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
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
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
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
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.
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
"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
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.
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.