Abbott v. Wyoming County Sheriff's Office

Filing 30

DECISION AND ORDER granting in part and denying in part 27 Motion to Compel; granting in part and denying in part 29 Motion to Compel; granting in part and denying in part 29 Motion for Protective Order.Signed by Hon. Hugh B. Scott on 5/16/2017. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Cynthia Abbott,
Plaintiff,

Decision and Order
15-CV-531W

v.
Wyoming County Sheriff’s Office,
Defendant.

I.

INTRODUCTION
The Hon. Elizabeth Wolford has referred this case to this Court under 28 U.S.C. § 636(b).
(Dkt. No. 6.) Pending before the Court are two cross-motions: one (Dkt. No. 27) by plaintiff
Cynthia Abbott (“Abbott”) to compel a further response to Request 15 in her First Request for
Production of Documents; and one (Dkt. No. 29) by defendant the Wyoming County Sheriff’s
Office for a protective order against Abbott’s request and for an order compelling a date certain for
Abbott’s deposition. Abbott’s deposition had started on February 28, 2017, but the parties agreed to
suspend it when Abbott provided previously undisclosed details about ongoing discriminatory
conduct. Having supplemented some of her interrogatory responses, Abbott now believes that she is
entitled to a search of email messages that postdate February 2016, the most recent date covered by
defendant’s previous search. Defendants object that another broad search for email messages would
be unduly burdensome and out of proportion to the probative value of the contents.
The Court has deemed the cross-motions submitted on papers under Rule 78(b) of the
Federal Rules of Civil Procedure. For the reasons below, the Court grants each motion in part.

II.

BACKGROUND
This case concerns allegations that defendant deprived Abbott of promotions and work
shifts or assignments that she was otherwise eligible to receive, for no reason other than her
medical condition of epilepsy. The case also contains allegations that defendant retaliated against
Abbott when she complained. Since the pending motion is not a dispositive motion or any other
motion that requires detailed discussion of the substance of the case, the Court will discuss only
those aspects of the case most relevant to the discovery issues in play.
According to the complaint, Abbott joined defendant in September 2009 as a temporary
corrections officer. The first few months of Abbott’s employment appear to have been uneventful,
but the events that led to this case began around early 2010. Around that time, Abbott suffered
an epileptic seizure during a required defensive tactics training course. Abbott retook the course
and passed it, and she worked as a part-time corrections officer into 2013 with only one other
seizure event in 2012. Abbott asserts that medication keeps her epilepsy under control and
otherwise has no impact on her work performance.
Nonetheless, defendants allegedly have used Abbott’s epilepsy condition as a basis for
depriving her of certain work opportunities that have arisen from time to time. In the summer of
2013, a full-time corrections officer position opened. Defendant passed over Abbott twice during
the hiring process, even though Abbott had seniority and the highest civil service exam results.
(Dkt. No. 1 at 5–6.) Some problems allegedly arose later in 2013 with respect to written personnel
warnings for which Abbott did not receive appropriate notice. (Id. at 7.) Also around October
2013, a temporary full-time position opened but went to someone with less seniority than Abbott.
2

(Id. at 8.) At about the same time, Abbott served a Notice of Claim on defendant to preserve her
rights for possible future litigation. Just a few months after the Notice of Claim, defendant placed
Abbott on administrative leave for reasons related to the seizure that she suffered in 2012. (Id. at
9.) The administrative leave ended in early April 2014, and defendant agreed that Abbott would
receive pay while on administrative leave, but Abbott did not receive any pay until late March
2014. Also in 2014, Abbott applied for two other permanent positions and received neither.
Abbott finally won a permanent position on February 1, 2015 and has been working that position
since. (Id. at 11.) Importantly, as will become apparent below, the complaint contains only two
references to events that might have happened after February 1, 2015. In paragraph 50, Abbott
asserts that defendant has continued to deprive her of chances to work in the control room
without any stated reason; Abbott attributes this deprivation to retaliation for filing a
discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). (Id.) In
paragraph 51, Abbott asserts that defendant has denied her the ability to work certain shifts that,
to her, seem like pretenses to cover a retaliatory motive. (Id.)

Abbott filed suit on June 17, 2015,

asserting claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213;
and the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law §§ 290–301.
Abbott filed her pending motion to compel on April 20, 2017; defendant filed its crossmotion in response on May 10, 2017. The core of the discovery dispute seems to be what the
timeframe is for Abbott’s allegations and whether defendant has produced discovery in accordance
with that timeframe. On February 11, 2016, Abbott prepared a First Request for Production of
Documents for defendant’s consideration. (Dkt. No. 27-3.) In Request 15, Abbott sought “[a]ll
3

emails sent and received by Gregory Rudolph, Bruce James and Matthew Case from September
2009 through the present, in native, electronic format, subject to an agreement of the parties
regarding search terms.” (Id. at 7.) Defendant responded in September 2016, producing
approximately 1,004 pages of responsive email messages and a privilege log containing 369
separate entries. (Dkt. No. 29-1 at 5.) Request 15 appeared to be fulfilled until Abbott’s
deposition on February 28, 2017. During the deposition, Abbott described discrimination and
retaliation occurring through the present time. The description of ongoing improper conduct
prompted the suspension of Abbott’s deposition and different protests from each side. Defendant
protested that Abbott did not describe ongoing conduct in her responses to its interrogatories.
Abbott protested that defendant’s response to Request 15 did not include any email messages
dated after February 2016. The pending cross-motions soon followed.
III.

DISCUSSION
The general principles governing management of discovery are well-known. The Court has
wide discretion to conduct discovery in ways that help bring about the efficient administration of
justice. See Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004) (citing Am. Savings Bank, FSB
v. UBS PaineWebber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 108 (2d Cir. 2003)). The 2015 amendments
to the Federal Rules of Civil Procedure emphasized the need to focus on proportionality.
Considerations of proportionality can include reviewing whether discovery production has reached a
point of diminishing returns. See Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126
(JMF), 2016 WL 6779901, at *3 (S.D.N.Y. Nov. 16, 2016) (“Rule 26(b)(1)'s proportionality
requirement means [that a document's] ‘marginal utility’ must also be considered.”) (citations
4

omitted); Updike v. Clackamas County, No. 3:15-CV-00723-SI, 2016 WL 111424, at *1 (D. Or. Jan.
11, 2016) (“There is a tension, however, among the objectives of Rule 1. As more discovery is
obtained, more is learned. But at some point, discovery yields only diminishing returns and
increasing expenses. In addition, as more discovery is taken, the greater the delay in resolving the
dispute. Finding a just and appropriate balance is the goal, and it is one of the key responsibilities of
the court in managing a case before trial to assist the parties in achieving that balance.”).
To apply the general discovery principles to the pending cross-motions, the Court needs to
clarify where the parties diverge in their views of Abbott’s alleged timeline. The complaint does
not list or refer to any specific event occurring after February 1, 2015. That said, paragraphs 50
and 51 refer to retaliation allegedly occurring “since being hired in a permanent capacity.” Those
paragraphs arguably can be interpreted to mean that the denial of work in the control room and
the denial of certain shifts are continuing through the present time. The complaint, in turn,
should frame the rest of the dispute. Request 15 mentioned September 2009 through the present;
running through the present is reasonable but should stop at the events described in paragraphs
50 and 51 of the complaint. Paragraphs 50 and 51 acquire some details through the second
supplemental response to interrogatories that Abbott provided on April 4, 2017. (Dkt. No. 27-14.)
The second supplemental response, prepared after the start of Abbott’s deposition, mentions only
two specific events that occurred after any produced email messages dated from February 2016: a
denial of transport duties that occurred as recently as February 9, 2017 (id. at 4); and an inability to
apply for a sergeant’s position in July 2016 (id. at 12). The only other events referenced at all that
occurred after February 2016 concern written warnings about cell phones (id. at 3, 6); control
5

room assignments (id. at 4); transport duties (id.); assignments to programs and court hours (id.);
tardiness (id. at 6); and surveillance (id. at 7). In essence, then, Abbott is claiming one application
denial, along with retaliatory shaping of her work assignments since February 2016. Request 15
does not have to be revisited for any other topics.
With Abbott’s timeline clarified, a limited remedy for her becomes apparent. On at least
one prior occasion, the Court has crafted discovery production based on specific search terms. See
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867, at *6 (W.D.N.Y. Dec. 9,
2014). That kind of approach should work here to balance Abbott’s need to explore ongoing
claims—claims that have been referenced in some way since the complaint—and defendant’s
concerns about proportionality. On or before July 31, 2017, defendant will supplement its
response to Request 15 by searching for email messages dated between March 1, 2016 and May 1,
2017 that contain Abbott’s name, or any name mentioned in her second supplemental response,
plus any of the following search terms:









sergeant
cell phone
control room
booking
transport
court hours
late OR lateness
surveillance OR camera
The Court denies Abbott’s motion to the extent that it seeks any other relief. Even with

allegations of ongoing retaliation, defendants at some point need to have some finality about what
they are facing. Cf., e.g., E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 676 (8th Cir. 2012)
6

(affirming the dismissal of claims that presented a “continuously moving target of allegedly
aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial”); Olivet
Baptist Church v. Church Mut. Ins. Co., No. 13 C 1625, 2015 WL 765715, at *7 (N.D. Ill. Jan. 7,
2015) (criticizing plaintiff’s reservation of “the right to further amend or supplement those [fourth
supplemental discovery] responses, which implied the prospect of ‘never ending fact discovery.’”),
report and recommendation adopted, No. 13 C 1625, 2015 WL 764051 (N.D. Ill. Feb. 23, 2015).
Abbott also needs to face the concern about diminishing returns. Barring any startling new events
that occur during her continued employment, email messages after May 1, 2017 will not be as
probative as the aggregate of discovery that Abbott will have received for 2009 through that date.
The parties will conclude Abbott’s deposition on or before September 8, 2017. The Court
will issue a new scheduling order separately to address remaining discovery deadlines.
IV.

CONCLUSION
For all of the foregoing reasons, the Court grants Abbott’s motion (Dkt. No. 27) in part
and defendant’s cross-motion (Dkt. No. 29) in part. The Court denies the motions to the extent
that they seek any relief not discussed above.
SO ORDERED.
__/s Hugh B. Scott________
Honorable Hugh B. Scott
United States Magistrate Judge
DATED: May 16, 2017

7