Cohane v. National Collegiate Athletic Association et al

Filing 110

ORDER denying 102 Motion for Discovery. Signed by Hon. H. Kenneth Schroeder, Jr on 9/11/2012. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TIMOTHY M. COHANE,
Plaintiff,

04-CV-0181S(Sr)

v.

NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, et al.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for
hearing and disposition of all non-dispositive motions or applications. Dkt. #40.

Plaintiff, Timothy M. Cohane, the former head coach for the State
University of New York at Buffalo (“SUNY at Buffalo”), basketball team, commenced
this action against the National Collegiate Athletic Association (“NCAA”), et al., alleging
that he was denied due process and deprived of a liberty interest during the course of
an investigation and hearing with respect to alleged violations of NCAA rules. Dkt. #1.

Currently before the Court is plaintiff’s motion to compel production of
documents demanded in number 1, 2, 3 and 4 of plaintiff’s supplemental notice to
produce dated July 28, 2011. Dkt. #102.

As an initial matter, the Court agrees with defendants that plaintiff’s
supplemental notice to produce is untimely because it was served within days of the
close of discovery. Dkt. #102, p.13; Dkt #104, p.8. The Court’s most recent case
management order directs that “[a]ll discovery in this case shall be completed no later
than July 29, 2011.” Dkt. #90, ¶4. However, plaintiff’s supplemental notice to produce
is dated July 27, 2011. Dkt. #102, p.10. “Generally, discovery requests are to be made
sufficiently inside the discovery period to allow for a response prior to the discovery cutoff date.” Gavenda v. Orleans County, 182 F.R.D. 17, 20 (W.D.N.Y. 1997). Discovery
requests which are served too late in the discovery period to allow for a timely response
may be disallowed. Id.

Plaintiff’s counsel responds that he only realized the need to request
these additional documents as he was reviewing materials prior to the close of
discovery. Dkt. #107, p.2. However, defendants note that three of the demands in
plaintiff’s supplemental notice to produce seek documents which were requested in
plaintiff’s first request for the production of documents. Dkt. #105, pp.18-19.
Moreover, defendants represent that the fourth request references documents
discussed during depositions conducted in October, 2001. Dkt. #104, p.11. Thus,
there does not appear to be cause for the failure to request these documents, or move
to compel with respect to the first three requests, well before the deadlines set in the
Court’s amended scheduling order.

Defendants also note plaintiff’s failure to comply with the certification
requirement set forth in Rule 37(a)(1) of the Federal Rules of Civil Procedure and this
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Court’s Local Rule 7(d)(4). Dkt. #105, p.3. Rule 37(a)(1) of the Federal Rules of Civil
Procedure requires a party moving for an order compelling disclosure of documents to
“include a certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an effort to
obtain it without court action.” Local Rule 7(d)(4) further provides that
No motion for discovery and/or production of documents
under Federal Rule of Civil Procedure 37 should be heard
unless accompanied by an affidavit showing that sincere
attempts to resolve the discovery dispute have been made.
Such an affidavit shall detail the times and places of the
parties’ meetings or discussions concerning the discovery
dispute and the names of all parties participating therein,
and all related correspondence must be attached.
Plaintiff’s counsel’s reply that he advised defense counsel that he intended to move to
compel production following receipt of defendants response to his supplemental notice
for production (Dkt. #107, ¶ 4), is insufficient to meet this requirement.

Even if the Court were to consider the motion to compel on the merits,
plaintiff’s motion would fail. Number 1 of the supplemental notice to produce seeks a
“full and complete copy of the NCAA’s “Pink File” in which plaintiff[’]s name appears.”
Dkt. #102, p.9. Number 2 of the supplemental notice to produce seeks a “certified and
complete copy of the NCAA “pink file” including names of all coaches whose names
appear therein. Dkt. #102, p.9. The Court agrees with defendants (Dkt. #102, p.14),
that penalties assessed against other coaches are immaterial to plaintiff’s due process
claim.

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With respect to Number 3, which seeks a “complete copy of the audio
recording tape, MP3 and transcript of the NCAA/COI March 21, 2001 press conference/
statements by NCAA and/or defendant Freidenthal regarding Plaintiff Cohane and/or
SUNY Buffalo NCAA Infractions case and March 21, 2001 public infractions reports,”
(Dkt. #102, p.10), the Court relies upon defendants’ response that there is no document
responsive to this request (Dkt. #102, p.15), and that defendants produced all
responsive, non-privileged documents in their possession, custody or control, but after
a diligent search, found no audio recording. Dkt. #105, p.10. Thereore, plaintiff’s
request is denied as moot.

Number four of plaintiff’s supplemental notice to produce seeks
The 2001 University of Minnesota/Clem Haskins Infractions
Report, COI Appeals Response, Appeals Transcript and
Case Summary. Defendant Hannah participated in that
case. Discovery to date has now revealed that according to
NCAA memorandum the enforcement staff “wrote a
significant portion of the COI Appeal response.”
Dkt. #102, p.10. Defendants responded that this demand is overly broad, unduly
burdensome and not reasonably calculated to lead to the discovery of admissible
evidence. Dkt. #102, p.16. Plaintiff argues that these materials will contradict NCAA
testimony, impeach the credibility of defendant Stephanie Hannah and demonstrate
that the NCAA enforcement staff plays an active and materially significant behind the
scenes role in the NCAA appeals process. Dkt. #107, p.3. However, defendant
Hannah’s involvement in an appeal of another matter is immaterial to the issues
presented in the instant case.

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Defendants seek attorney’s fees and sanctions. Dkt. #105, pp.5-6. Rule
37(a)(5)(B) provides that if a motion to compel is denied, the Court
must, after giving an opportunity to be heard, require the
movant, the attorney filing the motion, or both to pay the
party . . . who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorney’s fees.
But the court must not order this payment if the motion was
substantially justified or other circumstances make an award
of expenses unjust.
Having knowledge of the voluminous discovery materials, prior discovery issues, and
numerous prior extensions of discovery deadlines to accommodate completion of
discovery in this action and its companion case, 04-CV-943, and upon consideration of
the limited nature of the instant motion and it’s filing within a month of defendants’
response to the supplemental notice to produce and within two months of the close of
discovery, the Court does not find an award of expenses justified.

Dispositive motions shall be filed no later than November 9, 2012.

SO ORDERED.

DATED:

Buffalo, New York
September 11, 2012

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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