparent

discrepancies

Mr.

Hutter

identifies

between the documents attached as Exhibits C and D, including the
documents hand-numbered 106, 107, and 108, to his reply (dkt. no.
241), including why documents said to be missing became found.
Counsel shall confer with Plaintiff and inform the Court by
letter no later than August 17 of the status of the responses to
the interrogatories propounded by Plaintiff (beginning at dkt.
nos. 120 and 161) and the subpoenas issued by Plaintiff (e.g.,
dkt. entries dated 10/2/19, 5/21/20, 6/16/20, 7/15/20).
Defendants’ motion to extend the stay (dkt. no. 244) is granted
in part and denied in part.

The blanket stay on this action is

lifted and Defense counsel shall proceed with the matters set out
above

and

with

other

paper

discovery.

Depositions

shall

be

stayed.
Finally, and in light of the above, the Court withdraws its
prior order relieving the City of further efforts to identify the
John Does (dkt. no. 136).
The Clerk of the Court is respectfully directed to mail a copy
of this order to Mr. Hutter.
SO ORDERED.
Dated:

New York, New York
July 29, 2020
__________________________________
LORETTA A. PRESKA
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Senior United States District Judge

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