D.W. et al v. New York City Department Of Education, et al

Filing 72

ORDER with respect to 71 Letter Motion to Stay Plaintiffs are directed to respond by March 7, 2025. A telephonic pre-motion conference will be held on March 20, 2025, at 10:00 AM. The parties are instructed to call [phone]; enter access c ode 2301 087 7354#; and enter # again when asked to enter the attendee ID number. The parties are further instructed to join the call five (5) minutes prior to the conferences start time. SO ORDERED. (Signed by Judge Edgardo Ramos on 3/10/2025) (jca)

captured with the existing search terms. On March 5, 2025, after opposing production of the
Refused Emails for three months, Plaintiffs inexplicably reversed course and demanded them.
Plaintiffs will not be prejudiced by a stay; indeed, Plaintiffs can use this brief interregnum to
complete reviewing all documents (including the Refused Emails, which will be produced today)
to make an informed assessment of the need, if any, for expanded search terms. Significantly, the
Refused Emails contain Excel spreadsheets sufficient to show evaluation delays experienced by
numerous NYCDOE students. Defendants undertook the painstaking, burdensome work of
redacting all personally identifying information protected by the Family Educational Rights and
Privacy Act (“FERPA”), thus obviating the need for the even more burdensome work of—pursuant
to FERPA—providing individualized notice and opportunity for parents and guardians to object
before such information could be disclosed to Plaintiffs. As such, Plaintiffs possess ample
information to test their claims and ability to certify a class, and to more fully assess whether
further search terms or custodians are needed. Moreover, producing the Refused Emails will
complete Phase I of e-discovery (which commenced when the Court instructed the parties to “keep
talking” during a May 2024 discovery conference) and presents a natural point for a brief stay.
The Motion Warrants Staying Discovery. District courts have “wide discretion to direct the
discovery process.” Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d Cir. 2004) (internal citations
omitted). Under Fed. R. Civ. P. 26(c), the party seeking a stay of discovery must show “good
cause.” City of N.Y. v. FedEx Ground Package Sys., No. 17-cv-5183, 2018 U.S. Dist. LEXIS
165807, at *8 (S.D.N.Y. Sep. 26, 2018) (Ramos, J.). “Good cause may be shown where a party
has filed a dispositive motion, the stay is for a short period of time, and the opposing party will not
be prejudiced by the stay.” Id. (internal citations omitted). “In deciding whether to grant a stay
when a motion to dismiss has been filed, the court should also consider the breadth of the discovery
sought, the burden of responding to the discovery sought, and the strength of the underlying
motion.” Id. (internal citations omitted). All factors weigh in favor of a stay here.
A. Plaintiffs’ Discovery is Broad and Burdensome. Since Defendants sought leave to file the
Motion on January 6, and Plaintiffs have inundated Defendants with a series of unnecessary,
maximalist discovery demands. 1 Until March 5, Plaintiffs have also taken the extraordinary
position that the current Case Management Order (the “CMO,” ECF No. 56) precludes Defendants
from producing the Refused Emails, pending renegotiation of the stipulated search terms.
Defendants first offered to produce the responsive Refused Emails on December 18, 2024, but
Plaintiffs summarily rejected this proposal two days later. As Defendants explained to Plaintiffs,
it is more logical, efficient, and proportional to the needs of this case to broach any need for new
search terms after Plaintiffs review previously produced materials and the Refused Emails.
Plaintiffs disagreed and threatened motion practice unless Defendants capitulated to search terms
that Plaintiffs have conceded will likely “get at issues beyond the scope of this case,” only to
abruptly change their minds without explanation. Their present conduct is identical to their prior

For example, Plaintiffs have asserted a blanket challenge to more than 60 entries on Defendants’ privilege log simply
because the Defendants’ invocation of the deliberative process privilege; demanded the source for information
contained in voluminous, self-explanatory spreadsheets produced by Defendants; identified seven broad “noncustodial” categories of information, demanded broad related discovery, and refused to propound new requests for
production when Defendants noted these categories of information fall outside of their initial document demands.

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conduct, save in one respect: Last time, Plaintiffs took five months (rather than three months here)
to stop obstructing the production of responsive materials.
Plaintiffs’ attempts to conduct class discovery have proven no less onerous for Defendants. Since
at least July 2024, Defendants have been working assiduously to accommodate Plaintiffs’ demands
for the creation of a “class list.” 2 On January 19, 2024, Plaintiffs deposed a NYCDOE data systems
expert pursuant to Fed. R. Civ. P. 30(b)(6) and elicited almost seven hours of testimony. Plaintiffs
have nonetheless demanded (and insisted on including in the CMO) that a NYCDOE employee
with similar expertise be available to answer questions during wide-ranging biweekly class list
discussions. Defendants complied, making such experts available for more than six additional
hours beyond the 30(b)(6) deposition. The deposition’s topics embraced the precise questions that
Plaintiffs have posed during these sessions and in extensive follow-up correspondence, amounting
to a free-form “do-over” to rectify their failure to cover these questions during the deposition. 3
B. Plaintiffs Will Not Be Prejudiced By A Brief Stay. A party opposing a stay of discovery must
show prejudice, which must be more than a mere delay. Spinelli v. NFL, No. 13-cv-7398, 2015
U.S. Dist. LEXIS 155816, at *6 (S.D.N.Y. Nov. 17, 2015) (no prejudice, despite the case being
two years old, because “a delay in discovery, without more, does not amount to unfair prejudice”);
Shulman v. Becker & Poliakoff, LLP, No. 17-cv-9330, 2018 U.S. Dist. LEXIS 175771, at *11
(S.D.N.Y. Oct. 11, 2018) (no prejudice where plaintiff’s only basis for opposing stay was delay).
Here, as a mere delay in discovery during the Motion’s pendency is all Plaintiffs can lament,
they cannot demonstrate prejudice. See Integrated Sys. & Power, Inc., 2009 U.S. Dist. LEXIS
78476, at *4 (finding no prejudice where discovery would only be stayed for “a few months”).
C. The Motion Is Well-Founded In The Law. A stay “should be granted where a motion to
dismiss is potentially dispositive and appears to be not unfounded in the law.” Boelter v. Hearst
Communs., Inc., 2016 U.S. Dist. LEXIS 12322, at *16 (S.D.N.Y. Jan. 28, 2016) (internal citations
omitted). See also Integrated Sys., 2009 U.S. Dist. LEXIS 78476, at *4 (stay where motion
asserted “multiple, independent arguments for dismissal” that “appear[ed] not to be unfounded in
the law”). Even a partial dismissal supports granting a stay. See O’Sullivan v. Deutsche Bank AG,
No. 17 Civ. 8709 (LTS) (GWG), 2018 U.S. Dist. LEXIS 70418, at *27 (discovery stayed pending
the court’s ruling on motions to dismiss because “the areas of discovery may well be substantially
reduced, if not eliminated”); Spinelli, 2015 U.S. Dist. LEXIS 155816, at *5 (stay likely to
“simplify[] and shorten[] discovery in the event that some of Plaintiffs’ claims are dismissed and
others survive.”). A stay should issue here, as NYCDOE’s Motion is both dispositive and based
on settled law in this Circuit.
Thank you for your consideration of the foregoing.
Respectfully submitted,
/s/ Eric B. Hiatt
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Plaintiffs maintain a class list is necessary to identify particular class members. A class list is arguably inapplicable
here, as the Complaint seeks relief under F.R.C.P. 23(b)(2), which “provide[s] broad injunctive relief to large and
amorphous classes.” In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 116 (E.D.N.Y. 2012) (internal citations omitted).

On February 27, 2025, at the parties’ last meet and confer, Plaintiffs’ counsel stated their intention to seek additional
information regarding an entirely separate NYCDOE data system, the Impartial Hearing System (“IHS”), including a
second 30(b)(6) deposition, even though IHS could have been covered during the first 30(b)(6) deposition.
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