Garner v. NYS Parks & Recreation
Filing
58
DECISION AND ORDER re 45 Motion to Compel; and 49 Motion to Compel. Signed by Hon. Jeremiah J. McCarthy on 4/8/2021. (A copy of this Decision and Order was sent to plaintiff).(JD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
EZRA C. GARNER,
Plaintiff,
v.
DECISION AND ORDER
18-CV-0501-LJV-JJM
NEW YORK STATE PARKS
AND RECREATION,
Defendant.
_______________________________________
Acting pro se, plaintiff, Ezra C. Garner, commenced this action, alleging
employment discrimination based on race, color, and national origin in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. against defendant New York
State Parks and Recreation. Complaint [1]. 1 Plaintiff alleges he was subject to harassment based
upon his race and/or color and discharged due to his race and/or color. Complaint [1], ¶¶ 14, 19.
Before the court are the parties’ cross-motions to compel discovery [45, 49],
which have been referred to me by District Judge Lawrence J. Vilardo. [10]. Having considered
the parties’ submissions [45, 49, 51, 52] 2 and heard oral argument on March 15, 2021 [53],
plaintiff’s motion is granted in part and denied in part, and defendant’s motion is granted in part
and denied in part.
Bracketed references are to the CM/ECF docket entries. Unless otherwise indicated, page
references are to CM/ECF pagination (upper right corner of the page).
1
Plaintiff filed a Memorandum of Law in support of his motion to compel [56] on March 29, 2021.
Because this Memorandum of Law is untimely, I do not consider it here. See Local Rules of Civil
Procedure, Rule 7(b)(1) (“the Court may issue an order setting deadlines . . . for filing and service of reply
papers”); see also Text Order [48], requiring plaintiff to file his reply in further support of his motion no
later than March 8, 2021.
2
DISCUSSION
“Courts have wide discretion to manage discovery.” Smith v. Haag, 2009 WL
3073976, *3 (W.D.N.Y. 2009). “Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party=s claim or defense and proportional to the needs of the
case . . . . Information within the scope of discovery need not be admissible in evidence to be
discoverable”. Fed. R. Civ. P. (“Rule”) 26(b)(1). “[I]t is established law that pro se litigants,
like those represented by attorneys, are equally obliged to comply with discovery requirements
under the Federal Rules of Civil Procedures”. Swinton v. Livingston County, 2016 WL
6248675, *2 (W.D.N.Y. 2016); In re Robinson, 2019 WL 2342324, *4 (Bankr. S.D.N.Y. 2019)
(the plaintiff’s “status as a pro se litigant does not excuse her from meeting her discovery
obligations”). Prior to making a motion to compel, a party must confer, or attempt to confer,
with the party failing to make disclosure or discovery in an effort to obtain the discovery without
court action. Rule 37; see also Local Rule of Civil Procedure 7(d)(3).
A.
Plaintiff’s Motion to Compel
Defendant served its initial disclosures and its Responses to plaintiff’s Requests
for Documents and Requests for Admissions on July 1, 2020, along with 654 pages of responsive
documents. See Belka Declaration [49-2], ¶ 5 and pp. 13-32 (defendant’s July 1, 2020
correspondence with responses). Plaintiff previously filed a motion to compel on September 21,
2020. Motion to Compel [28]. Generally, in his first motion, plaintiff complained that defendant
failed to produce:
1. Documents demonstrating why defendant terminated him;
2. Documents related to various automobile accidents in which he was involved in the
course of his employment;
3. Defendant’s liability insurance policy; and
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4. Other “minor items” that were not particularized.
I ordered plaintiff to meet and confer with defendant to narrow the discovery
issues. Text Order [35]. Due to plaintiff’s failure to comply with that order and his failure to
appear at a subsequent court conference scheduled to discuss discovery, I denied his first motion
to compel. Text Order [37].
In his second motion to compel, plaintiff fails to identify with any particularity the
specific discovery to which he believes he is entitled, but claims that defendant has “repeatedly
refused” to comply with discovery or to produce “documents, addresses, and other pertinent
information” that he requested. [45], p. 1. Plaintiff complains in his response to defendant’s
cross-motion that defendants did not provide accurate addresses for the witnesses disclosed in its
Rule 26 disclosure, and that defendant’s request for his deposition was intended to harass him.
Plaintiff’s Response [51], pp. 2-3.
Defendant responds that it produced the documents plaintiff demanded in his
Requests for Documents, and points to correspondence dated October 15, 2020 in which
defendant explained to plaintiff how its responses and production responded to his specific
demands. See Belka Declaration [49-2], ¶ 13 and pp. 94-97 (October 15, 2020 correspondence).
After reviewing the substance of plaintiff’s Requests for Documents and
defendant’s Responses, I agree that defendant has properly responded. Compare Plaintiff’s First
Request for the Production of Documents [46] to Belka Declaration [49-2], pp. 14-32
(defendant’s July 1, 2020 Responses). Further, plaintiff has failed to specify with particularity
any demand that remains outstanding, object to any particular response, and meet and confer
concerning any issues with defendant’s responses. Accordingly, plaintiff’s motion is denied
insofar as it seeks this court to compel further responses.
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In addition, defendant states that it does not have a liability insurance policy. See
Belka Declaration [49-2], pp. 19 (defendant’s Response to Document Request #2), 31
(defendant’s Rule 26 Disclosure). “[A] party’s good faith averment that the items sought simply
do not exist, or are not in his possession, custody, or control, [generally] should resolve the issue
of failure of production since one cannot be required to produce the impossible.” Mason Tenders
District Council of Greater New York v. Phase Construction Services, Inc., 318 F.R.D. 28, 42
(S.D.N.Y. 2016) (internal quotation omitted). Accordingly, plaintiff’s motion insofar as it
requests disclosure of defendant’s insurance policy is also denied.
With respect to plaintiff’s request for the addresses and phone numbers of those
witnesses identified in defendant’s Rule 26 disclosure, however, plaintiff’s motion is granted.
“Rule 26(a)(1) . . . requires the home addresses and telephone numbers of disclosed witnesses
who are employees of the disclosing party”. State of New York v. Grand River Enterprises Six
Nations, Ltd., 2020 WL 7350335, *4 (W.D.N.Y. 2020) (citing 6 Moore’s FEDERAL
PRACTICE—Civil § 26.224(a)(1)). For example, “providing counsel’s address in lieu of that of
the disclosed witness does not comply with Rule 26(a)(1)”. Id. Accordingly, plaintiff’s motion
is granted only to the extent that it requests the home address and telephone number of the
witnesses disclosed in defendant’s Rule 26 disclosure.
B.
Defendant’s Motion to Compel
Defendant seeks to compel plaintiff to serve an initial disclosure and responses to
its interrogatory requests, and to schedule his deposition. 3 See Belka Declaration [49-2], ¶ 41.
Defendant also moved to compel plaintiff to respond to its document requests. However, plaintiff
has now stated that “[a]ll information available to [him] at the time of the defendant’s request was in fact
provided to the defendants” at the time he served his response to the document request. Plaintiff’s
Response [51], p. 1. Moreover, plaintiff represented that he has now served documentary evidence
3
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Defendant satisfied his obligation to confer with plaintiff concerning this outstanding discovery
by letter dated February 1, 2021. Id., ¶ 39 and pp. 99-100 (February 1, 2021 correspondence). In
reply, plaintiff does not contest that he did not serve a formal Rule 26 disclosure, nor that he did
not respond to defendant’s interrogatories. He interposes no objections to defendant’s
interrogatories.
On March 15, 2021, plaintiff filed a Certification to the Court of his Compliance
to Defendants’ Requests for Discovery Pursuant to FRCP’s 26(a) and 37. [55] Plaintiff attached
to the “Compliance” a copy of his Responses to Defendant’s First Request for the Production of
Documents (id., pp. 9-16) and to Defendant’s First Request for Admissions (id., pp. 20-23).
While he attached a copy of Defendant’s First Set of Interrogatories (id., pp. 24-27), plaintiff did
not reference or attach any response.
Plaintiff is required to serve an initial disclosure under Rule 26. The rule is plain.
A party “must” provide the itemized disclosures. Rule 26 (a)(1)(A) (emphasis added). I note
that plaintiff filed on March 15, 2021 a Rule 26 Disclosure with a certificate of service upon
defendant’s attorney. [54].
Further, defendant is entitled to the discovery devices provided by the Rules,
including depositions and interrogatories. See Rules 30, and 33. Plaintiff’s failure to timely
respond to defendant’s discovery demands waives any objection which may have been available
to him. See Eldaghar v. City of New York Department of Citywide Administrative Services,
2003 WL 22455224, *1 (S.D.N.Y. 2003) (“[i]f a party fails to file timely objections to document
requests, such a failure constitutes a waiver of any objections which a party might have to the
requests”). Nevertheless, I am mindful that “waiver of [plaintiff’s] objections does not otherwise
discovered since that time. Accepting these representations, defendant withdrew that specific request for
relief. See Defendant’s Reply [52], pp. 3-4. Accordingly, I deny that portion of defendant’s motion.
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excuse this Court from its obligation to manage discovery in this case . . . including limiting its
scope as appropriate.” Holloway v. Dollar Tree Distribution, Inc., 2015 WL 3606326, *2
(D.Conn. 2015).
My review of the interrogatories, however, reveals that they comply in scope and
number with Rule 33. See Belka Declaration [49-2], pp. 61-64 (Defendant’s First Set of
Interrogatories, itemizing 15 interrogatories, one of which contains four subparts); see also Rule
33(a), limiting the number of interrogatories to “no more than 25 . . . including all discrete
subparts”, and the scope to “any matter that may be inquired into under Rule 26(b)”.
Finally, defendant’s efforts to depose plaintiff cannot be viewed as harassment.
Defendant served a notice of deposition upon plaintiff on or about March 11, 2020. See Belka
Declaration [49-2], pp. 48-58. Defendant’s correspondence seeking to schedule a deposition of
“up to 7 hours” complies with Rule 30(d)(1) (“[u]nless otherwise stipulated or ordered by the
court, a deposition is limited to one day of 7 hours”).
CONCLUSION
For these reasons: (1) plaintiff’s motion to compel [45] is granted to the extent
that it requests the home address and telephone number of each of the witnesses disclosed in
defendant’s initial disclosures, but is otherwise denied; and (2) defendant’s motion to compel
[49] is granted to the extent that it seeks to compel plaintiff to serve initial disclosures pursuant
to FRCP Rule 26(a)(1), responses to its interrogatories, and scheduling of plaintiff’s deposition,
but is otherwise denied. The parties were instructed at the close of oral argument to confer
concerning a date for deposition. If the parties were unable to agree to a date for plaintiff’s
deposition, they shall contact the court to schedule a date. Unless a stay is obtained from District
Judge Vilardo, plaintiff shall serve his responses to defendant’s interrogatories on or before April
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14, 2021, and defendant shall serve the addresses and telephone numbers of the witnesses listed
in its initial disclosures, if known, on or before the same date.
SO ORDERED.
Dated: April 8, 2021
/s/ Jeremiah J. McCarthy
Jeremiah J. McCarthy
United States Magistrate Judge
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