Smith v. Fischer et al

Filing 77

DECISION & ORDER Defendants' motion to adjourn discovery deadlines 66 is granted. Following plaintiff's deposition on 1/16/2018, the parties are directed to confer on amended scheduling deadlines, and defendants' counsel shall submi t a jointly-proposed amended scheduling order by no later than 1/19/2018. Plaintiff's motion to compel 72 is granted in part and denied in part as explained more fully within. Defendants are directed to make their mandatory disclosures (those documents that respond to paragraph 3 of this Court's 5/4/2017 scheduling order 51 available for inspection by plaintiff upon reasonable notice, including during the week preceding his 1/16/2018 deposition. In addition, defendants are directe d to prepare an index of those documents, accompanied by a designation of the number of pages for each document or category of documents indexed. Defendants shall provide a copy of the index to plaintiff and this Court by no later than 11/21/2017. U pon receipt and review of the index, plaintiff may request that defendants copy and provide to him without cost a reasonable number of the indexed documents, limited to no more than 200 pages. Defendants shall provide copies of the documents request ed by plaintiff within 14 days of plaintiff's request. If plaintiff wishes to have copies of more than 200 pages, he must reimburse defendants' copying costs at a rate of $.10 per page. Signed by Hon. Marian W. Payson on 11/14/2017. Copy of this Decision & Order sent by First Class Mail to plaintiff Jeremie Smith on 11/14/2017 to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JEREMIE SMITH,
DECISION & ORDER
Plaintiff,
13-CV-6127G
v.
BRIAN S. FISCHER, et al.,
Defendants.
_______________________________________

Pending before this Court are two motions. The first, filed by defendants, seeks
an extension of the Court-ordered deadlines for discovery until after September 8, 2017, the day
after plaintiff was noticed to appear for his deposition. (Docket # 66). The second, filed by
plaintiff, seeks an order compelling defendants to provide him with copies of defendants’
mandatory disclosures, rather than to make them available to him for inspection. (Docket # 72).
Motion scheduling orders were issued on each setting deadlines for the filing of any opposition
papers. (Docket ## 73, 74). Plaintiff has filed no opposition to defendants’ motion. Defendants
have opposed plaintiff’s motion. (Docket # 75).
The affidavit filed in support of defendants’ motion to extend affirms that plaintiff
failed to appear for his deposition, prompting defendants to move to dismiss the action. (Docket
# 66-1 at ¶ 4). Defendants subsequently withdrew the motion upon plaintiff’s representation that
he had not received the Notice of Deposition. (Id. at ¶ 6). Defendants re-noticed plaintiff’s
deposition for September 7, 2017, and requested through the pending motion that the discovery
deadlines be held in abeyance pending plaintiff’s deposition. (Id. at ¶¶ 8-10). Since the motion
was filed, plaintiff’s deposition was adjourned until January 16, 2018 (Docket # 70) due to

plaintiff’s inability to travel from Florida for his September 7, 2017 deposition because of the
state of emergency in Florida relating to Hurricane Irma. (Docket # 72 at 3). On this record,
including plaintiff’s lack of opposition to the relief requested, defendants’ motion is granted.
Following plaintiff’s deposition on January 16, 2018, the parties are directed to confer on
amended scheduling deadlines, and defendants’ counsel shall submit a jointly-proposed amended
scheduling order by no later than January 19, 2018.
With respect to plaintiff’s motion (Docket # 72), defendants are directed to make
their mandatory disclosures (those documents that respond to paragraph 3 of this Court’s May 4,
2017 scheduling order (Docket # 51)) available for inspection by plaintiff upon reasonable
notice, including during the week preceding his January 16, 2018 deposition. In addition,
defendants are directed to prepare an index of those documents, accompanied by a designation of
the number of pages for each document or category of documents indexed. Defendants shall
provide a copy of the index to plaintiff and this Court by no later than November 21, 2017.
Upon receipt and review of the index, plaintiff may request that defendants copy and provide to
him without cost a reasonable number of the indexed documents, limited to no more than 200
pages. Defendants shall provide copies of the documents requested by plaintiff within fourteen
(14) days of plaintiff’s request. If plaintiff wishes to have copies of more than 200 pages, he
must reimburse defendants’ copying costs at a rate of $ .10 per page. See, e.g., Barnes v. Alves,
10 F. Supp. 3d 391, 393 n.1 (W.D.N.Y. 2014) (discussing but not determining appropriate
copying charges for pro se plaintiff) (citing Hawks v. Diina, 2006 WL 2806557, *3-4 (W.D.N.Y.
2006) (reasonable for non-party to charge pro se incarcerated plaintiff 25 cents per page);
Obiajulu v. City of Rochester, 166 F.R.D. 293, 297 (W.D.N.Y. 1996) (plaintiff ordered to pay
reasonable copying costs not to exceed 10 cents per page); Koehl v. Green, 2007 U.S. Dist.

2

LEXIS 97182, *6-8 (N.D.N.Y. 2007) (finding that pro se incarcerated inmate should be charged
copying costs at a rate of 10 cents per page rather than Department of Correctional Services’
customary charge of 25 cents per page)).

CONCLUSION
Accordingly, defendants’ motion to adjourn discovery deadlines (Docket # 66) is
GRANTED. Plaintiff’s motion to compel (Docket # 72) is GRANTED in part and DENIED
in part as explained more fully above.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
November 14, 2017

3