Rodriguez v. City of New York et al

Filing 55

ORDER granting 54 Letter Motion to Stay. Application Granted. (Signed by Judge Naomi Reice Buchwald on 5/20/2020) (ama)

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THE CITY OF NEW YORK

LAW DEPARTMENT

JAMES E. JOHNSON
Corporation Counsel

100 CHURCH STREET
NEW YORK, NY 10007

May 18, 2020
Application granted.

VIA ECF
Honorable Naomi R. Buchwald
United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:

AMATULLAH K. BOOTH
Senior Counsel
Tel.: [phone]
Fax: [phone]
[e-mail]

Dated: May 20, 2020
Giovanni Rodriguez (a/k/a King Karrot) v. City of New York, et al.
18 CV 4805 (NRB)

Your Honor:
I am a Senior Counsel in the Special Federal Litigation Division of the New York
City Law Department representing Detective Bernard Solomon in this matter. Defendant writes
to respectfully request that the Court stay the present civil proceeding in its entirety for ninety
(90) days, in light of the recent developments surrounding the COVID-19 pandemic. Plaintiff
consents to this application.
By way of background, Plaintiff commenced the instant lawsuit against the City of New
York, and Detective Bernard Solomon, alleging, inter alia, that on or about May 15, 2017 certain
property was unlawfully seized from Plaintiff in connection with Defendant’s investigation
concerning Plaintiff as a victim of a shooting, and that thereafter Plaintiff was falsely identified
as a gang member. (See Amended Complaint dated October 30, 2018, ECF Docket Entry No.
23).
On July 5, 2019, the City filed a partial motion to dismiss Plaintiff’s claims. See Civil
Docket Entry No. 41. During oral arguments on the motion, held on February 4, 2020, the Court
directed the Parties to file a proposed scheduling order despite the pendency of the motion. See
Civil Docket Entry, Dated February 4, 2020. On February 8, 2020, the Parties filed a proposed
scheduling order in this action, with discovery closing on June 30, 2020. See Civil Docket Entry
No. 48. On February 11, 2020, the Court approved the Parties’ proposed case management plan.
See Civil Docket Entry No. 49. Thereafter, on March 9, 2020, the Court entered a decision on
Defendants’ partial motion to dismiss, narrowing the issues to be litigated. Accordingly, on
March 23, 2020, Defendants filed an answer related to Plaintiff’s remaining claims. See Civil
Docket Entry No. 52. Notably, as the Parties sought to diligently pursue discovery, exchanging
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demands and initial disclosures, the developing of the COVID-19 pandemic gripped our region
and has continued to severely restrict personal contact and the operation of business.
Indeed, as the Court is aware, the country is currently grappling with the COVID-19, or
coronavirus, pandemic. On March 7, 2020, Governor Andrew Cuomo declared that New York is
in a state of emergency because of the rapidly developing pandemic situation. On March 13,
2020, Mayor Bill de Blasio followed suit, and declared New York City to be in a state of
emergency as well.
That same day, the United States District Court for the Southern District of New York
(“Southern District”) issued Standing Order 20 MISC 138, which encouraged individual judges
to conduct court proceedings by phone and video conferencing where practicable. Also, on
March 13, 2020, the Southern District issued Standing Order 20 MISC 015, which suspended
and tolled service of process requirements and deadlines. On March 16, 2020, the Southern
District issued a Revised Standing Order that further limited access to courthouses.
On March 20, 2020, Governor Andrew Cuomo issued an executive order mandating that
all non-essential businesses in New York State close, and that New York residents stay inside
their homes unless participating in an essential activity. Also, on March 20, 2020 and again on
March 30, 2020, the Southern District issued a memorandum to the Bar that set forth additional
emergency protocols, including limitations on courtroom use and operations for both criminal
and civil matters. To comply with Governor Cuomo’s latest executive order, and in light of
pronouncements from other governmental and judicial officials, expert recommendations, and
the further spread of COVID-19, the New York City Law Department is requiring that its
employees work from home.
Of course, working from home creates a number of challenges that directly impact
litigation. For example, although most communication may be exchanged through the use of
ECF or email, some correspondence, particularly correspondence pertaining to discovery, still
requires the use of regular mail. The undersigned is not physically present to receive mail sent to
the office, and therefore is unable to reliably receive correspondence responsive to their requests,
including their anticipated requests made to various facilities where Plaintiff has alleged to have
had scheduled performances, in connection with completing discovery. Moreover, working from
home also complicates sending and receiving correspondence and documents from law
enforcement agencies and other agencies and organizations.
Working from home also creates complications in regard to coordinating and taking
depositions. The logistical challenges of arranging for remote depositions are always significant
and are further exacerbated by the added difficulty of having multiple parties join remotely from
multiple locations, as well as the added difficulty of managing parties’ different technological
capabilities. Preparing witnesses for depositions remotely is also logistically challenging,
particularly when it comes to the review of documents, many of which may not be saved in
formats that are easily shared via electronic means. Moreover, conducting a deposition remotely
simply fails to be an adequate substitute for an in-person deposition; courts in this Circuit have
repeatedly recognized that “an in-person deposition is also preferable in terms of ensuring the
accuracy of the depositions and interpretations” of testimony, Memory Film Prods. v. Makara,
No. 05 Civ. 3735, 2007 U.S. Dist. LEXIS 34110, at *10 (E.D.N.Y. May 9, 2007), and is not a
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solution when “testimony is being preserved for trial,” as “it is important to have counsel present
so that the examination most closely approximates that which would occur in the courtroom.” In
re Fosamax Prods. Liab. Litig., 06 MD 1789 (JFK) (JCF), 2009 U.S. Dist. LEXIS 27209, at *30
(S.D.N.Y. Mar. 4, 2009) (collecting cases); see also Gagasoules v. MBF Leasing LLC, 08 Civ.
2409 (ADS) (ARL), 2009 U.S. Dist. LEXIS 119001 (E.D.N.Y. Dec. 22, 2009) (finding remote
deposition unfeasible given “legitimate concern about viewing the plaintiffs’ demeanor”); see
also Petaway v. Osden, 17 Civ. 0004 (VAB), 2018 U.S. Dist. LEXIS 36484, at *9 (D. Conn.
Mar. 5, 2018) (remote deposition insufficient where plaintiff’s credibility played essential role in
the case”).
As another example, working from home creates accessibility problems with regard to
documents and files. Although some documents can be easily accessed remotely by electronic
means, many documents cannot be so accessed, because of variables such as format or size. This
inaccessibility prevents defendant from having all the information necessary to, inter alia, fully
assess cases, respond to Plaintiff’s demands, and otherwise conduct regular business.
Finally, the agencies defendants must regularly communicate and coordinate with, e.g.,
the New York City Police Department (“NYPD”), are facing these same communication and
access challenges as they pursue compliance with Governor Cuomo’s executive order and seek
to protect the health and safety of the individuals in their organizations. These challenges have
already made the fulfillment of document and information requests delayed or impracticable.
Such delays and problems are expected to continue until individuals are allowed to return to their
offices.
For the reasons set forth above, this Office respectfully requests that the Court grant a
stay of the instant litigation for ninety (90) days, from today until August 17, 2020, in light of the
developing situation surrounding COVID-19. This will give this Office the time and opportunity
needed to adjust to these new circumstances.
Thank you for your consideration.
Respectfully submitted,
/s/
___________________________
AMATULLAH K. BOOTH
Senior Counsel
Special Federal Litigation Division
To:

(via ECF)
KEITH M. SZCZEPANSKI
38-17 52nd Street, 3rd FL
Sunnyside, New York 11104

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