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April 14, 2003


The opinion of the court was delivered by: Arthur D. Spatt, United States District Court


AMW Materials Testing, Inc. ("AMW") and Anthony Antoniou (collectively, the "plaintiffs") commenced this action pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. against the Town of Babylon ("Town"), The North Amityville Fire District, The Board of Commissioners of the North Amityville Fire District, and The North Amityville Fire Company, Inc. (collectively, the "defendants"). Presently before the Court are the following motions: (1) the defendants' motion requesting that United States Magistrate E. Thomas Boyle's October 2, 2002 order be set aside; and (2) the Town's motion requesting that Judge Boyle's October 21, 2002 order be set aside and motion seeking a protective order.


A. General Factual Background

AMW Materials Testing, Inc. ("AMW") operated an industrial facility in the Town of Babylon ("Town"). At its facility, AMW performed non-destructive testing, anodizing, alodine coating, and painting of parts for the aircraft industries. Some of the chemicals used at the AMW facility were hazardous substances and materials within the meaning of CERCLA.

According to the plaintiffs, the defendants knew that AMW was using hazardous substances and materials and that at least as early as June 15, 1995, the Town issued permits to AMW for (1) the use and storage of flammable and combustible liquids and other hazardous chemicals, (2) the use of ovens and furnaces, and (3) the conducting of spraying operations for flammable finishes. The plaintiffs contend that from June 1995 through June 2000 the Town issued and annually renewed permits to AMW to conduct such activities. Furthermore, the plaintiffs assert that the Town conducted several site inspections of the AMW facility.

On October 9, 2000, a fire broke out at the AMW facility. The plaintiffs claim that Methylethylketone, a flammable material and a hazardous substance, was ignited in the paint room during a cleaning operation. The fire alarm at AMW automatically called in the fire to a central alarm, which confirmed the fire with AMW and called the defendant The North Amityville Fire Company, Inc. In treating the fire, the plaintiffs contend that the defendants' actions directly and proximately caused, among others things, a release of hazardous substances, dispersal and migration of various hazardous substances, damage to the environment, and the destruction of the AMW facility.

B. Procedural Background

On June 22, 2001, the plaintiffs commenced this action seeking to hold the defendants liable in damages for losses resulting from the fire. Some of the losses include the cost of environmental remediation ordered by the New York State Department of Environmental Conservation by reason of the escape of hazardous and toxic materials from the AMW facility during the fire. In May 2001, the Town commenced criminal proceedings against AMW based on charges related to the instant action.

On October 23, 2001, after the parties agreed to a discovery schedule, Judge Boyle entered a scheduling order. The scheduling order required that all depositions, except for experts, were to be completed by July 31, 2002. The scheduling order set forth a discovery completion date of November 30, 2002. The plaintiffs noticed and took all of their depositions in the spring of 2002. However, the defendants did not notice any depositions.

By letter dated March 15, 2002 to the plaintiffs, the defendants' counsel inquired as to whether noticing the plaintiffs' depositions would be postponed due to the pending criminal proceedings. In a letter dated May 20, 2002, the plaintiffs' counsel informed the defendants that there was no need to wait for the resolution of the criminal proceedings and that they intended to conclude this case within the time schedule ordered by the Magistrate Judge.

On August 8, 2002, the criminal charges were dismissed against AMW. Thereafter, the defendants served several notices of deposition on August 22, 2002 and one on September 4, 2002. The plaintiffs' counsel rejected the defendants' deposition notices. On September 10, 2002, the defendants requested that Judge Boyle extend the July 31, 2002 deposition deadline, which request was opposed by the plaintiffs.

On October 2, 2002, Judge Boyle held a conference, and after reviewing the parties' submissions and following brief argument, he found that the defendants' failure to notice or take depositions was a calculated decision to obtain advantage in this case through the criminal proceedings. Judge Boyle determined, among other things, that the defendants failed to establish good cause to modify the originally agreed scheduling order under Rule 16(b) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") to allow fact depositions. Thus, the defendants' request to modify the scheduling order to exceed the time for non-expert deposition was denied.

At the conference, the parties also discussed the plaintiffs' second request to the Town for production of documents. Judge Boyle indicated that the plaintiffs could submit a motion to compel. By letter dated October 8, 2002, the plaintiffs moved to compel the Town to produce the following documents: (1) all Fire Prevention Permits issued to industrial and/or commercial entities or uses in the Town for the period October 1998 through October 2000; (2) all renewals of Fire Prevention Permits issued by the Town during the period October 1998 through October 2000; and (3) all applications submitted to the Town for Fire Prevention Permits or renewals of Fire Prevention Permits, during the period October 1998 through October 2000, whether issued or denied, and all correspondence from the Town which contained or accompanied said permits, renewals or denials. The Town responded by letter dated October 16, 2002 and asserted that the documents sought by the plaintiffs were irrelevant to ...

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