Russell v. Westchester Community College et al

Filing 193

DECISION AND ORDER granting in part and denying in part 175 Motion for Sanctions. For the foregoing reasons: (1) plaintiff's request for sanctions is DENIED; and (2) defendants' motion for sanctions is GRANTED IN PART AND DENIED IN PAR T. Defendants shall submit their application for fees and costs, together with supporting documentation, no later than April 15, 2022. Plaintiff shall submit any opposition by May 13, 2022. Meanwhile, it is long past time to move this case towards a conclusion. Counsel are directed to submit a status letter to Judge Halpern, confirming that discovery has been completed, no later than March 18, 2022, and shall commence any appropriate motion practice in accordance with Judge Halpern's Individual Practices. The Clerk of the Court shall terminate the pending motion (Dkt. #175). SO ORDERED.. (Signed by Magistrate Judge Paul E. Davison on 3/11/2022) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SUZAN RUSSELL,
Plaintiff,
DECISION AND ORDER
-against16 Civ. 1712 (PMH) (PED)
WESTCHESTER COMMUNITY COLLEGE,
THE COUNTY OF WESTCHESTER,
VERONICA DELCOURT and HEATHER
OSTMAN, Individually,
Defendants.
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PAUL E. DAVISON, U.S.M.J.

The above-captioned case was referred to me for general pretrial supervision on March
12, 2018 (Dkt. #52). Since January 2019, I have addressed an ongoing series of discovery
disputes which have now culminated in the present motion practice. This Decision and Order
addresses (1) defendants’ motion for sanctions against plaintiff (Dkt. #175) based upon her
alleged ongoing attempts to thwart discovery in this case and (2) plaintiff’s request for sanctions
against defense counsel (Dkt. #178) based upon her alleged breach of a Confidentiality Order in
Russell v. New York Univ., 15 Civ. 2185 (KGW) (“the NYU case”). Familiarity with the
underlying litigation is assumed. For the reasons set forth below, plaintiff’s request for sanctions
is DENIED and defendants’ motion for sanctions is GRANTED IN PART AND DENIED IN
PART.
I. LEGAL STANDARD
FRCP 37(b) permits this Court to impose “just” sanctions on a party who “fails to obey
an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Once it is determined that

a party has disobeyed a discovery order, Rule 37(b) authorizes sanctions of varying degrees of
severity including adverse inferences, preclusion, requiring payment of attorney’s fees and
dismissal. Id. “The purposes of these sanctions are to ensure that a party does not profit from
their disregard of court orders and to deter future noncompliance.” City of Almaty, Kazakhstan v.
Ablyazov, No. 15 Civ. 5345, 2021 WL 4846366, at *3 (S.D.N.Y. Oct. 18, 2021). “The
imposition of sanctions under Rule 37 lies within the discretion of the district court.” Mobius v.
Quest Diagnostics Clinical Lab’ys, Inc., No. 1 Civ. 0499, 2020 WL 3448073, at *3 (W.D.N.Y.
June 24, 2020) (quotation marks and citation omitted). Nonetheless, “[s]anctions awarded for
violations of Rule 37 must be just and proportional in severity with the challenged
noncompliance.” Scelsi v. Habberstad Motorsport Inc., No. 19 Civ. 4315, 2021 WL 2589725, at
*4 (E.D.N.Y. June 24, 2021). “The ‘mildest’ sanction for discovery misconduct is an order to
reimburse the opposing party for expenses caused by the failure to cooperate.” Shanghai Weiyi
Int’l Trade Co. v. Focus 2000 Corp., No. 15 Civ. 3533, 2017 WL 2840279, at *10 (S.D.N.Y.
June 27, 2017) (quotation marks and citation omitted). “Monetary sanctions are the norm, not
the exception, when a party is required to engage in motion practice in order to obtain the
discovery to which it is entitled.” Id. (quotation marks and citation omitted).
II. DISCUSSION
A. Defendants’ Motion for Sanctions
Defendants seek sanctions against plaintiff based upon: (1) the difficulty in obtaining
HIPAA releases for medical providers; (2) plaintiff’s refusal to authenticate emails authored by
her from her NYU email account; and (3) the difficulty in obtaining mental health treatment
records from plaintiff’s psychotherapist (Dr. Jensen). I assume familiarity with the lengthy and
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tortured path which led to completion of fact discovery in this case and, thus, recite facts below
only as necessary for an understanding of my ruling on a particular issue before me. Facts recited
below are gathered from the parties’ submissions in support of their motions and from
contemporaneous notes taken by chambers staff during all conferences.
1. Releases for medical records
There is no dispute that defendants’ quest to obtain plaintiff’s medical records persisted
for approximately two and a half years. Beginning in January 2019, this Court addressed
countless complaints from defense counsel regarding HIPAA authorizations (e.g. that they were
delayed, incomplete or contained incorrect dates and/or social security numbers). Ultimately,
defendants received most of the records sought, although: (1) defendants are concerned that
records from Drs. Li, Ferrick and Feld may be incomplete because plaintiff was not certain of
treatment dates with those providers; and (2) defendants never received records from Dr.
Reynolds, Dr. Sorbera or the 1999 records from Westchester Medical Center concerning an
alleged outpatient procedure.
Defendants argue that plaintiff’s “belated compliance” warrants sanctions. Specifically,
defense counsel asserts that she spent an inordinate amount of time on “wild goose chases” trying
to track down medical records which plaintiff had been ordered to disclose. Based upon my
review of the entire record, it appears that multiple factors contributed to delays in obtaining
sufficient authorizations – but I cannot say, with certainty, that the delays were attributable to
plaintiff’s intransigence. At bottom, the record does not support sanctions against plaintiff for the
delays in obtaining medical records.
As for the missing/incomplete records, defendants request sanctions against plaintiff in
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the form of an Order precluding her from introducing (or otherwise relying upon) any documents
not disclosed to defendants. Notably, at an on-the-record conference on April 12, 2021,
plaintiff’s counsel agreed to be confined to the records which had been produced to date, and the
Court indicated that plaintiff would be precluded from using any records which had not been
produced or exchanged.1 Although plaintiff would ordinarily have the opportunity to supplement
the record with later-acquired records under her continuing duty to disclose, see FRCP 26(e),
defense counsel’s herculean efforts to obtain documentation of plaintiff’s complete medical
history, coupled with plaintiff’s concession on this point as described above, warrants closing the
record on this issue at this time. Accordingly, plaintiff is PRECLUDED from introducing or
otherwise relying upon medical records which were not produced or exchanged as of April 12,
2021. Defendants’ motion for sanctions related to plaintiff’s medical records is thus GRANTED
IN PART AND DENIED IN PART.
2. Plaintiff’s refusal to authenticate emails
During plaintiff’s deposition on October 24, 2019, defense counsel showed plaintiff premarked emails which originated from plaintiff’s NYU email account. Plaintiff either stated that
she did not recall them or flatly denied having sent them. According to defendants, plaintiff
believed that a defendant in the NYU case may have hacked plaintiff’s NYU email account. Due
to plaintiff’s refusal to acknowledge authorship of the emails, I So Ordered a subpoena duces
tecum requiring NYU to produce fifteen (15) emails sent from an NYU email account used by
plaintiff in 2014, during her employment at NYU. NYU provided the emails; ultimately,
1

At the time of the April 12, 2021 conference, counsel were directed to compare notes
regarding the universe of medical records which had been produced, and to submit a proposed
preclusion order. That never occurred.
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plaintiff acknowledged authorship of the emails, except for five which had redactions in the
header portion.
Defendants argue that “the hoops they had to jump through” to obtain this result is
sanctionable. Plaintiff responds that her refusal to authenticate the emails at her deposition was
reasonable, given that she simply could not recall specific emails that were sent in 2014, five
years prior to the deposition. Although plaintiff’s overall conduct throughout discovery calls her
credibility into question, plaintiff’s explanation is plausible, so the Court will grant her the
benefit of the doubt on this issue and decline to sanction plaintiff for her refusal to authenticate
the emails. Of course, defendants may cross-examine plaintiff regarding her refusal to
acknowledge authorship of the remaining NYU account emails (and any other emails that
plaintiff claims she did not author or authorize). Accordingly, defendants’ motion for sanctions
arising from plaintiff’s failure to authenticate emails is DENIED.
3. Dr. Jensen’s mental health treatment records
During a discovery hearing on January 8, 2019, defendants asserted their entitlement to
Dr. Jensen’s treatment records; plaintiff opposed on the ground of patient-therapist privilege. I
directed plaintiff to provide a HIPAA release for Dr. Jensen’s records.2 Soon thereafter,
plaintiff’s counsel withdrew and discovery was paused for a brief period to allow plaintiff to
obtain new counsel. After discovery resumed, defense counsel complained (during a telephone

2

Although plaintiff’s counsel proposed limiting plaintiff’s emotional distress claim to a
“garden variety” claim in order to avoid discovery of her therapy records, see Galgano v. County
of Putnam, No. 16 Civ. 3572, 2020 WL 12968021 (S.D.N.Y. Sept. 9, 2020), the Court
determined that plaintiff had opened the door to disclosure of her mental health records by
asserting that her self-described “grouchy” behavior, cited by defendants as a rationale for her
termination, was a symptom of her disabling cardiac condition.
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conference on April 25, 2019) that she had not yet received an authorization for Dr. Jensen’s
records. I directed counsel to confer and to attempt to resolve any outstanding disputes as soon
as possible. During a telephonic conference on May 7, 2019, counsel raised a dispute concerning
the time frame for Dr. Jensen’s release; I directed plaintiff to provide an authorization for Dr.
Jensen’s records from 2009 to the present. During the next conference on May 16, 2019, defense
counsel noted that she had not yet received a release for Dr. Jensen’s records; plaintiff’s counsel
stated that plaintiff has “concerns” about the post-2014 authorization (because she spoke to Dr.
Jensen about confidential grand jury testimony related to her NYU case). I observed that
plaintiff could not discuss grand jury matters with doctors and then invoke secrecy to withhold
records that are otherwise discoverable, and directed plaintiff to provide an unrestricted
authorization for Dr. Jensen’s records within one week. At the next conference (on May 28,
2019), defense counsel complained that plaintiff provided a restricted authorization; plaintiff’s
counsel stated that plaintiff declined to check all the boxes because a Confidentiality Order was
not yet in place. Defense counsel responded that she had provided a revised draft to plaintiff’s
counsel on May 21st but received no response. I directed counsel to confer and to submit a
proposed Confidentiality Order by close of business the following day. Counsel did so; the So
Ordered Confidentiality Order was entered May 29, 2019. On May 31, 2019, at the next
conference, I directed plaintiff to provide an unrestricted HIPAA authorization for Dr. Jensen’s
records no later than June 7, 2019.
On June 7, 2019, plaintiff provided a HIPAA release for Dr. Jensen’s records. Defense
counsel forwarded it to Dr. Jensen (located in Texas), who advised defense counsel that the
authorization was insufficient and that she required an additional form before she could release
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the records. Plaintiff provided a new authorization, which defense counsel sent to Dr. Jensen on
July 2, 2019. During a telephonic conference on August 22, 2019, defense counsel stated that
Dr. Jensen had not responded to the release, nor had she responded to numerous phone messages
from defense counsel inquiring as to the whereabouts of responsive records. I directed plaintiff’s
counsel and her client to contact Dr. Jensen in order to secure her compliance, and granted
defense counsel leave to make a motion if necessary.
On August 29, 2019, pursuant to a letter motion filed by defense counsel (Dkt. #98), I So
Ordered a subpoena duces tecum directing Dr. Jensen to provide the records by electronic means.
Dr. Jensen received the subpoena on September 3, 2019. As of mid-December 2019, Dr. Jensen
had not produced the records, nor had she responded to several phone calls and letters from
defense counsel regarding the So Ordered subpoena. At a telephonic conference on December
19, 2019, defense counsel stated her intention to file a motion to compel in Texas.
On January 13, 2020, defense counsel filed a Motion to Compel Compliance in the
Western District of Texas. On June 3, 2020, Judge David Counts conducted a hearing on
defense counsel’s motion. Dkt. #176-2. Dr. Jensen testified that, after she received the
subpoena, plaintiff told her “at least three or four times” not to release the records because she
had revoked her authorization. Id. at 34-35 (ECF pagination). Following the hearing, Judge
Counts denied defense counsel’s motion without prejudice, on the ground that the Court did not
have jurisdiction over compliance with the subpoena because it listed the location of production
as New York, outside the 100-mile limit of FRCP 45.3 Judge Counts advised defense counsel
3

Judge Counts rejected defense counsel’s argument under Mackey v. IDT Energy, Inc.,
No. 19 Misc. 29, 2019 WL 2004280, at *4 (S.D.N.Y. May 7, 2019), that production by electronic
means is consistent with FRCP 45(c).
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that she could re-file a motion to compel compliance with a subpoena listing a place of
compliance within the Midland/Odessa Division of the Western District of Texas.
On or about June 23, 2020, pursuant to a letter motion filed by defense counsel (Dkt.
#136), I So Ordered a revised subpoena duces tecum directing Dr. Jensen to produce the
requested records at a designated location in Midland, Texas. Dr. Jensen was served with the
subpoena on June 26, 2020; she produced the records on or about July 24, 2020 to a law firm in
Texas hired by defendants for that purpose.
Presently, as a sanction against plaintiff for her “dogged resistance” to providing Dr.
Jensen’s medical records, defense counsel seeks to recover fees and costs associated with the
Texas motion to compel and with the instant motion for sanctions. Plaintiff asserts that Dr.
Jensen’s failure to provide the records was not plaintiff’s fault. But this argument is
disingenuous in light of Dr. Jensen’s testimony at the hearing that it was plaintiff, herself, who
repeatedly instructed Dr. Jensen to ignore the subpoena because plaintiff had revoked her
authorization.4 Such blatant disregard for (and interference with) the judicial process cannot be
countenanced. Accordingly, defendants’ motion for sanctions against plaintiff is GRANTED to
the extent that plaintiff shall reimburse defendants, in an amount to be determined by this Court,
for reasonable fees and costs incurred for the Texas motion to compel and with the instant
motion for sanctions.5

4

Given Dr. Jensen’s sworn and unequivocal testimony on this point, I reject plaintiff’s
suggestion that a subsequent email exchange with Dr. Jensen can be read to mean that this was
all a “misunderstanding” between Dr. Jensen and her Texas attorney. See Dkt. 179-22.
5

This Court’s authority to impose Rule 37 monetary sanctions is clear. See Thomas E.
Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990); see also Charlestown Cap.
Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47, 59 (S.D.N.Y. 2020).
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II. PLAINTIFF’S REQUEST FOR SANCTIONS
Plaintiff argues that defense counsel should be sanctioned for alleged violations of a
Confidentiality Order in the NYU case. Plaintiff’s request is entirely without merit. “A court
may not enjoin the entire universe of potential violators of its orders; it has no power to enjoin
those who are acting independently of the enjoined party and whose own rights have not been
adjudged. However, third parties who are in active concert or participation with the parties, their
officers, agents, servants, employees or attorneys, can be enjoined.” Hunt v. Enzo Biochem, Inc.,
904 F. Supp.2d 337, 344 (S.D.N.Y. 2012) (quotation marks and citations omitted). Here,
defendants are not a party to the NYU case, and there is absolutely no indication that defense
counsel’s discovery conduct in this case was, by any stretch of the imagination, connected by any
means to any party in the NYU case. Accordingly, plaintiff’s request for sanctions is DENIED.
III. CONCLUSION
For the foregoing reasons: (1) plaintiff’s request for sanctions is DENIED; and (2)
defendants’ motion for sanctions is GRANTED IN PART AND DENIED IN PART.
Defendants shall submit their application for fees and costs, together with supporting
documentation, no later than April 15, 2022. Plaintiff shall submit any opposition by May 13,
2022.
Meanwhile, it is long past time to move this case towards a conclusion. Counsel are
directed to submit a status letter to Judge Halpern, confirming that discovery has been completed,
no later than March 18, 2022, and shall commence any appropriate motion practice in
accordance with Judge Halpern’s Individual Practices.

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The Clerk of the Court shall terminate the pending motion (Dkt. #175).

Dated: March 11, 2022
White Plains, New York
SO ORDERED
_____________________________
PAUL E. DAVISON, U.S.M.J.

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