Jamison v. Carada

Filing 47

OPINION AND ORDER re: 43 FIRST LETTER MOTION for Discovery conference or permission to move under Rule 37 addressed to Magistrate Judge Stewart D. Aaron from Vik Pawar, Esq. dated 9/5/18, filed by D'Anthony Jamison. For the for egoing reasons, Plaintiff's Letter Motion for sanctions is DENIED. However, it is hereby Ordered that: 1) The Corporation Counsel of the City of New York shall produce to Plaintiff's counsel no later than September 28, 2018, any releva nt documents in the possession, custody or control of Larson; and 2) As agreed by defense counsel, Larson shall be made available for a three-hour deposition by Plaintiff during the period October 2 to October 12, 2018. (Signed by Magistrate Judge Stewart D. Aaron on 9/12/2018) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Jamison,

09/12/2018
Plaintiff,
-against-

1:17-cv-01764 (LTS) (SDA)
OPINION AND ORDER

Cavada,
Defendant.

STEWART D. AARON, United States Magistrate Judge:
Before the Court is Plaintiff’s Letter Motion for discovery sanctions that was filed on
September 5, 2018. (Pl.’s Letter Motion, ECF No. 43.) For the reasons set forth below, the Court
DENIES the Letter Motion for sanctions, but awards the relief set forth below.
BACKGROUND
Plaintiff raised two issues in his Letter Motion for sanctions, only one of which is ripe for
determination—i.e., the failure of the Defendant, Det. Nathan Cavada (“Defendant” or
“Cavada”), to disclose in interrogatory responses the identity of a witness named Detective
Larson (“Larson”) 1 in prior responses to interrogatories. 2 (Id. at 1-2.) In opposition to the Letter
Motion, Defendant timely filed a letter, dated September 10, 2018, 3 arguing that Plaintiff’s

1

Plaintiff in his submissions spells the detective’s name as “Larsen,” but Defendant spells the name as
“Larson.” The Court adopts Defendant’s spelling for purposes of this Opinion and Order.
2

The second issue involves defense counsel’s purported instructions to Cavada not to answer certain
hypothetical questions at his deposition. However, the transcript of that deposition has not yet been
received or presented to the Court for a ruling. (See id. at 1.)

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On September 10, 2018, Plaintiff filed a letter stating that Defendant had failed to respond to Plaintiff’s
Letter Motion. (ECF No. 44.) However, pursuant to the Court’s Individual Rules, the Defendant’s response
was not due until September 10, and the Defendant timely filed his response on September 10.

counsel was aware, or should have been aware, of Detective Larson’s name since February 13,
2018, when Cavada’s memo book, which mentions Larson’s name, was produced. (Def.’s Letter
Resp., ECF No. 45, at 2.) Nevertheless, Defendant agreed to produce Larson for a deposition. (Id.
at 4.) Plaintiff belatedly filed a reply on September 12, 2018, 4 in which he asks the Court to “either
strik[e] defendant’s pleadings,” or “allow[] an adverse/missing witness document charge.” (Pl.’s
Reply, ECF No. 46.)
DISCUSSION
I.

Legal Standards
Plaintiff seeks sanctions under Rule 37 of the Federal Rules of Civil Procedure. (Letter

Motion at 2.) Rule 37(c)(1) provides:
If a party fails to provide information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney’s fees,
caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in
Rule 37(b)(2)(A)(i)—(vi).
Fed. R. Civ. P. 37(c)(1). “[T]he imposition of sanctions under this rule is discretionary, and
preclusion is not generally ordered.” Atkins v. Cnty. of Orange, 372 F. Supp. 2d 377, 396 (S.D.N.Y.

4

Pursuant to the Court’s Individual Rules, the reply was due to be filed on September 11, 2018.

2

2005), aff'd on other grounds sub nom. Bellotto v. Cnty. of Orange, 248 F. App’x 232 (2d Cir. 2007)
(citation omitted).
II.

Application
In its discretion, the Court denies Plaintiff’s motion for sanctions. Defendant has easily

met its burden of showing that his failure to disclose Larson’s name in interrogatory responses
was harmless. Larson’s name was identified in a document produced to Plaintiff in February 2018.
Further, it was Plaintiff who admittedly delayed in taking Cavada’s deposition (where Larson’s
involvement was further disclosed) until after the discovery deadline had passed, which required
the Court’s permission to take that deposition after the deadline. (See Memo Endorsement, ECF
No. 40.)
Any possible prejudice to Plaintiff by the failure to disclose Larson’s name in interrogatory
responses will be remedied by the Court’s permitting Plaintiff to take Larson’s deposition (with
any relevant documents of Larson having been produced in advance), notwithstanding the fact
that the discovery deadline has passed. In seeking to dissuade the Court from ordering Larson’s
deposition as a way to remedy any prejudice for the failure to disclose Larson’s name, Plaintiff’s
counsel asserts that it is “too late in the discovery process” to hold Larson’s deposition. (Pl.’s
Reply at 2 n.1.) But, again, the delays in the discovery process were caused by Plaintiff’s counsel
himself. Plaintiff’s counsel also asserts that Larson and Cavada will “‘get on the same page’ to
sabotage plaintiff’s claims including the one about fabricating and falsifying evidence.” (Id.) The
Court finds that this conjecture by Plaintiff’s counsel does not provide a basis to impose sanctions
in lieu of holding Larson’s deposition. Larson will be testifying under oath at his deposition, and

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Plaintiff will be able to inquire about any prior communications between Larson and Cavada
regarding the allegations in this case.
CONCLUSION
For the foregoing reasons, Plaintiff’s Letter Motion for sanctions is DENIED. However, it is
hereby Ordered that:
1) The Corporation Counsel of the City of New York shall produce to Plaintiff’s counsel
no later than September 28, 2018, any relevant documents in the possession, custody
or control of Larson; and
2) As agreed by defense counsel, Larson shall be made available for a three-hour
deposition by Plaintiff during the period October 2 to October 12, 2018. 5
SO ORDERED.
DATED:

New York, New York
September 12, 2018
______________________________
STEWART D. AARON
United States Magistrate Judge

5

The Defendant in his September 10 letter asks for a second adjournment of the summary judgment
briefing schedule due to the “overlap” of Larson’s deposition with the briefing schedule (Def.’s Letter
Response at 4-5), which Plaintiff opposes. (Pl.’s Reply at 2.) Although any modification of the summary
judgment briefing schedule must be sought from District Judge Swain, this Court sees no need to adjust
the summary judgment briefing schedule to account for Larson’s deposition. If the Defendant has any
need to submit testimony from Larson as part of his summary judgment motion, he can do so by affidavit
or declaration, such that Larson’s deposition need not be taken prior to the deadline for Defendant to file
his summary judgment motion.

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