Murray v. New York State et al
Filing
143
ORDER granting in part and denying in part 126 Motion for Discovery; denying 127 Motion for Protective Order; granting 132 Motion to Compel. The Court Orders defense counsel to produce the four aforementioned categories of documents plaintiff s eeks in the instant motion within thirty (30) days of entry of this Order. If defense counsel is withholding relevant documents or is claiming that any of the aforementioned documents do not exist, he must submit an affidavit within thirty (30) days specifically identifying the reasons for non-production. Signed by Hon. Jonathan W. Feldman on 9/12/2012. (RJO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
William J. Murray,
Plaintiff,
DECISION AND
08-CV-6383
v.
ORDER
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
Correctional Services (“DOCS”).
120).
York
State
Department
of
See Amended Complaint (Docket #
Currently pending before the Court are plaintiff’s motions
for discovery (Docket # 126), for a stipulated Protective Order
(Docket # 127) and to compel (Docket # 132).
Discussion
I.
Plaintiff’s
Motion
for
Discovery:
In
this
motion,
plaintiff requests “access to electronic records.” (Docket # 126).
Specifically, plaintiff asserts that defendants “have withheld
electronically
stored
information”
and
have
“chronological e-mail history of any kind.”
never
Id.
provided
a
According to
plaintiff, defense counsel has stated “costs and access” as the
“primary reasons” why defendants have been unable to timely respond
to plaintiff’s discovery demands.
Plaintiff seeks permission to
“visit all locations where electronic information is stored and
retrieve discovery demands” and offers to pay for all copying costs
for relevant documents.
Id.
In response to plaintiff’s motion, defense counsel, J. Richard
Benitez, Esq., simply avers that after plaintiff filed this motion
to compel, he provided plaintiff with “copies (free of charge) of
the documents sought” and, therefore, plaintiff’s motion is “moot.”
See Declaration of J. Richard Benitez, Esq. (Docket # 135).
In
reply, however, plaintiff asserts that “virtually no electronic
records
[were]
(Docket # 137).
included”
in
defendant’s
discovery
responses.
Plaintiff maintains that “[t]here has never been
a systemic search of DOCCS [sic] electronic database” and he “has
not
received
any
chronological
electronic
records
related
specifically to a single Defendant and/or electronic communications
concerning extensive claims” asserted by plaintiff.
Id.
Defense counsel’s terse response to the motion to compel makes
it difficult for the Court to determine whether defendants have in
fact
produced
all
relevant
demanded by plaintiff.
any
details
regarding
electronic
records
and
emails
as
Mr. Benitez’s Declaration does not provide
how
and
where
electronically
stored
information (“ESI”) is held, what efforts were made to preserve
relevant ESI, and the method used by defendants to locate, search
and produce relevant ESI.
In light of the inadequacy of the
defendants’ response to the motion to compel, the Court will
2
construe the response as a claim that ESI, including emails, have
not been produced because the data demanded has been destroyed or
is not “reasonably accessible.”
Rule 26(b)(2)(B) of the Federal
Rules of Civil Procedure provides that on a motion to compel
discovery “the party from whom discovery is sought must show that
the information is not reasonably accessible because of undue
burden or cost.”
Bandwidth,
Inc.,
See Star Direct Telecom, Inc. v. Global Crossing
272
F.R.D.
350,
358-59
(W.D.N.Y.
2011)(“The
responding party must also identify, by category or type, the
sources containing potentially responsive information that it is
neither searching nor producing. The identification should, to the
extent possible, provide enough detail to enable the requesting
party to evaluate the burdens and costs of providing the discovery
and
the
likelihood
identified
of
finding
sources.”)(quoting
responsive
Fed.
R.
information
Civ.
P.
26
on
the
advisory
committee’s note (2006)).
In order for the Court to determine whether defendants have
met their discovery obligations and to comply with the requirements
of Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure,
defense counsel shall file an affidavit of a person with direct
knowledge of DOCS’s document and email retention system stating:
(1) the document/email retention policy used by DOCS currently and
during
the
relevant
time
periods,
(2)
the
dates
of
emails
“reasonably accessible” for production in this litigation, (3) the
3
back up or legacy system, if any, used by DOCS to preserve or
archive emails that are no longer “reasonably accessible” and
whether responsive documents or data may potentially be found on
such back up or legacy systems, (4) whether accessing archived or
back up emails would be unduly burdensome or costly and why, and
(5) the date when a litigation hold or document preservation notice
was put in place by DOCS regarding this matter and either a copy of
or a description of the preservation or litigation hold utilized by
DOCS.
The affidavit shall be filed within thirty (30) days of
entry of this Order.
II.
Plaintiff’s Motion for a stipulated Protective Order:
With the instant motion, plaintiff seeks entry of his proposed
stipulated Protective Order.
(Docket # 127).
Plaintiff attached
to his motion papers “a proposed equitable stipulation and order of
confidentiality which meets the needs of both parties with regard
to confidentiality, and offers a reasonable process to resolve any
disagreement.”
Id.
Defense counsel has inexplicably failed to
file a response to plaintiff’s motion.
On
January
conference
conference,
with
the
18,
2012,
plaintiff
dispute
the
Court
and
defense
over
held
an
on
counsel.
issuance
of
the
record
During
a
the
protective
order/confidentiality agreement issue was discussed at length and
the Court set forth the requisite process for the manner in which
the parties were to proceed with reviewing and producing discovery.
4
See Transcript of January 18, 2012 conference (hereinafter “1/18/12
Tr.”) (Docket # 134).
Specifically, with respect to the Inspector
General files, diversity management documents, personnel files and
any other documents defendants have produced as responsive to
plaintiff’s discovery requests, (1) defense counsel must produce
the documents for review and inspection by plaintiff; (2) plaintiff
shall review the documents produced and identify which documents he
wants copied and produced to him; (3) defense counsel shall then
have two weeks to review the documents designated by plaintiff and
designate what portion, if any, of a designated document is deemed
to be confidential and why it is confidential; (4) documents and
parts of documents not designated confidential should be produced
to plaintiff without delay; (5) plaintiff and defense counsel shall
meet and confer with respect to any documents or parts of documents
designated confidential by defense counsel and attempt to agree on
redactions or other confidentiality stipulations to resolve their
dispute; and (6) no later than thirty days after the date of this
Order defense counsel shall file a motion seeking a protective
order as to any document or portion of any document for which
plaintiff and defense counsel can not agree as to confidentiality.
The motion must be accompanied by a memorandum of law.
III. Plaintiff’s Motion to Compel: With the instant motion,
plaintiff asserts that he inspected “approximately twenty thousand”
documents at the Attorney General’s Office and found “several
5
hundred documents responsive to Plaintiff’s discovery demands”
which plaintiff requested be copied at his expense and produced to
him.
(Docket # 132).
Plaintiff maintains that despite multiple
requests for production, defense counsel has not “provided any
discovery documentation as directed by the Court” and, therefore,
requests that defense counsel be ordered “to immediately copy all
documents identified as discovery” during his inspection “and
forward these documents” to plaintiff.
Id.
In response to plaintiff’s motion, Mr. Benitez avers that
after plaintiff filed the instant motion on March 20, 2012, “copies
(free of charge) of the documents sought by the plaintiff have been
produced” and, as a result, plaintiff’s motion to compel “should be
denied as moot.”
See Declaration of J. Richard Benitez, Esq.
(Docket # 135).
In reply in further support of his motion, plaintiff contends
that contrary to Mr. Benitez’s assertions he “has in fact not
received complete copies of all documents” that he requested after
inspection.
(Docket # 139).
Specifically, plaintiff maintains
that he requested the following four categories of documents which
defense counsel never produced: (i) “Seven pages of documentation
from Inspector General Senior Investigator Christopher Petrosi,
identified as summary and schedule documents (2008)”; (2) “Six
pages of documentation from inspector General Senior Investigator
Christopher Petrosi, identified as interview notes (2008)”; (3)
6
Twenty
seven
pages
of
documentation
from
the
office
of
the
Inspector general identified as investigation into Plaintiff’s
contracted work for Keuka College (2008)”; and (4) “Seventy five
pages of documentation identified as an investigation into work
related
activities
by
Correctional Facility.”
Plaintiff
Id.
while
employed
at
Oneida
Plaintiff asserts that none of these
requested documents contain confidential information.
Id.
The Court hereby Orders defense counsel to produce the four
aforementioned categories of documents plaintiff seeks in the
instant motion within thirty (30) days of entry of this Order.
If
defense counsel is withholding relevant documents or is claiming
that any of the aforementioned documents do not exist, he must
submit
an
affidavit
within
thirty
(30)
days
specifically
identifying the reasons for non-production.
Conclusion
Plaintiff’s motion for discovery (Docket # 126) is granted in
part and denied in part.
Plaintiff’s motion for a stipulated
Protective Order (Docket # 127) is denied and the parties are
directed to comply with the Court’s instructions as set forth
herein.
Plaintiff’s motion to compel (Docket # 132) is granted.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 12, 2012
Rochester, New York
7
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