Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO et al v. City of New York et al

Filing 590

ORDER granting in part and denying in part 567 Letter Motion for Discovery; granting in part and denying in part 576 Letter Motion to Expedite. The Court grants in part and denies in part the Plaintiffs request.The Parties shall provide anothe r update by September 6th. That update shall detail the schedule for all remaining depositions. If the Parties cannot agree on such a schedule, by that same date, the Parties shall each submit a proposed schedule for completing any remaining fact a nd expert discovery. All discovery must be completed in time to meet Judge Liman's October 11 deadline for summary judgment and class certification motions. No extensions are guaranteed. SO ORDERED. (Signed by Magistrate Judge Jennifer E. Willis on 8/29/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LOCAL 3621, EMS OFFICERS UNION, DC-37,
AFSCME, AFL-CIO et al.,
Plaintiffs,
-against-

ORDER
18-cv-4476 (LJL) (JW)

THE CITY OF NEW YORK et al.,

Defendants.
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JENNIFER E. WILLIS, United States Magistrate Judge:
The Parties filed several letters discussing various discovery disputes. Dkt.
Nos. 567–570, 576, 578–580. In an August 13th letter, the Plaintiffs sought an
expedited Order 1) asking for an expedited discovery deadline, 2) granting Plaintiff’s
request to move pursuant to Rule 37 for sanctions for any discovery failures not cured
by the deadline and 3) scheduling a conference to set deadlines for expert discovery.
Dkt. No. 576. Defendants 1) did not oppose a deadline for fact discovery, 2) opposed
any Rule 37 sanctions, and 3) took “no position regarding an extension of time to
complete expert discovery” but noted approaching deadlines. Dkt. No. 578. In sum,
the Plaintiffs sought expedited resolution of the pending discovery motions, and
assuming the Court rules in their favor, an Order directing all such discovery be
completed in time to meet Judge Liman’s October 11 deadline.
On the eve of the August 28th conference, Plaintiffs submitted a letter dealing
distinct issues they deemed “most critical” for their class certification and summary
judgment motions. Dkt. No. 588-4.
The Court grants in part and denies in part the Plaintiffs’ request.

I. BACKGROUND
In June 2023, this Court ruled that Plaintiffs’ discovery requests were relevant
and ordered Defendants to comply with Plaintiffs’ request. Dkt. No. 465.
In December of 2023 and February of 2024, this Court admonished the parties
for not completing discovery and warned the Defendants it would consider sanctions
if the Defendants did not complete the demographic data production that had been
ordered years before. Dkt. No. 505, 528 (citing Dkt. No. 372).
In March of 2023, while the Parties noted progress, the Plaintiffs identified
various data deficiencies and alleged discovery failures. Dkt. No. 529. In April, the
Court held a conference and then granted Plaintiff’s request for meetings between
the Parties’ experts to resolve data discrepancies. Dkt. Nos. 540, 553.
On April 23rd, Judge Liman held a conference in which the Parties represented
that discovery would be concluded within twelve weeks. Dkt. No. 557 at 38, 44, 46.
Following that conference, this Court emphasized to the Parties that “Judge Liman
held a conference on April 23rd in which he reiterated that this case has been pending
for a long time and that the Parties should figure out ways to prioritize the discovery
that is truly necessary and bring this case to a head.” Dkt. No. 553 (citing 557 at 48).
In May, the Parties again noted some progress but disputed the structure of
the expert meetings and the specific subjects to be covered, necessitating Court
intervention again. Dkt. Nos. 555–56, 559. In June, again noting progress, the
Plaintiffs sought another conference noting missing items in Defendants’ production.
The Court denied the request for a conference and ordered the Parties to confer to
complete the production. Dkt. No 565. In that Order, the Court reminded the Parties
that the previous Order stated, “while the experts are not limited to the Court’s
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verbatim language in that Order, they are restricted to the specific issues identified
in the Order. Those issues, as indicated in the last Order, are only: 1) leave data
and 2) promotional data.” Dkt. No. 565 (citing 559 (citing Dkt. No. 553 at 11–
12)(emphasis in all three Orders).
Then, in the Parties’ joint status letter submitted on July 19th, the Parties
noted progress but again disagreed on whether the demographic data production was
complete. Dkt. No. 566. In the joint letter, Defendants promised to complete several
sets of production by certain dates while Plaintiffs pointed to several requests that
remained incomplete, proposed a tiered approach to completing discovery by
December 2024, and identified several witnesses that still needed to be deposed. Dkt.
No. 566.
On July 26th, the City sought “relief from the Court’s Order dated May 31,
2023 (ECF Dkt. 465) on the grounds that compliance with the Order will place an
undue burden on the FDNY’s operations.” Dkt. No. 567. The Defendant rightly noted
that at that conference, the Court specifically gave Defendants leave to return to
argue that the discovery requests would place an undue burden on the City. Dkt. No.
466 at 67–68 (“to the extent that in attempting to produce this you find that a subset
is actually stored in a way where production might be truly burdensome, I certainly
give you leave to raise that issue if it comes up with the Court again.”).
On July 29th, Plaintiffs opposed the sought-after relief but asked for time to
negotiate a resolution. Dkt. No. 568. On August 5th, the Plaintiffs again asked for
more time to resolve the annual performance evaluation issue and Defendants asked
that their motion be held in abeyance. The Parties were given until August 16th to

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resolve the issue and a short deadline to brief the dispute should no settlement be
reached. Dkt. No. 573.
This Court reminded the Parties of the need to move expeditiously several
times. Dkt. Nos. 553 at 16; 565 at 2; 571 at 1; 573 at 1.
On August 7, 2024, Judge Liman issued an Order that “summary judgment
motions and renewed motions for class certification shall be filed no later than
September 20, 2024. The Parties shall work with Judge Willis to ensure that
discovery is completed well within the time frame necessary for such motions to be
made.” Dkt. No. 574.
On August 13th, Plaintiffs asked this Court for an “expedited ruling” on
pending discovery disputes. Dkt. No. 576. In the letter, the Plaintiffs identified Dkt.
Nos. 476, 529, and 536 as in need of resolution.
On August 15th, Judge Liman granted the Parties’ request to extend the
deadline for class certification and summary judgment motions to October 11, 2024.
Dkt. No. 577.
On August 16th, the Parties submitted a joint letter stating that they failed to
resolve the issue of the annual performance evaluations. Dkt. No. 579. On August
21st the Parties each submitted letters detailing their positions.
On August 27th, Plaintiffs filed a letter identifying “discrete items most critical
to Plaintiffs’ case” along with a proposed timeline for depositions that Plaintiffs assert
“could easily be achieved in the next three (3) weeks.”
On August 28th, the Court held a lengthy conference.

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II. ITEMS PLAINTIFFS IDENTIFIED AS “MOST CRITICAL”
In a letter filed prior to the conference, the Plaintiffs identified a list of items
it labeled as “most critical.” Dkt. No. 588. The Court will briefly discuss each item.
1. Outstanding Demographic Data
A. Production of the remaining 4,928 annual performance ratings of
EMS Officers
Initially, the Plaintiffs sought the full annual evaluations from the years 1996–
2024. At the May 2023 conference, this Court said that only the evaluations from
2004-2024 had to be provided. Dkt. No. 465. On July 26th, the City sought to be
relieved of the obligation to produce the full evaluations in paper form from 2004
through 2020. Dkt. No. 567.
Defendants are correct that at the May 2023 conference, the Court specifically
gave Defendants leave to return to argue that producing paper evaluations would
place an undue burden on the City. Dkt. No. 466 at 67–68 (“to the extent that in
attempting to produce this you find that a subset is actually stored in a way where
production might be truly burdensome, I certainly give you leave to raise that issue
if it comes up with the Court again.”).
In an affidavit filed by the City’s Records Management Officer, he estimated
“it would require one full-time employee 2,250 hours (approximately 321 workdays)
to take the initial step of digitizing the EMS performance evaluations from years
2004–2019.” Dkt. No. 567-1. Relatively, this is a significant burden. Given the high
cost of production and the limited benefit, the Court finds that producing the paper
evaluations from 2004–2019 would be disproportionate to the needs of the case. Fed
R. Civ. P. 26(b)(1); Maher v. Johnson, 22-CV-6506(LJL), 2023 WL 4847163, at *2
(S.D.N.Y., 2023).Therefore, Defendants need not produce paper evaluations.
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At the conference yesterday, the Parties represented that the annual
evaluations from 2020 to 2022 have already been provided. The City represented that
it was not aware of any electronic records for the years 2004 to 2020.
During the conference, the Plaintiffs narrowed their request for the pre-2020
requests.

Rather than seeking the full evaluations, they are seeking only the

evaluation ratings. Contrary to the City’s assertion that the rating information is not
preserved electronically, Plaintiffs believe that it is. Plaintiffs claimed that a City
30(b)(6) witness identified Benny Thottam as the person who would know the location
of this data. As will be discussed below, the Plaintiffs will have an opportunity to
depose Thottam and verify whether this is the case.
During the conference, Plaintiffs also narrowed their requests regarding the
outstanding 2023 evaluations. Plaintiffs agreed that in the interest of speed, they
would seek only the evaluation ratings from 2023. Therefore, by September 6th, the
City shall provide the evaluation ratings from 2023, and if the Thottam deposition
reveals that electronic evaluation ratings exist for the years 2004–2020, the City shall
propose a timeline for providing those records as well.
B. Cessation Dates for EMS employees
The City represented that this production was completed the morning of the
conference. Plaintiffs will review and provide a status update by September 6th.
C. A list of any EMS Officers from 2004 to present who did not hold
either an EMT or Paramedic certification
The Parties discussed this issue in detail and came to the conclusion that the
updated “BITs data” to be provided by next week is likely to remedy any issues with
this data. The Parties shall provide a status update by Friday, September 6th.

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D. Correction for missing information in DEMODATA_000023 which
contains annual snapshots for 2004 through 2023 for each employee.
The Parties discussed this issue in detail and determined that Defendants
shall provide additional snapshots, if available, for employees not employed as of
December 31 of each year. The City shall complete this production by Friday,
September 6th.
E. Stipulation on Data & Discovery 1
The Parties discussed this issue as well. As discussed in previous Orders, it is
the Court’s hope the Parties can agree on a single data set that its experts can run
regressions on and make arguments for class certification or summary judgment.
Given the collaborative process of securing and compiling the data, the Court does
not want the Parties to come in on the back end and assert problems with the data
merely because the data does not support their argument.
While the City believes it can consent to a useable dataset, it was hesitant to
do so until its experts ensured the stitched-together dataset reflects the underlying
data the City provided. The City shall confer with its experts, and the Parties shall
provide a status update by Friday, September 6th. The Parties shall also discuss
whether they can agree on language regarding Defendants’ claim that they have
produced everything in their possession.
F. FDNY’s quarterly Civilian Workforce Analysis from 2004 to Present
This shall be produced by September 6th.
2. Outstanding Eligibility Data

Plaintiffs asked for a written statement from Defendant’s custodian “that after a diligent search they
have produced everything in Defendants’ custody and control responsive to Plaintiffs’ Requests for
Production.” Dkt. No. 588-4 at 5.

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The Plaintiffs identified three issues with the outstanding eligibility data. The
Parties believe the BITs data will remedy these issues as well. A status update is due
September 6th.
3. Internal memoranda prepared by Chief John Peruggia describing the
EMS Promotional Processes.
The City agreed to produce this by September 6th. The Parties shall confirm
they have done so in their status update.
4–5. All complaints formal and informal regarding Roberto Colon and James
Booth from 1996 to present alleging discrimination.
Formal and informal complaints alleging discrimination by the direct
supervisors of the named Plaintiffs are clearly relevant. These must be produced by
September 6th. However, the City need only produce documents going back to 2004,
not 1996.
6. Copy of Plaintiff Mascol’s Grievance No. A1440-113
The City believes this was already provided, if it has not been provided, it shall
be produced by September 6th.
7. Any documents that contain a definition or explanation of the elements
for charging or finding guilty a member under EMS OGP 101-01, 4.2.46,
falsify official statements, records, or reports.
The City believes this, too, was already provided. They shall confirm in their
status letter.
8. The Workmen’s Compensation Package for Luis Rodriguez Chief Lloyd
brought to her deposition.
The Parties discussed this and the City shall provide the specific workmen’s
compensation package Chief Lloyd brought to the deposition by September 6th.
9. 2004 Job Analysis for the SEMSS title referred to in Robert Alexander’s
deposition testimony.
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This shall be produced by September 6th.
10. Any documents showing job specifications not already produced for any
SEMSS position, Sergeant, Lieutenant, Captain, Deputy Chief or Division
Chief.
The City agreed to produce this by next week. They shall confirm they have
done so in the status update.
III. CRITICAL WITNESSES
Plaintiffs sought the Court’s leave to depose several witnesses. The Parties
discussed that there were some witnesses that the City would agree to produce, but
asked that the length of the deposition be limited. These include:
1. Roberto Colon – 5 hours
2. Joseph Sanders – 2 hours
3. Vanessa Brady – 4 hours
4. Robert Alexander – 2 hours
5. Michael Fields – 2 hours
6. Don Nguyen – 2 hours
The following are witnesses that Defendants objected to based on relevance
and proportionality. Defendants’ proportionality objection was that the total number
of depositions and the extensive number of hours made deposing these additional
witnesses unduly burdensome.
1. James Booth – 6 hours
2. Barbara Dannenberg – 2 hours
3. Rebecca Mason – 2 hours
4. Kamaldeep Deol – 2 hours
5. Benny Thottam – 2 hours
6. Remaining witnesses to testify on 30(b)(6) topics
The Court rules that the Plaintiffs may depose both the unobjected to and
objected to witnesses. However, Plaintiffs shall have only 25 (twenty-five) total
hours to conduct all the depositions. This shall include the 30(b)(6) witnesses.
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Should they spend all their time with one or two witnesses, they will have no time
left for the others. Therefore, the Plaintiffs are strongly encouraged to prioritize the
discovery they need. Regardless of how Plaintiff structures the depositions, in no
event should the depositions be longer than the number of hours listed above.
IV. REMAINING DISCOVERY DISPUTES
The Parties raised the following issues in their previous letters. Several of the
issues have since been resolved.
1. FISA-OPA Pay Data
In June, Plaintiffs pointed to errors in the FISA-OPA data. Dkt. No. 564.
Defendants said they would “produce corrected pay data beginning January 1, 2004,
and superseding DEMODATA_000004 and DEMODATA_000005, on or before July
12, 2024.” Dkt. No. 564. At the time of the July 19th status letter, this production was
not yet complete. Dkt. No. 566. Defendants promised to produce this data “on or
before Monday, July 22, 2024.” This should be resolved when the Parties agree
on a single data set and in any event must be produced by September 6th.
2. Privilege Log
The City represented that it has not asserted privilege since the last production
of its privilege log. Plaintiffs argued that the log was deficient and needed to be
resubmitted. The City shall provide an up-to-date privilege log by September 6th.
3. Expert Discovery
The Parties discussed that they would agree to submit expert reports
concurrently with the class certification and summary judgment motions due on
October 11th. The Parties will reserve their right to depose opposing experts after
filing those motions.
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If the City’s expert is Dr. Erath, the total deposition time shall be limited in
accordance with this Court’s previous order. Dkt. No. 505 at 19.(“the Court directs
Dr. Erath to sit for a deposition, but regardless of whether a second deposition occurs,
Plaintiffs will be limited to seven total hours of deposition time with Dr. Erath…If
Plaintiffs use three hours in their first deposition of Dr. Erath, the second deposition
will be limited to four hours… The Plaintiffs are strongly encouraged to use their
limited time with Dr. Erath wisely.”).
V. 30(b)(6) TOPICS
Courts have “considerable discretion in assessing whether topics have been
noticed with reasonable particularity.” Seliger v. Breitbart News Network, LLC, No.
20 CIV. 2860 (ER), 2021 WL 707063, at *1 (S.D.N.Y. Feb. 22, 2021). The factors courts
consider include, “(1) the nature of the topics; (2) whether the descriptions of the
topics include examples of questions and clarifying information such as references to
specific named policies, documents, incidents, and the like; and (3) whether a
reasonable person reading the notice would understand how to prepare for the
deposition.” Id. In the interest of expediency, the Court makes the following findings
regarding the Supplemental Notice of 30(b)(6) Deposition. Dkt. No. 529-6.
•

Topic 3. The creation and implementation of Defendants’ process to
determine which members of the Fire Bureau of the FDNY will be
promoted from 2004 to present

This topic is identical to Topic 2 but relates to the Fire Bureau of FDNY instead
of the EMS Bureau of FDNY. Dkt. No. 529-6 at 3. Defendants have offered no reason
why this topic is vaguer than Topic 2 and evidently were able to provide a witness to
discuss Topic 2. Topic 3 is sufficiently particular.
•

Topic 4 . Steps Defendants have taken, if any, to remedy implicit bias
and/or subjectivity in the complained of promotional process
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This proposed topic is too vague. The phrase “steps Defendants have taken”
can encompass far too many actions for an individual to ever be prepared to testify
on. If this topic had requested specific policies the City issued that were designed to
remedy implicit bias the result may have been different, but as written, it is
insufficiently particularized.
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Topic 5 Any and all complaints EMS employees have made from 2004 to
present regarding discriminatory treatment, including but not limited to
complaints regarding the FDNY’s promotional process and evaluation
process, and including complaints filed with the FDNY Equal
Employment Opportunity (EEO) Office and/or elsewhere, and what, if
anything, has been done to investigate and/or remedy such complaints,
including those complaints that have been substantiated

Similarly, this proposed topic is also too vague. It would be impossible to
prepare to answer on behalf of the City how every complaint from 2004 to the present
was responded to.
•

Topic 9 Defendants’ implementation of the terms of settlement in the
matters of Good, et al. v. City of New York, et al., Case No. 05-CV-06006
(JSR), in the U.S. District Court of the Southern District of New York
and Monroe, et al. v. City of the New York, Case No. 113822/2006, in the
Supreme Court of the State of New York, New York County as well any
reformative or remedial steps Defendants implemented as a result of
those suits

While specific policies and actions taken in response to specific settlement
agreements is sufficiently particularized, because this request includes the phrase
“any reformative or remedial steps Defendants implemented as a result of those
suits” it is too broad as written.
•

Topic 10 Defendants’ Position on S.6935/A.9441, the Bill that was
Introduced to Amend Civil Service Law §59-b

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This, too, is unduly vague. It is unclear whether the request is asking a witness
to explain the City’s position on the proposal, the FDNY’s, or the individual
Defendants’ position on the bill. As written, it is insufficiently particularized.
•

Topic 11 Defendants’ efforts to implement Civil Service Law §59-b as
amended by S.6935/A.9441. To the extent Defendants are not in
compliance with Civil Service Law §59-b, the reasons that Defendants is
not in compliance with Civil Service Law §59-b and/or if Defendants
believe they are in compliance, the knowledge on the implementation of
Civil Service Law §59-b.

No one could prepare to testify to “the reasons that Defendants are not in
compliance with Civil Service Law §59-b.” This request does not seek a knowledgeable
witness to testify as to whether there are any specific policies or initiatives done to
respond to Civil Service law 59-b, only the vague phrase “efforts”. This is insufficient.
•

Topic 12 Defendants’ position as to the reasons it either supports or
opposes integration of Civil Service Law §59-b into its promotional
process.

For the same reasons that Topic 10 is vague, Topic 12 is also unduly vague.
The “reasons it either supports or opposes integration of Civil Service Law §59-b” is
subjective and would depend on the individual. 30(b)(6) depositions are for attaining
knowledge only a corporation as a whole could have. See generally Starr Indem. &
Liab. Co. v. Water Quality Ins. Syndicate, 320 F. Supp. 3d 549, 563 (S.D.N.Y.
2018)(Engelmayer, J.).
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Topic 14 Any instances of discipline in the FDNY for violation(s) of
Chapter 68 of the New York City Charter (Conflicts of Interest Law)
and/or any other conflict of interest policies from 2004 to present

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This request seeks specific policies and instances of formal discipline for
violations of the conflict of interest law. There is no reason Defendant cannot identify
the individual responsible for managing such records. Topic 14 is not unduly vague.
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Topic 15 For each promotional opportunity relating to an EMS position
at the rank of Captain, Deputy Chief and/or Division Commander from
2004 to present: ▪ Date each promotional opportunity was announced and
Promotional Order Number associated with each announcement; ▪
Names of all individuals who submitted an application for each
promotional opportunity regardless of whether they completed the
application process for promotion or not; ▪ Names of all individuals who
applied for each promotional process and were found to be ineligible. ▪
Names of all individuals promoted for each promotional opportunity and
the Promotional Order Number associated with the announcement for
promotion if different from than application Promotional Order Number.

This request is more appropriately submitted as a request for existing
documents containing such information. If documents containing this information
(whether in a dynamic database or in paper form) do not exist, there would be no way
for the 30(b)(6) witness to prepare to answer this question.
VI. CONCLUSION
The Parties shall provide another update by September 6th. That update
shall detail the schedule for all remaining depositions. If the Parties cannot agree on
such a schedule, by that same date, the Parties shall each submit a proposed schedule
for completing any remaining fact and expert discovery. All discovery must be
completed in time to meet Judge Liman’s October 11 deadline for summary judgment
and class certification motions. No extensions are guaranteed.
SO ORDERED.
DATED:

New York, New York
August 29, 2024

______________________________
JENNIFER E. WILLIS
United States Magistrate Judge
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