Scott-Iverson v. Independent Health Association, Inc.

Filing 104

DECISION AND ORDER. Plaintiff's motion (Dkt. 88) is DENIED without prejudice to filing a further motion to compel compliant with Rule 37(a)(1) and Local R.Civ.P. 7(a) including a designation of Defendant's responses which Plaintiff believe s to be unresponsive or improperly asserting an objection, and a concise explanation of why Defendant's responses are unsatisfactory together with a memorandum of law in support. Pursuant to Rule 37(B)(5), Plaintiff shall show cause why Defenda nt's attorneys fees incurred in successfully opposing Plaintiff's motion should not be awarded to Defendant. Plaintiffs papers shall be filed not later than 7/6/2016; Defendant's response shall be filed not later than 7/18/2016. Oral argument shall be at the court's discretion. Signed by Hon. Leslie G. Foschio on 6/23/2016. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DECISION
and
ORDER

DAWN SCOTT-IVERSON,
Plaintiff,
v.
INDEPENDENT HEALTH ASSOCIATION, INC.,

13-CV-451V(F)

Defendant.
________________________________________
APPEARANCES:

FRANK T. HOUSH, ESQ.
Attorney for Plaintiff
70 Niagara Street
Buffalo, New York 14202
KAVINOKY & COOK, LLP
Attorneys for Defendant
R. SCOTT DELUCA, of Counsel
726 Exchange Street, Suite 800
Buffalo, New York 14210

In this employment discrimination case, Plaintiff, by papers filed April 1, 2016,
moves to compel discovery, in particular, Defendant’s answers to Plaintiff’s First Set of
Interrogatories and Document Requests and for sanctions (Dkt. 88) (“Plaintiff’s motion”).
Defendant’s opposition, (Dkt. 92), was filed April 19, 2016 (“Defendant’s Opposition”).
Oral argument was conducted May 4, 2016, (Dkt. 94), following which the court
reserved decision and permitted the parties, at the parties’ option, to file supplemental
briefing. Defendant’s Supplemental Memorandum of Law was filed May 18, 2016 (Dkt.
98) (“Defendant’s Supplemental Memorandum”); Plaintiff’s Submission of Authority
Following Oral Argument, an affidavit of Frank T. Housh, Esq., was filed May 23, 2016
(Dkt. 101) (“Housh Affidavit”).

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Specifically, Plaintiff argues that by papers served by e-mail to Defendant’s
attorney, R. Scott Deluca (“DeLuca”) dated January 29, 2016, Plaintiff requested
Defendant serve answers to Plaintiff’s First Set of Interrogatories and Plaintiff’s First Set
of Document Requests, and that Defendant provide dates for Plaintiff’s deposition of
Defendant’s employees Joel Marinaccio and Lisa Miles. Dkt. 88 ¶ 2; Dkt. 88-1 at 1; Dkt.
88-2 at 1-4; Dkt. 88-2 at 5 (“Plaintiff’s discovery requests”). On March 15, 2015, Plaintiff
sent another e-mail to DeLuca advising Defendant responses to Plaintiff’s discovery
requests had not been received, demanding Defendant’s responses (“Plaintiff’s March
15, 2016 e-mail”). Dkt. 88-3 at 1. Defendant’s responses were served on Plaintiff’s
attorney by e-mail on March 18, 2016. Dkt. 88-4 at 1. In its opposition to Plaintiff’s
motion, Defendant contends, first, that as Defendant had not consented to service by email as authorized by Fed.R.Civ.P. 5(b)(2)(E) (permitting service by electronic means
provided person to be served has consented in writing) (“Rule 5(b)(2)(E)”), Dkt. 92 ¶ 6,
Defendant’s responses were not untimely under Fed.R.Civ.P. 33(b)(2) (answers to
interrogatories to be served within 30 days after party served with requesting party’s
interrogatories) (“Rule 33(b)(2)”) and Fed.R.Civ.P. 34(b)(2)(A) (written responses to
document requests due within 30 days after responding party served with requests)
(“Rule 34(b)(2)(A)”), and therefore no 30-day period for Defendant’s responses had
commenced and as Defendant’s responses were therefore not untimely Defendant did
not, contrary to Plaintiff’s contention, Dkt. 88 ¶¶ 7-9, waive any objections. Based on
Plaintiff’s view that Defendant’s responses, which included objections were untimely
thereby waiving all objections, Plaintiff’s motion seeks Defendant’s responses which are
“unredacted, unmitigated, and without recourse or consideration to any objections of

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any kind.” Dkt. 88 ¶ 11. Second, Defendant contends that because DeLuca and his
assistant had recently endured a debilitating illness, Defendant’s responses to Plaintiff’s
discovery requests were delayed beyond the February 29, 2016 due date, and that on
March 2, 2016, Defendant e-mailed Plaintiff’s counsel advising counsel of this fact and
advised that Plaintiff should expect Defendant’s responses by March 12, 2016
(“Defendant’s March 2, 2016 e-mail”). Dkt. 92 at 11. Plaintiff did not respond to
Defendant’s March 2, 2016 e-mail, Dkt. 92 ¶ 10, nor did Plaintiff file a motion to compel
at that time despite the fact that Defendant’s responses were then overdue, assuming
Plaintiff’s discovery requests had been properly served by e-mail on January 29, 2016.
Contrary to Defendant’s March 2, 2016 representation, Defendant nevertheless failed to
serve Defendant’s responses by March 12, 2016 (Dkt. 92 ¶ 11); instead, in response to
Plaintiff’s March 15, 2016 e-mail reminding DeLuca Defendant’s responses were,
according to Plaintiff, overdue and inquiring whether Defendant intended to respond,
DeLuca telephoned Plaintiff’s counsel and agreed to extend the period for service of
Defendant’s responses to March 15, 2016, confirming, inter alia, such agreement by
sending Plaintiff’s counsel an e-mail later the same day (“Defendant’s March 18, 2016
e-mail”) Dkt. 92 at 14. In concluding this e-mail, DeLuca stated that “[i]f anything in this
e-mail is inaccurate or incorrect, please advise me immediately (otherwise I will
presume that everything herein is correct and accurate.”). Id. DeLuca received no
response from Plaintiff to Defendant’s March 18, 2016 e-mail, Dkt. 92 ¶ 15, which
Plaintiff’s counsel does not deny receiving. As stated in Defendant’s March 15, 2015 email, Defendant’s responses were served on March 18, 2016. Dkt. 92 ¶ 17; Dkt. 88-4 at
1; Dkt. 88 ¶ 10. The record does not indicate any further communications between the

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parties regarding Defendant’s responses until Plaintiff’s motion was filed approximately
two weeks later. Defendant therefore contends Plaintiff’s motion is baseless (“frivolous
and in bad faith”), Dkt. 88 ¶ 16, warranting an award of Defendant’s attorneys’ fees
incurred in opposing Plaintiff’s motion pursuant to Fed.R.Civ.P. 37(a)(5)(B) (“Rule
37(a)(5)(B)”). Dkt. 92 ¶¶ 41-42.
According to Plaintiff, Plaintiff’s attorney had a telephone conversation with
DeLuca on March 17, 20161 in which he advised DeLuca that Defendant’s responses
were late, and that as a result any objections Defendant may have intended to state had
been waived. Dkt. 88 ¶¶ 7-9. Because, according to Plaintiff, Defendant’s responses
were untimely, i.e., not served by February 29, 2016 pursuant to Rules 33(b)(2) and
34(b)(2)(A), Defendant’s objections in such responses are deemed waived, Dkt. 88 ¶¶
11-13 (citing Land Ocean Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 236
(W.D.N.Y. 1998)), Plaintiff’s motion should be granted, and sanctions should be
awarded pursuant to Fed.R.Civ.P. 37(c). Dkt. 88 ¶ 16.
In its Supplemental Memorandum, Defendant reasserts its contentions that (1)
Defendant was never properly served electronically with Plaintiff’s discovery requests
under Rule 5(b)(2)(E) and therefore its responses were never overdue under Rule
33(b)(2) and Rule 34(b)(2)(A), and (2) even assuming Plaintiff’s discovery requests
were properly served, the period for Defendant’s response was extended by the March
15, 2016 telephone conference between DeLuca and Plaintiff’s attorney to March 18,
2015 as confirmed by Defendant’s March 18, 2018 e-mail. Defendant further argues
Plaintiff’s motion was filed without compliance with Fed.R.Civ.P. 37(a)(1) (requiring
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There is no evidence in the record to confirm this telephone conversation, however, as Defendant does
not specifically dispute it took place, the court is unable to determine whether Plaintiff intended to
reference the March 15, 2016 conversation or another, subsequent, conversation on March 17, 2016.
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moving party to include affidavit explaining good faith effort to avoid judicial intervention
in a discovery dispute). Defendant also notes Plaintiff’s motion to denominate any
deficiencies in Defendant’s responses. Dkt. 98 at 3. Accordingly, Defendant states that
because Plaintiff’s motion is not substantially justified, sanctions should be awarded
against Plaintiff pursuant to Rule 37(a)(5)(B). Id. at 5.
In the Housh Affidavit, Plaintiff argues that Plaintiff did not assent to Defendant’s
request for additional time to respond to Plaintiff’s discovery requests because no
caselaw supports that by the failure of Plaintiff’s counsel to object to Defendant’s March
15, 2016 e-mail confirming the parties agreement to extend to March 18, 2016 the
period for Defendant’s responses to be served, an agreement assertedly reached
during a telephone call between DeLuca and Plaintiff’s attorney, that occurred
approximately 45 minutes after Plaintiff sent Plaintiff’s e-mail reminding DeLuca that
Defendant’s responses were overdue, Plaintiff cannot be held to such extension of time.
Dkt. 101 ¶¶ 6-8. Plaintiff also contends that as Defendant had previously refused to
extend to Plaintiff similar discovery related accommodations, and had created a “hostile
and contumacious environment” it was “implausible” that Plaintiff had provided
Defendant the accommodation or extension of time to serve its discovery responses
Defendant now claims Plaintiff’s counsel consented to during the March 15, 2016
telephone conversation and had impliedly confirmed upon receipt of the March 15, 2016
e-mail without objection. Id. ¶¶ 10-12. Plaintiff’s motion is without merit for several
reasons.
First, Plaintiff contends e-mail service in this case consistent with Rule 5(b)(2)(E)
had been established through a “course of conduct” between the parties. See Dkt.101

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¶ 8 (“Court should look to accepted practice in this case to determine whether consent
was given.”). However, a careful review of Plaintiff’s motion and the Housh Affidavit
fails to provide a single example where the parties served pleadings or formal discovery
demands such as Plaintiff’s discovery demands sent to DeLuca by the January 29,
2016 e-mail, which are the subject of Plaintiff’s motion, and Plaintiff does not dispute
that absent a written consent by Defendant to accept e-mail service, Plaintiff’s
interrogatories and document requests must, in order to support a motion to compel
under Fed.R.Civ.P. 37(a)(3)(B), have been served on DeLuca as required by
Fed.R.Civ.P. 5(b)(1) (service of discovery papers within the scope of Fed.R.Civ.P.
5(a)(1)(C) to be served on attorney for party unless court orders service upon party).
Plaintiff has therefore provided no evidence of any “course of conduct,” or “accepted
practice” sufficient to show Defendant acquiesced in Plaintiff’s service of Plaintiff’s
discovery demand by e-mail, absent a written consent authorizing such form of
electronic service, and Rule 5(b)(2)(5) provides for no such alternative evidence of the
required consent. Thus, the 30-day period for Defendant’s responses that would be
required under Rule 33(b)(2) and Rule 34(b)(2)(A), had Defendant been properly
served, was not commenced by Plaintiff’s purported service of Plaintiff’s discovery
requests by the January 29, 2016 e-mail, Defendant’s responses were not tardy, and
Plaintiff’s motion should be DENIED on that ground.
Second, even if it assumed that Plaintiff’s discovery requests were properly
served electronically by the January 29, 2016 e-mail under Rule 5(a)(1)(C) and Rule
5(b)(2)(E), Plaintiff and Defendant entered into a stipulation authorized by Fed.R.Civ.P.
29 on March 15, 2016, during the telephone conversation between Plaintiff’s counsel

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and DeLuca, as confirmed by Defendant’s March 15, 2016 e-mail, extending through
March 18, 2016 the period for serving Defendant’s responses. Defendant’s e-mail sent
to Plaintiff’s counsel within approximately 45 minutes of Defendant’s receipt of Plaintiff’s
March 15, 2016 e-mail and immediately following their subsequent telephone
conversation, Dkt. 92 at 14, reminding Defendant that Defendant’s responses were then
overdue included the specific request – not disputed by Plaintiff – that Plaintiff’s counsel
immediately advise DeLuca if Plaintiff disagreed with DeLuca’s statement that Plaintiff’s
counsel and DeLuca had agreed during their preceding telephone conversation to
extend the period for Defendant’s responses to be served through March 18, 2016,
three days later. Under these circumstances, Plaintiff’s counsel had an affirmative duty
to object timely to DeLuca or be held to have acquiesced to, and thereby agreed as a
stipulation under Rule 29 to, the extension of time Defendant had requested.2 As the
record unambiguously establishes, Defendant’s intent in sending the March 15, 2016 email was to document the agreement reached verbally in the earlier phone conversation
between DeLuca and Plaintiff’s attorney in which, according to the e-mail, the two
attorneys agreed that Defendant could serve its responses by March 18, 2016, which
was done. That the failure of Plaintiff’s counsel to promptly communicate to DeLuca
any disagreement with this recapping of the stipulation as the e-mail had expressly
invited Plaintiff’s counsel to do, strongly supports a finding that such an agreement had
in fact been made. See Fed.R.Evid. 801(d)(2)(B) treating as admissible non-hearsay
evidence an admission “a party manifested that it adopted or believed to be true.” The
party’s silence or failure to deny or protest a statement is probative of the statement’s

2

As a result of a 2007 amendment, Rule 29 no longer requires the stipulation be in writing. See I/P
Engine, Inc. v. AOL, Inc., 283 F.R.D. 322, 324 n. 3 (E.D. Va. 2012).
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truth where “it reasonably can be expected that a person in the party’s position would
protest the statement if it were untrue.” Graham C. Lilly, AN INTRODUCTION TO THE LAW
OF EVIDENCE, 223 (West Publishing Co., 2d. ed. 1987). Such an adoptive admission is
chargeable to the party against whom it is offered, here Plaintiff, where it is attributable
to a party’s agent, in this case Plaintiff’s attorney, when it arises within the scope of
such agency relationship. Fed.R.Evid. 801(d)(2)(D). Generally, attorneys, as agents of
their clients, have authority to attend to routine litigation matters such as adjournments
and accommodations with opposing counsel without prior approval of a client. See
Gomez v. City of New York, 805 F.3d 419, 423-24 (2d Cir. 2015) (recognizing general
rule that “‘our system of representative litigation, in which each party is deemed bound
by the acts of his lawyer-agent.’” (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 634
(1962), does not apply to such non-routine matters as stipulating to dismissal of action).
Additionally, both Rule 33(b)(2) and Rule 34(b)(2)(A) expressly contemplate that
the deadlines applicable to discovery responses may be extended by stipulation
pursuant to Fed.R.Civ.P. 29 (parties may stipulate that “procedures governing discovery
may be modified”). It is basic that a stipulation is a form of agreement under the law of
contracts and is binding without consideration. BLACK’S LAW DICTIONARY at 1641(10th
ed. 2014). As such, Plaintiff’s agreement to the stipulation may be inferred from the
Plaintiff’s counsel’s silence or failure to respond to DeLuca’s March 15, 2016 e-mail
expressly sent to confirm such stipulation. See G. Banks, N.Y. CONTRACT LAW § 2:6
(West’s N.Y. Pract. Series 2006) (one’s intent to form a contract “may be based on
inferences drawn from his or her silence”) (citing Surrey Strathmore v. Dollar Sav. Bank
of N.Y., 325 N.E.2d 527, 529 (1975)); see also N.Y. Jur.2d, Contracts § 48 (where in

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response to an offer party’s silence or failure to respond would be deceptive and
misleading, the party receiving the offer has a duty to respond and its failure to do so
will be deemed an acceptance by acquiescence (citing Russell v. Raynes Associates
Ltd. Partnership, 569 N.Y.S.2d 409, 414 (1st Dept. 1991) (citing cases))). Accordingly,
in this case, as it is undisputed that Plaintiff’s counsel was expressly requested to
respond to Defendant’s March 15, 2016 e-mail confirming the oral stipulation arising
during counsel’s preceding telephone conversation, and DeLuca reasonably relied upon
Plaintiff’s silence, Plaintiff acquiesced in the stipulation.
Nor is there any merit in Plaintiff’s assertion at oral argument that Plaintiff’s
attorney was prohibited from communicating with DeLuca by Plaintiff unless such
communication was “absolutely necessary,” Dkt. 98 at 9, and that because of DeLuca’s
alleged intimidating conduct in the litigation as Plaintiff described by Plaintiff’s counsel,
Plaintiff’s counsel was reluctant to oppose DeLuca’s March 15, 2016 e-mail. The notion
that a plaintiff’s attorney was restricted by plaintiff in his authority to communicate and
enter into routine stipulations regarding discovery deadlines as permitted by Rule 29 is
contrary to the applicable N.Y. Rules of Professional Conduct 1.2(e), codified at N.Y.
Comp. Codes R. & Regs. tit. 22 § 1200.0 (McKinney’s 2015); which authorizes an
attorney to “accede to reasonable requests of opposing counsel, when to do so does
not prejudice the rights of the client.” See also Rule 83.3(a) Local Rules of Civil
Procedure for the Western District of New York (“Attorneys practicing in this court shall
faithfully adhere to the New York Rules of Professional Conduct.”). Significantly,
Plaintiff provides no affidavit corroborating that Plaintiff had in fact imposed such an
unusual restriction on the general authority of Plaintiff’s counsel to conduct this litigation

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for Plaintiff including routine matters such as adjournments and extensions of time.
Here, Plaintiff points to nothing to indicate Plaintiff would be prejudiced by the extension
of time requested by DeLuca. Plaintiff’s assertion that Plaintiff’s counsel lacked
authority to stipulate to extend the period for service of Defendant’s discovery response,
therefore contravenes the salutary purposes of Rule 29 to facilitate discovery and avoid
unnecessary and unproductive judicial micromanagement of the litigation process.
Such a bizarre assertion also amounts to an improper restriction on an attorney’s duty
to exercise independent judgment with respect to such matters as contemplated by the
applicable Federal Rules of Civil Procedure, i.e., Rule 29, and New York Rules of
Professional Responsibility. As such, Plaintiff’s attempt to avoid the effects of the
March 15, 2016 teleconference call between Plaintiff’s counsel and DeLuca and
Defendant’s confirming e-mail extending to March 18, 2016 the time for service of
Defendant’s responses, as constituting an enforceable stipulation pursuant to Rule 29,
must be rejected.
Plaintiff’s alternative contention at oral argument that Plaintiff’s counsel was too
“intimidated” by DeLuca’s conduct during the litigation in this case to hazard sending an
e-mail negating Defendant’s representation of an agreement to extend the time for
Defendant’s responses borders on the absurd. First, Plaintiff fails to particularize any
actual misconduct by DeLuca during prior proceedings in this case that could
reasonably be considered as so intimidating to an opposing attorney as to instill a
paralyzing fear to oppose such counsel’s assertion of a simple and straightforward
agreement to extend a discovery deadline. Second, such subjective after-the-fact
assertions of overreaching conduct by an opposing counsel must be rejected as

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undermining of the adversary system in which zealous advocacy is deemed essential to
achieving just results. Third, given that Plaintiff’s counsel is a well-experienced attorney
engaged in both civil and criminal litigation, his assertion that he was nonetheless
“intimidated” by DeLuca has a hollow ring. If Plaintiff’s counsel had genuinely believed
DeLuca’s prior conduct in this case unduly interfered with counsel’s ability to effectively
represent Plaintiff, such misconduct should have been brought timely to the attention of
the court as a potential basis for a protective order pursuant to Fed.R.Civ.P. 26(c) –
they were not.
Finally, as Defendant points out, Plaintiff’s motion was devoid of any evidence
Plaintiff had attempted to satisfy the prerequisites established by Rule 37(a)(1),
presumably because Plaintiff’s counsel labored under the improper restriction imposed
by his client3 of not communicating with Defendant’s attorney “unless absolutely
necessary,” despite the clear and controlling requirement of Rule 37(a)(1) which
reasonably satisfied Plaintiff’s own self-imposed condition (assuming it to be a fact) of
an “absolutely necessary” communication.
Accordingly, the court finds (1) that Defendant was not properly served with
Plaintiff’s discovery demands and the relevant response periods did not accrue, (2)
even if it is assumed such proper service was effected, the parties entered into a
stipulation enforceable under Rule 29 to extend the period for service of Defendant’s
responses to March 18, 2016 thereby rendering Defendant’s responses timely, and (3)
in any event, Plaintiff’s motion failed to comply with Rule 37(a)(1).

3

As noted, Discussion, supra, at 9, no affidavit from Plaintiff confirming such a restriction on Plaintiff’s
counsel authority to act on Plaintiff’s behalf was provided in support of Plaintiff’s motion.
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CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt. 88) is DENIED without prejudice
to filing a further motion to compel compliant with Rule 37(a)(1) and Local R.Civ.P. 7(a)
including a designation of Defendant’s responses which Plaintiff believes to be
unresponsive or improperly asserting an objection, and a concise explanation of why
Defendant’s responses are unsatisfactory together with a memorandum of law in
support. Pursuant to Rule 37(B)(5), Plaintiff shall show cause why Defendant’s attorney
fees incurred in successfully opposing Plaintiff’s motion should not be awarded to
Defendant. Plaintiff’s papers shall be filed not later than July 6, 2016; Defendant’s
response shall be filed not later than July 18, 2016. Oral argument shall be at the
court’s discretion.
SO ORDERED.
/s/ Leslie G. Foschio

________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: June 23, 2016
Buffalo, New York

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