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 48

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 40 Order, Scheduling Order, Set Deadlines, Terminate Motions, 42 First MOTION for Reconsideration filed by Buffalo Meat Service, Inc. d/b/a Boul evard Black Angus a/k/a Black Angus Meats a/k/a Black Angus Meats & Seafood, 47 Text Order, Scheduling Order, Terminate Scheduling Order Deadlines, Terminate Motions, Motions terminated: 42 First MOTION for Reconsideration filed b y Buffalo Meat Service, Inc. d/b/a Boulevard Black Angus a/k/a Black Angus Meats a/k/a Black Angus Meats & Seafood.Defendants' Motion for Reconsideration (Docket No. 42) of previous Order (Docket No. 40) is granted. As a resul t, plaintiff's Motion (Docket No. 34) to compel is granted; defendants' Cross-Motion (Docket No. 36) to compel is granted in part, and deemed moot where plaintiff has produced, as specified in this Order. Specifically, plaintiff is to prod uce her redacted tax returns. Plaintiff's earlier motion (Docket No. 28) remains denied.The Fourth Amended Scheduling Order (Docket No. 40) deadlines remain as ordered. Plaintiff's expert disclosure due 9/29/2017; defense expert disclosure due 10/30/2017.So Ordered. Signed by Hon. Hugh B. Scott on 6/23/2017. (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 this Court is defendants’ motion (Docket No. 42) to reconsider the Order of
March 31, 2017 (Docket No. 40), which (relevant to the reconsideration motion) granted
plaintiff's motion (Docket No. 34; see Docket Nos. 23, 28; see also Docket Nos. 27, 32 (Orders
on plaintiff’s previous motions)) to compel production of further payroll and tax documentation
from defendants, and granting only in part defendants’ own motion (Docket No. 36) to compel
plaintiff to produce her tax returns.
Responses to the motion for reconsideration were due by April 20, 2017 (Docket No. 43),
which plaintiffs submitted (Docket No. 44). Replies were due by April 27, 2017 (Docket
No. 43), which defendants provided (Docket No. 45). The motion thus was deemed submitted
without oral argument (Docket No. 43). The portion of the parties’ respective previous motions
to compel seeking recovery of reasonable motion costs (see Docket No. 40, Order at 10) was
held in abeyance pending the reconsideration motion (Docket No. 43).

Familiarity with the prior proceedings, especially the discovery motion practice and
Orders in this action (Docket Nos. 23, 25-26, 27 (first Order), 28, 30-31, 32 (second Order), 33
(3rd Amended Scheduling Order1), 34, 36, 38, 39, 40 (third Order), 41 (transcript of Mar. 16,
2017, argument)) is presumed.
Separately, the parties jointly moved (Docket No. 46) to extend the Scheduling Order
(Docket No. 40, Fourth Amended Scheduling Order), which was granted (Docket No. 47). In
this Order, deadlines will be expressly extended for parties to complete expert discovery and
disclosure.
BACKGROUND
This employment discrimination action was commenced by plaintiff alleging violations
of federal (Title VII, the Civil Rights Act of 1964, the Equal Pay Act, and 42 U.S.C. § 1981) and
New York State law (New York State Human Rights Law). Plaintiff claims that defendants
created a hostile work environment on the basis of race and sex and had constructively
discharged her. (Docket No. 1, Compl.) As previously stated (Docket No. 32, Order of Nov. 29,
2016, at 2-3, Black v. Buffalo Meat Serv., 2016 U.S. Dist. LEXIS 164441, at *2-4; Docket
No. 27, Order of Aug. 16, 2016, at 2), plaintiff 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 Docket
No. 1, Compl.; Docket No. 25, Defs. Memo. at 1). Plaintiff worked at Buffalo Meat Service

1

Defendants point to a “typographical error,” Docket No. 42, Defs. Memo. at 3 n.1, regarding these two
Orders. Docket No. 32 is the Order deciding the motion to compel and included the Third Amended Scheduling
Order, id. at 17-18. That Order was duplicated as the Third Amended Scheduling Order, Docket No. 33, due to
CM/ECF filing requirements.

2

from 2004 to May 2010 (Docket No. 1, Compl. ¶¶ 11, 13, 47-48) as a wrapper-packer-cleaner
(id. ¶ 12).
Defendants answered (Docket No. 8). 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 Nos. 22, 27, 32-33).
Previous Motions to Compel (Nos. 23, 28)
Plaintiff initially moved for defendants to produce (among other sought items) W-2
statements, Form 1099 and other tax documents, and payroll records for comparable employees
(Docket No. 23, Pl. Decl., Exs. A, I). Defendants opposed, stating that plaintiff’s document
demands were disproportionate to her claims and the issues in this case (Docket No. 25, Defs.
Memo. at 4-8; see Docket No. 27, Order at 8) but defendants initially had produced over
500 pages of documents they deemed responsive (Docket No. 25, Defs. Memo. at 8; see Docket
No. 27, Order at 8). After discussing proportionality in discovery (Docket No. 27, Order at 1215), this Court held that defendant’s production was sufficient “(save additional production for
her Equal Pay Act claims),” denying plaintiff’s motion to compel more (id. at 15).
Plaintiff later filed a second motion to compel (Docket No. 28) defendants to produce
where this Court deemed that the issue was “whether defendants complied with this Court’s
Order [Docket No. 27] and what was (or was not) produced to plaintiff” (Docket No. 32, Order
of Nov. 29, 2016, at 5; Black, supra, 2016 U.S. Dist. LEXIS 164441, at *6). Plaintiff sought
complete responses to document demands in Paragraphs 8, 12, and 13 of her requests to produce,
including production of W-2 statements, Form 1099 and other tax documents from January 1,
3

2004, to the conclusion of this action for every employee of defendants (paragraph 12) and all
payroll records for that same period (paragraph 13) (see Docket No. 32, Order at 7; Black, supra,
2016 U.S. Dist. LEXIS 164441, at *9-11). Defendants rested on the 500 pages of documents
already produced as compliance with these document demands (see id. at 8; Black, supra,
2016 U.S. Dist. LEXIS 164441, at *11; Docket No. 30, Defs. Memo. at 2-4). Plaintiff replied
that she needed these records for her Equal Pay Act claim (Docket No. 31, Pl. Atty. Reply Decl.
¶ 4; see Docket No. 32, Order at 8). This Court granted plaintiff’s motion to compel production
of the tax and payroll records sought in Requests 12 and 13 (Docket No. 32, Order at 10-11;
Black, supra, 2016 U.S. Dist. LEXIS 164441, at *12), concluding that “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” (Docket No. 32, Order at
11; Black, supra, 2016 U.S. Dist. LEXIS 164441, at *16-17 (emphasis in original)). In this
present reconsideration motion (as discussed in some detail below), defendants contend that they
supplemented with thousands of pages of payroll and tax documents during plaintiff’s tenure at
Buffalo Meat Service to 2010 (Docket No. 42, Defs. Memo. at 2-5).
Plaintiff’s Third Motion to Compel (No. 34)
With discovery deadlines approaching, plaintiff moved for expedited hearing and
extension of the current Scheduling Order (Docket No. 34). She also sought compliance with
this Court’s August 16, 2016, and November 29, 2016, Orders and production of all documents
responsive to her Request Nos. 12 and 13 (id.), seeking these tax and payroll records from
January 2016 to present (Docket No. 34, Pl. Atty. Decl. ¶ 26).
4

Defendants renewed their response that they produced, among 500 pages of documents
already produced, materials responsive to plaintiff’s outstanding demands (Docket No. 36, Defs.
Memo. at 7-9). Defense counsel’s present affidavit states that defendants supplemented tax and
payroll documents from the period of plaintiff’s tenure, with over 2,700 pages of materials
(Docket No. 37, Defs. Atty. Aff. ¶¶ 36, 38, 39). They questioned the temporal scope of
plaintiff’s demands given the statute of limitations for Equal Pay Act claims (Docket No. 36,
Defs. Memo. at 7).
Plaintiff replied that her request is not temporally limited to 2005-2010 and that
defendants’ production is incomplete on this basis (Docket No. 38, Pl. Reply Memo. at 1-5). She
contended that the prior Orders required defendants to produce documents responsive to
Requests 12 and 13 (id. at 2-3, quoting Docket No. 32, Order at 11); instead, defense counsel
provided a statement attesting to the extent of defendants’ production without defendants
attesting to whether the documents exist (Docket No. 38, Pl. Reply Memo. at 3).
Defendants’ Cross-Motion (No. 36)
In addition to responding to plaintiff’s latest motion, defendants cross-moved plaintiff to
produce her W-2, tax returns, execute medical and Social Security authorizations (Docket
No. 36). They also wanted plaintiff to schedule her deposition following defense receipt of
earnings, tax, and medical records (id.).
Pertinent to the present reconsideration motion, plaintiff asserted a qualified privilege
against producing her tax returns (Docket No. 38, Pl. Atty. Reply Decl. ¶ 20; id., Pl. Reply
Memo. at 6-7). Instead, she offered her W-2 statements as a sufficient statement of her damages
rather than her joint tax returns (id., Pl. Memo. at 6-7).
5

This Court granted plaintiff’s motion to compel and ordered compliance with prior
Orders while granting in part and denying in part defendants’ motion to compel (Docket No. 40,
Order of Mar. 31, 2017). Pertinent to the reconsideration motion, this Court held that defendants
were to produce tax and payroll records based upon representations that only 500 pages of those
records were produced (id. at 6-7). This Court then found that plaintiff need not produce her
joint tax returns but only produce W-2 forms instead (id. at 8-9). This Court then extended the
Scheduling Order deadlines (id. at 9-10); this is not the subject of defendants’ reconsideration
motion. The Order also set forth briefing for discovery sanctions (id. at 10); this briefing was
held in abeyance pending resolution of the present reconsideration motion (Docket No. 43).
Defendants’ Present Motion for Reconsideration (No. 42)
Defendants now seek reconsideration of the March 31, 2017, Order (Docket No. 40), and
instead want an Order denying plaintiffs’ motion to compel further production of payroll and tax
documents (Docket No. 42, Defs. Notice of Motion at 1). They contend that defendants did
supplement the 500 pages of production with 2,700 pages of its employees’ payroll and tax
documents to 2010 (id., Defs. Memo. at 2-3, 4-5). They state that they noted this
supplementation in prior proceedings (Docket No. 27, Order at 15; Docket No. 25, Defs. Memo.
at 2; Docket No. 36, Defs. Atty. Aff. ¶¶ 36, 38, 39; Docket No. 30, Defs. Memo. at 1, 2) but this
Court disregarded it (see Docket No. 42, Defs. Memo. at 6). They produced in supplementation
weekly payroll records of all employees (and not merely comparable employees) during
plaintiff’s employment and their W-2 statements and W-2 summary reports (Docket No. 42,
Defs. Memo. at 4-5). Defendants also want reconsidered the denial (in part) of their motion to
compel plaintiff’s redacted tax returns, defendants still seek disclosure of plaintiff’s source of
6

income during the course of this litigation (id. at 9). They note that this Court during oral
argument (see also Docket No. 41, Tr. of Mar. 16, 2017, oral argument at 12) concluded that
plaintiff’s future income (and hence her tax returns) would be appropriate for disclosure (Docket
No. 42, Defs. Memo. at 9-10; id., Defs. Atty. Aff., Ex. 1, Tr. at 12; Docket No. 41, Mar. 16,
2017, Tr. at 12). Defendants seek redacted tax returns to learn the sources of plaintiff’s posttermination income (Docket No. 42, Defs. Notice of Motion at 1).
Plaintiff counters that there is no motion for reconsideration and, under Rules 59(e) or
60(b), a non-final Order cannot be reconsidered, citing this Court’s earlier Order denying
reconsideration of plaintiff’s motion (Docket No. 44, Pl. Atty. Decl. ¶¶ 12-[2d] 12; see Docket
No. 32, Order at 14; Black, supra, 2016 U.S. Dist. LEXIS 164441, at *19-20; Docket No. 33, 3d
Am. Scheduling Order at 14). She argues that defendants still had not produced payroll or tax
records after 2010 (Docket No 44, Pl. Atty. Decl. ¶¶ 20, 22-23); defendants supplemented with
records only during the period of plaintiff’s employment, to 2010. She asserts that defendants
here are merely repeating arguments that failed in three prior motions to compel (id. ¶ 27;
Docket No. 44, Pl. Memo. at 10).
Refuting defense arguments that an equal pay claim is only relevant during the period of
employment (cf. Docket No. 42, Defs. Memo. at 7, 8, citing Chepak v. New York City Health &
Hosp. Corp., No. 11-cv-9698 (KBF), 2015 WL 509279 (S.D.N.Y. Feb. 5, 2015), aff’d, 643 Fed.
App’x 62 (2d Cir. 2016) (summary Order); Camp v. Walton Regional Med. Ctr., No. 3:06-CV19 (CDL), 2007 WL 2027734 (M.D. Ga. July 12, 2007)), plaintiff distinguished these two
summary judgment cases cited by defendants as not involving the duration of the Equal Pay Act
claim (Docket No. 44, Pl. Memo. at 8-9). Plaintiff contends that, but for being subject to
7

discrimination and retaliation, she would not have been constructively discharged and would
enjoy pay from defendants to this date (Docket No. 44, Pl. Memo. at 9).
Plaintiff, however, did not respond to defense motion to reconsider compelling her to
produce her joint tax returns.
In reply, defendants argue that the Order was premised on an error, that they only
produced 500 pages when in fact they supplemented with far more (Docket No. 45, Defs. Reply
at 1, 6-7). They dispute that plaintiff was constructively discharged and that she is somehow
entitled to comparable pay data from employees who worked at defendants’ shop after she was
no longer there, also arguing that these workers (an independent contractor and a “skilled
butcher”) were not comparable to plaintiff when she was employed (id. at 2). Nevertheless,
defendants claim that they have produced payroll records for all employees (comparable or not)
from 2006-10 and copies of extant W-2 forms from 2005-10 (id. at 6).
DISCUSSION
I.

Reconsideration Standard
Generally, there is no motion for reconsideration under the Federal Rules. This Court’s

Local Civil Rules treat a motion for reconsideration outside of Federal Rule 60 like a motion
“falling within the scope of Fed. R. Civ. P. 59(e),” W.D.N.Y. Loc. Civ. R. 7(d)(3), with the
Local Rule and Rule 59(e) each setting forth the timing for such a motion, see also S. &
E.D.N.Y. Loc. Civ. R. 6.3 (setting timing for motions for reconsideration); N.D.N.Y. Loc. R.
7.1(g) (same). This Court’s Local Rule 7(d)(3) does not set the standard for consideration of a
motion to reconsider.

8

But Rule 60 provides relief from an Order under certain conditions, Fed. R. Civ. P. 60(a),
(b). Among the grounds for relief under Rule 60(a) is correcting “a mistake arising from
oversight or omission whenever one is found in [an] . . . order, or other part of the record,” which
this Court may do on its own or on motion, Fed. R. Civ. P. 60(b). Rule 60(a) is not limited to a
“final” Order or judgment, as is Rule 60(b). Rule 60(b) states that “on motion and just terms, the
court may relieve a party or its legal representative from a final judgment, order, or proceeding”
for stated grounds, Fed. R. Civ. P. 60(b) (emphasis added). Rule 60(a), however, does not
address changes that would “affect substantive rights of the parties,” Moore’s Federal Practice—
Civil § 60.11[3] (2017). As the commentator notes, “Rule 60(a) is designed to strike a balance
between rendering justice to the parties and ensuring that litigation ends within a finite period of
time,” id., (citing Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir. 1994)). Thus,
this Court may reexamine a mistake or oversight in any Order either sua sponte or upon motion
under Rule 60(a).
On a motion for relief, this Court may relieve a party from an Order for a mistake, or
“any other reason that justifies relief,” id., R. 60(b)(1), (6). As noted by defendants (Docket
No. 42 Defs. Memo. at 1), the grounds for reconsideration include “the need to correct a clear
error or prevent manifest injustice,” Reyes v. Phoenix Bevs., Inc., No. 13-CV-5588(PKC)
(VMS), 2016 U.S. Dist. LEXIS 142292, at *2 (E.D.N.Y. Oct. 13, 2016) (quotations omitted,
reconsideration under S. & E.D.N.Y. Loc. Civ. R. 6.3). The motion may be granted where “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 Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)) (id.).
9

Under Rule 60(b) (invoked by defendants in this motion, see Docket No. 42, Defs. Memo.
at 1, as well as plaintiff for reconsideration in an earlier motion, see Docket No. 28, Pl. Atty. Decl.
¶ 28; Black, supra, 2016 U.S. Dist. LEXIS 16441, at *18, Docket No. 32, Order at 13), grounds for
relief from an Order include mistake, inadvertence, surprise or excusable neglect, Fed. R. Civ. P.
60(b)(1), or any other reason, Fed. R. Civ. P. 60(b)(6). 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.

One commentator noted that “Rule 60(b) does not govern relief from interlocutory
orders, that is to say any order in which there is something left for the court to decide after
issuing the order,” Moore’s Federal Practice—Civil § 60.23, text at no. 8.2 (2017), citing Phillips
v. Sheriff of Cook County, 828 F.3d 541, 559 (7th Cir. 2016) (in absence of final judgment, Rule
60(b) not available to reconsider order decertifying a class). Courts in the Third Circuit have held
that a discovery Order is not the Judgment or final 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.

10

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) (McAvoy, C.J.) (citing
Torres, supra, 125 F.3d at 168; Student Loan Mktg. Ass’n v. Lipman, 45 F.3d 173, 175 (7th Cir.
1995)). Then-Chief Judge McAvoy in Franzon also denied reconsideration under that Court’s local
rule, 189 F.R.D. at 223 (citing N.D.N.Y Loc. R. 7.1(g)). These cases applied Rule 60 to judgments
and final Orders. Torres, supra, 125 F.3d at 168 (giving as example of non-final orders a discovery
order); Khan, supra, 2013 U.S. Dist. LEXIS 62030, at *6 (Rule 60(b) motion requires a final order
and discovery order is not final). While this Court had agreed with these precedents (which was not
dictum, but cf. Docket No. 45, Defs. Reply Memo. at 8) and held that Rule 60 did not authorize
reconsideration of plaintiff’s discovery motion (Docket No. 32, Order at 14, Black, supra, 2016 U.S.
Dist. LEXIS 164441, at *19-20), this Court alternatively considered the merits of the grounds for
plaintiff’s reconsideration under Rule 60(b) and rejected them (Docket No. 32, Order at 14-16;
Black, supra, 2016 U.S. Dist. LEXIS 164441, at *20-23).
This Court thus reconsiders under Rule 60(a) the March 31, 2017, Order on defendants’
motion. As to be noted below, this decision strikes the balance between rendering justice in this
pretrial proceeding while not having this case further delayed, cf. Moore’s, supra, ¶ 60.11[3].

II.

Plaintiff’s Motion to Compel (Docket No. 42)
A.

Defendants’ Motion to Reconsider

The threshold issue is whether this Court committed an oversight regarding defendants’
supplementation or was there a mistake in the last Order for defendants to obtain Rule 60 relief.
As reflected in the first Order (Docket No. 27, Order at 15) and the second Order (Docket
11

No. 32, Order at 11, 10-11), defendants indicated their intention to supplement their papers,
particularly regarding plaintiff’s Equal Pay Act claims. Defendants now claim to have done so,
but only payroll and tax records of plaintiff’s colleagues during her tenure at Buffalo Meat
Service to 2010 (Docket No. 42, Defs. Memo. at 1-5). This Court erred in not acknowledged
the thousands of pages defendants produced beyond the initial 500 pages.
Assuming that plaintiff is satisfied with these thousands of pages of payroll documents
from 2004-20, reconsideration thus boils down to whether defendants need to produce post-2010
documents. While defendants refuse to produce coworkers’ tax and payroll records past
plaintiff’s May 2010 termination, they insist upon plaintiff producing her post-termination tax
returns. The reasons for post-termination wage information (from either plaintiff or her former
coworkers) is to establish plaintiff’s Equal Pay Act claims (see Docket No. 44, Pl. Memo. at 7,
quoting Docket No. 27, Order at 15) and to demonstrate the extent of plaintiff’s damages (if any)
for lost wages following her termination. Discovery, however, is not the stage wherein the
temporal extent of plaintiff’s Equal Pay Act claim (that is, whether plaintiff was wrongful
terminated to have it extend to the present) is tested.
Upon reconsideration, plaintiff’s motion (Docket No. 34) to compel production of the
post-termination payroll and tax records of her former coworkers remains granted; defendants’
motion (Docket No. 42) for a contrary Order upon reconsideration is denied. Defendants are to
produce to plaintiff comparable employee payroll and tax documentation from 2010 to date.
Defendants have argued (Docket No. 45, Defs. Reply at 2) that some of the employees
are not comparable to plaintiff. First, defendants decided (out of convenience to them) to
produce sought records from all employees. Second, in light of defendants’ pre-May 2010
12

production, arguments whether a particular employee is comparable to plaintiff is better
addressed either in a dispositive motion or at trial. At this discovery stage, plaintiff only seeks
discovery of matters relevant to her claim or defense and this information ultimately need not be
admissible, see Fed. R. Civ. P. 26(b)(1). Defendants could produce post-May 2010 records of its
employees with the caveat listing the employees they consider are comparable to plaintiff. As a
result, defendants are to produce the records from the same employees they produced records for
up to 2010.
B.

Plaintiff’s Motion (Docket No. 28) Reconsidered

With reconsideration of defendants’ motion, this Court is faced with the apparent
inconsistency of denying similar relief to plaintiff earlier in this discovery motion practice. First,
reconsideration of defendants’ motion is now under Rule 60(a) for the mistake or omission and
not under Rule 60(b), or Rule 59(e) to reconsider a judgment as noted by plaintiff (see Docket
No. 44, Pl. Memo. at 5-6), that allow reconsideration only of a final dispositive Order or
judgment. The scope of defendants’ production in their motion is set forth in plaintiff’s requests
and this Court’s Orders from her subsequent motions to compel that production. Plaintiff’s
motion seeking reconsideration given the defense’s failure to produce all payroll and tax records
of plaintiff’s former coworkers; these are the items now subject of defendants’ present motion
(Docket No. 28, Pl. Atty. Decl. ¶ 29). Initially, production of the entirety of these documents
was denied due to the proportionality requirement under Rule 26 (Docket No. 27, Order at 3;
Docket No. 32, Order at 12; Black, supra, 2016 U.S. Dist. LEXIS 164441, at *17). This Court
declined to revisit that decision on the alternative grounds that the discovery Order was not final
and subject to reconsideration under Rule 60(b), Black, supra, 2016 U.S. Dist. LEXIS 164441, at
13

*20 (Docket No. 32, Order at 14), and that plaintiff had not satisfied the grounds under Rule
60(b) on the merits, id. at *20-23 (Docket No. 32, Order at 14-16).
The reconsideration relief granted to defendants here will not be the basis to reconsider
discovery sought by plaintiff; her earlier motion (Docket No. 28, see Docket No. 23) to change
the earlier Order (Docket No. 27) remains denied.
II.

Defendants’ Cross-Motion
The remaining issue is production of plaintiff’s tax returns. Plaintiff claimed a qualified

privilege from producing these records since she believes they are not relevant to her claims.
But she is claiming lost wages following her wrongful termination; hence her post-termination
wages to present are relevant (Docket No. 38, Pl. Reply Memo. at 6-7). During oral argument,
plaintiff contended that she filed income taxes jointly with her husband without distinguishing
which spouse earned what. This Court then determined that plaintiff’s post-termination income
was discoverable and making her tax returns relevant, suggesting if the returns are available they
should be produced (Docket No. 41, Mar. 16, 2017, Tr. at 13). Plaintiff did not respond to this
portion of defendants’ motion (beyond the general objection that reconsideration is unavailable
here).
This Court in the March 31, 2017, Order stated that tax returns need not be produced
“unless: (1) it clearly appears that they are relevant to the subject matter of the action or to the
issues raised thereunder; and (2) there is a compelling need for their disclosure because the
information contained in the tax returns is not otherwise readily available,” McIntosh v. Bank of
America, No. 06CV708, 2008 U.S. Dist. LEXIS 76280, at *6-7 (W.D.N.Y. Sept. 30, 2008)
(Schroeder, Mag. J.) (citations omitted; emphasis added). As in McIntosh, plaintiff’s earnings
14

are relevant to her lost wages claims and her Equal Pay Act claims, but there are other sources
for plaintiff’s earning, such as the sought W-2 statements, id. at *7. In that case, Magistrate
Judge Schroeder ordered plaintiff either to produce W-2 statements or execute authorizations
permitting that defendant to obtain them from the Internal Revenue Service, id. (Docket No. 40,
Order at 8.)
The mistake here is the Order not reflecting the stated position of the Court during oral
argument. Here, plaintiff shall produce her tax returns in redacted form (see Docket No. 41,
Mar. 16, 2017, Tr. at 12; Docket No. 42, Defs. Atty. Aff. ¶¶ 5, 29, Ex. 1). Part of this redaction
should exclude information about her husband’s income and its sources, despite her arguments
that these returns did not distinguish her spouse’s income from her own. W-2 statements and
other income statements for the individual wage earner clearly would state her earnings and
source for a particular year and employer(s); hence the earlier Order focused on production of
W-2 forms as the better source of plaintiff’s income distinct from other sources. During oral
argument (Docket No. 41, Tr. at 12-13), defendants argued that certain W-2 forms were missing.
As noted in the earlier Order (Docket No. 40, Order at 8), the better source of information on
plaintiff’s earnings from her employer(s) (separate from her husband’s earnings or from other
taxable sources) is her W-2 forms. Nevertheless, defendants insist upon production of the tax
returns as well (absent opposition by plaintiff on the substance); these entire tax return contains
otherwise extraneous information that should not be produced absent redaction.
As a result, upon reconsideration defendants’ cross-motion (Docket No. 36) to compel is
granted in part (including production of plaintiff’s redacted tax returns for the period
sought in defendants’ discovery demands), and deemed moot where plaintiff has produced
15

(regarding authorizations, W-2 statements and other materials already produced or about to be
produced, and the scheduling of plaintiff’s deposition, considered in the March 31 Order, Docket
No. 40 at 7-9).
III.

Fourth Amended Scheduling Order, Docket No. 40
Defendants have not objected to (or sought reconsideration of) the Fourth Amended

Scheduling Order (Docket No. 40, Order at 9-10). Later, the parties jointly moved to extend
Scheduling Order (see id.) deadlines by 90 days (Docket No. 46). That motion separately was
granted (Docket No. 47).
To clarify, plaintiff’s expert disclosure is now due by September 29, 2017; defense
expert disclosure is due by October 30, 2017. As previously ordered (Docket No. 47), discovery
now is to be completed by November 13, 2017, and dispositive motions are due by February 12,
2018 (id.).
IV.

Reasonable Motion Expenses
Both sides have moved to compel discovery and at least one side partially prevailed on

their respective motions. Following this reconsideration plaintiff is to produce her redacted tax
returns while defendants are to produce payroll and tax documents from 2010 to the present.
Plaintiff requested to recover her costs and disbursements and other relief as found by
this Court to be just and proper (Docket No. 34, Pl. Notice of Motion; cf. Docket No. 36, Defs.
Notice of Cross-Motion (seeking such other relief that is deemed just and proper)). Again, under
Rule 37(a)(5), if a motion to compel is granted in part (including if discovery is provided after
filing of that motion, see Fed. R. Civ. P. 37(a)(5)(A)) and is denied in part, “the court may issue

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any protective order authorized under Rule 26(c) and may, after giving an opportunity to be
heard, apportion the reasonable expenses for the motion,” id., R. 37(a)(5)(C).
Pursuant to Rule 37(a)(5)(C), the parties are to be heard on whether to award motion
expenses; as reset herein, these positions are due seven (7) days from entry of this Order, or by
June 30, 2017. Responses are due fourteen (14) days from entry of this Order or by July 7,
2017. The fee application(s) will be deemed submitted, without oral argument unless otherwise
scheduled by this Court, on July 7, 2017. The applications and responses should address
whether discovery costs should be imposed; how much of those costs are attributable to relief
wherein a party prevailed (but not those costs for other relief that was sought in these motions);
whether the party or counsel (or both) should be found liable for the costs; and what the
reasonable motion costs are that the party seeks to recoup, see Fed. R. Civ. P. 37(a)(5)(A), (C).
This Court again cautions that Rule 37 practice can lead to “prolonged ancillary litigation
and delay even further reaching the merits of this case,” Lamar Advert. of Penn, LLC v. Town of
Orchard Park, No. 01CV556, 2006 U.S. Dist. LEXIS 82901, at *27 (W.D.N.Y. Nov. 14, 2006)
(Scott, Mag. J.) (declining to impose discovery sanctions).
CONCLUSION
For the reasons stated above, defendants’ motion for reconsideration (Docket No. 42) is
granted; as a result plaintiff’s motion (Docket No. 34) to compel and for compliance with this
Court’s prior Orders remains granted; defendants’ cross-motion (Docket No. 36) to compel is
granted in part and deemed moot where plaintiff produced as specified in this Order.
Specifically, plaintiff is to produce her redacted tax returns. Upon reconsideration, so much of

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plaintiff’s earlier motion to compel (Docket No. 28) remains denied for the reasons stated
herein.
Absent protest to the contrary, the deadlines contained in the Fourth Amended
Scheduling Order (Docket No. 40, Order at 9-10) remains unaffected by this Order save expert
disclosure deadlines as set forth above.
The parties are to be heard on whether to award their respective motion expenses; these
positions are due seven (7) days from entry of this Order, or by June 30, 2017, with response
due and the application(s) deemed submitted fourteen days from entry of this Order, or by
July 7, 2017.
So Ordered.

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

Dated: Buffalo, New York
June 23, 2017

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