Uzhca et al v. Walmart Stores Inc. et al
Filing
151
ORDER denying 150 Letter Motion for Discovery. Plaintiffs' application to modify Judge McCarthy's May 24, 2021 Order on the basis that this Court intended to fully reopen discovery for general purposes is denied. This matter was refe rred to Judge McCarthy for the purpose of deciding outstanding discovery disputes. To the extent Plaintiffs are requesting this Court to reconsider or review Judge McCarthy's rulings, Plaintiffs must provide a copy of the transcript of Judge McCarthy's rulings. The Clerk of the Court is directed to terminate the motion at ECF No. 50. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/7/2021) (rj)
6/7/2021
ROBERT J. GENIS*
SHERRI SONIN (1957-2017)
*MEMBER N.Y. & N.J.
SONIN & GENIS
ATTORNEYS AND COUNSELORS AT LAW LLC
ONE FORDHAM PLAZA, SUITE 907
BRONX, NEW YORK 10458
TEL: 718.561.4444
FAX: 718.561.2162
WWW.SONINGENIS.COM
June 4, 2021
The Honorable Nelson S. Roman
United States District Judge
Southern District of New York
The Hon. Charles L. Brieant Jr.
Federal Building and United States Courthouse
300 Quarropas St.
White Plains, NY 10601-4150
AFFILIATED OFFICE
ROBERT J. GENIS
C/O PAUL BLEIFER, ESQ.
16 SKYLINE DRIVE, BOX 298
MONTVILLE, NJ 07045
T: 201.592.1115
F: 201.944.8630
Plaintiffs' application to modify Judge McCarthy's May
24, 2021 Order on the basis that this Court intended to
fully reopen discovery for general purposes is denied.
This matter was referred to Judge McCarthy for the
purpose of deciding outstanding discovery disputes. To
the extent Plaintiffs are requesting this Court to
reconsider or review Judge McCarthy's rulings,
Plaintiffs must provide a copy of the transcript of Judge
McCarthy's rulings. The Clerk of the Court is directed to
terminate the motion at ECF No. 50.
RE:
Uzhca, et. al. v. Wal-Mart Stores, Inc., et. al.
17-CV-03850-NSR
Dated: 6/7/2021
White Plains, NY
Dear Judge Roman:
This correspondence is in regard to the Conference of May 14, 2021 and your Order to
reopen discovery, specifically rulings made by Magistrate Judge McCarthy on May 25,
2021. As an initial matter, the undersigned attempted to file this as an Appeal of the
Magistrate’s Ruling on June 3, 2021. However, the Court’s ECF rejected the attempt and
instructed us to file the papers an Objection to the Magistrate’s Recommendations and
Rulings under the ‘Other Answers’ tab. However, as the rulings in question were only
entered as minute entries and not as a formal Order, the ECF rejects any attempt to file
during the upload process.
Plaintiffs, Luis Uzhca and Maria Smith respectfully request this Honorable Court to
reconsider the magistrate judge’s Order/Recommendations of May 25, 2021, and files these
objections, as authorized by Federal Rule of Civil Procedure 72(b)(2).
Preliminary Background
1. This Honorable Court is aware of the long procedural background of this matter and
the underlying nature of the matter.
2. On May 14, 2021, this Honorable Court Ordered that discovery be re-opened. (Exhibit
A1, p. 32, l. 12-25; Docket Entry # 136).
3. Magistrate McCarthy has subsequently failed to comply with District Judge Roman’s
Order and has not permitted the plaintiff to obtain discovery and improperly quashed
plaintiffs’ trial subpoenas, notices for deposition and production, but allowed the
defendants to obtain discovery. (See, Minute Entry of May 25, 2021).
Discovery Incomplete
4. Judge Roman issued said Order because defendants failed to produce all discovery that
it should have and engaged in belated discovery. Docket Entry 104. The defendants’
missing records should have been produced pursuant to voluntary disclosure, as well as
in plaintiffs’ demands, and were also sought in plaintiffs’ trial subpoenas, served on
defendants, Docket Entry 127, Exhibits 1-4, and were a basis of plaintiffs’ request to
charge with respect to missing records and witnesses, Docket Entry 127, and motions
in limine, See Docket Entries 87-89, 91, 106-107, and 110.
5. Defendants’ belatedly served discovery subpoenas on non-parties, (Exhibit E),
Plaintiffs objected and asked this Honorable Court to preclude or quash, Docket
Entries 132, 134.
6. With respect to plaintiffs’ trial subpoenas served on defendants,2 which sought among
other items, records of prior incidents of falling objects injuring someone. Bereft of
supporting proof, defendants claimed that there were no prior incidents of falling
objects injuring, however, plaintiff noted fifteen (15) other reported federal court
Pursuant to Docket Entry 149, the transcript will be available to the public on September 2, 2021.
While plaintiff and defendants previously agreed on what and how defendants were to comply with
said subpoenas, on May 11th, defendants chose to renege on said agreement, and then belatedly moved
to quash same. (Docket Entry 130, Exhibit #1, and Docket Entry 132, Exhibit #1).
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decisions of cases of such prior incidents, with two dealing directly with involving
falling objects while a person was unloading a trailer, as well as one that defense
counsel herein represented defendants in. Docket # 132. The facts clearly belie the
defendants’ naked and uncorroborated claims.
7. The issues of defendants’ videos of the loading of the subject trailer are addressed
supra, ¶¶ 33-42.
Judge Roman’s Order
8. These issues were addressed on May 14, 2021, when this Honorable Court held a pretrial conference with trial attorneys for the parties. (See transcript of same, annexed
hereto as Exhibit A).
9. At the conference, this Honorable Court, in response to Defendants’ numerous failures
to provide ALL discovery to the plaintiff in a timely manner, removed the matter from
the trial calendar, “reopened discovery”, and sent the matter back to Magistrate
McCarthy. (Exhibit A, P. 32 L. 13, 23-25; see also Docket Entry # 136).
This is what you are going to do. Stop. This is what you are going to do: I am
reopening discovery, and you need to go back to the magistrate judge, and you need
to sort all of these issues out, and then when you have completed your discovery
disputes, you can then come before me. Tell me that you are ready for trial. I will set a
motion in limine, and then you can proceed to trial.
(Exhibit A, p. 32, l. 12-18)
Thank you, gentleman. The conference is over. Contact the magistrate judge. You tell
them that – the magistrate judge I have reopened discovery; that discovery has
not been completed and that once discovery is complete and you resolve all of
those discovery issues with the magistrate judge, you can then appear before me,
and I will give you a trial date. Thank you very much.
(Exhibit A, p. 32, l. 21- p. 33, l. 2) (emphasis added).
10. Confirming the foregoing, Judge Roman entered the Minute Entry on May 14, 2021.
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Order that case be referred to the Clerk of Court for assignment to a
Magistrate Judge for General Pretrial (includes scheduling, discovery, nondispositive pretrial motions, and settlement) ….
11. The Order by Judge Roman made clear that this case was being referred not for a
limited and specific issue, but for “General Pretrial (includes scheduling,
discovery….” (Docket Entry 136). This clearly means just what Judge Roman
stated, that discovery was not completed and needed to be reopened, and general
discovery needs to be conducted.
12. On May 20, 2021, in furtherance of Judge Roman’s determination, and to assist the
defendants in producing all discovery, plaintiff served a notice for deposition and a
discovery notice. Exhibits B and C.
13. Defendants objected to said demands. Docket Entry 142. Plaintiff responded to this
objection. Docket Entry 143.
14. On May 24, 2021, Magistrate McCarthy held a teleconference with the parties
regarding the state of discovery.
15. On May 24, 2021, Magistrate McCarthy mistakenly interpreted this Honorable Court’s
direction that discovery was to be “reopened”, (Exhibit A, P. 32, L. 13-16, 23-25;
Docket Entry # 136), to mean that the only issue was to ratify defendants’ belated
discovery production and improper subpoenas. (See, Minute Entry of May 25, 2021)
16. Contrary to this Honorable Court’s Order of May 14, 2021, which reopened Discovery
(Docket Entry 136), Judge McCarthy determined that Plaintiffs were not entitled to
re-open discovery, and quashed plaintiffs’ trial subpoenas for records (Docket Entry
130, Exhibit #2) and vacated plaintiffs’ notice for deposition and discovery demand
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(Exhibits B and C). (See, Minute Entry of May 25, 2021)
17. Judge McCarthy, however, determined that defendants were entitled to re-open
discovery, and permitted the defendants to serve discovery subpoenas on non-parties,
including a law firm (for potentially privileged materials), that the belatedly exchanged
surveillance videos were now deemed timely served, and directed plaintiff to serve an
authorization on defendants allowing them to obtain records from a non-party.
18. On May 27, 2021, whether as acknowledgment of Judge Roman’s Order that discovery
was reopened and that Magistrate McCarthy was wrong, or because the Magistrate’s
one sided ruling emboldened them, Defendants served a new discovery demand,
seeking additional authorizations from plaintiff. Exhibit D.3
19. In other words, Judge McCarthy in essence permitted unilateral discovery by
defendants, but virtually no discovery by plaintiff; hardly the “reopening” of “complete”
discovery directed by Judge Roman.
20. It is respectfully submitted Magistrate McCarthy’s rulings are contrary to the spirit
and letter of this Honorable Court’s Order of May 14, 2021.
Errors By Magistrate
21. At the outset, Plaintiff acknowledges Magistrate McCarthy did not have access to the
transcript of this Honorable Court’s May 14, 2021, pre-trial conference with the parties
where, as noted above, this Honorable Court stated:
This is what you are going to do. Stop. This is what you are going to do: I am
reopening discovery, and you need to go back to the magistrate judge, and you need
to sort all of these issues out, and then when you have completed your discovery
If arguendo this Honorable Court denies the relief sought herein, then plaintiff alternatively requests
that defendants’ discovery demands be vacated and subpoenas be quashed, as fairness and equity would
require such a result.
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disputes, you can then come before me. Tell me that you are ready for trial. I will set a
motion in limine, and then you can proceed to trial.
(Exhibit A, p. 32, l. 12-18)
Thank you, gentleman. The conference is over. Contact the magistrate judge. You tell
them that – the magistrate judge I have reopened discovery; that discovery has
not been completed….
(Exhibit A, p. 32, l. 21-24)
22. Magistrate McCarthy, however, did have the Order by Judge Roman which made clear
that this case was being referred not for a limited and specific issue, but for “General
Pretrial (includes scheduling, discovery….” (Docket Entry 136).
23. As discovery was reopened, Plaintiff was entitled to serve additional discovery
demands upon the defendant. As noted above, defendants have served new discovery
demands on plaintiff. (Exhibit D).
24. There is nothing in this Honorable Court’s statement reopening discovery that suggests
or implies any limitation to the discovery that could be sought, the issues that could be
probed or who could seek additional discovery.
25. Magistrate McCarthy erred in quashing our Plaintiff’s notices of deposition (Exhibit
B) and discovery notices (Exhibit C), served pursuant to this Honorable Court’s
reopening of discovery, as well as plaintiffs’ trial subpoenas (Docket Entry 130,
Exhibit #2), served well before discovery was reopened.
26. Magistrate McCarthy’s Order of May 25, 2021 is contrary to this Honorable Court’s
May 14, 2021 directions and the May 14, 2021 Order.
27. The May 25, 2021 Magistrate Order essentially allowed only one way discovery.
Defendants, whose belated post discovery demands and responses triggered the
remand to the Magistrate, can proceed with their post-discovery subpoenas on two non6
parties, one of which seeks potentially privileged lawyer files,4 and are allowed to use
their belatedly exchanged surveillance videos.
28. Plaintiffs, on the other hand, are prohibited from seeking discovery from the
defendants in the form of documents and records which the defendants possess but
elected not to produce.
29. One of the defendants’ refrains since the filing of the Joint Pre-Trial Conference Order
April 12, 2021, has been they have no obligation to produce documents that they were
previously obligated to furnish but failed to do so, and that were previously subpoenaed
for trial by plaintiffs, because discovery was over. (See e.g., Docket Entries 94, 96,
and 100).5
30. As this Honorable Court reopened discovery on May 14, 2021, (Docket Entry 136),
defendants no longer have that justification, but for the mistake by the Magistrate in
not permitting the parties to continue with discovery, now that this Honorable Court
has reopened the discovery phase of the case.
31. Because discovery has been reopened by this Honorable Court, plaintiff is entitled to
issue deposition notices, discovery demands and subpoenas, to the defendants seeking
additional testimony and records from corporate witnesses regarding health and safety
issues relevant to the underlying basis of this matter. Fed.R.Civ.P. 26; 30; 34.
32. Additionally, plaintiff is entitled to have the defendants’ expert witnesses’ disclosures
Curiously, while the purported basis for the defendants’ belated discovery is to ascertain when plaintiff
worked for Domino’s (a pre-accident part-time employer), defendants did NOT serve a subpoena on
Domino’s for this information, but instead on a law firm, raising issues of both privilege and defendants’
newest attempt to improperly taint plaintiff as being litigious. Cf, Outley v. City of New York, 837 F.2d
587 (2d Cir. 1988). See, Docket Entry 104, see also Exhibit F.
5 Despite defendants’ ongoing duty to furnish same. Fed.R.Civ.P. 26(e)(2).
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fully conform to the requirements of Fed.R.Civ.P. 26(a)(2)(B), with particular focus on
Fed.R.Civ.P. 26(a)(2)(B)(iv) and (v).
Defendants’ Videos
33. During the Pre Trial Conference of May 14, 2021, this Honorable Court pointedly
asked defense counsel, the trial attorney for defendants, if he inquired whether or not
there were videos of the loading of the subject trailer:
THE COURT: That’s not what I asked. I inquired, did you inquire whether or not there
were videos?
MR. BRODY: Well, my understanding, Judge, is this demand—
(Exhibit A, p. 32, l. 3-6)
34. While after the May 24, 2021 Conference, defendants submitted an affidavit that states
that their surveillance video system automatically overwrites videos every three
months (See Exhibit F), the affidavit is deficient in a number of respects.6
35. Overwritten does NOT mean deleted, destroyed and unavailable; even if the videos
were deleted (worse than overwritten), they may still be available. The affidavit fails to
address if anyone ever attempted to inspect or examine their hard drive to see if the
images of the loading of this trailer were “ghosted” or cloned” onto the hard drive after
being overwritten. See Antioch Co. v Scrapbook Borders, Inc., 210 F.R.D 645, 652 (D
Minn 2002) (“Rule 26(a)(1)(B) requires (“Rule26(a)(1)(B) requires description and
categorization of computerized data, including deleted e-mails, and stating that “[t]he
disclosing party shall take reasonable steps to ensure that it discloses any back-up
In the defendants’ correspondence with Magistrate McCarthy dated May 21, 2021, P. 4 (Docket
Entry 142), defense counsel tacitly concedes they never previously served the Affidavit concerning
the video.
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copies of files or archival tapes that will provide information about any ‘deleted’
electronic data”); see also Rowe Entertainment, Inc. v. The William Morris Agency,
Inc., 205 F.R.D. 421, 427, 431 (S.D.N.Y.2002); McPeek v. Ashcroft, 202 F.R.D. 31, 31, 34
(D.D.C.2001); Kleiner v. Burns, 2000 WL 1909470 (D.Kan. December 15, 2000); Simon
Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639, 640 (S.D.Ind.2000); Playboy
Enterprises v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999).
36. As noted above, even where documents have been deleted from a hard drive, the
computer may be “cloned” and these records recovered. See, Etzion v Etzion, 7 Misc.3d
940, 943 (Sup. Nassau 2005):
Notwithstanding an effort to delete certain information, computer experts assert that
they can nonetheless “clone” a hard drive and restore or rescue deleted documents.
Some files may need review by the court or by a referee to determine if they contain
privileged data. (See, Antioch Co. v Scrapbook Borders, Inc., 210 FRD 645 [D Minn
2002].)
37. Moreover, the affidavit fails to state what was purportedly searched for, how the search
was allegedly conducted, how records are kept, how long did the search take and a
number of other issues. See e.g., Jackson v City of New York, 185 A.D.2d 768 (1st Dept
1992) and its progeny. See also, Lewis v. City of New York, 17 Misc. 3d 559, 569-570
(Sup. Bronx 2007).
38. . The affidavit fails to state when and how the defendants actually learned of this
incident, and what investigation they did upon learning of this incident.
39. Among the items sought in plaintiffs’ discovery and deposition notices were defendants’
procedures to recover such information and perform an investigation. Plaintiff noted in
his opposition and cross motion to quash (Docket Entries 132, 134) how defendants
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have been repeatedly sanctioned by the courts for failing to provide this information as
a pattern of obstruction. See e.g., Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 177-178
(1st Cir. 1998); Rivera v. Sam’s Club Humacao, 386 F. Supp.3d 188, 207-209 (D.P.R.
2018); Cain v. Wal-Mart Stores, Inc., 2018 WL 1434819 (E.D. N.C. 2018); Thaqi v. WalMart Stores East, LP, 2014 WL 1330925 *3, 10 (E.D.N.Y. 2014); Patton v. Wal-Mart
Stores, Inc., 2013 WL 6158467 *2, 4 (D. Nevada, 2013); Anderson v. Wal-Mart Stores,
Inc., 2011 WL 4621286 *1 (D.Nevada 2011).
40. In Patton v. Wal-Mart Stores, Inc., 2013 WL 6158467 *2, 4 (D. Nevada, 2013), the court
noted that defendants’ Directive 26-5 specifically addresses what and how defendants
are required to do in order to investigate an incident such as this one, and reveals what
records they keep, including videotapes and the time periods and cameras views to be
produced.
41. In Patton v. Wal-Mart Stores, Inc., supra, the Court discussed Wal-Mart’s policy of
routinely destroying surveillance footage:
During the court's hearing, Walmart argued that the court cannot conclude that
Walmart should have known to preserve the footage because doing so requires
imputing legal knowledge to Walmart's layperson employees. The court disagrees.
First, Walmart itself requires layperson employees to comply with the law's discovery
and evidentiary requirements. Its document preservation directive alters employees, in
boldfaced type, to preserve all "potentially relevant" evidence because the company
"may have a legal obligation to preserve information." (See Document Preservation
Directive (#26-5) at 1). Second, the court does not need to impute legal knowledge to
Walmart employees to conclude that Walmart should have known to preserve the
footage because the footage is "relevant" under a common, everyday understanding of
the word. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 985 (10th ed.
2001) (defining "relevant" as "1 a: having significant and demonstrable bearing on the
matter at hand b: affording evidence tending to prove or disprove the matter at issue or
under discussion.").
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Accordingly, the court finds that Walmart's duty to preserve the footage arose when
Walmart decided to implement the document preservation directive in the manner
described by Walmart's Asset Protection Manager. (See Aff. of Kelli Briggs, Walmart
Asset Protection Manager (#32-3) at 1-3) (explaining how Walmart implements the
document preservation directive).
Walmart's document preservation directive mandates the destruction of potentially
relevant evidence as a matter of course. Walmart's duty to preserve the evidence,
therefore, attached the date Walmart decided to destroy potentially relevant evidence
as a matter of course because that date marks the first time Walmart knew or should
have known that it would be destroying potentially relevant evidence. Kitsap
Physicians Serv., 314 F.3d at 1001 (citing Akiona v. United States, 938 F.2d 158, 161
(9th Cir. 1991) ("Defendants engage in spoliation of documents as a matter of law only
if they had `some notice that the documents were potentially relevant' to the litigation
before they were destroyed.").
It is unnecessary for the court to decide when, exactly, Walmart decided to implement
the document preservation directive in the manner described by Walmart's Asset
Protection Manager. It is sufficient for purposes of this motion that the directive was in
place when Patton fell. (See Aff. of Kelli Briggs (#32-2 at 1-3). Similarly, because it is
Walmart's standard operating procedure to destroy potentially relevant evidence, it is
also unnecessary for the court to decide when Walmart had notice that Patton would
sue. Walmart's policy existed when Patton entered the store.
42. In Stedford v. Wal-Mart, 2016 WL 3462132, *11 (D. Nev. June 24, 2016), the District
Court noted Wal-Mart’s ability to produce video and surveillance evidence correlated
with its usefulness for the chain:
The court is also troubled by experience in presiding over many Wal-Mart cases in
more than fifteen years on the bench in which Wal-Marthas had and
produced video evidence when it is favorable to Wal-Mart, e.g., when video shows the
plaintiff failing to pay attention, drunk or otherwise impaired, causing or contributing
to the accident, or immediately getting up after a fall and continuing shopping. In a
number of prior cases Wal-Mart has explained its failure to preserve video by claiming
the incident was not captured on camera. Wal-Mart has often explained that the
reason certain areas of stores do not have video footage is because its cameras are
primarily focused on high traffic, high security areas, and in particular its cash
registers. This incident occurred in front of the front cash register area of the store. An
abrupt end to fifty minutes of video in front of the cash registers ten minutes before the
accident is therefore inherently suspect in light of what the court has been told about
how Wal-Mart focuses its camera coverage in prior cases.
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Moreover, in response to this motion and in many prior Wal-Mart cases the court and
opposing counsel are told that Wal-Mart is self-insured. The court and opposing
counsel have frequently been reminded by Wal-Mart's litigation counsel and company
representatives in settlement conferences that any settlement or judgment comes out
of the individual store manager's “bottom line”, i.e., potential store profit. The court
and opposing counsel are often told that payment of settlements will reduce not only a
store's profitability but will result in less money available for employee bonuses.
Knowledge that paying a settlement or judgment will reduce profitability and
adversely affect employee bonuses at the store level may legitimately be intended to
give managers and employees an incentive to see that the premises are safely
maintained. However, that knowledge may have the opposite effect on impressing on
managers and employees the duty to preserve potentially unfavorable evidence.
Wal-Mart's opposition attempts to shift the burden to Plaintiff to conduct discovery to
determine why there is no video of the incident. This unavailing argument is straight
out of “the best defense is a good offense” playbook. The argument overlooks the fact
that it is Wal-Mart's obligation to preserve, not Plaintiff's obligation to explore,
through expensive discovery, why the evidence was not preserved. Certainly, if
Stedeford had conducted discovery, the record would be more fully developed, and the
court would have information on which to determine whether the video was
intentionally or merely negligently destroyed. Wal-Mart had the ability to find out the
truth but failed to do so. There is no question that the soap bottle was intentionally
destroyed. Store level employees did not understand why it was relevant or should
have been kept, even as litigation counsel told the court he was sorry it was destroyed
because he could have explored a potential claim against a vendor or
manufacturer. Wal-Mart failed in its duty to explain its preservation duties to the
employees responsible in the first instance for preserving relevant evidence.
43. Plaintiff seeks discovery on these very issues so that we may ascertain what the
defendants were supposed to do, what they actually did, what they learned and when
they learned it. Clearly the videos of the loading of the trailer, and defendants’
investigation and facts surrounding their investigation are relevant and material.
Conclusion
44. Because it is respectfully submitted that Magistrate McCarthy’s May 24, 2021 Order
(See, Minute Entry of May 25, 2021) is clearly erroneous, Plaintiffs respectfully
requests this Honorable Court modify said Order to permit the plaintiff to conduct
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additional discovery now that the discovery portion of this matter has been reopened,
reinstate plaintiffs’ discovery notices and subpoenas, or in the alternative, vacating or
quashing the defendants’ discovery demands, subpoenas, and surveillance of plaintiff,7
and return the matter to Magistrate McCarthy with instructions outlining what this
Honorable Court intended when it stated discovery was being reopened.
Thank you for your attention to this matter.
Respectfully submitted,
Robert J. Genis
Robert J. Genis
Cc:
Michael Kremins, Esq. (via ECF)
Scott A. Brody, Esq. (via ECF)
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Magistrate McCarthy did, however, permit depositions of defendants’ investigators that conducted the
surveillance of the plaintiff. Plaintiffs have written to defendants’ seeking to schedule these depositions,
(Exhibit G), but defendants have failed to respond, yet another example of their obstructing discovery.
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