Carmody v. New York University et al

Filing 140

ORDER: It is hereby ORDERED that Plaintiff's request to re-open discovery to take further depositions is GRANTED IN PART. Plaintiff may depose Nancy Sanchez for no longer than four (4) hours. Plaintiff may re-depose Dr. Francois and Dr. Fem ia for no longer than one (1) hour each. Plaintiff's supplemental depositions of Drs. Francois and Dr. Femia may concern only the newly produced text messages and reasonably related matters. The parties shall complete the depositions no lat er than February 24, 2023. Upon the completion of the depositions and no later than February 27, 2023, Plaintiff shall file a letter on ECF confirming the depositions were taken and stating whether any issues remain regarding Defendants' su pplemental production of text messages. It is further ORDERED that Plaintiff's request for Defendants to pay the costs of these supplemental depositions is DENIED. It is further ORDERED that Plaintiff may file a motion for reasonable attor neys' fees spent preparing her motion for an adverse inference. Plaintiff may file such a motion by January 27, 2023. In the event such a motion is filed, Defendant may file any opposition by February 10, 2023. No reply shall be filed w ithout leave of the Court. Any memorandum of law filed in support of or in opposition to Plaintiff's motion shall not exceed ten pages. The parties shall otherwise comply with the Court's Individual Rules regarding motions. It is furt her ORDERED that the parties' letter motions to file information under seal are DENIED. Defendants' letter motion to file portions of its letter in opposition is denied because the relevant information is central to the parties' disp ute. Additionally, the text messages that Defendants seek to file under seal do not contain information traditionally understood to be appropriate for filing under seal. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir . 2006) (allowing for competing considerations of "impairing law enforcement" and "the privacy interests of those resisting disclosure" to potentially rebut the presumption of public access); Louis Vuitton Malletier S.A. v. Su nny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (allowing for the redaction of "specific business information and strategies, which if revealed, may provide valuable insights [to competitors]" (internal quotation marks omitted) ); see also Bernsten v. O'Reilly, 307 F. Supp. 3d 161, 168-69 (S.D.N.Y. 2018) ("Courts in this District have long held that bargained-for confidentiality does not overcome the presumption of access to judicial documents.") (collec ting cases). Plaintiff's letter motion to file information under seal is denied because the parties with an interest in confidential treatment, Defendants, have not filed a timely letter rebutting the presumption of public access, pursuant to Individual Rule I.D.3. The Clerk of Court is respectfully directed to unseal the documents at Dkt. 134 and 139. ( Deposition due by 2/24/2023., Motions due by 1/27/2023., Responses due by 2/10/2023) (Signed by Judge Lorna G. Schofield on 1/18/2023) (tg)

Case 1:21-cv-08186-LGS Document 140 Filed 01/18/23 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KRISTIN A. CARMODY, M.D., M.H.P.E.,
:
Plaintiff,
:
:
-against:
:
NEW YORK UNIVERISTY, et al.,
:
Defendants. :
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21 Civ. 8186
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, fact discovery closed on July 11, 2022.
WHEREAS, on October 25, 2022, Defendants filed a motion for summary judgment.
Defendants’ motion is now fully briefed. On October 25, 2022, Plaintiff filed a motion for a
mandatory adverse inference, relating to Defendants’ alleged failure to preserve and produce
relevant text messages in discovery.
WHEREAS, on November 3, 2022, Defendants made a supplemental production of text
messages to Plaintiff. An Order issued November 23, 2022, denied Plaintiff’s motion for an
adverse inference without prejudice to renewal and re-opened discovery for the limited purpose
of identifying responsive text messages.
WHEREAS, on December 22, 2022, Plaintiff filed a letter motion to re-open discovery to
take supplemental depositions. Plaintiff seeks to depose Ms. Nancy Sanchez, an employee of
Defendant New York University, and re-depose Defendants Dr. Fritz Francois and Dr. Robert
Femia. Plaintiff further requests that Defendants pay for the requested depositions. On January
5, 2023, Defendants filed a letter opposing the request, and on January 11, 2023, Plaintiff filed a
letter in reply in support of her request.
WHEREAS, in connection with the letters filed January 5, 2023, and January 11, 2023,
the parties each filed letter motions to file information contained in their respective letters under

Case 1:21-cv-08186-LGS Document 140 Filed 01/18/23 Page 2 of 3

seal. Those letter motions seek to file text messages produced by Defendants, attached as
exhibits, under seal because those documents have been marked confidential by Defendants.
Plaintiff identifies Defendants as the parties with an interest in confidential treatment in their
letter, and take no position on confidential treatment. Defendants have not filed a letter in
support of Plaintiff’s letter motion to file the exhibits to Plaintiff’s January 11, 2023, letter in
reply under seal. It is hereby
ORDERED that Plaintiff’s request to re-open discovery to take further depositions is
GRANTED IN PART. Plaintiff may depose Nancy Sanchez for no longer than four (4) hours.
Plaintiff may re-depose Dr. Francois and Dr. Femia for no longer than one (1) hour each.
Plaintiff’s supplemental depositions of Drs. Francois and Dr. Femia may concern only the newly
produced text messages and reasonably related matters. The parties shall complete the
depositions no later than February 24, 2023. Upon the completion of the depositions and no
later than February 27, 2023, Plaintiff shall file a letter on ECF confirming the depositions were
taken and stating whether any issues remain regarding Defendants’ supplemental production of
text messages. It is further
ORDERED that Plaintiff’s request for Defendants to pay the costs of these supplemental
depositions is DENIED. It is further
ORDERED that Plaintiff may file a motion for reasonable attorneys’ fees spent preparing
her motion for an adverse inference. Plaintiff may file such a motion by January 27, 2023. In
the event such a motion is filed, Defendant may file any opposition by February 10, 2023. No
reply shall be filed without leave of the Court. Any memorandum of law filed in support of or in
opposition to Plaintiff’s motion shall not exceed ten pages. The parties shall otherwise comply
with the Court’s Individual Rules regarding motions. It is further
ORDERED that the parties’ letter motions to file information under seal are DENIED.

Case 1:21-cv-08186-LGS Document 140 Filed 01/18/23 Page 3 of 3

Defendants’ letter motion to file portions of its letter in opposition is denied because the relevant
information is central to the parties’ dispute. Additionally, the text messages that Defendants
seek to file under seal do not contain information traditionally understood to be appropriate for
filing under seal. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir.
2006) (allowing for competing considerations of “impairing law enforcement” and “the privacy
interests of those resisting disclosure” to potentially rebut the presumption of public access);
Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015)
(allowing for the redaction of “specific business information and strategies, which if revealed,
may provide valuable insights [to competitors]” (internal quotation marks omitted)); see also
Bernsten v. O’Reilly, 307 F. Supp. 3d 161, 168-69 (S.D.N.Y. 2018) (“Courts in this District have
long held that bargained-for confidentiality does not overcome the presumption of access to
judicial documents.”) (collecting cases). Plaintiff’s letter motion to file information under seal is
denied because the parties with an interest in confidential treatment, Defendants, have not filed a
timely letter rebutting the presumption of public access, pursuant to Individual Rule I.D.3.
The Clerk of Court is respectfully directed to unseal the documents at Dkt. 134 and 139.
Dated: January 18, 2023
New York, New York