Feltenstein v. City of New Rochelle
Filing
93
OPINION & ORDER re: 83 MOTION for Sanctions for abuse of discovery. filed by Jennifer Feltenstein., For the foregoing reasons, Defendant's motion to compel disclosure of Plaintiff's medical records is DENIED. Plaintiff 9;s motion for discovery sanctions is DENIED in part and GRANTED in part. Discovery in this case is re-opened to allow Plaintiff to take the deposition of Mr. Apicella and the supplemental deposition of Mr. Vacca related to the newly disclosed evid ence. If Plaintiff so chooses to supplement the deposition of Mr. Vacca, Defendant shall bear the cost. All depositions must be completed by October 28, 2018. The parties are further directed to attend a pre-trial conference on Friday, November 16, 2018 at 12:00 p.m. at the United States Courthouse, 300 Quarropas Street, Courtroom 218, White Plains, New York 10601. A final trial date will be set at that conference, with trial to follow soon thereafter. The Court respectfully directs the Cler k of Court to terminate the motion at ECF No. 83. SO ORDERED. Deposition due by 10/28/2018., Pretrial Conference set for 11/16/2018 at 12:00 PM in Courtroom 218, 300 Quarropas Street, White Plains, NY 10601 before Judge Nelson Stephen Roman. (Signed by Judge Nelson Stephen Roman on 8/8/2018) (rj)
USDCSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELECTRONICALLY FILED
DOC#:~.----~-DATE FILED: i K/ ").O l&
I
JENNIFER FELTENSTEIN,
Plaintiff,
No. 14-cv-5434 (NSR)
OPINION & ORDER
-againstCITY OF NEW ROCHELLE,
Defendant.
NELSONS. ROMAN, United States District Judge
Plaintiff Jennifer Feltenstein initiated this action against the City of New Rochelle
("Defendant" or "the City"), alleging violations of Title II of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973 ("RA"), 29
U.S.C. § 794, New York Executive Law § 296, and New York Civil Rights Law § 40. (See
Complaint ("Comp!.") ,i 1, ECF No. 1.) Before the Comt is Defendant's motion to compel
production of Plaintiffs medical records and Plaintiffs motion for discovery sanctions. For the
following reasons, Defendant's motion to compel production of Plaintiffs medical records is
DENIED at this time. Plaintiffs motion for discovery abuse sanctions is DENIED in part and
GRANTED in part. The Comt re-opens discovery from the date of this Opinion until October 28,
2018.
I.
BACKGROUND
The Court assumes familiarity with the facts of this case. See Feltenstein v. City ofNew
Rochelle, 254 F. Supp. 3d 647 (S.D.N.Y. 2017). A few facts, however, bear recitation.
This case arises from Defendant's purpotted non-compliance with, inter alia, the
Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("RA"). Defendant
owns and manages the operations of the New Roe parking garage structure located at 50
1
Harrison Street, New Rochelle, New York (“the New Roc garage” or the “Garage”). (See
Complaint (“Compl.”) ¶¶ 7–8, ECF No. 1.) The garage, constructed sometime after 1992, is a
multi-story parking garage. (See id. ¶¶ 1, 8, 20.) The Complaint alleges that the Garage is in
violation of multiple federal and state laws including the ADA and the RA. Specifically, Plaintiff
alleges that Defendant’s facility is not fully accessible and fails to provide an integrated and
equal setting for the disabled. (Id. ¶ 25.) At the commencement of this action, all the designated
accessible parking spaces were located in the basement floor of the parking garage. (Id. ¶ 26(I).)
Plaintiff and her family often go to the movies and other establishments near the New
Roc Garage. (Id. ¶ 9.) (Id.¶¶ 5, 15.) When visiting those establishments, Plaintiff and her family
park in the Garage. Due to several medical conditions that limit Plaintiff’s physical movements,
she is confined to a wheelchair. Given Plaintiff’s conditions, she and her family were required to
park in the basement of the New Roc Garage. (Id. ¶ 10.) Plaintiff alleges that as a result of
parking in the basement, Plaintiff and her family have been humiliated and deterred from
utilizing the Garage. (Id. ¶¶ 11–12.) Plaintiff also alleges that as a result of the City’s conduct,
she suffered emotional distress including “humiliation, embarrassment, stress, and anxiety” and
seeks damages in the amount of at least $100,000. (Id. ¶¶ 60–61.)
During discovery, Defendant requested medical authorizations from Plaintiff for records
related to treatment of any injuries alleged in the Complaint. (Def. Mem. of Law Regarding
Discovery of Plaintiff’s Medical Records (“Def. Medical Mot.”) 2, ECF No. 69.) Specifically,
the Defendant’s requested that Plaintiff:
Provide HIPAA complaint authorizations to obtain the plaintiff[’]s records from
any physician and/or health care provider, including but not limited to social
workers, psychologists, psychiatrists or counselors, who examined and/or treated
the plaintiff for any condition alleged to have occurred as a result of the conduct
alleged in the complaint.
2
(Decl. of Peter A. Meisels (“Meisels Medical Decl.”), Ex. 4, Pl. Response to Def. Request for
Production of Documents (“Pl. Discovery Response”) 2, ECF No. 70.) Plaintiff responded on
December 10, 2014 by noting that:
Plaintiff has not sought medical or mental health treatment for any of the injuries
alleged in the Complaint and therefore objects to this request on the grounds that
it is unfocused, unduly burdensome, over broad, not relevant and not reasonably
calculated to lead to the discovery of admissible evidence. Plaintiff also objects as
this request seeks highly confidential medical information protected from
disclosure by various laws.
(Id.)
Following the close of discovery, this Court scheduled a six-day bench trial for the week
of April 23, 2018.
In preparing for trial, Defendant discovered that Plaintiff may have received “treatment
for emotional distress.” (Def. Medical Mot. 2.) Specifically, Defendant discovered that a federal
district judge ordered Plaintiff to produce documents regarding treatment she received for
emotional distress in a separate case. Those documents included records from the Blythedale
Children’s Hospital, where Plaintiff purportedly received treatment for anxiety in August of
2011. 1 (Meisels Medical Decl., Ex. 6 at 2.) Soon thereafter, Defendant’s counsel conferred with
Plaintiff’s counsel regarding their previous request for any medical records related to treatment
for emotional distress as a result of the conduct alleged in the Complaint. (Def. Medical Mot. 2–
3.) Plaintiff refused to produce the subject medical records, and the Defendant informed this
Court of the discovery dispute. (Id. at 3.) This Court held a conference regarding the medical
records on December 19, 2017. 2
1
The Court notes that Defendant withdrew “its demand for the records of Dr. SigurdssonStellman.” (Def. Medical Mot. 9.) This withdrawal, however, is conditioned on Plaintiff’s
disclaimer of any damages for severe emotional distress. (Id.)
2
This Court directed the parties to submit memoranda of law regarding the production of
medical records, and whether or not the Defendant is entitled to depose Plaintiff, limited to the
question of damages.
3
That conference, however, would not resolve all discovery disputes. Despite
communicating to the Court that discovery was complete at the December 19, 2017, conference,
Defense counsel made four supplemental Federal Rule of Civil Procedure 26(a) disclosures on
December 18, 2017, January 31, 2018, February 8, 2018, and February 16, 2018. On February
27, 2018, Plaintiff filed a pre-motion letter requesting leave to make a motion for discovery
abuse sanctions. (ECF No. 73.) The Court granted Plaintiff’s request to make a motion and
cancelled the trial set for April of 2018. (ECF No. 76.)
The supplemental disclosures included documents and the name of a new potential
witness which Defendant wishes to rely upon in their defense of the ADA and RA claims. 3
Specifically, the December 18, 2017 supplemental disclosure included two documents: (1) the
Standard Form of Agreement Between Owner and Design/Builder; and (2) the Master Garage
Agreement. (Def. Mem. of Law in Opp. to Pl. Mot. for Discovery Sanctions (“Def. Sanctions
Opp.”) 8, ECF No. 87; see generally Decl. of Glen H. Parker in Supp. of Pl. Mot. for Discovery
Abuse Sanctions and Fees (“Parker Decl.”), Ex. 3, ECF No. 85.) Both of these documents were
purportedly made available to the Plaintiff in the Building Department files offered by the City
for inspection and copying during discovery in December of 2014. (Def. Sanctions Opp. 8.)
3
Defendant notes that a claim for monetary damages under the ADA and the RA requires a
showing that they intentionally violated the statutes. Intentionality under the RA and the ADA
means “deliberate indifference to the strong likelihood [of] a violation.” Viera v. City of New
York, 15 Civ. 5430 (PGG), 2017 WL 3130332, *14 (S.D.N.Y. July 21, 2017) (citation and
internal quotations omitted). Defendant wishes to use these disclosures to refute the
intentionality element for monetary damages under the ADA and RA. Specifically, Defendant
will attempt to prove at trial that the design/build contractor, Cappelli Enterprises (“Cappelli”),
Inc., was responsible for the design of the Garage and code compliance, and that they
represented to the City that the final design did comply with federal law. (Def. Sanctions Opp.
21.) Defendant will then attempt to prove that because of their attention to the compliance issue,
and their belief that the design complied with the ADA and RA, the City was not deliberately
indifferent. (Id.)
4
In January of 2018, Plaintiff requested a complete set of the schedules referenced in the
Master Garage Agreement provided in the December 18, 2017 disclosure. Defendant complied
and produced their second supplemental disclosure on January 31, 2018. (Def. Sanctions Opp. 9;
Parker Decl., Ex. 4.) Defendant notes that the requested schedules were also within the Building
Department files which were offered for inspection and copying during discovery. (Def.
Sanctions Opp. 9.)
Defendant supplemented their disclosures a third time on February 8, 2018. In that
disclosure, Defendant identified Joseph V. Apicella, a former Cappelli employee, as an
individual likely to have discoverable information. (Def. Sanctions Opp. 9; Meisels Decl., Ex. 5.)
Defendant’s fourth, and final, supplemental disclosure came on February 16, 2018. In that
disclosure, Defendant identified documents from the Building Department files which it intended
to rely upon at trial. (Def. Sanctions Opp. 9.) Those documents included “construction affidavits
submitted by contractors/subcontractors to the City Building Department, documents regarding
applications for certificates of occupancy, and further correspondence from subcontractors.” (Id;
See generally Meisels Decl., Ex. 6.) Defendant again posits that these documents were made
available for Plaintiff’s review during discovery. (Def. Sanctions Mem. 9.)
III. DISCUSSION
Defendant seeks the production of Plaintiff’s medical records from the Blythedale
Children’s Hospital. Plaintiff seeks preclusion of the evidence and witness produced in
Defendant’s supplemental disclosures, and the preclusion of the “affirmative defense” related to
the ADA and RA intentionality requirement. The Court takes each application in turn.
5
A. The Blythedale Children’s Hospital Records
Federal Rule of Civil Procedure 26(b)(1) states, in relevant part, that “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case . . .” “Although not unlimited, relevance, for purposes of
discovery, is an extremely broad concept.” Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y.
2004); see Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (noting that relevancy
“has been construed broadly to encompass any matter that bears on, or that reasonably could lead
to other matter that could bear on, any issue that is or may be in the case.”). “While Rule
26(b)(1) provides for broad discovery, courts should not grant discovery requests based on pure
speculation that amount to nothing more than a ‘fishing expedition’ into actions or past
wrongdoing not related to the alleged claims or defenses.” Collens v. City of New York, 222
F.R.D. 249, 253 (S.D.N.Y. 2004). Further, a plain reading of Rule 26(b)(1) lends the conclusion
that “[e]ven where information may be relevant, discovery should not be compelled if the
information is privileged or if there is good cause for a protective order.” Id. at 253 (citing Fed.
R. Civ. P. 26(b)(1), 26(c)).
Where, as here, “a federal question case contains pendent state law claims, the federal
law of privileges still obtains.” In re Zyprexa Products Liability Litigation, 254 F.R.D. 50, 52
(E.D.N.Y. 2008); see Bruno v. CSX Transp., Inc., 262 F.R.D. 131, 133–34 (N.D.N.Y. 2009)
(noting that a party cannot invoke state privilege law in a federal question case); National
Abortion Federation v. Ashcroft, No. 03 Civ. 8695(RCC), 2004 WL 555701, at *6 (S.D.N.Y.
March 19, 2004) (“In cases arising under federal law such as this one, privileges against
disclosure are governed by principles of federal law.”).
6
“Although there is no physician-patient privilege in federal law,” Plaintiff does have a
privacy interest in her medical records. Manessis v. New York City Dept. of Transp., No. 02 CIV.
359SASDF, 2002 WL 31115032, at *2 (S.D.N.Y. Sept. 24, 2002) (citing Olszewski v.
Bloomberg, L.P., No. 96 Civ. 3393, 2000 WL 1843236 at *2 (S.D.N.Y. Dec.13, 2000)), report
and recommendation; see Michelman v. Ricoh Americas Corp., No. 11–CV–3633 (MKB), 2013
WL 664893, at *3 (E.D.N.Y. Feb. 22, 2013) (“[N]o physician-patient privilege exists under
federal common law.”). Any right to privacy concerning medical records, however, can be
waived when a litigant puts his physical or mental condition at issue in the litigation. Misas v.
North-Shore Long Island Jewish Health System, 14-cv-8787 (ALC) (DJF), 2016 WL 4082718, at
*4 (S.D.N.Y. July 25, 2016). Where a Plaintiff makes a claim of “garden-variety” emotional
distress, “‘the plaintiff has not put his medical history in issue . . . ’” Id. (quoting Brown v. Kelly,
No. 05 Civ. 5442 (SAS), 2007 WL 1138877, at *2 (S.D.N.Y. Apr. 16, 2007)). Although the
exact contours of what constitutes garden-variety emotional distress are ambiguous, such claims
include those where the “evidence of mental suffering is generally limited to the testimony of the
plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the
severity or the consequences of the injury. Such claims typically lack extraordinary
circumstances and are not supported by any medical corroboration.” Misas, 2016 WL 4082718,
at *4 (quoting Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544, 578 (S.D.N.Y. 2010)).
i.
The Blythedale Children’s Hospital Records are Not Discoverable
Plaintiff argues that the Blythedale Children’s Hospital Records are not relevant to the
instant action because she did not receive treatment related to her emotional distress in this
action. (Pl. Mem. of Law in Opp. to Def. App. to Compel Disclosure of Medical Records (“Pl.
Opp.”) 4, ECF No. 71.) Plaintiff further argues that because she only makes claims of garden-
7
variety emotional distress, Plaintiff has not put her medical condition at issue in this action. (Id.
at 3.) Defendant argues that the Blythedale Children’s Hospital Records are relevant to
Plaintiff’s damages claims of emotional distress, and that Plaintiff has put her medical condition
at issue. (Def. Medical Mot. 2.)
Turning to Rule 26(b)(1)’s relevancy inquiry, the Court cannot ascertain the exact
relevancy of the Blythedale Children’s Hospital Records at this time. First, the submissions do
not indicate the purported contents of the medical records. Second, Plaintiff and Defendant offer
contradicting accounts of the medical records. Defendant posits that the records contain
information pertaining to Plaintiff’s treatment for emotional distress, (Def. Mot. 2), while
Plaintiff offers a sworn statement that the subject medical records only contain information
pertaining to an unrelated spinal fusion surgery. (Pl. Opp. 3; see Decl. of Jennifer Feltenstein
(“Feltenstein Aff.”) ¶¶ 2–3, ECF No. 72.) Under these circumstances, the most prudent action
would be for the parties to submit the Blythedale Children’s Hospital Records for in camera
review to determine the relevancy of the medical records to Plaintiff’s claim of emotional
distress. See e.g., Cohen v. Cohen, No. 09 Civ. 10230(LAP), 2015 WL 4469704, at *2 (S.D.N.Y.
June 29, 2015) (noting that “the Court has conducted a second in camera review of 195
documents to determine which, if any, are relevant and discoverable under the Federal Rules of
Civil Procedure.”); Asuncion v. Metropolitan Life Ins. Co., 493 F. Supp. 2d 716, 723–24
(S.D.N.Y. 2007) (noting that “Before ordering [Defendant] to produce these contracts, however,
the Court directed that they be submitted for in camera review, so that the Court could determine
whether the contracts actually contained any relevant information.”).
Although in camera review would be helpful in this circumstance, it is nonetheless
unnecessary because Plaintiff has not placed her medical condition at issue in this case.
8
Courts in this Circuit have held that where “a litigant puts his physical or mental
condition into issue in the litigation, [s]he waives [her] right to privacy in any relevant medical
records.” Manessis, 2002 WL 31115032, at *2. The exact manner by which a Plaintiff places
their mental condition into issue, however, varies in this Circuit. In some instances, merely
alleging an emotional distress claim is sufficient to put a Plaintiff’s mental condition at issue. Id.
In other circumstances, asserting garden variety claims of emotional distress will not necessarily
place their mental health condition at issue. Misas, 2016 WL 4082718, at *4; Brown, 2007 WL
1138877, at *2. Although the exact path Courts must take is vague, this case is more akin those
cases in which courts have held that claims of garden variety emotional distress does not place
mental conditions at issue. Typically in cases that hold otherwise, “plaintiffs either voluntarily
waived [a] privilege, were suing defendants for either the intentional or negligent infliction of
emotional distress, or were alleging that defendants’ misconduct caused them to seek treatment
for an ongoing or permanent mental/emotional condition.” Brown, 2007 WL 1138877, at *2. 4
Applying these principles here, Plaintiff’s mental condition is not at issue because she
only asserts garden variety claims of emotional distress. In the Complaint, Plaintiff stated that
she and her family “have been humiliated by being forced to park in the basement of the New
Roc Garage.” (Compl. ¶ 10.) Further Plaintiff asserted that as a direct and proximate result of the
Defendant’s alleged unlawful discrimination, she suffered “emotional distress, including but not
4
The Court also echoes the concerns “expressed by earlier courts about allowing intrusive
discovery of limited relevance in cases of this type.” Misas, 2016 WL 4082718, at *4.
Defendant’s attempt at discovering Plaintiff’s medical records runs the risk of discovering highly
confidential and sensitive medical information that has little to no relevance to the garden-variety
emotional distress claim in this case. Id. Discovery of medical records are certainly appropriate
when a Plaintiff places their medical condition at issue by asserting emotional distress claims of
increased severity. However, in instances where the emotional distress claim is of diminished
severity, as is the case here, any interest in the limited relevancy of Plaintiff’s medical records
cede to interests of privacy and confidentiality. See id.
9
limited to humiliation, embarrassment, stress, and anxiety.” (Id. ¶ 60.) These allegations can be
substantiated by Plaintiff’s testimony, through which she can describe her injury in vague or
conclusory terms without relating either the severity or the consequences of the injury. These
allegations also lack the extraordinary circumstances warranting support by any medical
collaboration, and thus, are garden-variety claims of emotional distress. Misas, 2016 WL
4082718, at *4. Therefore, because Plaintiff merely asserts garden variety claims of emotional
distress, she has not put her mental condition at issue, thus barring disclosure of the subject
mental health records. 5
5
Plaintiff alternatively asserts that the physician-client privilege bars the production of the
Blythedale Children’s Hospital Records. Federal law, however, does not recognize such a
privilege. Kunstler v. City of New York, No. 04 CIV 1145 (RWS) (MHD), 2006 WL 2516625, at
*1 (S.D.N.Y. Aug. 29, 2006), aff’d, 242 F.R.D. 261 (S.D.N.Y. 2007); see Laurent v. G & G Bus
Serv., Inc., No. 10 CIV. 4055 JGK LMS, 2011 WL 2683201, at *8 (S.D.N.Y. May 17, 2011),
report and recommendation adopted, No. 10 CIV. 4055 JGK, 2011 WL 2693651 (S.D.N.Y. July
11, 2011); Michelman, 2013 WL 664893, at *3; see Schomburg v. New York City Police Dept.,
298 F.R.D. 138, 141 (S.D.N.Y. 2014) )) (“‘[I]n cases presenting federal questions, such as here,
discoverability, privileges, and confidentiality are governed by federal law, not state law.’”
(quoting Crosby v. City of New York, 269 F.R.D. 267, 274 (S.D.N.Y. 2010))).
Although a broad physician-patient privilege does not exist under federal law, the Supreme Court
of the United States has recognized a psychotherapist-patient privilege under Federal Rule of
Evidence 501. Jaffe v. Redmon, 518 U.S. 1 (1996). In Jaffe, the Supreme Court of the United
States explained that federal law should recognize the psychotherapist-patient privilege for three
reasons: because (1) “[e]ffective psychotherapy [] depends upon an atmosphere of confidence
and trust in which the patient is willing to make a frank and complete disclosure of facts,
emotions, memories, and fears.”; (2) “[t]he psychotherapist privilege serves the public interest by
facilitating the provision of appropriate treatment for individuals suffering the effects of a mental
or emotional problem”; and (3) because “a psychotherapist privilege was among the nine specific
privileges recommended by the Advisory Committee in its proposed privilege rules.” Id. at 10–
15. In recognizing the psychotherapist-patient privilege, the Supreme Court explicitly contrasted
psychotherapy from treatment by a physician for physical ailments, noting that a deep-rooted
need for confidence and trust was absent because treatment by a physician “can often proceed
successfully on the basis of a physical examination, objective information supplied by the
patient, and the results of diagnostic tests.” Id. at 10. Neither the Supreme Court of the United
States nor the Second Circuit have recognized a general physician-patient privilege since Jaffe.
Therefore, Plaintiff may not invoke such a privilege to bar production of the Blythedale
Children’s Hospital Records.
10
B. Motion for Sanctions
Federal Rule of Civil Procedure 26(a) requires, inter alia, that a party must provide “a
copy—or a description by category and location—of all documents . . . that the disclosing party
has in its possession, custody, or control and may use to support its claims or defenses.” Fed. R.
Civ. P. 26(a)(1)(A)(ii). Further, a party must provide “the name and, if known, the address and
telephone number of each individual likely to have discoverable information—along with the
subjects of that information—that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). A party who
makes a disclosure under Rule 26 must supplement or correct the disclosure or response “in a
timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing; or as ordered by the
court.” Fed. R. Civ. P. 26(e)(1)(A)–(B).
Under Rule 37(c)(1), a court may sanction a party that fails to comply with their Rule
26(a) obligations. The range of sanctions available to a court pursuant to Rule 37 “includes—but
is not limited to—orders deeming certain facts established; permitting an adverse inference
instruction; striking pleadings; prohibiting the ‘disobedient’ party from making specific claims or
introducing certain matters into evidence; dismissing a claim or the entire action or granting
default judgment against the disobedient party; or entering an order of contempt.” Doug’s Word
Clocks.com Pty Ltd. v. Princess Int’l Inc., 323 F.R.D. 167, 172 (S.D.N.Y. 2017) (citation and
internal quotation marks omitted). “Pursuant to Rule 37(c)(1), preclusion of evidence . . . not
identified in initial disclosures under Rule 26(a)(1)(A)(iii) or supplemental disclosures under
Rule 26(e)(1)(A) or another listed sanction is automatic unless the non-disclosure was
11
substantially justified or harmless.” Vaccaro v. Waterfront Homes Marina, No. 10 Civ.
4288(NRB), 2011 WL 5980997, at *5 (S.D.N.Y. Nov. 30, 2011) (citing Design Strategy, Inc. v.
Davis, 469 F.3d 284, 297–98 (2d Cir. 2006)). Substantial justification is a “justification to a
degree that could satisfy a reasonable person that parties could differ as to whether the party was
required to comply with the disclosure request.” Preuss v. Kolmar Laboratories, Inc., 970 F.
Supp. 2d 171, 175 (S.D.N.Y. 2013) (citation and internal quotations omitted). A violation of the
Federal Rule’s disclosure obligations is harmless within the meaning of Rule 37(c) “when there
is no prejudice to the party entitled to the disclosure.” Id.
The fundamental purpose of Rule 37(c) is to prevent the practice of “sandbagging” an
adversary with new evidence. Haas v. Delaware and Hudson Ry. Co., 282 F. App’x. 84, 86 (2d
Cir. 2008) (summ. order); Underpinning & Foundation Skanska, Inc. v. Travelers Cas. & Sur.
Co. of America, 726 F. Supp. 2d 339, 348 (S.D.N.Y. 2010). Nevertheless, imposition of
sanctions is within the district court’s discretion, and preclusion of evidence pursuant to Rule
37(c)(1) remains “‘a drastic remedy and should be exercised with discretion and caution.’” In re
Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 279 F.R.D. 131, 134
(S.D.N.Y. 2011) (quoting Ebewo v. Martinez, 309 F. Supp. 2d 600, 606 (S.D.N.Y. 2004)).
“[B]efore the extreme sanction of preclusion [] may be used by the district court, a judge should
inquire more fully into the actual difficulties which the violation causes, and must consider less
drastic responses.” Ocello v. White Marine, Inc., 347 F. App’x 639, 641 (2d Cir. 2009) (summ.
order) (quoting Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988)).
Where a party seeks sanctions for discovery-related abuses pursuant to Rule 37, the
“moving party bears the burden of showing that its adversary failed [to] timely [] disclose
information required by Rule 26.” Doug’s Word, 323 F.R.D. at 172 (S.D.N.Y. 2017) (citation
12
and internal quotations omitted). “To satisfy this burden, the moving party must demonstrate: (1)
that the party having control over the evidence had an obligation to timely produce it; (2) that the
party that failed to timely produce the evidence had a culpable state of mind; and (3) that the
missing evidence is relevant to the party’s claim or defense such that a reasonable trier of fact
could find it would support that claim or defense.” Id. (internal quotation marks omitted); See
Williams v. Bethel Springvale Nurson Home, Inc., No. 14-CV-09383 (NSR), 2018 WL 1662644,
at *3 (S.D.N.Y. Apr. 5, 2018); Lodge v. United Homes, LLC, 787 F. Supp. 2d 247, 258
(E.D.N.Y. 2011).
Moreover, when a party seeks to preclude evidence or a witness’ testimony on the
grounds that the witness or evidence was not previously identified in violation of Rule 26, the
courts consider the following factors: (1) the party’s explanation for its failure to comply with
the disclosure requirement; (2) the importance of the evidence or testimony of the precluded
witness; (3) the prejudice suffered by the opposing party as a result of having to meet the new
evidence and testimony; and (4) the possibility of a continuance. Patterson v. Balsamico, 440
F.3d 104, 117 (2d Cir. 2006); see United States v. City of New York, No. 07–cv–2067
(NGG)(RLM), 2010 WL 2838386, at *3 (E.D.N.Y. July 19, 2010).
Here, Plaintiff satisfied her burden for sanctions pursuant to Rule 37. First, Defendant
had an obligation to timely produce the discovery in question, namely, three document
productions and one new witness. (See Pl. Mem. of Law in Supp. of Mot. for Discovery Abuse
Sanctions and Fees (“Pl. Sanctions Mot.”) 1, ECF No. 83; Def. Sanctions Opp. 8–9.) Defendant
was obligated to disclose the disputed material pursuant to Rule 26(a) and Rule 26(e) in a timely
manner because the disclosures consisted of people and documents that the Defendant may use
to support its claims or defenses. Fed. R. Civ. P. 26(a)(1)(A)(i)–(ii). Moreover, Defendant
13
acknowledged their continued duty when in their response to Plaintiff’s discovery request the
City pledged to supplement their disclosure upon further investigation. (Pl. Sanctions Mot. 3–4.)
Rule 26, of course, required the production of the supplemental disclosures in a timely manner.
Fed. R. Civ. P. 25(e)(1)(A).
The eventual disclosures in this case were untimely. The parties originally communicated
that discovery was complete to Magistrate Judge Paul E. Davison on September 15, 2015. (See
ECF Docket Entry of September 15, 2015.) The parties reiterated to this court on a second
occasion that discovery was complete on December 19, 2017. 6 Yet, Defendant made
supplemental disclosures on December 18, 2017, January 31, 2018, February 8, 2018, and
February 16, 2018—dates well outside of the close of discovery. 7 Certainly, making “a
supplemental disclosure [over] a year after the close of fact discovery is not ‘timely,’ by any
definition.” Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280
F.R.D. 147, 161 (S.D.N.Y. 2012).
Second, Defendant had the requisite “culpable state of mind.” Williams, 2018 WL
1662644, at * 3. A Defendant possesses a culpable state of mind when Defendant breaches a
discovery obligation through bad faith, gross or ordinary negligence. Markey v. Lapolla
Industries, Inc., No. CV 12–4622(JS)(AKT), 2015 WL 5027522, at *17 (E.D.N.Y. Aug. 25,
2015); McIntosh v. United States, No. 14-CV-7889 (KMK), 2016 WL 1274585, at *35 n.38
(S.D.N.Y. March 31, 2016); See In re September 11th Liability Insurance Coverage Cases, 243
F.R.D. 114, 125 (S.D.N.Y. 2007).
6
During the time between September 15, 2015 and December 19, 2017, Defendant filed a
motion for summary judgment, which this Court decided on May 30, 2017. Feltenstein v. City of
New Rochelle, 254 F. Supp. 3d 647 (S.D.N.Y. 2017).
7
It bears noting that at the time of the conference, Plaintiff had not yet received the December
18, 2018, disclosure. (Pl. Sanctions Mot. 2.)
14
Here, the Court is unconvinced by Defendant’s excuses. The City first argues that their
untimely disclosures were due to inadvertent oversight. (Def. Sanctions Opp. 14.) The City also
posits that because the documents in the three disclosure productions were available for
Plaintiff’s review during discovery, Plaintiff could have found them, or similar documents,
through their own due diligence. (Id. 13–14.) Defendant likewise argues that Plaintiff could have
uncovered the Mr. Apicella’s identity through their own due diligence. (See id.)
It is Defendant’s duty and responsibility to disclose “a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(ii). Likewise, it is Defendant’s duty to disclose
“the name and, if known, the address and telephone number of each individual likely to have
discoverable information—along with the subjects of that information—that the disclosing party
may use to support its claims or defenses.” its claims or defenses” Fed. R. Civ. P. 26(a)(1)(A)(i);
See Williams, 2018 WL 1662644, at *5 (“Defendant’s mere ‘knowledge of the existence of a
witness does not satisfy the Rule 26(a)(1)(A) disclosure obligation; that obligation is fulfilled
only if [Defendant] informed [Plaintiff] that [they] might call the witness in support of its claims
or defenses.’” (quoting Downey v. Adloox Inc., 16-CV-1689 (JMF), 2018 WL 794592, at *1
(S.D.N.Y. Apr. 5, 2018))). Here, Defendant’s reasons for failing to adhere to these
responsibilities is inexcusable. Therefore, Defendant’s late disclosure was, at a minimum,
grossly negligent. See Lodge, 787 F. Supp. 2d at 261.
Finally, the Court finds that the untimely disclosed evidence is relevant to the City’s
defense “such that a reasonable trier of fact could find it would support that claim or defense.”
Doug’s Word, 323 F.R.D. at 172. Indeed, the fact that Defendant produced the evidence in a
15
supplemental disclosure indicates its relevancy. Further, Defendant explicitly noted that the
evidence in the supplemental disclosures is extremely relevant to their defense. (Def. Sanctions.
Opp. 18.) Thus, Plaintiff satisfied the burden for sanctions under Rule 37.
The Court next finds that Defendant’s late disclosure of evidence and a potential witness
was not substantially justified or harmless. Fact discovery ended in 2015. Defendant submitted
their supplemental disclosure well outside of that date, beginning in December of 2017. Under
these circumstances, no “parties could differ as to whether the party was required to comply”
with their disclosure obligations. See Presuss, 970 F. Supp. 2d at 175 (citation and internal
quotations omitted). Further, Defendant’s failure to comply with their disclosure obligations was
not harmless. Plaintiff was prejudiced by their inability to depose the newly announced witness
as well as depose potential witnesses with respect to the newly disclosed documents.
Next, the Court finds that preclusion of the evidence and newly identified witness in
inappropriate in this case. When, as here, a party seeks to preclude evidence or a witness’
testimony on the grounds that they were not previously identified in violation of Rule 26, courts
consider the following factors: (1) the party’s explanation for its failure to comply; (2) the
importance of the testimony of the precluded witness or evidence; (3) the prejudice suffered by
the opposing party as a result of having to meet the new testimony; and (4) the possibility of a
continuance. Patterson, 440 F.3d at 117.
The first two factors weigh in favor of preclusion. As previously discussed, Defendant’s
excuse for their untimely supplemental disclosures, although seemingly benign, is unconvincing.
Moreover, Plaintiff suffered prejudice because she was unable to depose the new potential
witness or depose potential witnesses based on the newly disclosed documents.
16
The importance of the disclosed evidence and witness, however, weighs against
preclusion. As Defendant notes, they seek to use the newly disclosed evidence and witness to
rebut the allegation that the City was deliberately indifferent under the ADA and RA. This
defense is at the heart of their trial strategy, and thus, the untimely disclosed evidence and
witness are relevant to the defense. See New World Solutions, Inc. v. NameMedia Inc., 150 F.
Supp. 3d 287, 311 (S.D.N.Y. 2015) (finding that this factor weighed against preclusion where
evidence would have been relevant to establishing a claim).
The final factor likewise weighs against preclusion. Here, this Court postponed trial
pending resolution of the two instant motions. Accordingly, no trial date is set, and the
possibility of a continuance is very much a reality. Although the Court “strongly disfavors
extensions of deadlines generally as inexpedient and wasting resources”, 523 IP LLC v.
CureMD.Com, 48 F. Supp. 3d 600, 638 (S.D.N.Y. 2014), under these circumstances, this factor
weighs against preclusion. Postponing trial for a limited time “would not necessitate a
continuance since no trial date has been set and Defendants have ample time to investigate the
witness.” Jacob v. Bon Secours Charity Health System, Inc., No. 02 Civ. 1398(BSJ)(RLE), 2008
WL 2216275, at *2 (S.D.N.Y. May 28, 2008); see Ritchie Risk-Linked Strategies, 280 F.R.D. at
162 (“With no trial date yet set, this Court sees no reason why a continuance would not be
feasible here.”) Therefore, preclusion is not warranted in this case because two of the four factors
weigh against such relief.
Nonetheless, a lesser sanction is warranted to correct prejudice to Plaintiff. See Port
Authority Police Benevolent Association, Inc. v. Port Authority of New York and New Jersey, 15CV-3526 (KMW) (SDA), 2018 WL 485980, at *2 (S.D.N.Y. Jan. 19, 2018). Where, as here,
Plaintiff suffered prejudice in her inability to depose a new witness or depose potential witnesses
17
based on the newly disclosed documents, any prejudice to Plaintiff may be “ameliorated by the
opportunity to depose [] witnesses prior to trial.” L-3 Communications Corp. v. OSI Systems,
Inc., No. 02 Civ. 9144(PAC), 2006 WL 988143, at *11 (S.D.N.Y. Apr. 13, 2006). Therefore,
discovery in this case is hereby re-opened to allow Plaintiff to take the deposition of Mr.
Apicella and any supplemental depositions on the issue of deliberate indifference or any topics
related to the newly disclosed evidence. All depositions must be completed by October 28, 2018.
Defendants must make their witnesses available for deposition, and must make the transcript of
the depositions available to Plaintiff, prior to the October 28, 2018 deadline. The parties are
further directed to attend a pre-trial conference on Friday, November 16, 2018 at 12:00 p.m. A
final trial date will be set at that conference, with trial to follow soon thereafter.
i.
Attorney’s Fees
Plaintiff’s application for attorney’s fees under Rule 37(c)(1)(A) is granted in part, and
denied in part. If Plaintiff wishes to supplement the deposition of the only deposed Defense
witness—Deputy Commissioner Paul Vacca— Defendant shall bear the cost. See Complaint of
Kreta Shipping, S.A., 181 F.R.D. 273, 278 (S.D.N.Y. 1998) (granting application for attorney’s
fees with respect to depositions that needed to be taken as a direct result of the non-movant’s
discovery violation, but not those depositions that would have taken place had the non-movant
comported with their discovery obligations).
The remainder of the application for attorney fees, however, is denied. First, the motion
before the Court was a relatively simple one. See Giudice v. Harlan, 15 Civ. 7330 (LTS) (JCF),
2017 WL 564085, at *4 (S.D.N.Y. Feb. 10, 2017) (denying application for attorney’s fees, in
part, because the burden of drafting and reviewing the motion “has been limited to the work
performed on a relatively straightforward motion.”). Second, had Defendant complied with their
18
Rule 26(a) obligations, the deposition of the newly discovered witness would have likely taken
place during discovery. See Complaint of Kreta Shipping, S.A., 181 F.R.D. at 278 (denying
application for attorney’s fees with respect to “the preparation for and conduct of the depositions
that would have been expended even if [the non-movant] had meet their [discovery]
obligations.”). Further, the severity of Defendant’s violation does not amount to the “duplicitous
behavior” or “unjustified” actions typically warranting the imposition of attorney’s fees. See
Advanced Analytics, Inc. v. Citigroup Global Markets, Inc., 301 F.R.D. 31, 44 (S.D.N.Y. 2014),
objections overruled, 301 F.R.D. 47 (S.D.N.Y. 2014). Therefore, the Court exercises its
discretion and denies Plaintiff’s application for attorney’s fees. 8 See Rojo v. Deutsche Bank, No.
06 Civ. 13574(HB), 2009 WL 3790191, at *6 (S.D.N.Y. Oct. 30, 2009).
C. Preclusion of Affirmative Defense
The Court denies Plaintiff’s motion to preclude the City’s ADA and RA monetary
damages defense theory. Plaintiff alleges that Defendant is attempting to raise, for the first time,
the “affirmative defense” that the City relied upon its hired contractor, Cappelli Enterprises
(“Cappelli”), Inc., for the design, construction, and code compliance of the Garage, therefore
8
Plaintiff also moves for the imposition of sanctions pursuant to Rule 26(g). Rule 26(g) states, in
relevant part, that “[e]very disclosure under Rule 26(a)(1) or (a)(3) and every discovery request,
response, or objection must be signed by at least one attorney of record in the attorney’s own
name.” Fed. R. Civ. P. Rule 26(g)(1). “By signing, an attorney or party certifies that to the best
of the person’s knowledge, information, and belief formed after a reasonable inquiry” in the
disclosures is complete and correct as of the time it is made. Fed R. Civ. P. 26(g)(1)(A). Plaintiff
asserts that Defendant violated this obligation because their discovery responses were not
complete or correct at the time they were made. (Pl. Sanctions Mot. 19.) Defendant, however,
did not violate this rule. Defendant comported with Plaintiff’s discovery request and noted that
the disclosures were complete and correct at the time, and that they would supplement their
disclosures at a later time following further investigation. The fact that Defendant supplemented
their disclosures in an untimely fashion is of no import to the Rule 26(g)(1)(A) inquiry because
there is no indication that Defendant’s did not believe, after a reasonable inquiry, that their initial
Rule 26(a) disclosures were complete and correct at that time.
19
exculpating the City from liability for monetary damages under the ADA and the RA. (Pl.
Sanctions Mot. 16.) Defendant alleges that their defense of having relied on Cappelli for the
design, construction, and code compliance of the New Roc Garage is not an affirmative defense,
but rather, a theory that rebuts an essential element of Plaintiff’s ADA and RA claim—namely
that they acted with deliberate indifference to the strong likelihood of violating the statutes. (Def.
Sanctions Opp. 20–21.)
Federal Rule of Civil Procedure 8(c) states that when responding to a pleading, “a party
must affirmatively state any avoidance or affirmative defense.” “An affirmative defense is
defined as [a] defendant’s assertion raising new facts and arguments that, if true, will defeat the
plaintiff’s or prosecution’s claim, even if all allegations in the complaint are true.” Lifeguard
Licensing Corp. v. Ann Arbor T-Shirt Company, LLC, 15 Civ. 8459 (LGS), 2018 WL 3364388,
at *9 (S.D.N.Y. July 9, 2018) (citation and internal quotations omitted). A theory that merely
denies an element of an offense is not an affirmative defense. See id.
Here, Defendant attempts to refute the intentionality prong of a claim for monetary
damages under the ADA and RA by showing that they did not act with deliberate indifference, as
required by statute. Defendant wishes to prove at trial that they did not possess the requisite
intent subjecting them to monetary liability under the ADA and RA. (Def. Sanctions Opp. 21.)
Such a defense cannot be categorized as an affirmative defense because, assuming that all the
allegations in the complaint were true, the defense would not defeat Plaintiff’s claim. See
Licensing Corp., 2018 WL 3364388, at *9. If all the allegations in the Complaint are taken as
true, Defendant would have acted with the requisite intentionality. This defense, however, simply
refutes that essential element for monetary damages under the ADA and the RA.
20
CONCLUSION
For the foregoing reasons, Defendant's motion to compel disclosure of Plaintiffs medical
records is DENIED. Plaintiff's motion for discovery sanctions is DENIED in part and GRANTED
in part.
Discovery in this case is re-opened to allow Plaintiff to take the deposition of Mr.
Apicella and the supplemental deposition of Mr. Vacca related to the newly disclosed evidence.
If Plaintiff so chooses to supplement the deposition of Mr. Vacca, Defendant shall bear the cost.
All depositions must be completed by October 28, 2018. The parties are further directed to attend
a pre-trial conference on Friday, November 16, 2018 at 12:00 p.m. at the United States
Courthouse, 300 Quarropas Street, Comtroom 218, White Plains, New York 10601. A final trial
date will be set at that conference, with trial to follow soon thereafter.
The Court respectfully directs the Clerk of Comt to te1minate the motion at ECF No. 83.
Dated:
August 8, 2017
White Plains, New York
SO ORDERED:
-NELSON S. ROMAN
United States District Judge
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