Murray v. New York State et al
ORDER granting in accordance with this Decision and Order 72 Motion to Compel; denying 72 Motion for Sanctions; granting in accordance with this Decision and Order 74 Motion ; granting 96 Motion to Seal Document ; granting in accordance with this Decision and Order 97 Motion for Extension of Time to Complete Discovery; granting 100 Motion to Amend or Correct. Signed by Hon. Jonathan W. Feldman on 9/30/2011. (RJO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
William J. Murray,
DECISION AND ORDER
Gary Coleman, et al.,
Plaintiff William J. Murray, appearing pro se, brings the
instant action pursuant to 42 U.S.C. § 1983, asserting various
claims relating to alleged harassment and retaliation in connection
Correctional Services (“DOCS”). Currently pending before the Court
are plaintiff’s motions to compel (Docket # 72), for sanctions
(Docket # 72), to modify the scheduling order (Docket # 74), and
defendants’ motions to seal (Docket # 96), for an extension of time
to complete discovery (Docket # 97), and to amend/correct the
Answer to the Amended Complaint (Docket # 100).
Plaintiff’s Motion to Compel: In his motion to compel
(Docket # 72), plaintiff complains that defendants have not fully
responded to his discovery demands and, as a result, requests
“acknowledge that Discovery is not complete in this matter” but
point out that “they have produced thousands of pages of documents
relevant to plaintiff’s claims” and assert that they “are currently
screening thousands of pages of documents concerning civil service
lists” that plaintiff has requested and “are ready to serve copies
See Declaration of Emil J. Bove,
Esq. (hereinafter “Bove Decl.”) (Docket # 89) at ¶ 2.
“overbroad,” as he has requested discovery of things that are
irrelevant to his claims.
Id. at ¶ 14.
Defendants claim that
“much of the emails sought are not reasonably accessible due to the
nature of DOCS’ email systems.”
maintain that “thousands of pages of documents have been provided
and thousands of pages more will be provided.”
after responding to plaintiff’s motion, defendants produced several
additional discovery responses.
See Dockets ## 91, 93, 94, 104.
It is difficult for this Court to determine exactly what
discovery remains outstanding and what disputes still exist.
their response, defense counsel acknowledges that the defendants
have not fully responded to several of plaintiff’s demands and will
be producing “thousands of pages” of additional materials.
representation was made in March of 2011 and despite the Court’s
request for an update as to the status of discovery from the
Assistant Attorney General currently assigned to this case, the
Court is still not certain as to whether the thousands of pages of
documents promised to be produced have in fact been provided as
Therefore, plaintiff’s motion to compel will be granted
Within fourteen days from the date of this Order, defense
counsel shall file an affidavit with the Court which specifically
addresses each representation made by Mr. Bove in Docket # 89 with
respect to further document production.
As to documents that were
promised to be disclosed, counsel’s affidavit must specifically
confirm that such disclosure has in fact occurred. Given that
several months have passed since the additional documents were
promised, the Court will be skeptical of any request by defendants
for additional time to produce the promised documents.
As to any
affidavit must explain with specificity why the requested documents
are irrelevant or too burdensome to produce.
Within 30 days from the date of this Order, plaintiff and
completion of discovery.
In this regard, the parties are ordered
to confer regarding search terms that could be used to search the
DOCS Outlook system for electronic emails concerning plaintiff’s
protected activity and the claims he asserts in his Complaint
against defendants Ratner and Fisher.
With respect to documents that are being withheld from
production because plaintiff has not yet signed a confidentiality
agreement, the parties are directed to discuss the terms of a
proposed confidentiality agreement during their meeting. Plaintiff
is advised that the Court will normally direct that identifying or
personal information of non-parties or irrelevant information of a
security numbers, medical or mental health records) be subject to
a confidentiality agreement or protective order.
If, during the
conference, the parties are unable to agree on the terms of a
stipulated confidentiality order, defense counsel shall submit a
submission shall be made within thirty days of this Order.
Within fourteen days after their conference, the parties
shall file with the Court a joint statement which summarizes the
compromise could not be reached.
The summary shall not be longer
than ten double spaced pages and shall briefly state the position
of each party with respect to each category of disputed documents.
The parties shall meet with the Court on November 16, 2011
at 10:00 a.m. to discuss the joint submission, resolve remaining
discovery disputes and enter a final Scheduling Order.
Plaintiff’s Motion for Sanctions:
Plaintiff seeks to
sanction defendants for failing to sufficiently respond to his
defendants have engaged in “bad faith activities” and requests that
he be reimbursed for his costs in bringing the instant motion.
responded to plaintiff’s discovery demands, but contend that “the
[plaintiff] any documents, rather it is due to the volume of
documents generated concerning plaintiff by DOCS as well as the
overbroad nature of plaintiff’s discovery demands.” See Bove Decl.
at ¶ 14.
Defendants point out that they have already produced
“thousands of pages of documents” and maintain that “thousands of
pages more will be provided.”
A court, pursuant to its inherent powers, has the discretion
to sanction conduct that it considers to be an abuse of the
See Chambers v. NASCO, Inc., 501 U.S. 32, 42-44
(1991); see also Murphy v. Bd. of Educ. of Rochester City Sch.
Dist., 196 F.R.D. 220, 224 (W.D.N.Y. 2000).
To impose sanctions,
the court must find that the offending conduct “was ‘without a
colorable basis’ and undertaken in bad faith, i.e. ‘motivated by
improper purposes such as harassment or delay.’”
F.R.D. at 225 (quoting Schlaifer Nance & Co. v. Estate of Warhol,
194 F.3d 323, 326 (2d Cir. 1999)).
The Court, having reviewed the papers in support of (Dockets
## 72, 92) and in opposition to (Docket # 89) plaintiff’s motion
for sanctions (Docket # 72), does not find at this juncture that
defendants’ conduct occurred in bad faith or was motivated by
improper purposes and, therefore, declines to sanction defendants.
Accordingly, plaintiff’s motion for sanctions (Docket # 72) is
III. The Parties’ Motions to Modify the Scheduling Order:
Although unable to agree on dates, both plaintiff (Docket # 74) and
defendants (Docket # 97) have moved to modify the Scheduling Order.
These motions are granted. The Court will enter a Final Scheduling
Order at the November 16, 2011 conference with the Court.
IV. Defendants’ Motion to Seal: Defendants seek leave to file
under seal Exhibits “A” through “L” of their Fourth Supplemental
Response to plaintiff’s Document Demand (Docket # 94), which
consist of copies of canvass list results for each ASAT SCC lateral
transfer to Butler and Auburn Correctional Facilities since April
(Docket # 96).
Defendants request permission to file
under seal due to the Exhibits’ “bulk, i.e. 221 pages” and because
they “contain numerous references to plaintiff’s and other person’s
personal information, including references to employment issues of
Declaration of Emil J. Bove, Jr., Esq. annexed to Docket # 96 at ¶
2. Defendants assert that they have attempted to redact references
to confidential personal information “but some references may
Plaintiff opposes defendants’ motion and requests
that Exhibits A - L not be filed under seal because defendants have
not offered a proper reason for sealing the documents.
determining whether good cause exists to overcome the presumption
of open access to documents filed in our courts.”
See Geller v.
Branic Int’l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000).
Court, having reviewed the papers in support of (Docket # 96) and
in opposition to (Docket # 103) defendants’ motion to seal (Docket
# 96), as well as the documents defendants seek to seal (Exhibits
A through L), finds that defense counsel’s representation that
public filing of this discovery information would unnecessarily
reveal private information as to non-parties constitutes sufficient
good cause to seal documents that, but for plaintiff’s pro se
defendants’ motion to seal Exhibits “A” through “L” of Docket # 94
V. Defendant Fisher’s Motion to Amend Answer:
On April 5,
2011, defendant Brian Fisher filed a motion to amend his Answer to
plaintiff’s Amended Complaint.
(Docket # 100).
Fisher seeks to
amend his Answer pursuant to Rule 15(a) of the Federal Rules of
Civil Procedure (“FRCP”) to include a statute of limitations
See Declaration of Emil J. Bove, Jr., Esq.
annexed to Docket # 100 at ¶ 9.
Defendant Fisher asserts that the
deadline for moving to amend his pleading should be extended on
grounds of “excusable neglect” under FRCP Rule 6(b)(1)(B).
Plaintiff was given an opportunity to oppose defendant
Fisher’s motion and has not filed any papers in opposition.
Order dated April 6, 2011 (Docket # 102).
The Court, upon consideration of defendant’s motion papers and
the totality of the circumstances present here, hereby Orders that
defendant Fisher’s motion to amend his Answer (Docket # 100) is
Defendant Fisher’s proposed amended Answer attached as
Exhibit “A” to Docket # 100 is now the operative Answer for
Plaintiff’s motion to compel (Docket # 72) is granted in
accordance with this Decision and Order.
sanctions (Docket # 72) is denied.
Plaintiff’s motion for
Plaintiff and defendants’
motion to modify the Scheduling Order (Dockets ## 74, 97) are
granted in accordance with this Decision and Order.
motion to seal (Docket # 96) is granted. Defendant Fisher’s motion
to amend his Answer (Docket # 100) is granted.
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 30, 2011
Rochester, New York
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