Ramirez v. City Of New York et al
Filing
59
ORDER granting 51 Letter Motion for Local Rule 37.2 Conference Defendants should search text messages on Jewram's, Taylor's, and Brown's work phones and Jewrams and Taylor's personal phones. In terms of the parameters of the search, the parties should be reasonable about how it's done, mindful of the cost and burden involved. The same goes for plaintiff. She must search her devices and make the appropriate productions to defendants. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 51. SO ORDERED. (Signed by Judge Arun Subramanian on 1/27/2025) (jca)
Case 1:24-cv-01061-AS
Document 51
Filed 01/22/25
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Defendants should search text messages
on Jewram’s, Taylor’s, and Brown's
work phones and Jewram’s and Taylor's
MADUEGBUNA COOPER LLP personal phones. In terms of the
parameters of the search, the parties
ATTORNEYS AT LAW
should be reasonable about how it’s
30 WALL STREET
done, mindful of the cost and burden
8TH FLOOR
involved. The same goes for plaintiff.
NEW YORK, NEW YORK 10005 She must search her devices and make
the
appropriate
productions
to
(212) 232-0155
defendants. The Clerk of Court is
FAX: (212) 232-0156
respectfully directed to terminate the
www.mcande.com
motion at ECF No. 51.
VIA ELECTRONIC FILING (ECF)
The Honorable Arun Subramanian
United States District Judge
Southern District of New York
500 Pearl Street
New York, NY 10007
Re:
Dear Judge Subramanian:
January 22, 2025
SO ORDERED.
Arun Subramanian, U.S.D.J.
Date: January 27, 2025
Sally Ramirez v. City of New York, et al.
Docket No.: 1:24-cv-01061 (AS)
We represent Plaintiff Sally Ramirez in the above-captioned matter against Defendants
City of New York (“City”) and S. Devi Jewram (“Jewram”) (collectively, “Defendants”).
We write to respectfully bring to the Court’s attention a discovery dispute that has arisen
between the parties and to request that the Court compel Defendants to conduct a search of text
messages either by themselves or using a third-party vendor of the official and personal cellphones
of Defendant Jewram, Darshan Taylor, and Tabitha Brown, former Deputy Commissioner of
Finance/ORMD. Despite earlier agreements to produce relevant text messages pursuant to the
Electronically Stored Information (“ESI”) protocol, Defendants have now reversed their position
and refuse to search or produce these messages.
The parties’ lead trial counsel, Samuel O. Maduegbuna for Plaintiff and Bryan Carr Olert
for Defendants, conferred by email at 10:27 AM and 10:50 AM on January 8 (Ex. 1) and by
telephone for approximately 30 minutes beginning at 1:10 PM on January 9, 2025, but were unable
to resolve the dispute.
I.
Case Description
As the Court is aware, Plaintiff, a Director in the Finance Office of the City’s Human
Resources Administration (“HRA”) who is 61 years old and of Guyanese descent, filed this action
alleging discrimination and retaliation based on her race, color, national origin, and age. The
individual defendant, Jewram, has a documented history of making discriminatory remarks,
including comments denigrating Guyanese people and expressing bias against older workers.
Case 1:24-cv-01061-AS
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Ramirez v. City of New York, et al.
January 22, 2025
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In October 2022, Plaintiff discovered that a high-ranking position, the Assistant Deputy
Commissioner of the Bureau of Revenue Development and Automation (“ADC position”), for
which she was highly qualified, had been filled by a less qualified, younger candidate, Darshan
Taylor, with active assistance from Jewram. Despite her qualifications, Plaintiff was not granted
an interview. In January 2023, upon learning of Taylor’s promotion, Plaintiff experienced severe
physical and emotional distress, becoming so ill that she had to leave the office immediately. She
was subsequently approved for FMLA leave and granted reasonable accommodation to work from
home starting April 4, 2023. However, this accommodation was revoked in December 2024 by
Jewram and Taylor, just one day after the Court denied the motion to dismiss as against Jewram.
II.
Defendants Refuse to Search Text Messages
On August 14, 2024, Plaintiff served an ESI proposal with four custodians and twenty-six
search terms. The proposal also stated that “The following sources must be searched: 1. Custodian
cell phones issued by the City and 2. Custodian personal cell phones used to conduct or discuss
City business.” Ex. 2. The parties met and conferred on the ESI proposal on September 16 and
discussed, inter alia, then-defense counsel Desiree Alexander “look[ing] to agency to see
information on devices for custodians…” Ex. 3 at 10.
On September 19, Defendants’ ESI counsel, Karel Jaros wrote, “We had mentioned cell
phones - to the extent relevant cell phone data exists, we will need search parameters suitable for
text messages.” Id. at 7-8. On September 24, Plaintiff asked for identifying information on the
devices used and associated phone numbers before a search could be run. Id. at 2. On October 1,
Mr. Jaros suggested discussing cell phones when the device types became known. Id. at 1. Mr.
Jaros never reported back on the device types.
On September 27, after the filing of the motion to dismiss the Amended Complaint, Mr.
Olert filed a notice of appearance. Dkt. # 33. After the order denying the motion to dismiss was
filed and the parties further addressed ESI, on January 8, 2025, Mr. Olert wrote, “I don’t think we
discussed cellphones previously and it’s far too late to begin a cellphone search. Given the already
significant amount of ESI that Defendants are going to produce, conducting an additional search
of cellphones is disproportionate to the needs of this case.” Ex. 1 at 3. Plaintiff objected that search
of cellphones was discussed as part of ESI and that “cellphone searches are essential and nonnegotiable.” Id. at 2. In response, Mr. Olert wrote that “the cellphone issue will have to be briefed.”
Id. at 1.
It bears noting during the last meet and confer, Plaintiff’s counsel suggested that rather
than use search terms, Defendants collect text messages containing terms relevant to the issues in
this case, using readily available inexpensive tools such as decipher.com, but counsel refused.
III.
Defendants Must be Compelled to Search for Texts
Defendants, either by themselves or using a third-party vendor, must search the HRA and
personal phones of Jewram and relevant witnesses for texts. Under Rule 26, “[p]arties may obtain
Case 1:24-cv-01061-AS
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Ramirez v. City of New York, et al.
January 22, 2025
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discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). To avoid production of ESI, the
objecting party “must show that the information is not reasonably accessible because of undue
burden or cost.” Fed. R. Civ. P. 26(b)(2)(B); Thomas v. City of New York, 336 F.R.D. 1, 1
(E.D.N.Y. 2020); Stinson v. City of New York, 2015 WL 4610422, at * 4 (S.D.N.Y. July 23, 2015).
Texting is overtaking email in its importance for discovery. “Many Americans use text
messages as their primary contact and access text messages much more than they would email or
regular mail.” Yates v. Checkers Drive-In Restaurants, Inc., 2020 WL 6447196, at *3 (N.D. Ill.
Nov. 3, 2020). “Counsel must take affirmative steps to monitor compliance so that all sources of
discoverable information are identified and searched.” Zubulake v. UBS Warburg LLC, 229 F.R.D.
422, 432 (S.D.N.Y. 2004).
The Court should direct Defendants to either search or retain a vendor to adequately search
cell phones, using forensic imaging or another reliable software method. Defendants failed to
search, as promised, custodian phones. Plaintiff only listed four custodians to search for, including
Plaintiff. In failing their discovery obligations, Defendants should not get a mulligan; a search is
necessary using a vendor or by defendants themselves. Schreiber v. Friedman, 2017 WL
11508067, at *5 (E.D.N.Y. Aug. 15, 2017); Tate v. Zaleski, 2020 WL 3404739, at *6 (S.D. Miss.
June 19, 2020) (compelling vendor search of personal cell phones in employment case where
parties’ search was incomplete and unreliable).
Plaintiff’s entitlement to relevant discovery outweighs privacy concerns. Johnson v. City
of New York, 2018 WL 276349, at *3 (E.D.N.Y. Jan. 3, 2018) (ordering defendants to produce
personal phone records in employment discrimination case and finding privacy objection
“conclusory and lacking good cause or claims of privilege as required by Federal and Local
Rules.”). Privacy can be addressed by a confidentiality agreement and limiting the search to the
search terms agreed to by the parties for ESI. Co. v. Glob. Bio-Fuels Tech., LLC, 2016 WL
6605070, at *3 (N.D.N.Y. May 20, 2016) (privacy concerns in laptop search by expert satisfied
with use of targeted search terms); Schreiber, 2017 WL 11508067, at *6 (privilege review
adequately protects privacy concerns from imaged devices).
Accordingly, Plaintiff respectfully requests that the Court (1) compel Defendants to search
the HRA-issued and personal cell phones of Plaintiff, Defendant Jewram, Darshan Taylor, and
Tabitha Brown (former Deputy Commissioner of Finance/ORMD) as identified in Plaintiff’s ESI
proposal using forensic imaging or software capable of recovering deleted texts, (2) require the
vendor to provide a Hit Report, and (3) direct Defendants to produce relevant texts with a report
indicating the dates any texts were deleted.
Respectfully submitted,
Samuel O. Maduegbuna
cc:
Bryan Carr Olert, Esq. (via ECF)
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