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ELDAGHAR v. CITY OF NEW YORK DEPT. OF CITYWIDE AD. SERV.

United States District Court, S.D. New York


February 27, 2004.

ASEM ELDAGHAR, Plaintiff, -against- THE CITY OF NEW YORK DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Defendant

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This is an employment discrimination action in which plaintiff alleges that he was terminated from employment with the defendant on the basis of age and national — origin discrimination. On December 8, 2003 I held a discovery conference during which I resolved most of the parties' discovery disputes. Several of the disputes required additional briefing, and the parties have submitted letter briefs addressing these issues. I write to resolve these outstanding issues.

1. Redaction of Purportedly Personal Information for Employment Records
  Defendant first seeks a protective order permitting it to redact social security numbers, addresses and telephone numbers from the employment records of current and former employees of defendant. Defendant claims that the redaction is appropriate in order to protect the privacy interests of the non — party employees and prevent plaintiff from contacting them directly. Plaintiff does not object to redacting the social security Page 2 numbers, and social security numbers may, therefore, be redacted. Plaintiff does object to the redaction of contact information.

  It is well settled that the party seeking a protective order bears the burden of demonstrating that such an order is justified. Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992), citing Penthouse Int'l. Ltd, v. Playboy Enters., Inc., 663 F.2d 371, 391 (2d Cir. 1981); Monarch Knitting Mach. Corp. v. Sulzer Morat GMBH, 85 Civ. 3412 (LBS), 1998 WL 338106, at *1 (S.D.N.Y. June 25, 1998); Concord Boat Corp, v. Brunswick Corp., 169 F.R.D. 44, 48-49 (S.D.N.Y. 1996). Thus, to the extent defendant argues that plaintiff must show a need for the contact information, it has misallocated the burden. Plaintiff need not show good cause for relevant discovery. Rather, it is defendant's burden to show good cause to limit discovery.

  To the extent that defendant asserts the need to protect the privacy of the non — party employees, its argument ignores the fact that we now live in an age where the Internet has made a wealth of identifying information available. Through publicly available databases, it is now possible for a person with only modest knowledge of the Internet to find out an individual's address, telephone number, his/her spouse's name and date of birth, the names, addressee — and telephone — numbers of the individual's neighbors and the number of years they have lived at their current addresses, I have no doubt that an individual with greater knowledge of the Internet could access even more detailed information. Given the fact that the information in issue could Page 3 almost certainly be found on the Internet, there is not a pro — tectable privacy interest in addresses and telephone numbers.

  To the extent that defendant seeks to redact the information in order to prevent plaintiff from contacting current and former employees, its application also lacks any legal basis. Although professional ethical restrictions that may prevent an attorney from contacting a current or former employee of a represented, adverse party, see generally Miano v. AC & R Adver., Inc., 148 F.R.D. 68, 74-75 (S.D.N.Y. 1993); Polycast Tech. Corp, v. Uniroyal, Inc., 129 F.R.D. 621, 623-28 (S.D.N.Y. 1990), the pro se plaintiff here is not an attorney and is not, therefore, subject to these professional ethical restrictions. To the extent plaintiff seeks to prevent plaintiff from contacting current or former employees directly, there simply is no general prohibition against a party preparing its case by contacting and interviewing witnesses informally.*fn1 Although no litigant, whether pro se or represented, has the right to harass a potential — witness or to make a nuisance of himself, there is no evidence currently before me that would support a finding that plaintiff intends to or is likely to engage in such misconduct. Page 4

 2. Defendant's Request to Pre-Clear Plaintiff's Interviews

  Defendant's application to compel plaintiff to "pre-clear" all contact with current or former employees with defendant's counsel, it application is denied. Although such a procedure was endorsed in Katt v. City of New York, 95 Civ. 8283 (LMM), 1997 WL 394593 at *4-*5 (S.D.N.Y. July 14, 1997), it appears from the opinion that the procedure was warranted in that case because plaintiff was represented by counsel, and pre-clearance was necessary to ensure that the individuals contacted were not so highly placed that they were, in effect, the party and protected from ex parte contact by DR 7-104(A)(1). See 1997 WL 394593 at *4. Since plaintiff here is not an attorney and is proceeding pro se, DR 7-104(A)(1) does not apply to him, and Katt is, therefore, distinguishable.

 3. William Diamond Deposition

  Defendant also seeks a protective order precluding plaintiff from deposing William Diamond, the former Commissioner of the Department of Citywide Administrative Services, on the ground that Diamond has no knowledge of the events in suit. In support of this application, defendant has submitted a declaration from Diamond in which he states that he has no first — hand knowledge of the facts and circumstances surrounding plaintiff's termination.

  In order to take the deposition of a high ranking government official who was not directly involved in the events in issue, the party seeking the deposition must ordinarily show Page 5 "both that the deposition is necessary to obtain relevant information that cannot be obtained elsewhere and that the deposition will not significantly interfere with the official's performance of his governmental duties." 2 Michael C. Silberberg & Edward M. Spiro, Civil Practice in the Southern District of New York, § 17.07 at 17-23 — 17-24 (2d ed. 2003). Since plaintiff offers no evidence of Diamond's knowledge and Diamond's declaration establishes his lack of knowledge concerning the events in issue, defendant's application for a protective order is granted. In light of defendants assertion that Diamond has no pertinent knowledge and in order to prevent any unfair surprise to plaintiff, defendant is also precluded from calling Diamond as a witness at trial or from offering an affidavit or declaration from Diamond in connection with any motion unless defendant makes Diamond available for deposition by plaintiff in a timely manner.

 4. Amended Schedule

  The schedule for the completion of pretrial proceedings is amended as follows:

1. All discovery shall be completed on or before April 1, 2004.
2. Plaintiff shall produce all materials required by Rule 26(a)42) of the Federal Rules of Civil procedure no later than April l, 2004.
  3. Defendant shall produce all materials required by Rule 26 (a)(2) of the Federal Rules of Civil procedure no later than May 3, 2004. Page 6

 

4. Dispositive motions, if any, shall be served and filed no later than June 1, 2004.
5. The Pretrial Order in the form required by Judge Wood's rules, along with all other pretrial submissions required by Judge Wood, shall be filed on July 1, 2004, or third after the decision on any dispositive motion (if it still necessary after such decision), whichever date is later. Plaintiff shall serve a draft of his portion of the Pretrial Order on counsel for defendant no later than fifteen days prior to the Pretrial Order's due date.
5. Remaining Discovery Disputes

  Plaintiff and counsel for defendant are to meet forthwith in an effort to resolve whatever Discovery deputes remain. The meeting shall take place either in person or by telephone; it shall not be limited to an exchange of correspondence. If the parties are unable to resolve any remaining discovery disputes, plaintiff and counsel for defendant are ftp send me letters of no more than ten (10) pages in length (double — spaced) no later than March 12, 2004 identifying the disputes and setting forth their respective positions.


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