Boyde v. Monroe County et al
Filing
135
DECISION AND ORDER denying 88 Motion. Defendants motion to preclude the Note is denied, but the Court will permit Defendants to conduct additional discovery concerning the Note. In that regard, Defendants are to notify the Court by letter within fourteen (14) days of the entry of this Decision and Order on what further discovery is requested, as well as the date by which any requested discovery would be completed.Signed by Hon. Charles J. Siragusa on 9/22/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________________
THOMAS W. BOYDE, IV,
Plaintiff,
MONROE COUNTY, ORLEANS COUNTY SERGEANT
WEAVER, DEPUTY REAMER, DEPUTY BRETT,
PATRICK M. O‟FLYNN, Monroe County Sheriff, SCOTT
D. HESS, Orleans County Sheriff, LIEUTENANT
MIGNANO, DEPUTY MIGNANO, DEPUTY TORRES,
DEPUTY SALVATORE, DEPUTY ALLEN, KELLEN E.
HALE, Orleans County Jail Superintendent,
DECISION
AND ORDER
08-CV-6242
Defendants.
_______________________________________________
INTRODUCTION
Plaintiff Thomas W. Boyde, IV (“Plaintiff”), by and through his attorneys, Ward
Greenberg Heller & Reidy LLP, pro bono counsel, is suing Defendants Orleans County,
Orleans County Sheriff Scott D. Hess, Lieutenant Mignano, Sergeant Weaver, Deputy
Reamer, Deputy Brett, Deputy Mignano, Deputy Torres, Deputy Salvatore, Deputy
Allen, and Orleans County Jail Superintendent Kevin E. Hale (“Defendants”) for
declaratory relief and monetary damages pursuant to 42 U.S.C. § 1983. Now before
the Court is Defendants‟ motion (Docket No. [#88]) to preclude Plaintiff from offering a
note (“Note”), dated August 6, 2007, addressed to Sergeant Weaver, into evidence at
trial or in response to any potential motion for summary judgment. Plaintiff produced
the note only after discovery was closed, and after indicating that no such note existed.
For the reasons that follow, Defendants‟ motion to preclude is denied.
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BACKGROUND
On July 1, 2007, Plaintiff was arrested and subsequently transported from
Monroe County Jail to the Orleans County Jail. Plaintiff alleges that on or about July 31,
2007, inmate Carl Turner (“Turner”) was transported to the Orleans County Jail and
during transport, was informed by two Monroe County deputies that Plaintiff was an
informant in a federal drug case. Amended Complaint (Second), 4 [# 109]. Plaintiff
further alleges that another prisoner overheard Turner say that Plaintiff was an
informant and that inmates at the Jail were plotting to kill him. Id. at 5. Plaintiff states
that he told Sergeant Weaver in early August 2007 that he was in imminent peril and
wanted to be moved out of Orleans County Jail. Id. Significantly, Plaintiff also alleges
that he wrote a letter to Weaver about his safety concerns, which is the Note
Defendants now seek to preclude. Id. The Note indicates that Plaintiff was concerned
about a non-functional security camera in the cell block, that the situation had “gotten
real bad” in the cell block, that he had asked several deputies for a grievance form and
they did not give him one, and that Turner and his friends were going to try to kill him.
Plaintiff‟s Memorandum of Law in Opposition to Defendants‟ Motion to Preclude, Ex. A
[# 96-1]. The Note also asks that he be removed from the jail immediately based on the
situation. Id. The Note is dated August 6, 2007. Id.
On August 29, 2007, Turner and Plaintiff were involved in a fight in the cell block.
Amended Complaint (Second) at 7-8. Plaintiff claims he was attacked from behind
during the fight, and suffered serious facial lacerations and a serious injury to his right
shoulder. After the fight, Plaintiff was relocated to Steuben County Jail. Id.
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On June 4, 2008, Plaintiff filed this lawsuit against the Defendants, claiming they
deprived him of his federally protected rights. During discovery, Defendants submitted
two sets of interrogatories to Plaintiff. On April 30, 2009, the first set included the
following request:
“16- Set forth in detail all bases for plaintiff‟s contention that the
Defendants “knew or should have known that plaintiff was the subject of a
planned attack and did nothing to prevent said attack,” as alleged in
paragraph 29 of the amended complaint, identifying each Defendant to
whom his allegation concerns.”
Id. at Ex. C. Plaintiff responded by stating that his answers to previous questions
addressed it. However, Plaintiff did not mention previously or in his response to
paragraph 16, that there was a handwritten note authored by him to Sergeant Weaver.
On July 29, 2009, in the second set of interrogatories, Defendants requested that
Plaintiff identify and attach “any documentation in support of Plaintiff‟s claim that the
Orleans County Jail was aware that the security-camera was not operating at that time”
and “any and all documents supporting Plaintiff‟s „deliberate indifference‟ claim.” Id. at
Ex. E. Again, Plaintiff failed to identify or produce the Note.
On April 28, 2010, Defendants deposed Plaintiff. At deposition, Plaintiff testified
that he never put his complaint in writing. Defendant‟s Motion to Preclude [#88] Ex. I.
However, on June 6, 2010, he submitted an errata sheet, in which he claimed for the
first time in this action, that he put his complaint in writing to Sergeant Weaver.
Although, Plaintiff did not correct another portion of his deposition in which he had
stated that he did not write down his complaint. Id. Ex. J; Ex. I at 57. On June 24, 2010,
all parties participated in a telephone conference with Magistrate Judge Feldman, at
which time Defendants raised the issue of the whereabouts of the Note. Plaintiff
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responded that he had the Note in his possession, and on June 29, 2010, he produced
it to Defendants. Id. at 8. On July 15, 2010, Defendants filed the subject motion to
preclude the Note.
In response to the Motion to Preclude, Plaintiff states that he forgot about the
Note until the deposition jogged his memory. Plaintiff‟s Memorandum of Law in
Opposition to Defendants‟ Motion to Preclude, 3. According to Plaintiff, he kept a copy
of the Note for himself, and in November 2007, sent the original, along with all of his
personal papers, to his son. Id. His son has submitted an affidavit stating that he
received the Note from his father and kept it for safekeeping until his father requested it
on April 28, 2010. Declaration of Thomas W. Boyde, V [# 96-2]. Plaintiff‟s son mailed
the Note to him on May 3, 2010.
Plaintiff maintains that his forgetfulness is a substantial justification for failing to
comply with Defendants‟ discovery requests, and that the error was harmless. Plaintiff
suggests that this Court reopen discovery if it finds that he failed to comply with FRCP
Rule 26.
ANALYSIS
The analysis in this case breaks down to determining (I) whether Plaintiff failed to
comply with Rule 26(e), (II) if there was a failure to comply, whether it was substantially
justified or is harmless, and (III) if not substantially justified or harmless, what is the
appropriate sanction under Rule 37(c)(1).
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Compliance with Rule 26(e)
Rule 26(e) of the Federal Rules of Civil Procedure states:
“A party who has responded to an interrogatory, request for production, or
request for admission must supplement or correct its disclosure or
response in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to
the other parties during the discovery process or in writing.”
Under Rule 37(c), a party‟s failure to supplement an earlier discovery response is
sanctionable. Specifically, Rule 37(c) provides that a party who fails to supplement is
not allowed to use that information to supply evidence “on a motion, at a hearing, or at
trial, unless the failure was substantially justified or is harmless.” FRCP 37(c)(1).
However, as discussed further below, the imposition of such sanction is subject to the
Court‟s discretion. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 296-297 (2d Cir.
2006).
In this case, Defendants, in their interrogatories to the Plaintiff, asked for “any
documentation in support of Plaintiff‟s claim that the Orleans County Jail was aware that
the security-camera was not operating that time” and “any and all documents supporting
Plaintiff‟s „deliberate indifference‟ claim.” Defendants‟ Motion to Preclude, 5-6. The Note
to Sergeant Weaver was clearly covered by this request. Nevertheless, Plaintiff
maintains that the discovery requests were vague. The Court disagrees, and finds that
the requests were not vague, as they ask directly for any document that supports
Plaintiff‟s “deliberate indifference” claim. Based on its content, the Note clearly pertains
to such claim and therefore ought to have been produced.
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The Court recognizes that Plaintiff eventually corrected his earlier incomplete
discovery responses. However, such correction was not timely, as required under Rule
26(e), since it was made only after Plaintiff had responded to two sets of interrogatories
and been deposed. Plaintiff‟s purported failure to recall the Note sooner does not
appear likely, in view of his careful action to copy the Note and mail it to his son.
Accordingly, Plaintiff did not comply with Rule 26(e).
Applying Rule 37(c)(1)
As mentioned above, even if Plaintiff failed to supplement his discovery
responses in a timely manner under Rule 26(e), Rule 37(c)(1) provides that preclusion
is not required if the failure was substantially justified or is harmless.
A substantial justification means “justification to a degree that could satisfy a
reasonable person that parties could differ as to whether the party was required to
comply with the disclosure request.” Kara Holding Corp. v. Getty Petroleum Mktg., Inc.,
2004 WL 1811427 at *24 (S.D.N.Y. Aug.12, 2004) (citations omitted). In our case, the
repeated demands by Defendants clearly covered the subject matter of the Note. The
demands were clear and on point to the issues in the Plaintiff‟s complaint. Plaintiff‟s
failure to respond was therefore not substantially justified based on the vagueness of
the discovery demands.
Plaintiff also argues that his forgetfulness is a substantial justification for his
failure to comply. However, Plaintiff‟s failure to produce the Note, despite his careful
effort to preserve it by mailing it to his son, leads the Court to conclude that he was not
substantially justified in failing to recall the Note‟s existence.
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Additionally, Plaintiff points to a case where the lack of possession, custody or
control constituted substantial justification for failure to produce such document. See
American Mfrs. Mut. Ins. Co. v. Payton Lane Nursing Home, Inc., 2010 WL 670086
(E.D.N.Y. Feb. 22, 2010). Here, though, Plaintiff had access to the Note, since his son
was holding it for him. Consequently, Plaintiff was not substantially justified in failing to
comply with Defendants‟ discovery demands based on his purported lack of possession
of the Note. Consequently, Plaintiff‟s failure to produce the Note earlier was not
substantially justified.
The failure to comply with discovery demands, even if not substantially justified,
may still not require preclusion of the information if the failure was harmless. However,
given the importance of the content of the Note to this case, Plaintiff‟s failure to comply
was not harmless.1
Sanctions
Preclusion is a harsh sanction, and is not mandatory under the Second Circuit‟s
interpretation of Rule 37(c)(1). See Design Strategy, Inc.,469 F.3d at 297. The Court
may impose other sanctions authorized under Rule 37, including ordering attorney‟s
fees caused by failure to disclose, directing the matters as to which the disclosure was
not made be taken as established for the purposes of the action in accordance with the
claims of the party seeking disclosure, striking pleadings in whole or in part, staying
further proceedings in whole or in part, and other appropriate sanctions. FRCP 37(c)(1);
see also FRCP 37(b)(2)(A)(i)-(vi). The district court has wide discretion in punishing
1
There are several factors the Court may consider in determining whether a failure to comply with discovery rules
was harmless: (1) the importance of the information withheld; (2) the prejudice or surprise to the party against whom
the evidence is offered; (3) the likelihood of disruption of the trial; (4) the possibility of curing the prejudice; (5) the
explanation for the failure to disclose; and (6) the presence of bad faith or willfulness in not disclosing the evidence.
See Laboratory Skin Care, Inc. v. Limited Brands, Inc., 661 F. Supp. 2d 473, 476-477 (D. Del. 2009).
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failure to conform to the rules of discovery. See Outley v. City of New York, 837 F.2d
587, 590 (2d Cir. 1988).
The decision whether to preclude requires consideration of four factors: (1) the
party‟s explanation, if any, for the failure to supplement their disclosures, (2) the
importance of the evidence sought to be precluded, (3) the need for time to prepare to
meet the new evidence relating to the prejudice suffered by the opposing party, and (4)
the possibility of a continuance. See Outley, 837 F.2d at 590-591; see also Turley v.
ISG Lackawanna, 2011 WL 1104270 at *3 (W.D.N.Y. Mar. 23, 2011).
With regard to these factors, Plaintiff‟s explanation for failing to comply is weak.
Plaintiff notarized the Note, made a copy of it for himself, and mailed the original to his
son for safekeeping. Therefore, every indication seems that this Note would not be
something easily forgotten on more than one occasion. However, the evidence is very
important for Plaintiff‟s case, since it is central to his claim that Defendants were on
notice about potential harm to him. While Defendants are prejudiced by the timing of
the disclosure of new evidence after the close of discovery, other sanctions besides
preclusion will allow them additional time to prepare and respond to the Note.
Specifically, as already mentioned the Court may grant a continuance by re-opening
discovery. In this case, based on the factors listed above, a less drastic sanction should
be considered over preclusion. Accordingly, the Court finds that the appropriate
sanction is to reopen discovery.
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CONCLUSION
For the reasons discussed above, the Defendants‟ motion to preclude the Note is
denied, but the Court will permit Defendants to conduct additional discovery concerning
the Note. In that regard, Defendants are to notify the Court by letter within fourteen (14)
days of the entry of this Decision and Order on what further discovery is requested, as
well as the date by which any requested discovery would be completed.
So Ordered.
Dated: Rochester, New York
September 22, 2011
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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