Capak v. Epps et al

Filing 139

ORDER terminating 133 Letter Motion for Discovery. A discovery conference is scheduled for July 11, 2022 at 3:00 p.m. At the scheduled time, counsel shall call Judge Parker's conference line. Please dial [phone]; Code: 4858267. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 6/13/2022) (jca)

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6/13/2022
February 15, 2022
Via ECF

A discovery conference is scheduled for July 11,
2022 at 3:00 p.m. At the scheduled time, counsel
shall call Judge Parker's conference line. Please dial
[phone]; Code: 4858267.

Honorable Katharine Parker
United States Magistrate Judge
United States District Court
500 Pearl St.
New York, NY 10007
Re:

6/13/2022

Capak v. Epps, et al., No. 18-CV-4325 (RA) (KHP)

Dear Judge Parker:
We are counsel to Defendant Rory Smith in the above-referenced action, and we respectfully
submit this letter in response to the Court’s Order (ECF No. 129) to address certain pre-trial
discovery issues with Your Honor.
As newly assigned counsel, we respectfully request that the Court permit Mr. Smith to (1) obtain
documents that both Defendants in this case previously requested from Plaintiff but never
received, and (2) depose any expert witnesses whose testimony Plaintiff intends to rely on at
trial.
While we are mindful that the Court previously deemed discovery completed, we believe “good
cause” exists in this case for discovery to be reopened for limited purposes. See Fischer v.
Verizon New York, Inc., No. 18-CV-11628 (RA), 2021 WL 5827639, at *4 (S.D.N.Y. Dec. 8,
2021) (quoting Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir. 1991)); Fed. R. Civ. P. 16(b)(4)
(“A schedule may be modified only for good cause and with the judge’s consent.”). Here,
Plaintiff is well-aware of the requests specified in this letter and is under a continuing obligation
to supplement his responses. See Fed. R. Civ. P. 26(e) (“A party who has made a disclosure
under Rule 26(a) . . . must supplement . . . its disclosure or response . . . in a timely manner if the
party learns that in some material respect the disclosure or response is incomplete or incorrect,

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and if the additional corrective information has not otherwise been made known to the other
parties during the discovery process or in writing[.]”).
Specifically, during a deposition held on November 12, 2019, Plaintiff referenced at least three
items responsive to Defendants’ discovery requests. Defendants subsequently made explicit
requests for those items as specified below, but Plaintiff never produced them.
•

The records from Plaintiff’s visit to a New Jersey emergency room following an
automobile accident in 2015 and/or 2016 and records related to subsequent
treatments Plaintiff received. See Excerpt of Deposition of R.J. Capak (“Capak
Depo.”) (attached hereto as Exhibit A) at 203:6–205:24; id. at 219:19–22; see also
ECF No. 108 (Defendant’s letter requesting extension of time to complete expert
discovery); ECF No. 114 (joint status letter informing the Court that Defendant was
unable to obtain the medical records from the third-party provider).

•

A video taken by a third-party and referenced in Plaintiff’s deposition, see Capak
Depo. at 85:14–16 (“As a matter of fact, I got somebody’s video, and the guy yelled
out, that guy knocked him out, man.”), and requested by Defendant Epp’s counsel,
see id. at 179:17–180:18.

•

Any statements Harry Velez provided to anyone relating to the October 17, 2017
incident, such as those made to the NYPD and the district attorney’s office. See
Capak Depo. at 195:14–196:24.

We contacted Plaintiff’s counsel by email in an effort to obtain his agreement to the production of
the foregoing items and to discuss the availability of any potential expert witness Plaintiff intends
to call as a witness. As of the filing of this letter, we have received no response.
For the foregoing reasons, Mr. Smith respectfully requests that the Court reopen discovery for the
limited purposes requested herein.
Very truly yours,
/s/ Linda Moon
Linda Moon
Tai H. Park
cc:

Harris Marks
Sanford Alan Rubenstein
Rory Smith

2

EXHIBIT A

Richard Capak
November 12, 2019
Page 202

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·were in a car accident?
· · · · A.· ·I think I was in a car accident, I think
·it was like two years before.· I was sitting at a
·red light, and I got rear-ended.· Thank God, there
·was a cop car right there.
· · · · Q.· ·Where were you?
· · · · A.· ·Where was I?· We were just coming back
·from I guess Seaside Heights in New Jersey.
· · · · Q.· ·Okay.· Were you in New York or New
·Jersey?
· · · · A.· ·New Jersey.
· · · · Q.· ·Okay.· Were you on the driver's side?
· · · · A.· ·Yeah, I was driving.
· · · · Q.· ·Okay, and somebody rear-ended you?
· · · · A.· ·He was on his phone.
· · · · Q.· ·Do you know how fast he was going?
· · · · A.· ·No.
· · · · Q.· ·Roughly approximate speed?
· · · · A.· ·Oh, I couldn't.· How do I know? I
·didn't see him hit me.· I just, you know, heard the
·screech, and by the time I even looked up, the
·impact.· I mean, you know.
· · · · Q.· ·Was the car totaled?
· · · · A.· ·Yeah, they totaled it.· It was a 2008
·Accord, and he kind of pushed in the left side of

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·the trunk, and because I guess they bent part of the
·frame, they decided it was cheaper to total it than
·to try to fix it.
· · · · Q.· ·And what injuries did you sustain in
·that car accident?
· · · · A.· ·Well, I didn't sustain any injuries at
·first I didn't think, but when my passenger wanted
·to be checked out, she was hurt, and so I am sitting
·in the hospital there, and I just remember one of
·the nurses coming over and say you don't look so
·good and said, you know, let's get him checked out,
·and I didn't want to, but she said, look, you need
·to be checked out.· So we got checked out.· They did
·a CAT scan on me.· They said everything looked good.
·If anything, it is probably a case, you know, of
·maybe whiplash or something.
· · · · Q.· ·You were at an ER?· Where did you go?
· · · · A.· ·An ambulance came to take my passenger,
·so I sat in the passenger seat and just hopped the
·ride.· I couldn't take the car.
· · · · Q.· ·Do you know what hospital you went to?
· · · · A.· ·No, I don't.
· · · · Q.· ·Was it in Seaside Heights?
· · · · A.· ·No, it was a town.· I think it was -·give me a minute.· I'm not like I was.· It is a

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·weird name, the town.· I don't remember.
· · · · Q.· ·Okay.· So you testified that you didn't
·think you were hurt at first, but subsequently you
·thought you were.
· · · · A.· ·Well, they thought I looked a little
·pale, I guess, or something, you know or something
·because they said, look, you need to be checked out.
·You don't look so good.· I was like okay.· I think I
·was just, you know, shocked, because it was my
·father's car, and he died, and my mom gave it to me,
·and now it is totaled.
· · · · Q.· ·What injuries were you diagnosed with?
· · · · A.· ·They just said it looks like, if
·anything, it could be a case of whiplash.
· · · · Q.· ·Okay.· And that was what was diagnosed
·at the ER?
· · · · A.· ·Yeah, that is what the doctor said after
·looking at the x-ray.· He said, you know, I don't
·see anything, so if anything, it is probably a mild
·case of whiplash.· He goes you might feel sore in a
·couple of days, but you know, just put hot
·compresses on it and you should be okay.
· · · · Q.· ·Did you have any subsequent treatment
·plans that you had to follow?
· · · · A.· ·No.· Well, I felt a little stiff after

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·that, and so, you know, I went to the VA, and I told
·them about it, and they put me in physical therapy.
· · · · Q.· ·How long did physical therapy last?
· · · · A.· ·I think it was like maybe ten visits, so
·I am going to say ten weeks.· Maybe, I don't know if
·I went twice a week for the first week or two and
·then maybe once a week after that.· I really don't
·remember.
· · · · Q.· ·Who was the passenger in the vehicle?
· · · · A.· ·Marie Arnold, my girlfriend.
· · · · Q.· ·That is the same Marie we talked about
·earlier?
· · · · A.· ·Yes.
· · · · Q.· ·Other than the physical therapy, did you
·take any other medications or have any other
·treatment plan?
· · · · A.· ·I don't even like taking aspirin, but
·now I have gotta.
· · · · Q.· ·So is it correct that, after the ten
·weeks or so of physical therapy, you didn't continue
·any kind of treatment?
· · · · A.· ·No.· Everything seemed okay.· I had some
·things checked out.· I think I went to a
·chiropractor also for a little bit, which really was
·that I like.· It just feels like it does something.

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