Murray v. New York State et al

Filing 115

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,
Plaintiff,
DECISION AND ORDER
08-CV-6383

v.
Gary Coleman, et al.,
Defendants.

Preliminary Statement
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
with

his

employment

with

the

New

York

State

Department

of

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).
Discussion
I.

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
production

of

numerous

documents.
1

In

response,

defendants

“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
of

Office

of

Diversity

Management

confidentiality stipulation.”

files

upon

execution

assert

that

many

of

a

See Declaration of Emil J. Bove,

Esq. (hereinafter “Bove Decl.”) (Docket # 89) at ¶ 2.
also

of

plaintiff’s

discovery

Defendants
demands

are

“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.”

Id.

Nonetheless, defendants

maintain that “thousands of pages of documents have been provided
and thousands of pages more will be provided.”

Id.

As promised,

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.

In

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.

This

representation was made in March of 2011 and despite the Court’s
request for an update as to the status of discovery from the

2

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
promised.

Therefore, plaintiff’s motion to compel will be granted

as follows:
1.

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

document

counsel’s

or

category

of

document

being

withheld,

affidavit must explain with specificity why the requested documents
are irrelevant or too burdensome to produce.
2.
defense

Within 30 days from the date of this Order, plaintiff and
counsel

must

personally

completion of discovery.

meet

and

confer

to

discuss

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.

3

3.

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
personal

nature

as

to

parties

and

non-parties

(i.e.,

social

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
proposed

protective

order

for

the

Court

to

consider.

Such

submission shall be made within thirty days of this Order.
4.

Within fourteen days after their conference, the parties

shall file with the Court a joint statement which summarizes the
documents

or

categories

of

documents

compromise could not be reached.

for

which

agreement

or

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.
5.

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.
II.

Plaintiff’s Motion for Sanctions:

Plaintiff seeks to

sanction defendants for failing to sufficiently respond to his
4

discovery

demands.

(Docket

#

72).

Plaintiff

alleges

that

defendants have engaged in “bad faith activities” and requests that
he be reimbursed for his costs in bringing the instant motion.
response
discovery

to
is

plaintiff’s
incomplete

motion,
and

defendants

admit

that

they

acknowledge
have

not

In

that
fully

responded to plaintiff’s discovery demands, but contend that “the
status

of

their

response

is

not

due

to

an

intent

to

deny

[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.”

Id.

A court, pursuant to its inherent powers, has the discretion
to sanction conduct that it considers to be an abuse of the
judicial process.

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.’”

Murphy, 196

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

5

## 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
denied.
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
1, 2004.

(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
state

employees

who

are

not

parties

to

this

Action.”

See

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
6

remain.”

Id.

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.

(Docket #

103).
A

district

court

“enjoys

considerable

discretion

in

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).

The

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
status,

would

not

need

to

be

publicly

filed.

Accordingly,

defendants’ motion to seal Exhibits “A” through “L” of Docket # 94
is granted.
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
Affirmative Defense.

See Declaration of Emil J. Bove, Jr., Esq.

7

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).
¶ 10.

Id. at

Plaintiff was given an opportunity to oppose defendant

Fisher’s motion and has not filed any papers in opposition.

See

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
granted.

Defendant Fisher’s proposed amended Answer attached as

Exhibit “A” to Docket # 100 is now the operative Answer for
defendant Fisher.
Conclusion
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.

Defendants’

motion to seal (Docket # 96) is granted. Defendant Fisher’s motion
to amend his Answer (Docket # 100) is granted.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 30, 2011
Rochester, New York
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