Cooper v. New York State Dept. of Corrections and Community Supervision et al

Filing 57

DECISION AND ORDER granting in part and denying in part 47 Motion to Quash.Signed by Hon. Hugh B. Scott on 12/20/2016. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Jason D. Cooper,
Plaintiff,

Decision and Order
12-CV-1227S

v.
Travis Hill et al.,
Defendants.

I.

INTRODUCTION
The Hon. William M. Skretny has referred this case to this Court under 28 U.S.C.
§ 636(b). (Dkt. No. 22.) Pending before the Court is a non-dispositive motion to quash by nonparty the New York State Department of Corrections and Community Supervision (“DOCCS”).
(Dkt. No. 47.) On March 30, 2016, DOCCS received two subpoenas from plaintiff Jason Cooper
(“Cooper”), one addressed to Acting Commissioner Anthony Annucci (“Annucci”) and one
addressed to Superintendent John Colvin (“Colvin”). The subpoenas are largely identical and seek
a wide variety of documents and answers to written questions. DOCCS initially raised other issues
pertaining to the service of the subpoenas but now has focused on the alleged overbreadth of the
subpoenas. Cooper responds that he needs DOCCS to respond to the subpoenas to help explain
why the developing record in this case has a gap in the documentation for Cooper’s whereabouts
on the night of October 21, 2012.
The Court has deemed the motion submitted on papers under Rule 78(b) of the Federal
Rules of Civil Procedure (“FRCP”). For the reasons below, the Court grants the motion in part.

II.

BACKGROUND
This case concerns an assault that Cooper allegedly suffered at the hands of corrections
officers while an inmate at Five Points Correctional Facility (“Five Points”) in Romulus, New York.
On October 21, 2012 around 9:00 PM, an inmate riot broke out in the Five Points recreational
yard. Cooper was in the yard at the time. Cooper claims to have had no involvement in the riot,
but he allegedly was assaulted anyway in the recreational yard shortly after corrections officers
restored order. Cooper claims that corrections officers assaulted him a second time a few hours
later in the shower of the Draft Processing Room in one of the cell blocks at Five Points. What
has drawn the attention of Cooper’s pro bono counsel during discovery is an apparent gap in clear
documentation of Cooper’s whereabouts for about six hours after the riot. Cooper’s counsel has
summarized the problem well in his memorandum of law (Dkt. No. 52 at 4); in short, certain
documents do not list Cooper as having received any medical attention on the night of October
21, 2012 even though Five Points created two injury reports with pictures. Additionally, certain
documents that would have confirmed Cooper’s presence at certain places do not list his name,
while other documents that would confirm Cooper’s whereabouts have not emerged yet.
To try to clarify where Cooper was and who interacted with him in the hours after the riot,
Cooper served two subpoenas, dated March 30, 2016, on non-party DOCCS. (Dkt. No. 47-2 at 5–
65.) The subpoenas were addressed to Annucci and Colvin and will be referenced here as the
Annucci and Colvin subpoenas. The Annucci and Colvin subpoenas are nearly identical in
substance; each contains a series of requests for documents followed by a deposition upon written
questions under FRCP 31(a)(3). In general, the subpoenas seek information about various log
sheets that might give clues about Cooper’s whereabouts; about grievances and related documents
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that resulted from the inmate riot; and about internal investigations that occurred including an
investigation from the DOCCS Office of Inspector General (“OIG”).
DOCCS appeared in this case and filed the pending motion to quash the subpoenas on
May 6, 2016. With respect to the substance of the subpoenas, DOCCS argues that the subpoenas
are defective because they include too many requests that are too broad. Many of the requests in
the subpoenas contain phrases like “all documents from any person,” while other requests seek
documents in which the names of any defendants appear regardless of the content of the
document. DOCCS asserts that Cooper’s requests are so broad that responding would require
numerous hours and would lead to production of thousands of pages of documents, thus
constituting an undue burden. Apart from the substance of the subpoenas, DOCCS initially
raised arguments about various procedural defects, including defects in service and notice.
DOCCS has since withdrawn its procedural objections to focus on the substantive objections.
Cooper opposes the motion in all respects. On substance, Cooper argues that his requests
and deposition questions are focused on filling in missing information about his whereabouts
between about 9:00 PM on October 21, 2012 and about 3:25 AM on October 22, 2012. Even if
some of his requests could be considered too broad under different circumstances, Cooper argues,
the motion should be denied because of the circumstances of this case. Cooper remains
incarcerated and in DOCCS custody. DOCCS has exclusive control over any documentation
generated following the inmate riot. Cooper thus needs DOCCS to respond to his subpoenas
because he has no other way to conduct relevant discovery. With respect to what had been

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DOCCS’s procedural objections, Cooper seek sanctions on the basis that they rested on a
misreading of the subpoenas and of FRCP 30(b)(6) and were thus frivolous.
III.

DISCUSSION

A. Motions to Quash Generally
“Motions to compel and motions to quash a subpoena are both entrusted to the sound
discretion of the district court. This principle is in keeping with the traditional rule that a trial
court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to
discovery are reversed only upon a clear showing of an abuse of discretion. A district court abuses
its discretion when (1) its decision rests on an error of law or a clearly erroneous factual finding, or
(2) its decision—though not necessarily the product of a legal error or a clearly erroneous factual
finding—cannot be located within the range of permissible decisions.” Am. Savings Bank, FSB v.
UBS PaineWebber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation and
editorial marks and citations omitted). “[T]he burden of persuasion in a motion to quash a
subpoena issued in the course of civil litigation is borne by the movant. Whether a subpoena
imposes upon a witness an ‘undue burden’ depends upon such factors as relevance, the need of
the party for the documents, the breadth of the document request, the time period covered by it,
the particularity with which the documents are described and the burden imposed. In addition,
the status of a witness as a non-party to the underlying litigation entitles the witness to
consideration regarding expense and inconvenience.” Concord Boat Corp. v. Brunswick Corp., 169
F.R.D. 44, 48–49 (S.D.N.Y. 1996) (internal quotation and editorial marks and citations omitted).
Among other issues pertaining to subpoenas and undue burdens, courts will tend to grant motions
to quash when subpoenas are so broad that they seek “any and all documents relating to” the
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subject matter in question. Cf., e.g., Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC),
2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016) (citations omitted). Courts will tend to grant
motions to quash also when requests in subpoenas look too much like requests for improper
propensity evidence. Cf., e.g., Lev v. S. Nassau Communities Hosp., No. CV 10-5435 JS ARL, 2011
WL 3652282, at *2 (E.D.N.Y. Aug. 18, 2011); Ireh v. Nassau Univ. Med. Ctr., No. CV06-09
LDW/AKT, 2008 WL 4283344, at *5 (E.D.N.Y. Sept. 17, 2008) (citation omitted). Courts will
consider complaints about the volume of materials that would have to be produced to comply with
subpoenas, but any burdens have to be explained in more than conclusory fashion. Cf., e.g.,
Hawkins v. Medapproach Holdings, Inc., No. 13CV5434 (ALC) (DF), 2014 WL 11350177, at *3
(S.D.N.Y. June 27, 2014) (rejecting “conclusory assertions that compliance with the Subpoenas
would implicate large numbers of privileged communications and hence impose an undue
burden”) (citation omitted). Even when courts find problems with requests in subpoenas, they will
modify the subpoenas before quashing them altogether if modifications can correct the problems.
See, e.g., Gambino v. Payne, No. 12CV824A, 2015 WL 866811, at *2 (W.D.N.Y. Mar. 2, 2015)
(“Modification is preferred to outright quashing a subpoena.”) (citation omitted); see also, e.g.,
Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (“Generally, modification of
a subpoena is preferable to quashing it outright.”) (citations omitted).

B. Modifications to Cooper’s Subpoenas
Applying the above principles, the Court finds that Cooper’s subpoenas can survive the
pending motion if modified in part. Most of the requests or questions in the subpoenas
reasonably seek information or documents that will help Cooper explain a purported six-hour gap
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in the documentation of his whereabouts during the night of October 21, 2012. Other requests or
questions, however, seek information not pertaining directly to Cooper or seek a range of
documents out of proportion to their usefulness to Cooper’s claims. Since the Annucci and
Colvin subpoenas are largely identical in language, the Court has used the following table to
explain its modifications to both subpoenas in one place: 1

Annucci
Subpoena
No.
RFP-3, 4,
5, 6

Colvin
Subpoena
No.
RFP-2

Modification

Reason

RFP-8

RFP-4

Quashed in its entirety.

RFP-9

RFP-5

Add “copies of” before “the
timecards.”

RFP-11,
12, 13, 14

RFP-7, 8

RFP-15

RFP-9

The requests are consolidated; all
text after “please provide” is
replaced with “a copy of any
preliminary, summary, or final
reports that [CORC or OIG]
issued.”
Quashed in its entirety.

Replace “a complete copy” with
“those portions.”

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Voluminous documents need not be
produced in their entirety if only a
small portion addresses the request.
Asking for any document mentioning
any defendant’s name, for two years
prior to the alleged incident and
without any context, comes too close to
seeking propensity evidence.
Originals can be inspected if necessary;
surrendering them appears unnecessary
at this time.
The reports will provide faster and
more focused discovery than, for
example, “all documents relating to
each communication.”

Too broad; likely overlaps other
narrower requests.

In the table, “RFP” refers to a Request for Production while “DWQ” refers to the Depositions upon
Written Questions.

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RFP-16,
17, 18, 19

RFP-10,
11, 12, 13

Narrowed to a copy of the OIG
file for the 10/21/2012 incident;
sensitive personal or security
information may be redacted.
The requests are quashed in all
other respects but without
prejudice.
Narrowed to a copy of any report
or memorandum cited in the
OIG final report or findings.

RFP-20

RFP-14

RFP-21,
22

RFP-15,
16

RFP-25,
26, 27, 28

RFP-19,
20, 21, 22

RFP-32,
33, 34

RFP-25,
26, 27

Quashed in their entirety but
without prejudice.

RFP-36
through
48

RFP-29
through
34

RFP-50

RFP-36

Narrowed as follows: For each of
UF 12-0163, UI 12-0217, UI 120207, FAC Log No. 120217, and
CCC No. 226643, produce
copies of the initial report or log;
any subsequent file generated;
and any report or final finding
that resolved the matter.
Narrowed, without prejudice, to
Cooper only.

Quashed without prejudice to
renew if the documents in these
requests are necessary beyond the
OIG final report and any
documents cited therein.
Quashed in their entirety.

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Cooper may start with the OIG file
and may return for future applications
if necessary. Any other request here
seeks nearly limitless amounts of
documents from a nearly limitless
number of people.
This modification gives DOCCS more
precise guidance on what to produce
and avoids the vagueness of the phrases
“complete official record” and
“transferred.”
This modification gives DOCCS more
precise guidance on what to produce
and avoids the vagueness of the phrase
“all documents relating.”
The phrases “all documents” and
“concerning or related to” are too
broad here. Additionally, the requests
for documents concerning other
inmates come too close to seeking
propensity evidence.
One of the above requests has been
modified to a request for the OIG file
and should provide the same
documents. This request would be
duplicative.
This modification gives DOCCS more
precise guidance on what to produce
than, for example, the ambiguous
phrase “all documents in the
possession of any person or DOCCS.”

Cooper does not need hearing
documents for other inmates unless he
argues in the future that he received
different treatment at his hearings and
that any differences are relevant to his
claims.

RFP-51

RFP-37

Modified to add “a copy of” after
“provide.”

RFP-54

RFP-39

Quashed in its entirety but
without prejudice.

RFP-60

RFP-44

Modified to add “a copy of” after
“provide.”

DWQ-2

DWQ-2

Quashed in its entirety.

DWQ-15

DWQ-14

Quashed in its entirety but
without prejudice.

DWQ-25

DWQ-24

DWQ-31,
32, 34

DWQ-30,
31, 33

No modification at this time, but
DOCCS has leave to answer the
question under seal and for
attorneys’ eyes only, if answering
the question fully would risk
divulging sensitive security
information.
Quashed in their entirety.

DWQ-34,
35, 36

DWQ-33,
34, 35

Quashed in their entirety.

Originals can be inspected if necessary;
surrendering them appears unnecessary
at this time.
Too broad; also, the OIG file should
provide those portions of this request
that are relevant to Cooper’s claims.
Originals can be inspected if necessary;
surrendering them appears unnecessary
at this time.
Too broad, and potentially duplicative
of numerous other document requests.
Too broad; requesting all documents
for two entire units could include large
amounts of information that have
nothing to do with Cooper.
Depending on the level of detail in
DOCCS’s answer, the answer could
contain security details that should not
appear in the public docket of this
case.

Too broad, and the requests for times
other than 10/21/2012 come too close
to propensity evidence.
Too broad, and duplicative of the
modified request above concerning UF
12-0163, UI 12-0217, UI 12-0207,
FAC Log No. 120217, and CCC No.
226643.

Any request or question not addressed above is permissible as is. DOCCS will respond to
the subpoenas on or before February 28, 2017. As for Cooper’s request for sanctions, the concern
raised is understandable. Some modification to the subpoenas was necessary, however, meaning
that at least some level of motion practice would have been necessary in any event. The Court
declines to assess sanctions under those circumstances.
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IV.

CONCLUSION
For all of the foregoing reasons, the Court grants DOCCS’s motion to quash (Dkt. No. 47)
in part.
SO ORDERED.

__/s Hugh B. Scott________
Honorable Hugh B. Scott
United States Magistrate Judge

DATED: December 20, 2016

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