Citron v. National Railroad Passenger Corp.

Filing 41

ORDER granting 39 Letter Motion for Local Rule 37.2 Conference. Plaintiff is reminded that discovery disputes are within the scope of the referral to Judge Moses (Dkt. No. 25) and that a party seeking a discovery ruling is expected to comply wi th Moses Ind. Prac. § 2(b). Plaintiff's Application is GRANTED to the extent that the Court will conduct a discovery conference on June 11, 2021, at 10:00 a.m., in Courtroom 20A of the Daniel Patrick Moynihan United States Courthouse. Th is is an in person conference. Counsel are advised to consult the Chief Judge's current entry protocols, available at https://nysd.uscourts.gov/covid-19-corona virus, in advance of the conference. As of the date of this Order, masks are requir ed in public areas of the courthouse, including Courtroom 20A, regardless of vaccination status. In accordance with Moses Ind. Prac. § 2(e), plaintiff's optional reply letter is due no later than June 7, 2021. The Court would appreciate le arning (1) the subject of Dr. Gidumal's report; (2) whether Dr. Gidumal's deposition has been taken, and if so whether plaintiff elicited any testimony about his work for Amtrak in other cases; and (3) whether there is any precedent in th is District for an order directing a party to produce the documents sought here: expert reports prepared by, expert testimony given by, and records of payments made to that party's retained expert in prior cases for the same party. It is the Co urt's intention to resolve the parties' discovery dispute based on their letters, augmented by such argument as may be presented at the conference, until the Court directs the parties to submit more formal briefing. SO ORDERED. Status Conference set for 6/11/2021 at 10:00 AM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Barbara C. Moses. (Signed by Magistrate Judge Barbara C. Moses on 6/4/2021) (cf)

June 1, 2021
VIA ECF
Honorable Alison J. Nathan
United States District Court
Southern District of New York
RE:

6/4/21

Aviv Citron v. National Railroad Passenger Corporation d/b/a Amtrak (20-

CV-1039)
Dear Judge Nathan:
Plaintiff requests that the Court schedule a conference regarding Defendant refusing to
produce documents to which he is entitled. This discovery dispute remains unresolved
despite Plaintiff’s good faith efforts, and a meet-and-confer teleconference held between
counsel for the parties.
On March 12, 2021, Plaintiff served requests for production on Defendant, which required
Defendant to produce three types of documents: transcripts of testimony given by its retained
expert—Dr. Ramesh Gidumal—for Amtrak in other cases, reports prepared by Gidumal that have
been produced by Amtrak in other cases, and documents demonstrating compensation paid to
Plaintiff is reminded that discovery disputessuch testimony and reports. to Judge Moses (Dkt. No. 25) and that a party seeking a discovery
Gidumal by Amtrak for are within the scope of the referral
ruling is expected to comply with Moses Ind. Prac. § 2(b). Plaintiff's Application is GRANTED to the extent that the Court will conduct a
discovery conference on June 11, 2021, at 10:00 a.m., in Courtroom 20A of the Daniel Patrick Moynihan United States Courthouse. This is an in
person conference. Counsel are advised to consult the Chief Judge's current entryprotocols, available at https://nysd.uscourts.gov/covid-19coronavirus, in advance of the conference. As of the date of this Order, masks are required in public areas of the courthouse, including Courtroom
20A, regardless of vaccination status.
In accordance with Moses Ind. Prac. § 2(e), plaintiff's optional reply letter is due no later than June 7, 2021. The Court would appreciate learning
(1) the subject of Dr. Gidumal's report; (2) whether Dr. Gidumal's deposition has been taken, and if so whether plaintiff elicited any testimony
about his work for Amtrak in other cases; and (3) whether there is any precedent in this District for an order directing a party to produce the
documents sought here: expert reports prepared by, expert testimony given by, and records of payments made to that party's retained expert in prior
cases for the same party.
It is the Court's intention to resolve the parties' discovery dispute based on their letters, augmented by such argument as may be presented at the
conference, until the Court directs the parties to submit more formal briefing. SO ORDERED.
______________________
Barbara Moses
United States Magistrate Judge
June 4, 2021

Defendant did not respond until May 17, 2021, well over a month after the April 12, 2021
due date, and it did so then only because Plaintiff prodded it. 1 Furthermore, the responses
Defendant finally served consist of nothing more than a myriad of boilerplate objections.
Defendant’s refusal to produce the requested documents is not taken for two reasons: (1)
Defendant’s objections are untimely, and (2) his requests are not objectionable.
(1) Defendant’s objections are untimely.
“Fed. R. Civ. P. 34(b)(2)(A) . . . states that [t]he party to whom the request is directed
must respond in writing within 30 days after being served.” David v. Weinstein Co. LLC, No. 18cv-5414 (RA), 2020 U.S. Dist. LEXIS 126287, at *12 (S.D.N.Y. July 17, 2020). (substitution in
David) (internal quotation marks omitted). “Courts in this Circuit have noted that a
party's failure to timely respond to discovery requests may constitute a waiver of objections to
those requests.” David, 2020 U.S. Dist. LEXIS 126287, at *12. Defendant has therefore waived
its objections to Plaintiff’s request by failing to timely respond. See, e.g., id. Consequently,
Plaintiff is entitled to the documents he has requested regardless of whether his requests are
objectionable.

1

This is in keeping with Defendant’s modus operandi in this case. Plaintiff has served a set of
requests for admission, three sets of requests for production, and three sets of interrogatories.
Defendant has not timely responded to one of them. Instead, it has waited until Plaintiff repeatedly
prods it and/or files a motion to compel. See Dkt. 23.
3520 Cherryvale Avenue
Suite 83
Appleton, WI 54913
[phone]
www.caseyjones.law

(1) Plaintiff’s requests are not objectionable
In addition to being untimely, Defendant’s objections are not well-founded. Rule 26 of the
Federal Rules of Civil Procedure requires that parties disclose the other cases in which their experts
have testified. Inherent in this is that their testimony in such cases is discoverable:
The reports … are also relevant to Dr. Kinsler’s credibility and whether there is
inconsistency in his analysis of these interviews. See Douponce v. Drake, 183
F.R.D. 565 (D. Colo. 1998) (allowing discovery of prior independent medical
examination reports, in part because they were relevant to potential bias on the
part of the examining physician); Safeco Ins. Co. of Am. v. Vecsey, 259 F.R.D.
23, 33 (D.Conn.2009) (holding that reports written by or relied on
by expert witness in other cases are relevant as to the expert's credibility and are
subject to discovery); ParkerVision, Inc. v. Qualcomm Inc., No. 3:11-cv-719,
2013 U.S. Dist. LEXIS 99787, *5 (M.D. Fla. July 17, 2013) (holding that
prior expert reports are relevant and discoverable in part because the reports can
be used for impeachment and the information in the reports was related to
expected testimony).
Simuro v. Shedd, No. 2:13-cv-30, 2014 U.S. Dist. LEXIS 157977 at *9 (D. Vt. Nov. 6, 2014).
For the reasons stated above, Plaintiff respectfully requests that the Court schedule
a teleconference.
Sincerely,

NDT/slm

Nicholas D. Thompson
3520 Cherryvale Avenue
Suite 83
Appleton, WI 54913
[phone]
www.caseyjones.law