Black v. Buffalo Meat Service, Inc. d/b/a Boulevard Black Angus a/k/a Black Angus Meats a/k/a Black Angus Meats & Seafood et al
Filing
32
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting in part and denying in part 28 Motion to Expedite; granting 28 Motion to Compel; granting 28 Motion for Extension of Time to Complete DiscoveryScheduling Order amended (and to be entered in a separate Order).So Ordered. Signed by Hon. Hugh B. Scott on 11/29/2016. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DARCY M. BLACK,
Plaintiff,
Hon. Hugh B. Scott
15CV49S
v.
Order
BUFFALO MEAT SERVICE, INC., et al.,
Defendants.
Before the Court is plaintiff’s motion to compel defendants to comply with this Court’s
Order (Docket No. 27, Order of Aug. 16, 2016, familiarity with which is presumed; see also
Docket No. 23, plaintiff’s original motion to compel) to provide complete responses to
Paragraphs 8, 12, and 13 of her First Request for Production of Documents; granting an
expedited hearing; granting relief from the August 16, 2016, Order to compel production of
complete personnel documents; and granting extension of the Second Amended Scheduling
Order (see Docket No. 27) by 90 days (Docket No. 28). Responses were due by November 15,
2016, with any reply due by November 22, 2016 (Docket No. 29), with the Scheduling Order
(Docket No. 27) deadlines held in abeyance pending resolution of this motion (Docket No. 29).
Defendants submitted their Memorandum of Law in response to this motion (Docket
No. 30) but no responding affidavit, see W.D.N.Y. Local Civ. R. 7(a)(3) (motions and opposition
to most motions “shall be supported by at least one (1) affidavit and by such other evidence . . .
as appropriate to resolve the particular motion”). Plaintiff filed her Reply Memorandum and her
attorney’s Reply Declaration (Docket No. 31).
BACKGROUND
Plaintiff makes claims under several federal and New York State civil rights and
employment discrimination laws (Title VII, the Civil Rights Act of 1964, the Equal Pay Act,
42 U.S.C. § 1981, New York State Human Rights Law), contending that defendant employers
created a hostile work environment on the basis of race and sex and had constructively
discharged her (Docket No. 2, Compl.). She claims that male coworkers were paid more than
she was and were allowed more breaks than she was; that her coworkers made sexual and racial
comments; that the shop rejected African American applicants (although plaintiff is a Caucasian
female); and a coworker allegedly made comments regarding her biracial children (see id.;
Docket No. 25, Defs. Memo. at 1).
Defendants answered (Docket No. 8), asserting 28 affirmative defenses, about half of
them declaring that each of plaintiff’s ten causes of action failed to state a claim (id. ¶¶ 154-82;
see also id. at pages 17-18 (Reservation of Rights as to named affirmative rights and reserve
right to other, unnamed defenses)). This case was referred to the undersigned (Docket No. 9)
and a Scheduling Order was entered (Docket No. 13; see Docket Nos. 10 (Scheduling
Conference Notice), 11 (plaintiff’s proposed discovery plan), 12 (minutes from Scheduling
Conference)) and later was amended (Docket No. 22).
Plaintiff later moved to compel responses to her discovery demands (Docket No. 23),
which was granted in part, denied in part (Docket No. 27, Order of Aug. 16, 2016). The
Scheduling Order again was amended when this initial motion to compel was decided (Docket
2
No. 27); discovery then was due by December 15, 2016, with expert disclosures due by October
31, 2016 (from plaintiff), and November 30, 2016 (from defendants) (id.).
Plaintiff filed her present motion to compel and for expedited hearing (Docket No. 23).
So much of that motion for an expedited hearing was denied in part (Docket No. 29); a standard
briefing schedule was entered for the remainder of this motion (id.) but the discovery deadlines
of the Scheduling Order (cf. Docket No. 27) were held in abeyance pending resolution of this
motion (Docket No. 29).
DISCUSSION
I.
Motion Practice under Local Rule 7
This Court’s Local Rule 7(a)(3) requires movants and opponents to file an affidavit and
such evidence (such as deposition testimony, Interrogatory answers, admissions, or documents)
as appropriate to resolve the motion, W.D.N.Y. Loc. Civ. R. 7(a)(3). “Failure to comply with
this requirement may constitute grounds for resolving the motion against the non-complying
party,” id. (emphasis added).
Plaintiff in her reply urges that defense response be stricken since it did not comply with
Local Rule 7(a)(3) because it was without an affidavit or other evidence (Docket No. 31, Pl.
Atty. Reply Decl. ¶ 3; Docket No. 31, Pl. Reply Memo. at 4). She concludes that “since
Plaintiff’s Motion is predicated on Defendants’ failure to appropriately respond to this Court’s
prior Order filed August 16, 2016, failure to comply with outstanding discovery requests, and
material misrepresentations made by them, the failure to offer a sworn statement refuting the
facts set forth in the Declaration of Josephine A. Greco in support of Plaintiff’s Motion (Dkt. 28-
3
1) renders their opposition papers deficient and warrants a ruling against them on this Motion”
(Docket No. 31, Pl. Reply Memo. at 4).
Local Rule 7 provides a ground for striking non-compliant motion or responding papers.
But that Rule does not require the striking of a non-compliant paper. In Lewis v. FMC Corp.,
No. 04CV331, 2008 WL 4500185 (W.D.N.Y. Sept. 30, 2008), the defendant sought to strike
plaintiffs’ motion for partial summary judgment because it lacked a then called Rule 56.1
statement and no memorandum of law with “meaningful factual or legal argument,” id. at *1.
Judge William Skretny agreed because the warning in the Local Rules that non-compliance with
this rule “constitutes grounds for denial,” id., and the plaintiff’s counsel1 had been previously
warned to comply with these rules, id., citing Lester v. M&M Knopf Auto Parts, No. 04CV850,
2006 WL 2806465, at *1 (W.D.N.Y. Sept. 28, 2006) (Skretny, J.) (defense motion for summary
judgment); see Lester, 2006 WL 2806465, at *1 & n.3 (plaintiff’s non-compliance caused
defense to file multiple reply memoranda and adjournment of oral argument)2. Plaintiffs’
counsel had opportunities to respond and address defendant’s motion to strike but failed to do so,
so Judge Skretny denied plaintiffs’ motion and granted defendant’s motion to strike, Lewis,
supra, 2008 WL 4500185, at *1. Based on these repeated failures to comply with the Local
Rules, the Court struck plaintiffs’ motion, id.
Here, defendants rely upon their production prior to plaintiff’s first motion to compel,
asserting in their Memorandum that they subsequently produced all earning records (Docket
No. 30, Defs. Memo. at 2) and attached exhibits to the Memorandum of examples of tax
1
David Seeger, Esq.
2
Despite granting the motion to strike plaintiff’s filings for noncompliance with Local Rules, plaintiff still
cited to the struck papers but those papers were not considered, 2006 WL 2806465, at *1 & n.2.
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statements that were produced (id., Exs. A., B). Defendants in their response did not submit a
copy of what was served as discovery or describe (for example, the number of additional pages
served, the years and names of employees personnel and payroll records that were submitted)
what they subsequently produced. The better practice would have been to swear an affidavit as
to what was produced after the August 16, 2016, Order and attach exhibits to that document.
Even though this Court disfavors, Fed. R. Civ. P. 5(d)(1), filing discovery responses (aside from
pro se actions, cf. W.D.N.Y. Loc. Civ. R. 5.1(f)), the issue here is what was (or was not)
produced.
Unlike the plaintiff in Lewis, supra, defendants here presented facts (perhaps not in an
admissible format) in response to plaintiff’s motion. This Court is not completely in the dark as
to the defense’s factual position on the present motion. Admissibility, unlike in a dispositive
motion, such as Rule 56 or Rule 12, with their own specific rules addressing this concern, see
Fed. R. Civ. P. 56(c)(1), (2); W.D.N.Y. Loc. Civ. R. 56(a)(1), (2) (movant’s and opposing
statements), 7(a)(3) (excepting Rule 12 motions from affidavit and admissible evidence
requirement), is less of an issue for a procedural motion such as here to compel production. The
factual dispute here is whether defendants complied with this Court’s Order and what was (or
was not) produced to plaintiff. Also, there is no record of prior complaints that defense counsel
here has failed to comply with Rule 7(a)(3), cf. Lewis, supra, 2008 WL 4500185.
Rather than either grant plaintiff relief and strike defendants’ present response or delay
further this action and require a defense affidavit to respond to the present motion, this Court will
address the merits of the contentions on the present record.
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II.
Discovery
Familiarity with discovery standards announced in the initial Order (Docket No. 27,
Aug 16, 2016, Order at 9-10) is presumed.
A.
Complete Discovery Responses
Plaintiff seeks “complete responses” to Paragraphs 8, 12, and 13, of her First Request for
Production of Documents (Docket No. 28, Pl. Atty. Decl. ¶ 13, Ex. A). Request No. 8 seeks
production of defendants’ manuals, handbooks, procedures and policies on a myriad of human
resource issues (Docket No. 23, Pl. Atty. Decl. Ex. B). Defendants’ initial disclosures identifies
as documents within their custody, possession and control “Buffalo Meat Service, Inc.’s,
employee practices, policies and procedures” (id. Ex. K). While focused on the number of
Interrogatories posed (Docket No. 25, Defs. Memo. at 10-15) and the proportionality of
plaintiff’s discovery in general (id. at 4-10) and for Request No. 8 specifically (id. at 7-8),
defendants responded to Request No. 8, objecting that the request was overly broad, unduly
burdensome, and not likely to lead to discoverable material and referred to documents already
produced (Docket No. 23, Pl. Atty. Decl. ¶ 21, Ex. H; cf. id.,; Docket No. 26, Pl. Reply Memo. at
4 (Request No. 8 seeking defendants’ company policies)). Plaintiff responded that no manuals,
handbooks, policies or procedures were produced (Docket No. 23, Pl. Atty. Decl. ¶ 21). Without
a temporal limitation, defendants rejected producing responses to this Request because producing
these items “would have zero bearing on the claims or defenses in this action” (Docket No. 25,
Defs. Memo. at 8). In the correspondence prior to the motion to compel, plaintiff offered to limit
Request No. 8 to start from plaintiff’s first date of employment forward “since any such
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handbooks, policies and procedures would be applicable to Ms. Black had she not been
discharged as a result of discrimination” (Docket No. 23, Pl. Atty. Decl. Ex. I at 4).
In Request No. 12, plaintiff seeks “all W-2 Statements, Form 1099, and other tax
documentation for the period of January 1, 2004 to the conclusion of this action for every
individual who was employed by, contracted to work for, or did work on behalf of Defendants”
(Docket No. 23, Pl. Atty. Decl. Ex. B). Again, defendants objected to this request being overly
broad, vague and ambiguous, and not likely to lead to discoverable material (id. ¶ 22), claiming
that these items were not in their possession (id.) a claim plaintiff flatly rejects (id.). She
contends that defendants are obligated to retain W-2 statements of employees and contractors
(id.).
Request No. 13 seeks “all payroll records reflecting the salaries, compensation and/or
benefits paid to employees, individuals contracted to work for Defendants and individuals who
worked on behalf of Defendants from January 1, 2004 through the present, indicating the pay
and/or wages of such individual whether such pay and/or wages was by check, cash, or like-kind
benefits” (id., Ex. B). Over their objections, defendants produced payroll ledgers from 2005 to
2010 (id. ¶ 23). On or about September 21, 2016, defendants produced electronic records of
Payroll Pre-Check Writing reports for 2005-10, and not W-2 statements save for 2006 (id. ¶ 14),
and no records for plaintiff’s earnings in 2011 (id.¶¶ 15, 22). Plaintiff continued to request
production of W-2 “statements” (that is, those statements issued by the Internal Revenue Service
or the New York State Department of Taxation and Finance) and instead received defensegenerated W-2 reports with defendants claiming that no further W-2 statements other than those
already produced would be furnished (id. ¶ 18) (for 2006 only, id. ¶¶ 14, 19). Plaintiff argues
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that defendant Buffalo Meat Service, Inc., was required to maintain W-2 statements (id. ¶ 18).
She also contends that she cannot verify that the information in defense W-2 reports is the same
as contained in W-2 statements (id.). These W-2 statements are necessary due to inconsistent
documents defendants have furnished to the EEOC, stating that some employees had different
salaries than were reported elsewhere (id. ¶¶ 20-21, 24).
Defendants respond that plaintiff’s motion to compel should be denied because after
producing 500 pages of documents, defendants produced earnings records for all counter
workers for defendants and still plaintiff “wants more: the production of documents which this
Court has already determined are outside the scope of proportionality” (Docket No. 30, Defs.
Memo. at 2-4). Defendants produced examples of the Pre-Check Writing Report (id., Ex. A),
and W-2 reports (id., Ex. B) that were produced to plaintiff. Defendants produced all weekly
payroll reports for all employees from 2005 to 2010, the years plaintiff worked for defendant
Buffalo Meat Service (id. at 1); plaintiff demands more, seeking additional payroll records for
employees up to the present (id. at 2). Defendants declare that plaintiff mischaracterized this
Court’s August 16 Order by stating that defendants had to produce all W-2s and the like (id. at
3). Defense counsel advised plaintiff’s counsel that, aside from the W-2s already produced, the
additional documents sought did not exist (id. at 3 & n.3). Defendants point out that any
inconsistencies in the records could be addressed in depositions (id. at 4 n.4).
In reply, plaintiff argues that this Court ordered defendants to produce documents for her
Equal Pay Act claim (Docket No. 31, Pl. Atty. Reply Decl. ¶ 4). While contending that
defendants are a “mom and pop” store, plaintiff contends that defendants are the sole source of
the information sought by plaintiff and that it is critical to calculation of her damages (id. ¶ 6).
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Defendants fail to explain (in a sworn statement or otherwise) why they have W-2 statements for
2006 only (id. ¶ 7). She also claims that defendants do not oppose information regarding the
costs of benefits and the criteria for employees to qualify for them (id. ¶ 8) as well as timesheets
(id.), although defendants question producing these timesheets as duplicative, unnecessary
(Docket No. 30, Defs. Memo. at 3-4, & 3 n.3).
1.
Request No. 8, Defendants’ Handbooks, Manuals, Policies and Practices
The parties have not addressed specifically Request 8, the manuals and policy statements
of defendants, beyond defendants’ proportionality arguments addressed in the first Order (see
Docket No. 27, Order of Aug. 16, 2016, at 12-15) and their claim in their initial response that the
documents were provided within the over 500 pages of disclosed documents. That
proportionality analysis still stands; regarding this particular request, as defendants noted
(Docket No. 25, Defs. Memo. at 7-8), this request expansively requires production on virtually
every aspect of employment with defendants.
Given that it is a self-characterized “mom and pop shop” (Docket No. 30, Defs. Memo. at
5), there may not be many responsive documents and those may have been produced. What
defendants have not identified (in their initial response, in response to the initial or this pending
motion) is which of the 500 pages of initially produced material or the unknown number of
subsequently produced discovery are responsive to plaintiff’s demand for handbooks, manuals
and alike. Unlike the W-2 statements (cf. Docket No. 30, Defs. Memo. at 3), defendants do not
claim that no handbooks exist. Plaintiff argues that no manuals, handbooks or the like were
produced. This Court’s earlier declaration that defendants’ production as of the first motion was
sufficient and proportionate (Docket No. 27, Order at 15) assumed that when defendants claimed
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responsive documents were produced among the 500 plus pages that the particular request was
met. Defendants’ hiring and personnel policies and procedures are relevant to plaintiff’s claims.
If such document or series of documents exist, their production would not be disproportionate
relative to the claims and defenses in this case. As the self-proclaimed “mom and pop”
operation, defendants may not have as many documents responsive to this request as a Fortune
1000 corporation, but such documents should be produced or defendants should identify which
already produced documents respond to this request. Plaintiff’s motion compelling this
production is granted.
2.
Requests 12 and 13, Tax and Payroll Records
The bulk of the argument (both in this part of the motion and the reconsideration motion)
focus on Requests 12 and 13, regarding payroll documents and W-2 statements. Plaintiff claims
that she was constructively discharged on May 25, 2010 (Docket No. 2, Compl. ¶¶ 47-49), but
her claims are for lost future wages (e.g., id. ¶ 58), making wages paid since 2010 relevant. But
relevant is one aspect of what is now discoverable under the amended Rule 26; a key factor is the
proportionality of obtaining relevant material.
Plaintiff’s new motion initially does not address proportionality. She argues the rationale
for the complete responses sought without weighing, for example, the effort to obtain all W-2
statements sought with the scope of the claims and defenses asserted. Plaintiff seeks extensive
records from what defendants characterize as a “mom and pop” operation (see Docket No. 30,
Defs. Memo. at 5; but cf. Docket No. 31, Pl. Reply Memo. at 1). This Court denied her original
motion to compel the full extent of coworkers’ personnel records, including W-2s, sought by
plaintiff on proportionality grounds, finding that defendants’ production (of 500 pages) was
10
sufficient and proportionate (see Docket No. 27, Order at 12-15). Again (id. at 14), looking at
the totality of the requests compared with the claims at issue, the extent of the requests remain
disproportionate to the claims at issue here, even if the focus is narrowed to three of the requests.
This Court then found that defendants’ proposal to supplement their discovery with “earning
records for plaintiff’s comparable subject” to be sufficient and proportionate (id. at 15). Plaintiff
apparently took this to be acceptance by the Court (and presumably defendants) to the full scope
of her initial demands; plaintiff is correct. The August 16, 2016, Order recognized that
defendants had to produce additional documents responsive to plaintiff’s Equal Pay Act claims,
documents defendants agreed to produce in addition to the 500 pages already produced (Docket
No. 27, Order at 15) that would be responsive to Requests 12 and 13. Defendants claim (in an
unsworn statement) to have provided all earning records (Docket No. 30, Defs. Memo. at 2) but
only produced one year’s worth of W-2 statements. Here is where failure to follow Local
Rule 7(a)(3) hampers the assessment of defendants’ compliance. The proportionality argument
is put aside since defendants and this Court agreed to additional production to address the Equal
Pay claims. Absent evidence (sworn statement or other admissible proof) of what defendants
produced in response to these claims, or a statement that such documents do not exist (cf. Docket
No. 30, Def. Memo. at 3), defendants are to produce documents responsive to Requests
Nos. 12 and 13.
Plaintiff’s motion to compel responses to Requests 8, 12, and 13 (Docket No. 28) is
granted.
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B.
Revisiting Decision on Employees’ Personnel Records
1.
Rule 60(b) Grounds
On her first motion to compel (Docket No. 23, Pl. Atty. Decl. ¶¶ 12, 15, Ex. I, at 1-2,
Ex. B, Request No. 1; see Docket No. 27, Order of Aug. 16, 2016, at 3), plaintiff sought
personnel records from defendants and employees similarly situated to her. This Court denied
her motion to compel the full extent of coworkers’ personnel records, including W-2s, sought by
plaintiff on proportionality grounds, finding that defendants’ production (of 500 pages) was
sufficient and proportionate (see Docket No. 27, Order at 12-15). In reply, plaintiff argues that
this Court erred in ruling that defendants are not obligated to produce personnel records of
similarly situated coworkers (Docket No. 31, Pl. Atty. Reply Decl. ¶ 11; Docket No. 31, Pl.
Reply Memo. at 9), e.g., Barella v. Village of Freeport, 296 F.R.D. 102, 106 (E.D.N.Y. 2013)
(rejecting privacy argument for production of records from 24 allegedly similarly situated
individuals); Ladson v. Ulltra East Parking Corp., 164 F.R.D. 376 (S.D.N.Y. 1996) (personnel
records to be produced since records were relevant to plaintiff’s claim in Title VII action).
Given the lack of production following the Order, plaintiff now argues that the denial of
coworkers’ personnel files should be revisited (Docket No. 28, Pl. Atty. Decl. ¶ 29). She also
contends that misrepresentations discussed above (discrepancies between disclosures to EEOC
and the Pre-Check Writing Reports, difference in stated health insurance benefits, failure to
produce handwritten timesheets, id. ¶¶ 18-26) led plaintiff to renew her request for additional
discovery (id. ¶ 27).
Defendants respond that plaintiffs have not shown what had been overlooked in the first
motion to justify revisiting it (Docket No. 30, Defs. Memo. at 4). Plaintiff’s frustrations in the
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types and amount of documents produced are essentially the product of “the kind of records of
tiny operation typically creates and maintains” (id. at 5 n.5) and plaintiff’s motion seeks to
burden a “‘mom and pop’ shop sued in this action with expense it cannot handle” (id. at 5).
Under Rule 60(b) (invoked by plaintiff for this reconsideration, see Docket No. 28, Pl.
Atty. Decl. ¶ 28), grounds for relief from an Order include mistake, inadvertence, surprise or
excusable neglect, Fed. R. Civ. P. 60(b)(1), fraud, misrepresentation or misconduct by the
opponent, Fed. R. Civ. P. 60(b)(3), or any other reason, Fed. R. Civ. P. 60(b)(6) (id.). This Court
has the discretion to reconsider and it is “generally granted only upon the showing of exceptional
circumstances,” Holmes v. Fischer, No. 09CV829, 2013 U.S. Dist. LEXIS 87124, at *31
(W.D.N.Y. June 20, 2013) (Foschio, Mag. J.) (citations omitted) (Docket No. 30, Defs. Memo. at
4); DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (to obtain relief under
Rule 60(b)(6), party must demonstrate extraordinary circumstances or extreme and undue
hardship). As repeated by Magistrate Judge Foschio,
“ ‘ “The standard for granting such a motion is strict and reconsideration will
generally be denied unless the moving party can point to controlling decisions or
data that the court overlooked - matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” ’ Id. (quoting Shrader v.
CSX Transportation, Inc., 70 F.3d 255 (2d Cir. 1995)),”
Holmes, supra, 2013 U.S. Dist. LEXIS 87124, at *31. Under Rule 60(b)(3), the movant must
produce “clear and convincing evidence” of fraud or misconduct, Fleming v. New York Univ.,
865 F.2d 478, 484 (2d Cir. 1989), and must show that the conduct “prevented the movant from
fully and fairly presenting his case,” Catskill Dev., LLC v. Park Place Entm’t Corp., 286 F.
Supp. 2d 309, 312 (S.D.N.Y. 2003); Ledgerwood v. Ocwen Loan Servicing LLC, No. 15 Civ.
1944, 2016 U.S. Dist. LEXIS 2363, at *14 (E.D.N.Y. Jan. 7, 2016).
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Courts in another circuit have held that a discovery Order is not the Judgment or Order
contemplated by Rule 60(b), Khan v. Dell Inc., Civil Action No. 09-3703 (MAS) (TJB),
2013 U.S. Dist. LEXIS 62030, at *6-7 (D.N.J. Apr. 26, 2013); see also Torres v. Chater,
125 F.3d 166, 168 (3d Cir. 1997) (example of a non-final Order is a discovery Order, for
appellate jurisdiction); Penn W. Assocs. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004) (Rule 60(b)
applies to final judgments and orders, defined as those which end the litigation on the merits).
The interlocutory nature of a discovery Order has been accepted by the United States District
Court for the Northern District of New York to preclude reconsideration under Rule 60, Franzon
v. Massena Mem. Hosp., 189 F.R.D. 220, 223 (N.D.N.Y. 1999) (citing Torres, supra, 125 F.3d at
168; Student Loan Mktg. Ass’n v. Lipman, 45 F.3d 173, 175 (7th Cir. 1995)). Thus, plaintiff’s
motion to reconsider a non-final discovery Order may not be reconsidered under Rule 60(b).
Nevertheless, taking each basis cited under Rule 60(b) in turn, plaintiff has not shown
any mistake, inadvertence, surprise or excusable neglect for revisiting the decision limiting the
discovery sought here under Rule 60(b)(1). Her arguments go to actions following entry of this
Order, showing that defendants’ responses were somehow evasive and thus plaintiff deserves
more production.
On her argument that this Court erred in not allowing plaintiff to seek personnel records
from similarly situated coworkers (Docket No. 31, Pl. Reply Memo. at 9), this addresses the
relevance of these documents, see Ladson, supra, 164 F.R.D. at 377-78, but not the
proportionality of obtaining them relative to the claims and defenses in this case. Proportionality
calls on all parties to consider this factor in discovery (for example at the Rule 26(f) conference),
Fed. R. Civ. P. 26 advisory committee’s note, 2015 amendments. A problem arises if a party
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then chooses (in an effort to only produce what is believed to be a proportionate amount of
material for the issues in the case) decides to produce the wrong subset of relevant documents
but in a proportionate number.
As for Rule 60(b)(3), plaintiff has not established any fraud or misrepresentation (at least
insofar as defendants’ position in the initial motion). The fraud under this rule is directed at
fraud upon the Court, see Green v. Schmelzle, No. 11CV6063, 2016 U.S. Dist. LEXIS 134061,
at *4-5 (W.D.N.Y. Sept. 28, 2016) (Wolford, J.); see also Lutin Invs., Ltd. v. Nigerian Nat’l
Petro. Corp., No. 12-cv-5191, 2016 U.S. Dist. LEXIS 25830, at *11 & n.51 (S.D.N.Y. Mar. 2,
2016) (giving examples of fraud upon the court, such as bribery of judge, jury tampering, or
hiring an attorney with the sole purpose of improperly influencing a judge; citation omitted).
While plaintiff arguably has shown that the absence of this material prevents her from fully and
fairly presenting her case, no fraud upon this Court has been shown. In her reply, plaintiff claims
that defendants do not dispute her factual contention that defendants made misrepresentations to
this Court and to plaintiff in its production, pointing to defendants’ material misrepresentations
to the EEOC and to plaintiff as to wages paid to direct comparators (Docket No. 31, Pl. Atty.
Reply Decl. ¶ 10). While those misrepresentations may be material regarding the ultimate
disposition of the case, they are not material for deciding plaintiff’s motion to compel, that is
what defendants are to produce and not whether what is produced is consistent with prior
disclosures to the EEOC. Any such discrepancies can be the subject at trial regarding
defendants’ credibility.
The closest plaintiff comes to reconsideration is alleging misconduct by defendants
(under Rule 60(b)(3)) or (under Rule 60(b)(6)) the catch-all “any other reason that justifies
15
relief”. The purported misconduct here is defendants not producing all the payroll and personnel
records plaintiff initially sought and producing documents that show inconsistencies with what
was reported to the EEOC. But this Court’s August 16th decision held that defense production in
these areas was sufficient given the proportionality of what plaintiff requested with the issues in
this case assuming further production for plaintiff’s Equal Pay Act claim (Docket No. 27, Order
at 15). Again, the decision was not tied to the truthfulness or consistency of what was produced;
this was due in part because the question was whether to produce not its content and neither
party produced in the initial motion (or this motion) copies of the documents that plaintiff now
disputes.
Plaintiff’s motion to reconsider the scope of this Court’s earlier Order regarding
compelling discovery is denied on Rule 60(b) grounds.
2.
Rule 37
Since this dispute arises in discovery, Rule 37 informs what relief is available. Failure to
comply with a Court Order (arguably what plaintiff is claiming in the first part of this discussion)
can result in such relief as directed findings of fact, evidence preclusion for withheld material,
striking of pleadings, and entry of judgment in the movant’s favor, Fed. R. Civ.
P. 37(b)(2)(A)(i)-(vii); there is no provision for the Court to re-examine the violated Order to
expand its scope or to reconsider aspects of the original motion to compel added production that
was rejected. These sanctions under this Rule have dispositive consequences (from limiting or
precluding evidence to dismissal of claims and actions) rather than reopening or reexamining the
scope of discovery. In addition to these sanctions, this Court has the discretion to issue Orders
16
that are just, id. R. 37(b)(2)(A); see Wayne D. Brazil, 7-37 Moore’s Federal Practice—Civil
§ 37.51[10] (2016).
Essentially, plaintiff seeks either to reopen her earlier motion to compel or to file a new
motion (in light of the discovery produced to date following the Order on her first motion). But,
as addressed in the first motion and discussed above, plaintiff does not address the
proportionality of all that she seeks (or renews in seeking) in discovery from defendants relative
to the claims and defenses in this action. Save where this Order compels further (or renews the
call for further) production, plaintiff’s motion to reexamine this Court’s Order on her initial
motion to compel (Docket No. 28) is denied. Given the responses ordered for plaintiff’s
Requests discussed above, reopening her initial motion is also moot.
III.
Third Amended Scheduling Order
After holding deadlines in abeyance pending resolution of the discovery motion and in
response to plaintiff’s alternative motion to extend the Scheduling Order deadlines (Docket
No. 28, Pl. Atty. Decl. ¶ 2 (seeking additional 90 days); see also id. ¶¶ 30-35, 36-37, Exs. C, E;
Docket No. 31, Pl. Reply Memo. at 9-10; Docket No. 31, Pl. Atty. Reply Decl. ¶¶ 13-15), the
deadlines now need to be revisited and restarted. Defendants objected to an extension tied to a
motion to compel (Docket No. 28, Pl. Atty. Decl. ¶ 36) after agreeing to an extension (id. ¶ 35,
Ex. C). Defendants now contend that they will “accept whatever indulgence the Court will
grant,” but blaming plaintiff for being slow in providing authorizations and now complaining
that her health precludes a more timely deposition (Docket No. 30, Defs. Memo. at 1).
An extension is warranted. Defendants’ sole objection was tying this schedule to the
motion to compel. The practical effect of consideration of that motion caused a delay. Plaintiff
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stated that she is injured and is unable to participate in discovery right now (id. ¶¶ 32, 33). Thus,
the Scheduling Order needs to be amended to allow parties to complete discovery, including the
responses ordered in herein and addressing issues surrounding plaintiff’s claim of constructive
discharge due to her new injuries (id. ¶¶ 32, 34). The Second Amended Scheduling Order
(Docket No. 27) deadlines are now amended as follows (to run from the entry of this Order):
THIRD AMENDED SCHEDULING ORDER
Plaintiff’s expert disclosure is now due by March 1, 2017, or 90 days from entry of this
Order;
Defendants’ expert disclosure is due by April 3, 2017;
Motions to compel discovery now due by March 17, 2017;
All discovery now is to be completed by April 18, 2017;
Dispositive motions are due by July 17, 2017;
Referral to mediation ends by July 31, 2017;
If no motions are filed, a status report is due to the undersigned by July 31, 2017. A
Status Conference will be held on Wednesday, August 9, 2017, at 10:30 am, before the
undersigned to discuss the readiness of the case for trial before Judge Skretny.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 28) to expedite hearing is
denied in part, given the briefing period for this motion (Docket No. 29) was the typical
schedule for motions and the holding in abeyance of discovery deadlines; her motion to compel
further production from defendants (Docket No. 28) is granted; and her motion to revisit denial
of her earlier motion to compel production of coworkers’ personnel records is denied as moot.
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Her motion (id.) to extend the Second Amended Scheduling Order (Docket No. 27) is granted;
the new deadlines are stated above.
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
November 29, 2016
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