1199 SEIU Regional Pension Fund et al v. Eastern Niagara Hospital, Inc. et al
DECISION AND ORDER granting 23 Plaintiffs' Motion to Compel; denying 24 Defendants' Cross-Motion for Protective Order. On or before September 30, 2013 defendants shall respond in writing to plaintiffs' First Request for Production of Documents. Signed by Hon. Jeremiah J. McCarthy on 9/10/13. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
1199 SEIU PENSION FUND, by George
Kennedy and Thomas R. Lostracco,
DECISION AND ORDER
EASTERN NIAGARA HOSPITAL, INC., a/k/a
EASTERN NIAGARA HEALTH SYSTEM and
NEWFANE REHABILITATION & HEALTH
CARE CENTER a/k/a EASTERN NIAGARA
Before me is plaintiffs’ motion to compel 1 and defendants’ cross-motion
for a protective order . Oral argument was held on September 9, 2013 . For the
following reasons, plaintiffs’ motion is granted, and defendants’ cross-motion is denied.
The relevant facts are discussed only to the extent necessary for consideration
of this motion. Plaintiffs’ First Request for Production of Documents pursuant to Fed. R. Civ.
P. (“Rule”) 34 ([23-1], pp. 27-34 of 41) was served on May 21, 2013. Kornfeld Affidavit , ¶12. Rule 34(b) states that “[t]he party to whom the request is directed must respond in
writing within 30 days after being served”. Therefore, defendants’ written response was due
on June 20, 2013.
Bracketed references are to CM/ECF docket entries.
On June 28, 2013, plaintiffs’ attorney Daniel Kornfeld e-mailed defendants’
attorney Michael Hickey, asking whether defendants would “provide the written response and
disclose the responsive documents on or before July 11, 2013 (that would be 21 days after
they were originally due on June 20, 2013)?” [23-1], p. 35 of 41. Mr. Hickey responded by email dated July 2, 2013, stating that “[w]e agree to a deadline of July 11, 2013 to serve
responses to your discovery demands”. Id.
On July 19, 2013, Mr. Kornfeld wrote to defendants’ attorney James Schmit,
noting that defendants had failed to respond to plaintiffs’ document request, notwithstanding
their agreement to do so by July 11, 2013. [24-2], pp. 125-26 of 128. According to Mr.
Schmit, “[t]his came as a complete surprise to Defendants as it was Defendants’
understanding that the auditors would soon retrieve the remaining records they needed to
complete their audit, which had previously which had been previously made available to them
before this lawsuit was commenced. Given the status of the case, it seemed entirely
unnecessary and a complete waste of time and energy to prepare responses to Plaintiffs’
discovery demands . . . . Consistent with that understanding, on July 19, 2013, I responded to
Plaintiffs’ letter, stating that ‘[w]e have not continued pretrial activities because we believed
the lawsuit would be discontinued and do not wish to have our client incur unnecessary legal
expenses’”. Schmit Affidavit [24-1], ¶¶19-20.2
Attached to Mr. Schmit’s Affidavit is his July 19, 2013 e-mail to Mr. Kornfeld ([24-2],
p. 128 of 128) discussing, in part, what occurred during a mediation session. However, since §5.10(A)(3)
of this court’s ADR plan states that “no communication made in connection with or during any mediation
session may be disclosed or used for any purpose . . . in any pending or future proceeding in the Court”, I
will not consider what occurred during mediation.
Following an informal discovery conference with the court on August 7, 2013
, plaintiffs moved to compel compliance with their document request and production of
defendants’ initial disclosures pursuant to Rule 26(a)(1) . Defendants oppose plaintiffs’
motion, and have cross-moved for a protective order “shielding the names of all non-union
employees and all information concerning management and executive employees from
Plaintiffs’ Document Request
“It is basic that in order to refuse a discovery request, an objection and the
basis therefore must be timely served in response to the request.” Cliffstar Corp. v. Sunsweet
Growers, Inc., 218 F.R.D. 65, 69 (W.D.N.Y. 2003) (Foschio,M.J.). It is undisputed that
defendants failed to formally respond to plaintiffs’ document request - either by the initial
deadline of June 20, 2013, or by the adjourned deadline of July 11, 2013, to which they had
Defendants argue that they “declined to continue the discovery process based
on a legitimate belief that the dispute between the parties was nearly concluded and, further,
that this lawsuit should never have been commenced in the first place”. Defendants’
Memorandum of Law [24-4], p. 18. However, that alleged belief does not excuse their failure
to timely and formally respond, since “[t]he possibility of settlement exists in virtually every
civil case”. Arnold v. Krause, Inc., 233 F.R.D. 126, 130 (W.D.N.Y. 2005) (Arcara, J.)
(refusing to excuse noncompliance with a discovery deadline based on counsel’s belief that
settlement was likely).
Having failed to formally respond to plaintiffs’ document demand by July 11,
2013, defendants have waived any objections to that demand. See Land Ocean Logistics, Inc.
v. Aqua Gulf Corp., 181 F.R.D. 229, 236 (W.D.N.Y. 1998) (Foschio, M.J.) (“a failure to
respond or object to a discovery request in a timely manner waives any objection which may
have been available”); Kenneth v. Nationwide Mutual Fire Insurance Co., 2007 WL 3533887,
*16 (W.D.N.Y. 2007) (Foschio, M.J.) (same).
Defendants’ Initial Disclosures
Paragraph 2 of my Case Management Order  states that “compliance
with the mandatory disclosure requirements found in Rule 26(a)(1) will be accomplished by
July 16, 2013”. Although the motion papers do not discuss this matter in any detail, it appears
from plaintiffs’ request for relief (, p. 1 of 2) that defendants’ initial disclosures have not
yet been served.
For these reasons, plaintiffs’ motion to compel  is granted, and defendants’
cross-motion for a protective order  is denied. On or before September 30, 2013
defendants shall respond in writing to plaintiffs’ First Request for Production of Documents
and provide unredacted copies of all documents responsive to that Request,3 as well as their
initial disclosures pursuant to Rule 26(a)(1).
Dated: September 10, 2013
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Defendants may identify those documents which have already been produced,
without having to produce them a second time.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?