Carlton v. Pearson

Filing 63

DECISION AND ORDER denying 62 Defendant's Motion for Reconsideration. Signed by Hon. Elizabeth A. Wolford on 3/14/2019. (DPS)

MAR 1 4 2019

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CORYDON CARLTON,
DECISION & ORDER

Plaintiff,
I:I6-CV-00680 EAW

V.

C.O. PEARSON,Prison Guard and Employee at
Wende Correctional Facility,
Defendant.

INTRODUCTION

Plaintiff Corydon Carlton ("Plaintiff)filed this aetion on August 19, 2016, alleging

violations of his eivil rights. (Dkt. 1). Plaintiff alleges that defendant Correetional Officer

Robert Pearson ("Defendant") failed to protect him from an assault by another inmate.
Plaintiff filed his lawsuit on August 19, 2016 (Dkt. I); discovery closed, at the latest, on
December 22, 2017(Dkt. 31); and on August 27, 2018, this Court scheduled a jury trial to

commence on March 18, 2019 (Dkt. 48). The Court held a final pretrial conference on
February 25, 2019, at which time the Court granted Plaintiffs oral motion to preclude

Defendant's use of Plaintiffs and inmate Clifton Goring's ("Goring")' Tier III Hearing
Transcripts (the "Transcripts") at trial, which were only recently produced to Plaintiff on
or about February II, 2019. {See Dkt. 61). On March 8, 2019, Defendant filed a motion

'

Although Plaintiffs statements at the hearing would not constitute hearsay because

they are admissions of a party opponent, and in addition the statements could be used to
impeach Plaintiff during cross-examination. Defendant's theory as to the admission of
Goring's testimony, even if not precluded, is unclear, since he is neither a party nor a
witness who will be called at trial.
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for reconsideration, requesting the Court reconsider its prior ruling and permit Defendant's
use ofthe Transcripts at trial. (Dkt. 62).

For the reasons set forth below, Defendant's motion (Dkt. 62)is denied.
DISCUSSION

I.

Legal Standard for Reconsideration

The Federal Rules of Civil Procedure do not recognize a motion for
"reconsideration." See Lopez v. Goodman, No. lO-CV-6413 CIS, 2013 WL 5309747, at
*1 (W.D.N.Y. Sept. 20, 2013)(citing Hamilton v. Williams, 147 F.3d 367, 371 n.lO (5th

Cir. 1998)). "Since the Federal Rules of Civil Procedure do not expressly provide for
motions for reconsideration, such a motion may be construed as a motion to alter or amend
judgment under Rule 59(e) or Rule 60(b)." Hill v. Washburn, No.08-CV-6285-CJS,2013

WL 5962978, at *1 (W.D.N.Y. Nov. 7, 2013)(citing Osterneck v. Ernst & Whinney, 489
U.S. 169, 174(1989)).

As noted by the Second Circuit Court of Appeals, "[t]he standard for granting a
[motion for reconsideration] 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." Shrader v. CSXTransp., Inc., 70 F.3d 255, 257(2d Cir. 1995). "The major

grounds justifying reconsideration are an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent a manifest

injustice." Virgin Atl. Airways v. Nat'lMediation Bd.,956 F.2d 1245, 1255(2d Cir. 1992)
(internal quotations and citations omitted). "With respect to the third of these criteria, to
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justify review of a decision, the Court must'have a clear conviction of error on a point[of
law] that is certain to recur.'" Turner v. Vill. ofLakewood, No. 1 l-CV-211-A, 2013 WL

5437370, at *3-4(W.D.N.Y. Sept. 27,2013)(quoting United States, v. Adegbite, 877 F.2d
174, 178(2d Cir. 1989)). "These criteria are strictly construed against the moving party so
as to avoid repetitive arguments on issues that have been considered fully by the court."
Boyde v. Osborne, No. lO-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 17, 2013)

(quoting Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368(S.D.N.Y. 1999)).
II.

Legal Standard for the Imposition of Sanctions

A district court has wide discretion to impose sanctions, including preclusion, where

a party does not meet its discovery obligations. Reilly v. NatWest Mkts. Grp. Inc.,181 F.3d
253,267(2d Cir. 1999)("Whether exercising its inherent power,or acting pursuant to Rule
37, a district court has wide discretion in sanctioning a party for discovery abuses. .. ."),
superseded by statute on other grounds as recognized by Hernandez v. Jrpac Inc., No. 14
Civ. 4176(PAE), 2016 WL 3248493, at *35 (S.D.N.Y. June 9, 2016). If a party does not
timely disclose Rule 26(a) information, the party generally is not permitted to use that

information at trial, "unless the failure was substantially justified or is harmless." Fed. R.
Civ. P. 37(c)(1); see also Middle Mkt. Fin. Corp. v. D'Orazio, No. 96 Civ.
8138(SWK)(HBP),2002 WL 31108260, at *4(S.D.N.Y. Sept. 23,2002)
("The 'automatic

sanction' for a violation ofRule 26(a)is preclusion."). The non-disclosing party bears the
burden of demonstrating that its non-disclosure was substantially justified or harmless.
Atkins V. County of Orange, 372 F. Supp. 2d 377, 395-96 (S.D.N.Y. 2005), aff'd, 248 F.
App'x 232(2d Cir. 2007).
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III.

The Court Declines to Reconsider its Prior Ruling to Preclude Defendant's Use
of the Tier III Hearing Transcripts at Trial

Defendant acknowledges that the case management order issued by United States
Magistrate Judge H.Kenneth Schroeder, Jr."required that Defendant provide Plaintiff with
copies of documents identified as part of[his] Rule 26 disclosures." (Dkt. 62-4 at 3; see

Dkt. 15 at 1 ("Defendants shall... provide to [Pjlaintiff copies of any documents prepared
by any employee of the State of New York in connection with the events from which the

[Pjlaintiffs claims arose... .")); see also L.R. Civ. P. 5.2(f)(requiring filing of discovery

material in pro se cases). Judge Schroeder's order also notified the parties ofthe potential
for "sanctions in the event offailure to comply with any direction of this Court." (Dkt. 15
at 5); see Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)("[AJll

litigants . . . have an obligation to comply with court orders, and failure to comply may
result in sanctions...."(quotation and citation omitted)).

In support of his motion. Defendant argues that his initial Rule 26 disclosures, filed
on July 20, 2017, identified Plaintiffs and Goring's "Tier 11" hearing transcripts as
documents that "may exist" and which have been requested from the New York State
Department of Corrections and Community Supervision ("DOCCS"). (See Dkt. 22 at 3;

Dkt. 62-1 at ^ 3).^ On August 4, 2017,Defendant filed a supplemental Rule 26 disclosure,
which included several previously identified documents, but did not produce the

Transcripts. (Dkt. 62-1 at ^ 4; see Dkt. 24). Defendant's counsel explained that the

^

At the final pretrial conference. Defendant's counsel explained that he had initially

believed those hearings were "Tier II," but subsequently discovered that they were, in fact.
Tier III hearings, which generally are recorded.
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Transcripts were not received by his office "until sometime in September 2017," and were
eventually "scanned on to [their] computer system on September 27, 2017." (Dkt. 62-1 at
^ 4). However, Defendant's counsel apparently forgot to provide Plaintiff with copies of
the Transcripts {see Dkt. 62-4 at 5), and it was only on February 11, 2019, that Defendant
first produced copies of the Transcripts to Plaintiff along with Defendant's other pretrial
submissions(Dkt. 62-1 at T| 6).

Courts in the Second Circuit apply a four-factor balancing test to determine whether
preclusion of evidence is an appropriate sanction: 1) the party's explanation for failing to

comply; 2) the importance of the evidence precluded; 3) the prejudice suffered by the
opposing party; and 4) the possibility of a continuance. See Bausch & Lomb Inc., v.
Vitamin Health, Inc., No. 13-CV-6498,2016 WL 554848, at *1 (W.D.N.Y. Feb. 10,2016)
(citing Outley v. City ofNew York, 837 F.2d 587, 590-91 (2d Cir. 1988)); see also Softel,
Inc. V. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d 955,961 (2d Cir. 1997).

Defendant's explanation for his failure to comply with Judge Schroeder's case
management order is rather underwhelming. According to Defendant's counsel's own
declaration, counsel was in possession of the Transcripts before discovery was complete
and over 16 months before they were tendered to Plaintiff. {See Dkt. 62-1 at ^ 4).
Counsel's only explanation for his noncompliance is that he forgot to produce the

Transcripts due to an original delay in their receipt from DOCCS resulting from a "backlog
ofrequests,for inmate documents in connection with prisoner litigation." {Id.; see Dkt.624 at 5). Indeed, counsel realized his error only just as he was preparing for trial. (Dkt. 621 at 116).
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Defendant argues that because Rule 26 does not require a party to produce copies
of the items disclosed, he fulfilled his obligations under the Federal Rules even if he did
not comply with Judge Schroeder's order. (See Dkt. 62-4 at 3-4). While "[c]ourts have

acknowledged that...[Rule 26(a)(l)(A)(ii)'s] 'duty to disclose is not synonymous with a
duty to produce,'" Hayes v. Frontera Produce, Ltd., No. CIV.A. 12-588-BAJ, 2013 WL
6174799, at *1 (M.D. La. Nov. 20, 2013)(quoting Forbes v. 21st Century Ins. Co., 258

F.R.D. 335,337(D.Ariz. 2009)),^ significantly. Defendant also stated that he would update
his disclosure and ''produce documents following the expected receipt of any further
documents from DOCCS." (See Dkt. 22 at 2 (emphasis added)); see generally SolisAlarcon v. United States, 514 F. Supp. 2d 185, 189-90 (D.P.R. 2007)(holding that the
defendants "voluntarily assumed the further duty to produce the initially disclosed

documents" where they stated that "[t]hese documents shall be produced forthcoming"),
aff'd, 662 F.3d 577 (1st Cir. 2011). In any event, "there is no question the court

may, . . . under its inherent authority, sanction [the] failure to comply with court
orders,... and for 'discovery abuses that may not be a technical violation ofthe discovery

rules.'" Network Caching Tech., LLC v. Novell, Inc., No. C-01-2079 VRW, 2003 WL

^

Indeed, the Court agrees that "[b]y its terms Rule 26(a)(l)(A)(ii) neither mandates

production of such items nor requires the disclosing party to produce or describe every
item that could conceivably be relevant to the case." Biers v. Wash. State Liquor &
Cannabis Ed., No. C15-1518JLR, 2016 WL 7716070, at *2(W.D. Wash. June 16, 2016);
see Fed. R. Civ. P. 26(a)(l)(A)(ii)("a party must, without awaiting a discovery request,

provide to the other parties ... a copy—or a description by category and location—of all
documents ... the disclosing party has in its possession, custody, or control and may use
to support its claims or defenses...")(emphasis added). ,
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21699799, at *3(N.D. Cal. Mar. 21,2003)(quoting Halaco Eng'g Co. v. Castle, 843 F.2d
376, 380(9th Cir. 1988)).

Defendant also argues that the Transcripts are important to his trial strategy because
they support his position that "the fight between inmate Goring and Plaintiff did not result
from a vendetta by Defendant against Plaintiff, as Plaintiff contends; rather, the cause of
the fight was that Plaintiff owed Goring money and would not pay him." (Dkt. 62-4 at 5).
However, while Defendant will not be able to introduce the Transcripts as part of his case
in-chief, or otherwise use the Transcripts to impeach Plaintiff, Defendant will still be able
to question Plaintiff as to whether the altercation between himself and Goring was a result

of a debt owed between the two men. As with all witnesses who provide testimony at trial.
Plaintiff will be sworn under oath at the time he takes the witness stand. The Court advised

both sides at the final pretrial conference that any intentional falsehood uttered under oath
will subject that witness to criminal proceedings for perjury. See 18 U.S.C. § 1621.
Furthermore, Defendant will have an opportunity to cross-examine Plaintiffin full view of
the jury, who will then judge Plaintiffs demeanor and be responsible for weighing his

credibility. As a result, while use of the Transcripts would certainly be beneficial to
Defendant, their preclusion will not prevent Defendant from seeking to elicit the testimony
required to raise his desired defense at trial.

The Court also disagrees with Defendant's position that Plaintiff will not be
prejudiced by his failure to timely produce the Transcripts. Defendant produced the
hearing transcripts just five weeks before trial was scheduled to commence,along with his
other pretrial filings. {See Dkt. 62-1 at

6; Dkt. 62-4 at 6). The purpose of discovery
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obligations and the rules precluding the use of evidence untimely disclosed "is to prevent
the practice of'sandbagging' an adversary with new evidence." Ventra v. United States,

121 F. Supp. 2d 326, 332 (S.D.N.Y. 2000)(quoting Johnson Elec. N. Am. v. Mabuchi
Motor Am. Corp., 77 F. Supp. 2d 446, 458(S.D.N.Y. 1999)). Even assuming Defendant
complied with his Rule 26 responsibilities. Defendant's noncompliance with Judge
Schroeder's order, inadvertent as it may be, cannot be considered anything less than an
attempt to shoulder additional evidence upon his adversary on the eve of trial. Although

Defendant argues that Plaintiff could have "sought copies of the Transcripts at any time
after Defendant identified them in his initial disclosure"(Dkt. 62-4 at 6), it was Defendant,

not Plaintiff, who was obligated by court order to produce copies of these documents for
Plaintiffs benefit. In giving due regard to Plaintiffs pro se status, the Court finds no
reason to fault Plaintifffor failing to seek documents that by all accounts should have been
produced by Defendant upon receipt. Furthermore, the Tier III hearings took place about
five years ago, and thus, it could hardly be expected that Plaintiff"remembers what was
said there." {See id.).

Lastly, the trial is scheduled to commence on March 18, 2019 (Dkt. 47), and this

case has already been pending for over two-and-a-half years (Dkt. 1). Fact discovery has
also been closed for almost 15 months. (Dkt. 31). All of these facts weigh against the
possibility of a continuance. See Curcio v. Roosevelt Union Free Sch. Dist., No. 10-CV5612 SJF AKT,2012 WL 6641715, at *6(E.D.N.Y. Dec. 19, 2012)("Given that this case

has been pending for two(2) years and plaintiff has not offered an acceptable justification
for his conduct, the possibility of a continuance weighs in favor of preclusion."); see also
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Design Strategy, Inc. v. Davis, 469 F.3d 284, 297(2d Cir. 2006)("[W]eighing heavily on
both the prejudice and possibility of continuance factors was the fact that discovery had

been closed for 'approximately one and a half years,' and at the time of the offer of expert
testimony there was only a 'short time left before trial.'"); Morritt v. Stryker Corp., No.

07-CV-2319(RRM)(RER), 2011 WL 3876960, at *7 (E.D.N.Y. Sept. 1, 2011)("[T]he
fact that discovery is closed and this case has been pending for over four years 'weighs
strongly against the possibility of a continuance.'"(quoting Spotnana, Inc. v. Am. Talent
Agency, Inc., No. 09 Civ. 3698 (LAP), 2010 WL 3341837, at *1 (S.D.N.Y. Aug. 17,
2010))).

In balancing these considerations, the first, third, and fourth factors outweigh the
importance of the Transcripts to Defendant. The Court acknowledges that Defendant's
failure to produce the Transcripts does not appear to be a result of bad faith or malicious

conduct. Nonetheless, the sanction of preclusion is not restricted to such occasions. See
Design Strategy, Inc.,469 F.3d at 296(holding that bad faith is not a necessary requirement
to preclude evidence as a discovery sanction). The Court's review of Defendant's
submissions and its analysis of these four factors leads it to conclude that Defendant has

failed to carry his heavy burden of demonstrating that the rare remedy of reconsideration

is warranted. See Abdallah v. Napolitano, 909 F. Supp. 2d 196, 211-12(W.D.N.Y. 2012)
("A movant for reconsideration bears the heavy burden of demonstrating that there has
been an intervening change of law, that new evidence has become available, or that there
is a need to correct a clear error or prevent manifest injustice." (quotation omitted)); T.M.
Patents, L.P. v. Sun Microsystems Inc., No. 06 Civ. 13558 (SCR)(LMS), 2009 WL
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10694780, at *7 (S.D.N.Y. Apr. 16, 2009) ("Reconsideration of a prior ruling is
exceedingly rare...."). The Court is cognizant ofthe Second Circuit's counsel that district

courts should consider "lesser sanctions prior to precluding evidence as a sanction for
discovery violations." Coene v. 3M Co., 303 F.R.D. 32, 42 (W.D.N.Y. 2014) (citing
Outley, 837 F.2d at 591). Nevertheless, given the late stage of this litigation, on the eve of
trial with no viable explanation for the failure to timely produce the Transcripts and the
inherent prejudice that Plaintiff would suffer if he was now confronted with them at trial,
no sanction other than preclusion is appropriate. Indeed, if Defendant had devoted the
effort he has to the motion for reconsideration to simply ensuring that he complied with his
relatively minor discovery obligations in this case, he could have avoided the situation in
which he now finds himself.

Therefore, the Court denies Defendant's motion for reconsideration.
CONCLUSION

For the foregoing reasons, Defendant's motion for reconsideration (Dkt. 62) is
denied.
SO ORDERED.

EEIZ/^ETfiXWOEFORD
iited States District Judge
Dated:

March 14, 2019
Rochester, New York

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