Adams v. Buffalo Public School District et al

Filing 52

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTAMENDED ORDER re 46 Order, Scheduling Order, Terminate Scheduling Order Deadlines, Terminate MotionsThis Amended Order incorporates changes to the Order of 7/10/2014 (Docket No. 46), see Docket Nos. 47, 51.So Ordered. Signed by Hon. Hugh B. Scott on 8/7/2014. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM F. ADAMS,
Plaintiff,
Hon. Hugh B. Scott
13CV435A
v.
AMENDED
Order
BUFFALO PUBLIC SCHOOLS a/k/a
BUFFALO PUBLIC SCHOOL DISTRICT,
and PATRICK FISHER, Individually,
Defendants.

To clarify the record, this is the Amended Order, amending the Order of July 10, 2014
(Docket No. 46), incorporating changes enacted in subsequent Orders (Docket Nos. 47, 51). The
changes eliminate references to a missing contract (Docket No. 47) and to a production issue
regarding W2 forms to which the parties subsequently stipulated (Docket No. 51).
****
Before the Court are two motions. First is plaintiff’s motion to compel (Docket No. 20) 1.
Second is defendant Patrick Fisher’s cross-motion for a protective Order (Docket Nos. 23, 31) 2,
and in part in opposition to plaintiff’s motion to compel. Codefendant Buffalo Public Schools
1

In support of his motion, plaintiff submits his attorney’s Declaration with exhibits, Docket No. 20; his
attorney’s Reply Declaration with exhibits, Docket No. 42; as well as his opposition to Fisher’s motion, noted
below. In opposition is defendant’s Fisher’s cross-motion, Docket No. 23, described below, and the School
District’s response, Docket No. 37.
2

In support of his motion, Fisher submits his attorney’s affidavit, Docket No. 24, a series of exhibits (some
filed under seal), Docket Nos. 24-29, 35, 37, 38; his Memorandum of Law, Docket No. 30; his attorney’s Reply
Affidavit, Docket No. 41; and Reply Memorandum of Law, Docket No. 41. In opposition, plaintiff submits his
attorney’s Declaration in opposition, Docket No. 39.

a/k/a Buffalo Public School District (hereinafter “BPSD” or “School District”) did not file a
motion and filed responses to plaintiff’s motion (cf. Docket No. 37, defendant’s response, filed
under seal), with the School District’s response being virtually identical to that of Fisher’s (cf.
Docket No. 24).
Responses to both motions eventually (cf. Docket No. 22) were due by April 17, 2014,
with replies due April 24, 2014 (Docket No. 32). Oral argument was held on June 17, 2014
(Docket No. 45; see Docket Nos. 40, 43), and this Court reserved decision on these motions
(Docket No. 45).
BACKGROUND
This is an action under Title VII, 42 U.S.C. §§ 2000, et seq., New York State Human
Rights Law, N.Y. Exec. Law §§ 290, et seq., and 42 U.S.C. § 1981, alleging discrimination
based upon race (Docket No. 1, Compl.). Plaintiff is an African-American male who alleges that
he was employed by defendant BPSD (id. ¶ 2). Plaintiff alleges that defendant Patrick Fisher “is
a supervisor employed by Defendant BPSD to oversee janitorial services to certain schools and
employees located within the City of Buffalo and its’ school district, including School #43,” the
school where plaintiff worked (id. ¶¶ 4, 5, 15). He alleges generally that Patrick was an
“employee” as defined in relevant statutes and BPSD was an “employer” under those statutes (id.
¶¶ 7-8). He claims that Patrick not only supervised him but also governed “every aspect of his
employment including scheduling, hours, payment of wages, and all other issues related to his
employment” (id. ¶ 16).
Fisher answered (Docket No. 5), admitting that he was employed by BPSD and provided
custodial services at School #43, but denied plaintiff’s other allegations in paragraph 4 of the
2

Complaint (Docket No. 5, Fisher Ans. ¶ 4) and denied that he was an employee under the
relevant statutes (id. ¶ 7). He also denied plaintiff’s assertion that he governed every aspect of
plaintiff’s employment (id. ¶ 16).
The BPSD separately answered (Docket No. 9; see also Docket No. 8, Ans. (unsigned by
counsel)), admitting that it employed Fisher but “adamantly denies that Plaintiff is an employee”
of the BPSD (Docket No. 9, Ans. ¶¶ 4, 2). The School District denied that Fisher was plaintiff’s
immediate and only supervisor and knowledge regarding how much of plaintiff’s employment
was governed by Fisher (id. ¶ 14). The School District also denied that it was an “employer” or
that plaintiff and Fisher were “employees” under the statutes at issue (id. ¶ 6).
This Court next entered a Scheduling Order (Docket No. 14), which was amended on
January 2, 2014 (Docket No. 16). The current schedule had discovery due to be completed by
April 16, 2014, and motions to compel discovery due by March 17, 2014 (Docket No. 16).
These deadlines were held in abeyance pending resolution of these motions (Docket No. 22).
Relevant Collective Bargaining and Other Agreements
Curiously, defendant Patrick Fisher is an employee of the BPSD (see Docket No. 24, Def.
Fisher Atty. Aff. ¶ 12) and also is an independent contractor of the BPSD (id. ¶ 13) under the
terms of the Master Contract, the collective bargaining agreement between BPSD and Fisher’s
union, Local 409, the International Union of Operating Engineers (“I.U.O.E.”) (see id. ¶ 12,
Ex. A, or the “Local 409 CBA”). In the midst of normal employment terms and conditions, this
CBA has references to a separate agreement, a “custodial engineer contract” (id., Ex. A,
Local 409 CBA Art. VI, Sec. J., (“Day School Services” definition), Art. IX, Sec. T (salary

3

under custodial engineer contract)). Article VI of the Local 409 CBA defines “Day School
Services” as
“custodial services required to keep school buildings open, safe, clean, heated
and operating on school days and all other workdays between the hours of 7:00
a.m. and 5:00 p.m. for the Early Schedule Schools; 7:30 a.m. and 5:00 p.m. for
the Middle Schedule Schools, and 8:00 a.m. and 6:00 p.m. for the Late Schedule
Schools unless otherwise specified.
“Included are such services as are required prior to the day school sessions in
order to have the school buildings heated, cleaned, and otherwise ready for use at
the time of such day school sessions, and such further cleaning and other services
as are required as a result of day school sessions.
“Engineer and Custodial overtime will be minimized except in cases where the
facility is open to the general public for a non-District sponsored activity or where
the C.E.C. (Custodial Engineer Contract) staffing does not allow for the
flexibility required without a diminishment of “Day School Services”. It is
recognized and agreed by the parties that the aforementioned conditions are
without prejudice or precedent to any of the other terms and conditions as set
forth in this Agreement or the F.L.S.A.”
(id., emphasis added). Section T of Article IX provided that salary increases after July 1, 2007,
“will be reflected in the Custodial Engineer Contract” (id., Ex. A, Art. IX, Sec. T).
Under this independent contractor arrangement, as an independent contractor under a
Unit Service Agreement, also known as a Custodial Engineer Contract (“USA/CEC”), Fisher
employs others to fulfill his contractual obligations (Docket No. 35, Def. Fisher Motion to Seal,
Ex) 3. In turn, the BPSD pays Fisher and other custodial engineers a certain amount to hire his
own employees to provide custodial services at a particular school (Docket No. 24, Def. Fisher
Atty. Aff. ¶ 13). Fisher’s counsel’s affidavit does not give a citation to the precise provision of
the Local 409 CBA to this arrangement, but the BPSD cites Article IX, Sec. T of that CBA
addressing the USA/CEC (Docket No. 37, BPSD Atty. Decl. ¶ 30). Defense counsel sought to
3

Correction from earlier Order, Docket No. 46, Order at 17; cf. Docket No. 47, Order of July 15, 2014, at 1.
The last sentence of the July 10, 2014, Order, Docket No. 46, at 17, is deleted from this Amended Order.

4

file this USA/CEC under seal (Docket No. 35; id., Ex.). This system is known as the “indirect
custodial system,” and that system is also used in the New York City public schools, see also
Beck v. Board of Educ. of City of N.Y., 268 A.D. 644, 52 N.Y.S.2d 712 (2d Dep’t 1945), aff’d,
295 N.Y. 717 (1946) (Docket No. 24, Fisher Atty. Aff. ¶ 16). Under this indirect custodial
system, a custodial engineer like Fisher would hire, pay, supervise, and fire employees to
maintain a school (id. ¶ 14). Fisher also cites to a 1962 opinion of the City of Buffalo’s
Corporation Counsel to the Superintendent of the BPSD, concluding that the chief engineercustodian was an independent contractor and that a custodial worker hired by the chief engineercustodian was not a School District employee for worker’s compensation purposes (id. ¶ 15,
Ex. B).
Fisher points out that plaintiff is represented by Local 17, I.U.O.E., and that this local has
its own collective bargaining agreement with the Buffalo School Engineers Association
(“BSEA”) (id. ¶ 19, Ex. C (“Local 17 CBA”)), the collective bargaining agent for Buffalo School
Engineers (id.). Fisher states that the Local 17 CBA was produced to plaintiff (id.). Fisher then
contends that, in March 2012, plaintiff “voluntarily agreed to and accepted a transfer from Public
School #43 and Defendant Fisher’s employ to Public School #37 and the employment by Chief
Engineer – Custodian, Kenneth Robinson” (id. ¶ 20; see also Docket No. 37, BPSD Atty. Decl. ¶
19).
Discovery Motions
At issue in these motions are plaintiff’s attempts to obtain the documents regarding the
contractual relationships underlying his employment. Plaintiff moved on March 18, 2014, to
compel disclosure (Docket No. 20) and Fisher’s insistence that these “confidential” documents
5

not be produced (see Docket Nos. 23, 31). Plaintiff sought from defendants any contracts, term
sheets, bid requests, or contract-related documents relating to the relationship between
defendants Fisher and BPSD (Docket No. 20, Pl. Atty. Decl. ¶ 16, regarding plaintiff’s
Document Request #16, Ex. 1, ¶ 26, Ex. 7 (request to Fisher). During oral argument, plaintiff
explained that he needs these documents to determine who employed him, the School District or
Fisher (see also id. ¶ 38). Defendant Fisher produced his collective bargaining agreement with
the BPSD (see id. ¶ 27), the Local 409 CBA, while the BPSD offered to produce “the Master
Contract between the Buffalo Board of Education and Local 409 and the Buffalo Board of
Education Division of Plant Services” (id. ¶ 17, Ex. 3), but to date the BPSD has failed to do so
(id. ¶¶ 21, 20, Ex. 5). Plaintiff found production of the Local 409 CBA did not demonstrate
critical information necessary to understand Fisher’s employment relationship with the BPSD
(id. ¶¶ 19, 28-29, Exs. 4, 8). The privilege log produced by Fisher did not note the reason why
his contract with the BPSD was privileged and plaintiff questioned why a contract allocating
public funds would be privileged (id. ¶¶ 36, 39).
Plaintiff also sought from Fisher “all W2 forms, work schedules, overtime schedules” for
four of plaintiff’s coworkers at School #43 (id. ¶ 31, Exs. 1, 9, regarding Document Request
#13). In addition to general objections to this request, Fisher responded that the W2 and related
documents for coworker Patrick Fisher, Jr., would not be calculated to lead to the discovery of
admissible evidence and referred plaintiff to payroll journals for the three other coworkers that
were separately produced (id. ¶ 33). Plaintiff deemed this response to be insufficient (id.¶ 34,
Ex. 9).

6

Plaintiff also seeks extension of sixty days from entry of an Order on his motion for
completion of discovery (id. ¶ 3), to which defendants voiced no objection.
The School District contends that the Local 409 CBA responded to plaintiff’s Document
Request #16, since it governs the employment relationship between Fisher and the School
District (Docket No. 37, BPSD Atty. Decl. ¶ 29). The School District claims that the USA/CEC
is exempt from disclosure pursuant to “Proprietary Information, Trade Secrets, and/or
Confidential Information exceptions” (id.¶ 31), presumably of New York State Freedom of
Information Law, N.Y. Pub. Officers Law § 87 (see id. ¶ 32). The School District next claims
that the terms of the existing USA/CEC are part of the contract negotiation for the next
agreement; hence it should not be disclosed (id. ¶¶ 33-34); also that the inter-agency and intraagency exemptions under FOIL also preclude discovery (id. ¶ 35). Finally, the School District
opposes imposing plaintiff’s motion costs as a sanction since the School District believes it acted
in good faith in producing what it did (id. ¶ 36).
The parties later stipulated to the production of documents responsive to Document
Request # 13, the W2 forms (Docket No. 51, Order of Aug. 5, 2014, at 2). A subsequent Order
deletes references to relief regarding this production (id.; cf. Docket No. 46, Order of July 10,
2014, at 14), amending the relief for plaintiff’s motion (Docket No. 46, Order of July 10, 2014,
at 14-15).
Fisher’s Cross-Motion and Motions to Seal
Fisher moved for a protective Order against producing the documents sought by plaintiff
(namely the USA/CEC and worksite analysis quarterly reports), citing (among other concerns)
confidentiality and trade secrets (Docket No. 23). Elsewhere, he argues that disclosure of the
7

USA/CEC and the worksheet analysis of other custodians at School #43 would disclose Fisher’s
“profit margin” and that disclosure could hinder the BSEA in its collective bargaining with
Local 17 (Docket No. 35, Fisher Atty’s Aff. for Motion to File Under Seal ¶¶ 7-10). Fisher
argues that plaintiff’s motion to compel should be denied (and his motion for a protective Order
granted) because the USA/CEC plaintiff ultimately seeks confidential contract material, and it
contains trade secrets that would injure Fisher’s competitive position if disclosed, and the
documents constitute inter- or intra-agency material privileged from disclosure under New York
Freedom of Information Law, N.Y. Pub. Officers Law § 87(2)(c) (or “FOIL”) (Docket No. 30,
Fisher Memo. at 1-2, 2-5, 5-6, 6-8). He claims that he has shown good cause for a protective
Order against this disclosure, based upon the reasons he opposes disclosure (id. at 8-9).
Fisher moved to seal his responses to plaintiff’s motion and to portions of his motion for
a protective Order (Docket No. 31; see Docket No. 32, Order sealing). The Collective
Bargaining Agreement between the BPSD and Local 17 and the BSEA was also filed under seal
(Docket No. 36; see Docket No. 34, BPSD Motion to file under seal). Fisher also sought to have
sealed a Custodial Engineer Contract and worksite analysis (Docket No. 35).
Plaintiff responds that Fisher is assuming the positions of the BPSD which Fisher has no
standing to raise (Docket No. 39, Pl. Atty. Decl. ¶ 7). He contends that Fisher conflates federal
discovery requests with a state FOIL request and the three grounds raised to oppose discovery
are not relevant and are meritless (id. ¶¶ 13, 12).

8

DISCUSSION
I.

Applicable Standards
Discovery under the Federal Rules is intended to reveal relevant documents and

testimony, but this process is supposed to occur with a minimum of judicial intervention. See
8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure
§ 2288, at 655-65 (Civil 2d ed. 1994). “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons having knowledge of any discoverable matter.” Fed. R.
Civ. P. 26(b)(1) (effective Dec. 1, 2007). Federal Rule of Civil Procedure 37(a) allows a party to
apply to the Court for an order compelling discovery, with that motion including a certification
that the movant in good faith conferred or attempted to confer with the party not making the
disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A).
Under Rule 26(c), this Court may issue a protective Order to protect a party “from
annoyance, embarrassment, oppression, or undue burden or expense” by not having a proposed
disclosure or discovery device, or conditioning the time and manner of that discovery. Fed. R.
Civ. P. 26(c)(1), (1)(B)-(C); see id. R. 26(c)(1)(D) (limit the scope or the matters inquired into);
Bridge C.A.T. Scan Assoc. v. Technicare Corp., 710 F.2d 940, 945 (2d Cir. 1983) (see Docket
No. 30, Fisher Memo. at 8). Under this rule, the Court has power to protect against abuses in
discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). The appropriateness of a
protective Order is a balance of the litigation needs of the requesting party and the protectable
interests of the party from whom discovery is sought. Mitchell v. Fishbein, 227 F.R.D. 239, 245
9

(S.D.N.Y. 2005). This Court has broad discretion in issuing such a protective order. Seattle
Times, supra, 467 U.S. at 36. As noted by Fisher (Docket No. 30, Fisher Memo. at 8), the party
seeking the protective Order has the burden of showing good cause, see Dove v. Atlantic Capital
Corp., 963 F.2d 15, 19 (2d Cir. 1992); United States v. Talco Constr., 153 F.R.D. 501, 513
(W.D.N.Y. 1994) (Fisher, Mag. J.), with good cause shown by demonstrating specific need for
protection, Talco Constr., supra, 153 F.R.D. at 513-14.
II.

Application—Plaintiff’s Motion to Compel and Fisher’s Motion for a Protective Order
A.

Timing of Plaintiff’s Motion

Preliminarily, Fisher and the School District each argue that this motion should be
dismissed as being untimely (Docket No. 24, Fisher Atty. Affid. ¶ 5; Docket No. 37, BPSD Atty.
Decl. ¶ 5). In his response, plaintiff argues that the motion was filed at 12:17 am on March 18,
2014, due to issues uploading all of the attached documents on to the Court’s electronic filing
system, thus it was not a full day late as Fisher and the School District appear to argue (Docket
No. 42, Pl. Atty. Reply Decl. ¶ 4, Ex. 1 (notices of electronic filing to verify date and time of
plaintiff’s filing).
Defendants are not prejudiced by the less than one-day delay in filing plaintiff’s motion.
Therefore, this Court will address the merits of plaintiff’s motion (and, by extension, Fisher’s
cross-motion for a protective Order).
B.

Merits
1.

Plaintiff’s Motion to Compel

This Court notes that plaintiff and Fisher are members of two separate locals of the same
union, the I.U.O.E., and the indirect custodial system described by Fisher results in one union
10

local entering into a collective bargaining agreement with an association of union employees in a
different local of the same union. The indirect custodial system also leads to a chief engineercustodian, like Fisher, to have the dual roles of employee and independent contractor, depending
upon which task or which agreement is being considered. Thus, it appears from the Local 17 and
Local 409 CBAs and the USA/CEC that plaintiff was employed by Fisher, an independent
contractor of defendant BPSD.
Fisher and the BPSD argue that, under New York FOIL, see Public Officers Law
§ 87(2)(c) (impair present or imminent contract award or collective bargaining negotiations), (d)
(trade secrets), (g) (inter- and intra-agency materials), defendants need not produce inter- or
intra-agency material (Docket No. 30, Fisher Memo. at 6-8). First, Fisher fails to state which
agency he belongs to. The contract at issue is one he entered as an independent contractor and
not as a School District employee. As plaintiff notes (Docket No. 39, Pl. Atty. Decl. ¶¶ 16-17),
FOIL applies to governmental agencies and Fisher, his Local, and the BSEA are not
governmental agencies. The two cases cited by Fisher (cf. Docket No. 30, Fisher Memo. at 3;
Docket No. 39, Pl. Atty. Decl. ¶¶ 21-22) involve municipal agencies, Cohalan v. Board of Educ.
of Bayport-Blue Point Sch. Dist., 74 A.D.2d 812, 425 N.Y.S.2d 367 (2d Dep’t 1980) (school
board); Trauernicht v. Board of Cooperative Educ. Servs., 95 Misc.2d 394, 395, 407N.Y.S.2d
398, 399 (Sup. Ct. Nassau Cnty. 1978) (BOCES), and not a union or association of union
members serving as an independent contractor for the municipality. As for the BPSD, if FOIL
applied in federal actions, it could claim the exemption from FOIL disclosure of inter- and intraagency materials that would not be available for Fisher.

11

But for both defendants, they presume that FOIL creates a statutory privilege (or series of
privileges) against disclosure in a federal action. That is not the case, Grossman v. Schwarz,
125 F.R.D. 376, 380 (S.D.N.Y. 1989) (“New York’s FOIL creates no statutory ‘privilege’ from
discovery in a civil action,” citing federal and New York cases). As one district court in this
state found “a pending litigation cannot be used as a shield from FOIL requests, and FOIL
requests cannot be used as a sword to emasculate discovery rules,” Greenberg v. Board of Educ.,
125 F.R.D. 361, 362 (E.D.N.Y. 1989) (McLaughlin, J.). There, then-District Judge McLaughlin
held that the court lacked “jurisdiction to review the Board of Education’s denial of plaintiff’s
FOIL requests. To the extent, however, that the documents plaintiff seeks pursuant to FOIL are
discoverable under the Federal Rules of Civil Procedure, then plaintiff is entitled to the
production thereof notwithstanding the Board of Education’s refusal to produce those documents
pursuant to FOIL,” id. As noted by another district court, “even if New York State had created a
rule of confidentiality against disclosure of inmate identification, this would not be binding on a
federal court in a federal question case. See, e.g., King v. Conde, 121 F.R.D. 180, 186-87
(E.D.N.Y. 1988); Burke v. New York City Police Dep’t, 115 F.R.D. 220, 224 (S.D.N.Y. 1987),”
Dixon v. Coughlin, No. 91 Civ. 7019, 1993 U.S. Dist. LEXIS 5090, at *3 (S.D.N.Y. Apr. 19,
1993); King, supra, 121 F.R.D. at 187 (New York law “does not govern discoverability and
confidentiality in federal civil rights action. Federal discovery is somewhat more liberal than
New York State discovery.”); see also Firestone Tire and Rubber Co. v. Coleman, 432 F. Supp.
2d 1359, 1371 (N.D. Ohio 1976) (FOIA excluded material may still be discoverable under
Federal Rule of Civil Procedure 34). “Questions of privilege in federal civil rights cases are
governed by federal law,” King, supra, 121 F.R.D. at 187 (rejecting application of New York
12

Civil Rights Law § 50-a as bar to discovery); see also Burke, supra, 115 F.R.D. at 224 (also
rejecting § 50-a bar in federal action).
Defendants have not stated grounds that these documents are not discoverable under the
Federal Rules. Thus, FOIL is not applicable here.
Related to the FOIL arguments, Fisher contends that these agreements are confidential
and, coupled with work analysis of salaries paid to custodians, are trade secrets that he does not
want disclosed to Local 17, plaintiff’s union. The documents are sought, however, outside of the
negotiation context and Fisher has not asserted that plaintiff would disclose these documents to
his local.
Plaintiff’s requests are intended to lead to admissible evidence (cf. Docket No. 41, Fisher
Atty. Aff. ¶ 14), here identifying which party employed him (for document request #16) and
discovering the difference in treatment of plaintiff as opposed to his Caucasian coworkers (for
#13). Therefore, plaintiff’s motion to compel (Docket No. 20) production of the USA/CEC is
granted, but as conditioned by the protective Order discussed next.
2.

Fisher’s Cross-Motion for a Protective Order—Request #16—USA/CEC

During oral argument, the parties mentioned a stipulation defendants proposed to allow
release of these documents but with a limited circulation (see also Docket No. 24, Fisher Atty.
Decl. ¶ 61, Ex. H; Docket No. 41, Fisher Atty. Decl. ¶ 5), but plaintiff would not agree to the
stipulation. Plaintiff’s counsel believed that this stipulation would have precluded plaintiff’s
counsel from discussing the USA/CEC terms with plaintiff (Docket No. 41, Fisher Atty. Decl.
¶ 6), but Fisher argued that it only would preclude disclosure to plaintiff’s union (id. ¶ 7).

13

Under Rule 26(c)(1)(G) for the manner of revealing trade secrets, or other confidential
research, development, or commercial information, the USA/CEC is to be produced to plaintiff
and his counsel for their eyes only and not to be released to third parties (including plaintiff’s
union, Local 17). For purposes of this litigation, it is unlikely that an expert will need to review
the terms of these agreements to require an expanded audience for this production and plaintiff
has not argued that it needs to have an expert review these documents. If plaintiff determines
that an expert will be required to review this agreement, the parties are free to stipulate to allow
expert eyes to review it or plaintiff can seek an amendment of this Order to allow his expert to
see it. Plaintiff’s union local is not a party in this litigation and thus has no need to see these
agreements. The pertinent issue in this Title VII case is who employed plaintiff; disclosure
beyond plaintiff and his attorney is not necessary for this inquiry. While this Court is not bound
by FOIL and its disclosure exemptions, this Court can fashion the manner of discovery to allow
plaintiff and his counsel exclusive access to documents without the wider world seeing them. If
these produced documents are later used in this action, they should be filed under seal to prevent
broader dissemination.
As a result, Fisher’s cross-motion for a protective Order (Docket Nos. 23, 31) is granted,
with disclosure of the USA/CEC agreement to plaintiff and his counsel only. Any further
disclosure of this material is either upon stipulation of the parties or by Order of this Court.

14

C.

Summary

Thus, plaintiff’s motion to compel (Docket No. 20) is granted, while Fisher’s crossmotion for a protective Order (Docket Nos. 23, 31) is granted in part (in limiting the manner
and extend of disclosure) and denied in part (in compelling disclosure to plaintiff and counsel). 4
III.

Reasonable Motion Expenses
As a result of the above, under Rule 37, the prevailing party is entitled to recover its

reasonable motion expenses and the opponent has the right to respond as to why passing such
costs to them is unreasonable or whether the amount claimed is not reasonable.
Rule 37(a) allows a party to apply to this Court for an Order compelling discovery, with
that motion including certification that the movant, in good faith, conferred or attempted to
confer, with the party not making the disclosure to secure it without judicial intervention.
Procedurally, under Rule 37(a)(2)(B) and this Court’s Local Civil Rule 37, the movant needs to
make a statement of good faith efforts made to resolve a discovery dispute before making
motions to compel.
Under Rule 37(a)(5)(A), if the motion to compel is granted, the Court
“must, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney advising such
conduct, or both of them to pay the movant’s reasonable expenses incurred in
making the motion, including attorney=s fees. But the court must not order this
payment if: (i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action; (ii) the opposing party=s
nondisclosure, response, or objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(a)(5)(A) (effective Dec. 1, 2007).
4

Fisher and plaintiff quibble about other discovery that may not have been timely produced by plaintiff
compare Docket No. 24, Fisher Atty. Aff. ¶¶ 22-25 with Docket No. 42, Pl. Atty. Reply Decl. ¶¶ 5-7, but no motion
to compel this disclosure is before this Court. Fisher’s objections to not receiving discovery demands, Docket
No. 24, ¶¶ 28-32, were based on the mistaken assumption that the BPSD employed the witnesses sought by plaintiff
and not Fisher.

15

If a motion is granted in part and denied in part, as is done here, “the court may issue any
protective order authorized by Rule 26(c) and may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion,” Fed. R. Civ. P. 37(a)(5)(C).
Here, both parties prevail in part, with plaintiff obtaining the sought documents, while
defendant Fisher was granted a protective Order restricting this production to a finite audience
and narrowing the scope of discovery. At first blush, it appears that recoveries for both sides
might be a wash. But defendant BPSD did not file its own motion for a protective Order (or join
in codefendant’s motion) and plaintiff’s motion was directed at both defendants (Docket No. 20),
thus it may be held liable to some of plaintiff’s discovery costs in which he prevailed. The
BPSD may respond to plaintiff’s application and indicate (among other grounds, see Fed. R. Civ.
P. 37(a)(5)) that nondisclosure, response or objection was substantially justified or that other
circumstances make an award here unjust, id., R. 37(a)(5)(A)(ii), (iii).
Therefore, plaintiff and Fisher are to file their respective applications for reasonable
motion costs for those portions of their motions in which they prevailed; that application is due
within seven (7) days of entry of the original Order, or by July 17, 2014. Opposing parties may
respond to the respective applications within fourteen (14) days of entry of this Order, or by
July 24, 2014, and the application(s) will be deemed submitted as of July 24, 2014. Fisher filed
his application (Docket No. 48) and subsequent Orders (Docket Nos. 50, 51) have held these
applications and their briefing in abeyance pending a possible motion for reconsideration by
plaintiff (see Docket No. 49).

16

IV.

Second Amended Scheduling Order
The First Amended Scheduling Order (Docket No. 16) was held in abeyance while these

motions were pending (Docket No. 22). With these matters now resolved, the following Second
Amended Scheduling Order is in effect (superseding deadlines in prior Orders):
•

Discovery, including expert disclosures, shall be completed by September 30, 2014;

•

Dispositive motions shall be filed no later than January 5, 2015;

•

Referral to mediation ends on January 9, 2015;

•

If no motions are filed by January 5, 2015, parties are to contact the chambers of
Judge Arcara by January 22, 2015, to schedule a Final Pretrial Conference before that
judge.

IV.

Filings under Seal
Finally and upon further reflection, it is not clear why the Local 17 CBA needed to be

filed under seal, as sought by BPSD (Docket No. 37). This is the collective bargaining
agreement of plaintiff’s union local with the chief custodial engineers association and that
arrangement is not confidential or controversial. It is the Local 17 CBA (the document currently
under seal) that is under negotiation and those labor negotiations is the reason why defendants
seek to preclude disclosure of the USA/CEC to Local 17 member, the plaintiff (Docket No. 30,
Fisher Memo. at 6). In fact, Fisher produced a copy of this CBA to plaintiff in response to his
demands (Docket No. 24, Fisher Atty. Aff. ¶¶ 19, 51, Ex. C; Docket No. 20, Pl. Atty. Decl.
Ex. 7). According to Fisher’s theory of the relationships involved, the School District is not a
party to the Local 17 CBA and thus lacks standing to seek to have it filed under seal. This

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document (Docket No. 38) is unsealed. A subsequent Order (Docket No. 51) also unsealed the
School District’s response (Docket No. 37).
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 20) to compel is granted,
while defendant Patrick Fisher’s motion for a protective Order (Docket Nos. 23, 31) regarding
this production is granted in part, denied in part, as discussed above, with production thus
allowed being attorney and plaintiff’s eyes only and further disclosure only upon either
stipulation or by Order.
Plaintiff and defendant Fisher (cf. Docket No. 48) may submit their respective
applications to recover reasonable motion expenses within seven (7) days of entry of this Order,
or by July 17, 2014, and opposing parties may respond to these applications within fourteen (14)
days of entry of this Order, or by July 24, 2014. These applications are held in abeyance
pending any motion to reconsideration of this Order (Docket Nos. 50, 51).
A Second Amended Scheduling Order, as indicated above, is entered and supersedes
prior Scheduling Orders.
The Local 17 CBA (Docket No. 38), sealed upon the motion of defendant Buffalo Public
Schools (Docket No. 37) shall be unsealed and the Court Clerk is instructed to unseal, as well as
the School District’s response to plaintiff’s motion (Docket No. 37; see Docket No. 51).
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
July 10, 2014
As Amended, August 5, 2014
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