Banks v. General Motors, LLC et al

Filing 72

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 63 Text Order, Scheduling Order, Terminate Scheduling Order Deadlines, 65 MOTION to Compel filed by Billie R Banks, 69 Text Order, Scheduling Or der, Terminate Scheduling Order Deadlines, 59 Order, Terminate Scheduling Order Deadlines, Set Deadlines, Set Scheduling Order Deadlines,, Terminate Motions FOURTH AMENDED SCHEDULING/CASE MANAGEMENT ORDER (Pleas e Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)Plaintiff's Motion to Compel (Docket No. 65) is granted in part, denied in part. Fee application Motions due by 8/9/2017, Responses due by 8/16/2017, fee application deemed submitted (without oral argument). Motions terminat ed: 65 MOTION to Compel filed by Billie R Banks.The Third Amended Scheduling Order (Docket No. 59) as amended (Docket Nos. 63, 66, 69), is amended as follows:Discovery completed by 10/30/2017.Dispositive Motions due by 1/30/20 18.Mediation To End by 2/9/2018.If no dispositive motions are filed, Status Report due by 2/28/2018. Status Conference set for Wed., 3/7/2018, 10:15 AM, before Hon. Hugh B. Scott.So Ordered. Signed by Hon. Hugh B. Scott on 7/26/2017. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BILLIE R. BANKS,
Plaintiff,
Hon. Hugh B. Scott
14CV970S
v.
Order

GENERAL MOTORS, LLC,
Defendant.

Before the Court is plaintiff’s third (cf. Docket Nos. 48, 51 (motions to compel); Docket
No. 59 (Order)) motion to compel (Docket No. 65). Responses to this motion were due by
June 29, 2017, with replies due July 6, 2017 (Docket No. 66). Defendant filed a timely response
(Docket No. 70) and plaintiff duly replied (Docket No. 71), and the motion was deemed
submitted.
Meanwhile, the Scheduling Order (Docket Nos. 59, 63) had discovery conclude by
June 26, 2017; this Court later recognized that this deadline would need to be changed due to the
pending motion to compel (Docket No. 66). The parties then moved jointly to extend time to
conduct depositions (Docket No. 67), which was granted (Docket No. 68). Discovery then was
due by July 14, 2017, again with this Court providing that this deadline may be extended further
upon action on the pending motion to compel (Docket No. 69).

BACKGROUND
This is a Title VII action in which plaintiff also alleged claims under the New York State
Human Rights Law (Docket No. 1, Compl). As summarized in a prior series of motions (Docket
No. 48, Pl. Atty. Decl. ¶ 3; Docket No. 59, Order of Feb. 13, 2017, at 2), plaintiff claims that she
was discriminated against due to her race and sex, that defendant created and permitted a hostile
work environment, and retaliated against her when she complained about this discrimination
(e.g., Docket No. 48, Pl. Atty. Decl. ¶ 3). Plaintiff, an African American woman (Docket No. 1,
Compl. ¶ 23), alleges that in 2006 she was employed as a Site Safety Supervisor at defendant’s
Lockport, New York, plant, after working in other positions at that plant since 1996 (id. ¶¶ 3133). She claims that she was underpaid relative to white male employees in similar positions (id.
¶ 36) and that she was subjected to different terms and conditions of employment due to her race
and gender (id. ¶ 43). From October 2002 defendant hired an investigator to follow plaintiff
while she was out of work on disability (id. ¶ 44). When plaintiff returned to work, plaintiff was
accused by personnel director Jim Fennell of stealing company time by fraudulently claiming
disability, which plaintiff denied. Nevertheless, plaintiff was terminated. (Id. ¶ 45.) Plaintiff’s
medical records confirmed her disability and limitations (id. ¶ 46). After reporting this, plaintiff
was reinstated, but no punitive action was taken against Fennell (id. ¶ 47). She alleged other
instances of racial and gender discrimination (id. ¶¶ 49-55 (use of racial epithet without
punishment), 56 (plaintiff’s directive as Safety Supervisor being ignored by white employees),
57 (unlike white Safety Supervisors, plaintiff was never provided support staff)).
Defendant contends that plaintiff actually worked for Delphi Automotive Systems, LLC,
from 1999 to 2009, a separate corporation from defendant (Docket No. 50, Def. Memo. at 2).
2

Plaintiff notes, however, that, while defendant claimed that it had no access to personnel records
before 2009, defendant later produced pre-2009 records (Docket No. 65, Pl. Atty. Decl. ¶ 30).
Defendant acquired the premises of plaintiff’s Lockport plant in October 2009 (Docket No. 1,
Compl. ¶ 19). Defendant answered the Complaint (Docket No. 14; see Docket No. 48, Pl. Atty.
Decl. ¶ 4).
This case initially was referred to Magistrate Judge Foschio (Docket No. 15) who issued
a Scheduling Order in which discovery was due by August 5, 2016 (Docket No. 25; see Docket
No. 48, Pl. Atty. Decl. ¶ 5). The case later was referred to the undersigned (Docket No. 36) due
to Magistrate Judge Foschio’s recusal (Docket No. 35).
Previously, plaintiff moved to compel production of certain documents (Docket No. 48;
see Docket No. 65, Pl. Atty. Decl. ¶ 12), which was granted (Docket No. 59, Order of Feb. 13,
2017; see Docket No. 65, Pl. Atty. Decl. ¶ 14) and for conducting depositions of defendant’s
personnel in this District (Docket No. 51) which was granted in part, denied in part (Docket
No. 59, Order, at 14-16). That Order also set the amended schedule for pretrial activities in this
case (id. at 10-11), which was later extended (Docket Nos. 63-64, 68-69).
Plaintiff’s Latest Motion to Compel
Plaintiff seeks complete responses to her Request for Production of Documents and
desires leave to resume the deposition of seven General Motors personnel1 at defendant’s
expense (Docket No. 65, Pl. Notice of Motion). Plaintiff notes that three of these witnesses had
yet to be deposed as of the date of the filing of this motion (Docket No. 65, Pl. Atty. Decl. ¶ 27
(Daniel Hersch, Pat Curtis, and retired human resources manager James Fennell yet to be
1

George Miller, Tom Rush, Susan Gouthro, Robert Duke, Michael Moresco, Daniel Hesch, and Pat Curtis,
Docket No. 65, Pl. Notice of Motion. Miller is a UAW employee, Docket No. 70, Def. Memo. at 10 n.3; cf. Docket
No. 65, Pl. Atty. Decl. ¶ 21.

3

deposed)), with their depositions scheduled in June (id. ¶ 28). Plaintiff claims that defendant
deliberately failed to produce documents or produced them the afternoon or evening before an
employee’s deposition, prejudicing her preparation for the depositions (id. ¶ 31). Since
defendant failed to produce personnel files of these (and other) witnesses and General Motors
employees, plaintiff seeks production of the documents and leave to conduct further depositions,
if necessary, at defense expense (id. ¶ 32).
Plaintiff acknowledges that defendant produced approximately 2,100 pages of documents
(id. ¶¶ 8, 9 (later correlating these documents to plaintiff’s requests, following plaintiff’s
objection to bulk production of these documents)). The parties then agreed that defendant would
produce personnel documents for 25 General Motors employees (id. ¶ 10, Ex. D). As
depositions of some of these employees approached, plaintiff sought from defendant complete
personnel files (id. ¶¶ 15-16-17, 18- 19, Exs. F, G, H). After conducting employee depositions in
April and May of 2017 (id. ¶ 20), plaintiff again listed documents yet to be produced by
defendant (id. ¶ 21, Ex. J, letter of May 18, 2017). Defendant on May 19 and 24, 2017, produced
portions of the personnel records of Lonnie Everett and Mike Moresco and documents about the
posting of plaintiff’s former position (id. ¶¶ 22-23, 24). Moresco, who was assisting defense
counsel in obtaining other employees’ records, testified at his deposition that he was not asked to
produce his own files (id. ¶¶ 18, 25, Ex. K). Plaintiff claims that since May 26, 2017, defendant
has failed to produce responsive documents (id. ¶ 26, see id. Ex. K).
Defendant responds that, despite objections that plaintiff’s requests for the personnel files
of 45 General Motors’ employees was overly broad, defendant produced copies of the files of
27 employees (Docket No. 70, Def. Memo. at 2-3, 4), while retaining objections as to
4

overbreadth for certain employees’ files (id. at 4). Performance evaluations and training records
were not part of the personnel files so, upon plaintiff’s objection during a deposition, defendant
separately produced performance evaluations or was obtaining for production other evaluations
(mostly for employees called as witnesses) (id. at 3) where such records were available (id. at 7).
Defendant claims that these evaluations and training records were produced prior to plaintiff’s
depositions (id. at 3). One employee, Dan Hesch, was noticed for deposition eight business days
before the examination; defendant argues that it did not have enough time to obtain all of his
records (id.). Defendant concludes that, by either its production or objection, that plaintiff’s
present motion to compel is now moot (id. at 5). It contends that plaintiff’s motion boils down to
(a) whether she is entitled to performance evaluations and training records for sixteen General
Motors employees2 whom defendant deems are not relevant to this action and (b) whether
plaintiff is entitled to resume depositions of seven General Motors employees at defendant’s
expense (id.). Defendant argues that plaintiff is not entitled to those evaluations and records or
to further depositions (id. at 4, 5, 7-9, 10-11). Defendant invokes this Court’s discretion
regarding production of non-party personnel files (id. at 6 & n.2 (applying cited precedent,
although cases applied New York Civil Rights Law § 50-a)), Sidari v. Orleans County,
180 F.R.D. 226, 231-32 (W.D.N.Y. 1997) (Scott, Mag. J.); Gavenda v. Orleans County,
174 F.R.D. 265, 268-69 (W.D.N.Y. 1996) (Scott, Mag. J.).
Defendant argues that plaintiff fails to show relevance of the performance evaluations of
the named employees (id. at 8) or how the requested information is not more than a fishing
expedition (id. at 9). Plaintiff had used performance evaluations only to impeach and discredit
2

Roy Knapp, Make Arter, Ellen Welker, Jim Hereth, Mark Reineke, Al Burch, Greg Conley, Melissa
Patterson, Al Hayden, Charlie Mosher, Darvan Draper, Dennis Gilbert, Kelly Sears, Hillie LaDue, Jim Lally, and
John Marcum, Docket No. 70, Def. Memo. at 4.

5

witnesses (id. at 10). Defendant next states that the specific requests plaintiff sought did not
exist or were already produced (id. at 9). Defendant concludes that plaintiff failed to show how
these performance evaluations warrants an order to allow additional deposition (id. at 11).
Defendant denies that plaintiff was prejudiced by the afternoon or evening production of
performance evaluation prior to depositions because defendant deems those documents to be
marginally relevant (id. at 10). Personnel documents for five witnesses (Tom Rush, Susan
Gouthro, Robert Duke, Daniel Hesch, and George Miller) were produced back in October 2016
(id.).
Defendant concludes that plaintiff is not entitled to costs for her motion (id. at 11-12).
Plaintiff, in reply (Docket No. 71), argues that personnel records of similarly situated
employees to a plaintiff, supervisors of a plaintiff, and individuals involved in discriminatory
behavior is discoverable (id. at 1-2), Barella v. Village of Freeport, 296 F.R.D. 102, 106
(E.D.N.Y. 2013). She distinguished the cases defendant cites that personnel records need not be
produced (id. at 2). She notes the defendant did not raise any confidentiality concerns and points
to the parties’ Stipulation and Protective Order concerning disclosure in this case (id.; see Docket
No. 34, Stipulation and Order). Plaintiff argues that there is no viable reason for failure to
produce these documents, denying that production is overly broad or unduly burdensome. She
claims the employees’ performance evaluations and training records were relevant “to
demonstrate disparate treatment between those who discriminate, or permit discrimination to
occur, and those who are subject to discrimination” (Docket No. 71, Pl. Reply Memo. at 4). She
still seeks the witnesses’ disciplinary record, arguing that these items also are relevant (id.).
Plaintiff also wants an affidavit from an employee of defendant attesting to what was produced
6

and what was not found, despite defense counsel’s representation of what had been produced (id.
at 6-7). In the event documents produced by defendant on June 30, 2017, or subsequently lead to
additional lines of questioning, plaintiff seeks leave to conduct further depositions of Miller,
Rush, Gouthro, Duke, Moresco, Hesch, and Curtis, at defendant’s expense (id. at 8), citing e.g.,
Adames v. G.B. Restaurants Inc., No. 12CV569, 2014 WL 202380, at *5-6, 2014 U.S. Dist.
LEXIS 5866, at *14-18 (W.D.N.Y. Jan. 16, 2014) (Scott, Mag. J.).
To understand the discovery issues involving the various deposed General Motors’
employees, below is a table of plaintiff’s contentions and defendant’s response.
The first table lists the seven employees plaintiff seeks to continue their depositions following
receipt of additional documents and defendant’s position.
Table 1
GM Employee's
Name

Plaintiff, No. 65

Defendant, No. 70

George Miller

seeking additional documents
¶ 21

Deposed as of June 28, at 4. UAW employee, without General Motors
evaluation, at 10 n.3. Produced documents October 2016, at 10.

Tom Rush

seeking additional documents ¶
21; alleged harasser

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Susan Gouthro

Robert Duke

Michael Moresco

seeking additional documents
¶ 21
seeking additional documents ¶
21, documents regarding posting
of position and hiring of Duke, ¶
24; hired to replace plaintiff
seeking additional documents ¶
21. Evaluations received from
2009-16, ¶ 23. Testified that he
was never asked to pull his own
personnel file, ¶ 25, Ex. K (email
objection)

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.

Deposed as of June 28, at 4. Produced documents April 21, 2017, at 10.

7

Daniel Hesch

Pat Curtis

seeking additional documents, ¶¶
21, 28 (nothing after 2008);
assistant plant manager. Needs to
be deposed, ¶¶ 27-28, scheduled
for June 8, 2017 (June 7 motion),
¶ 28
Deposed as of June 28, at 4. Produced documents Oct. 2016, at 10.
seeking additional documents,
former plant manager, ¶¶ 21, 28,
needs to be deposed, ¶ 27,
scheduled for June 12 (June 7
motion), ¶ 28
No disciplinary records, at 7.

DISCUSSION
I.

Applicable Standards
As previously discussed (Docket No. 59, Order at 8-9), 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 26(b)(2)(i) allows this Court to limit the scope and means for discovery if “the
discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive.” 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).
8

II.

Plaintiff’s Motion to Compel
A.

Document Production
1.

Sixteen General Motors Employees

The next table lists the sixteen witnesses plaintiff also sought additional documents.
Table 2
GM Employee's Name

Pl. No. 65, Atty. Decl.

Roy Knapp
Mike Arter
Ellen Welker
Jim Hereth
Mark Reineke

role not specified ¶ 21
role not specified ¶ 21
role not specified ¶ 21
role not specified ¶ 21
role not specified ¶ 21

Al Burch
Greg Conley
Melissa Patterson
Al Hayden
Charlie Mosher
Darvan Draper
Dennis Gilbert
Kelly Sears
Hillie LaDue
Jim Lally
John Marcum

African-American employee
who complains of
discrimination, ¶ 21
role not specified ¶ 21
role not specified ¶ 21
role not specified ¶ 21
alleged harasser, ¶ 21
role not specified ¶ 21
role not specified ¶ 21
role not specified ¶ 21
role not specified ¶ 21
investigator of plaintiff's
complaints, ¶ 21
role not specified ¶ 21

Def. No. 70

No disciplinary records exist, at 7

No disciplinary records exist, at 7

Hilda LaDue
No disciplinary records exist, at 7
No disciplinary records exist, at 7

As noted in the table, plaintiff did not state the role of the employee witnesses that would make
their performance evaluations relevant to her claims. In her reply, plaintiff claims that these
employees are similarly situated, have been victims or perpetrators of discrimination, or
members of management (Docket No. 71, Pl. Reply Memo. at 3).
9

Defendant cites to cases that involve New York Civil Rights Law § 50-a as a basis for
privilege against producing non-party personnel records (Docket No. 70, Def. Memo. at 6 &
n.2). But those cases involved public sector employers, Sidari, supra, 180 F.R.D. 226; Gavenda,
supra, 174 F.R.D. 265; cf. Johnson v. Riverhead Cent. Sch. Dist., No. CV14-7130(DRH)(AKT),
2016 WL 4507002, at *8-9 (E.D.N.Y. Aug. 26, 2016) (denying plaintiff’s motion to compel
where plaintiff held to have not shown relevance of personnel records, without citing New York
Civil Rights Law), and the Civil Rights Law § 50-a involves personnel records of police officers,
firefighters, and corrections officers, N.Y. Civ. Rights Law § 50-a (see also Docket No. 71, Pl.
Reply Memo. at 2). Here, defendant is seeking to preclude disclosure of personnel records for an
automobile manufacturer. The Northern District of New York case which applied this rationale
outside of the public sector context, Palmer v. New York State Office of Court Admin.,
No. 5:00-CV-0110(FJS/GHL), 2009 WL 1118271, at *1, 2009 U.S. Dist. LEXIS 35714
(N.D.N.Y. Apr. 27, 2009), itself was a public sector action (although it did not involve police
officers, firefighters, or corrections officers; plaintiff there was a court reporter seeking personnel
records of other court reporters). So the evidentiary privilege under New York Civil Rights Law
§ 50-a is not applicable here.
The issue then is under Rule 26 and whether the personnel records (specifically their
performance evaluations and training records) of these employees are relevant to plaintiff’s
claims. The Northern District of New York, in Palmer, supra, 2009 WL 1118271, at *1, noted
that
“Employment discrimination plaintiffs often seek personnel records of employees
not directly involved in the suit in order to develop information needed to make a
comparison between the employment situations of those employees and those of
the plaintiff. However, the required production during pretrial discovery of
10

personnel records of non-party employees—which records invariably contain
sensitive medical, financial and other information of a highly personal nature—is
not generally favored,”
id. at *1 & n.1 (citing, e.g., Sidari, supra, 180 F.R.D. at 231-32; Gavenda, supra, 174 F.R.D. at
268-69; Grady v. Affiliated Central, Inc., 130 F.3d 553, 561 (2d Cir. 1997) (affirming denial of
plaintiff’s motion to compel production of employees’ telephone numbers as being minimally
relevant)). Thus, plaintiff needs to show some relevance of the coworkers’ personnel files to her
claims.
Plaintiff contends that the performance evaluations are relevant because they show
“disparate treatment between those who discriminate, or permit discrimination to occur, and
those who are subject to discrimination” (Docket No. 71, Pl. Reply Memo. at 4), while training
records shows the training (or lack thereof) of these employees (id.) who are either similar to
plaintiff; those who engaged in discriminatory practices, or were supervisory personnel charged
with stopping such practices (id. at 3).
Relevance has two aspects here. First is the relevance of the categories of documents
sought, which plaintiff discusses. The second is the relevance of the employees identified to
have their records produced. Plaintiff only makes the categorical statement that those named are
either similar to her or were her supervisors or allegedly were her victimizers. Plaintiff fails to
identify generally which of the witness employees falls in any of these categories, precluding a
witness-by-witness determination whether performance evaluations or training (or portions
thereof) should or should not be produced for a given witness employee. Plaintiff alleges that
she endured different terms and conditions of employment than similarly situated employees
(Docket No. 1, Compl. ¶ 43). One aspect of that claim may be seen in performance evaluations,
11

but that would apply only to those employee witnesses who were similarly situated and not
necessarily to either supervisory witnesses or alleged discriminators. Therefore, plaintiff’s
motion to compel production of these witnesses’ performance evaluations is only granted in
part and only as to similarly situated employees and not others (such as Charlie Mosher, alleged
harasser, or Jim Lally, management representative who investigated plaintiff’s claims).
As for the training records of all of these employee witnesses, their training (regardless of
the three categories plaintiff divides them into) is relevant to her claims. For management and
alleged harassers, the training shows what they should know and how they should act; for the
similarly situated employees, their training shows whether they were educated in the same
human resources concepts as plaintiff was. As for the last category of employees, the differences
in training may also be a different term or condition of employment claimed in plaintiff’s action.
Thus, plaintiff’s motion to compel production of these documents is granted.
Plaintiff also seeks the disciplinary records of the witness employees. Defendant
contends that some of the employees (see table 2 above) had no disciplinary record. Defendant
can only produce documents that exist and are in its possession, custody, and control, see Fed. R.
Civ. P. 34(a)(1). Where defendant has not produced existing disciplinary records for these
sixteen witnesses, defendant is to produce those records; plaintiff’s motion (Docket No. 65) to
compel their production is granted.
2.

Miller and Six General Motors Witnesses Sought to Be Deposed

Plaintiff also seeks additional documents than what was produced by defendant for the
seven employees (including UAW employee Miller) she wishes to depose again (Docket No. 65,
Pl. Atty. Decl. ¶ 21). Defense counsel claims that defendant produced “complete personnel files
12

(as well as disciplinary documents)” for these witnesses (Docket No. 70, Def. Atty. Decl. ¶ 11).
Defendant’s attorney also states that what has been produced and what records exist (id. ¶¶ 1827; see Docket No. 71, Pl. Reply Memo. at 6-7), but plaintiff insists on a sworn statement from a
representative of defendant confirming what was produced and what was available to be
produced (Docket No. 71, Pl. Reply Memo. at 7-8). An affidavit from person or persons
knowledgeable of defendant’s personnel records should provide an affidavit confirming what
exists, what was produced, and that due diligence was performed looking for the documents
sought by plaintiff (see also Docket No. 59, Order at 12). Defendant, however, did not indicate
that the performance evaluations and training records for these persons were produced, despite
distinguishing “personnel records” from “performance evaluations” and training (see Docket
No. 70, Def. Memo. at 3).
As held above for the sixteen employees plaintiff sought additional personnel records,
plaintiff is entitled to performance evaluations and training records for similarly situated
employees of the six General Motors employees. Since George Miller is a UAW employee,
unless plaintiff establishes that he was similarly situated to her, she is not entitled to production
of his performance evaluations or training records (cf. Docket No. 70, Def. Memo. at 10 n.3).
Thus, plaintiff’s motion (Docket No. 65) to compel production of these records is granted in
part, denied in part.
B.

Resumed Depositions

Plaintiff wants leave to further examine these witnesses in the event documents she
received on June 30, 2017, and based upon whatever she may find in the documents she seeks
produced from defendant reveal lines of questioning that should be pursued (Docket No. 71, Pl.
13

Reply Memo. of July 6, 2017, at 8). First, it is unclear whether plaintiff was required to reopen
the depositions of other witnesses once she obtained the witnesses’ performance evaluation,
training, and disciplinary records. As for the documents received on June 30 for these seven
witnesses, plaintiff has not stated that she either reviewed those documents or identified
examples of new lines of questioning that should proceed from an initial review of this latest
production. Plaintiff had roughly a week (which included a long holiday weekend) to begin
review of the June 30 production to determine which avenues of inquiry could be done if leave to
depose were granted. This Court is not aware of the lines of inquiry plaintiff would have asked
these witnesses had their entire personnel records (including training, evaluations, and
disciplinary records) were provided prior to the examination. Discovery, again, is to provide
material relevant to a claim “and proportional to the needs of the case,” Fed. R. Civ. P. 26(b)(1).
While continued questioning of these employees may discern material for cross-examination
they may not lead to material relevant to plaintiff’s claims. Resuming these witnesses’
depositions appears to be a fishing expedition to undermine the witnesses’ credibility rather than
learn of facts for plaintiffs’ claim.
Plaintiff’s motion (Docket No. 65) for leave to reopen depositions of these witnesses is
denied.
C.

Which Party Bears Costs of Resumed Depositions

Plaintiff previously moved to depose Patrick Curtis and two other General Motors
employees in this District (Docket No. 51), but this Court modified, holding that Curtis could be
deposed but by video conference (Docket No. 59, Order at 15). This Court held that each party
was to bear its respective costs for conducting the video deposition (id. at 16).
14

Plaintiff now moves for defendant to bear the costs for continued depositions (Docket
No. 65) if they are conducted (see Docket No. 71, Pl. Reply Memo. at 8). She argues that since
defendant withheld the documents (or supplied them at the eleventh hour before a deposition)
that a subsequent renewal of these depositions should be at defendant’s expense (Docket No. 71,
Pl. Reply Memo. at 8). In support of that position, she cites Adames, supra, 2014 WL 202380, at
*5-6, 2014 U.S. Dist. LEXIS 5866, at *14-18, in which this Court found that conducting
supplemental depositions in that case would not have occurred but for defendants failure to
produce certain training documents before, id., 2014 U.S. Dist. LEXIS 5866, at *20-21. The
supplemental depositions arose there because defendants failed to produce documents, id. at *11,
and the recovery of plaintiffs’ costs in re-deposing witnesses was considered as a discovery
sanction since defendants delayed in producing documents, with plaintiffs’ counsel stating that
they would seek a contempt Order for fees and expenses for a second trip to depose, id. at *1213, 16-17.
In the other cases cited by plaintiff (Docket No. 71, Pl. Reply Memo. at 8), in Caputi v.
Topper Realty Corp., No. 14-CV-2634 (JFB)(SIL), 2015 WL 2453520, at *8, 2015 U.S. Dist.
LEXIS 67050, at *1, 17-21 (E.D.N.Y. May 22, 2015) (Locke, Mag. J.), defendants sought a
sanction for plaintiff’s failure to produce documents imposition of the costs of the stenographer
for continuing her deposition. Magistrate Judge Locke denied imposing the stenographer’s fee,
finding that plaintiff failed to cite any authority for imposition of that obligation, stating that
“while Fed. R. Civ. P. 30(d)(2) confers discretion on the Court to impose a sanction, including
reasonable expenses and attorneys’ fees, on any person who impedes, delays, or frustrates the
fair examination of a deponent, the Court finds no basis for doing so here,” id., 2015 U.S. Dist.
15

LEXIS 67050, at *20-21. In M.L.C., Inc. v. North Am. Philips Corp., 109 F.R.D. 134 (S.D.N.Y.
1986), the defendant was sanctioned for failure to produce documents, ordering reopening
discovery and depositions with the parties splitting the costs of the renewed depositions, id. at
142.
Defendant counters that plaintiff seeks an overly broad, burdensome, and irrelevant
inquiry in seeking personnel records (broadly defined) for 45 General Motors employees (as well
as at least 1 UAW employee, Miller) where this inquiry was not limited to the issues in this case
(Docket No. 70, Def. Memo. at 11-12). Defendant concludes that plaintiff is not entitled to
recover costs for this motion, either in general or the costs of conducting resumed depositions
(id.).
Given the discretion this Court has in awarding sanctions for failure to produce, if
plaintiff were allowed to resume these depositions, this Court would agree with the procedure
used in M.L.C., with the parties bearing their own respective costs rather than imposing the costs
solely upon defendant. But, as just held above, plaintiff’s motion (Docket No. 65) for leave to
reopen those depositions was denied; as a result, her motion to recover the costs for those
renewed examinations is denied.
III.

Reasonable Motion Expenses
Under Rule 37, the successful party may receive its costs for filing (or defending a

denied) motion to compel, Fed. R. Civ. P. 37(a)(5)(A), (B). But if the motion to compel is
granted in part and denied in part, as was done here (where plaintiff only obtained some of the
documentary production she sought and was denied renewed depositions), the Court may issue

16

an appropriate protective Order and, “after giving an opportunity to be heard, apportion the
reasonable expenses for the motion,” Fed. R. Civ. P. 37(a)(5)(C).
To allow time for any objection to this Order, see Fed. R. Civ. P. 72(a), the fee
applications are due fourteen (14) days from entry of this Order. Opponent’s response to the fee
applications is due twenty-one (21) days from entry of this Order. Any fee application will be
deemed submitted after that twenty-one days without oral argument (unless scheduled by this
Court after review of the application). Any application should include the expenses claimed by
the applicant (including attorney’s fee, time expended by counsel, rate counsel is charging, and
years of practice and federal experience of counsel). Parties also should address whether
imposition of motion cost recovery is justified under Rule 37 or whether the failure to produce
the sought items was somehow justified, see Fed. R. Civ. P. 37(a)(5).
IV.

Amended Scheduling Order
Given resolution of plaintiff’s latest motion to compel and to allow time for the parties to

complete discovery provided for herein as well as any other outstanding discovery, the discovery
deadline (and subsequent deadlines) will be reset. The Third Amended Scheduling Order
(Docket No. 59), as amended (Docket Nos. 63, 66) is amended as follows:
FOURTH AMENDED SCHEDULING ORDER
Motions to compel discovery are due by September 29, 2017;
Discovery (including expert disclosure) completed by October 30, 2017;
Dispositive motions now due by January 30, 2018;
Referral to mediation ends by February 9, 2018;

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If no dispositive motions are filed, a Status Report is due by February 28, 2018, to the
undersigned. A Status Conference is set for Wednesday, March 7, 2018, at 10:15 am, before
the undersigned.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 65) to compel is granted in
part, denied in part as specified herein. The fee applications are due fourteen (14) days from
entry of this Order. Opponent’s response to this application is due twenty-one (21) days from
entry of this Order. The applications will be deemed submitted without oral argument (unless
argument is subsequently scheduled by this Court following review of the application and
opposing papers).
The Third Amended Scheduling Order (Docket Nos. 63, 66) is amended as outlined
above.
So Ordered.

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

Dated: Buffalo, New York
July 26, 2017

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