United States District Court, E.D. New York
June 14, 2004.
UNITED PARCEL SERVICE OF AMERICA, INC., Plaintiff,
THE NET, INC. AND DOES 1 THROUGH 10, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is a motion pursuant to Rule 72(a)
of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.") by
the plaintiff United Parcel Service ("UPS" or the "plaintiff") to
set aside United States Magistrate Judge Arlene R. Lindsay's
Order dated January 27, 2004 (the "Order").
This case involves an action by UPS against The Net, Inc. and
Does 1 through 10 for trademark dilution and infringement, unfair
competition, deceptive business practices, cyber-piracy, and
misappropriation of the plaintiff's goodwill, reputation, and
business property. In a March 13, 2001 letter, Keith Maydak, who
is currently incarcerated in Canada with claims of more than
$500,000 in legal judgments against him, informed the Court that,
among other things, (1) he is the proprietor of The Net; (2) he
was willing to accept service on behalf of The Net; and (3) he
wished to appear on their behalf. In an Order dated February 15,
2002, the Court granted Maydak's request to represent The Net as
a pro se defendant.
On June 13, 2003, pursuant to Fed.R.Civ.P. 34, the plaintiff
filed a "Request for Production of Documents and Things" upon
Maydak. In response, Maydak informed the plaintiff that the
appropriate and responsive documents are located at two locations
in western Pennsylvania and that they range in number from
100,000 to 200,000 documents. Maydak claimed that he is unable to
bear the cost of shipping the documents to and from Canada to vet
them personally pursuant to the plaintiff's Request. In addition,
Maydak stated that his incarceration makes him unable to travel
to Pennsylvania and personally inspect the documents to determine
As a result, on January 27, 2004, Judge Lindsay ordered that
the plaintiff may discover these documents either (1) by entering
into a confidentiality order and personally reviewing the
documents in western Pennsylvania at its own cost, or (2) by
bearing the cost of shipping the documents to and from Canada
where Maydak is incarcerated in order that he may review and vet
the documents for relevancy. The Order allows the plaintiff to
add these expenditures to their overall litigation costs.
UPS now moves to set aside Judge Lindsay's Order pursuant to
Fed.R.Civ.P. 72(a), asserting principally that (1) the Order
is "contrary to the spirit and letter" of the Federal Rules
because it requires UPS to bear the cost of its own discovery
request; and (2) the Order allows Maydak to circumvent his
obligations under the Federal Rules. The plaintiff requests that
Maydak be ordered to vet his own documents and to make responsive
documents available to UPS for inspection and copying immediately
pursuant to his obligations under the Federal Rules of Civil
A. The Standard of Review
A magistrate judge possesses wide discretion in handling
pre-trial discovery matters. See Ruddock v. Reno, No. 96 Civ.
1964, 2001 U.S. Dist. LEXIS 24724, at *3 (N.D.N.Y. Dec. 19, 2001)
(citing Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir.
1992)). Pre-trial discovery issues are generally considered
non-dispositive matters. See Thomas E. Hoar v. Sara Lee Corp.,
900 F.2d 522, 525 (2d Cir. 1990). When reviewing a magistrate
judge's order concerning discovery, issues that are
non-dispositive of a claim or defense may be set aside or
modified only upon a showing that the Order "was clearly
erroneous or contrary to law." Thomas E. Hoar, Inc. v. Sara Lee
Corp., 900 F.2d 522, 525 (2d Cir. 1990) (citation omitted);
Fed.R. Civ. P. 72(a). An order is "clearly erroneous" only
when "the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
Thompson v. Keane, No. 95 Civ. 2442, 1996 U.S. Dist. LEXIS
6022, at *1 (S.D.N.Y. May 6, 1996) (internal quotation and
A party seeking to overturn a discovery order therefore bears a
heavy burden. See Com Tech Assocs. v. Computer Assoc. Int'l,
753 F. Supp. 1078, 1079 (E.D.N.Y.), aff'd, 938 F.2d 1574 (2d
Cir. 1991). Under this highly deferential standard of review, a
reversal of a magistrate judge's order is appropriate "only if
their discretion is abused." Universal Acupuncture Pain Serv.,
P.C. v. State Farm Mutual Auto. Ins. Co., et al., No. 01 Civ.
7677, 2002 U.S. Dist. LEXIS 19555, at *2 (S.D.N.Y. Oct. 10, 2002)
(citing Lanzo v. City of New York, No. 96 Civ. 3242, 1999 U.S.
Dist. LEXIS 16569, at *2 (E.D.N.Y. Sept. 21, 1999)).
B. As to the January 27, 2004 Order Pursuant to Fed.R. Civ.
P. 34(a), a party may serve on another party a request to produce
documents relevant to a claim or defense of a party. See Fed.
R. Civ. P. 34(a). There is a presumption under the discovery
rules that the responding party must bear the expense for
complying with a discovery request. See Zubulake v. UBS
Warburg, 217 F.R.D. 309, 316 (S.D.N.Y. 2003). However,
Fed.R.Civ.P. 26(b)(2)(iii) permits a judge to "limit" a discovery
the burden or expense of the proposed discovery
outweighs its likely benefit, taking into account the
needs of the case, the amount in controversy, the
parties' resources, the importance of the issues at
stake in the litigation, and the importance of the
proposed discovery in resolving the issues.
Thus, as part of limiting discovery, Rule 26(b)(2) allows a
judge to assess the burden of a discovery request with regard to
its likely benefit and to shift "some or all of the costs of
production to the requesting party." Chao v. 3RE.com, No.
01-2350-M1V, 2003 U.S. Dist. LEXIS 14064, at *6 (W.D. Tenn. July
28, 2003) (citing Oppenheimer Fund v. Sanders, 437 U.S. 340
358, 57 L.Ed.2d 253, 98 S.Ct. 2380 (1978)); Zonaras v.
General Motors, No. C-3-94-161, 1996 U.S. Dist. LEXIS 22535, at
*4-6 (S.D. Ohio Oct. 17, 1996) (instructing the requesting party
to bear half of the costs of discovery).
This interpretation of Rule 26(b)(2) comports with the 1983 and
1993 changes to the rule. The Advisory Committee Notes expressly
state that judges may take into account financially "weak"
litigants when issuing discovery orders. Advisory Committee Notes
to 1983 Amendment to Rule 26(b)(2). Further, the changes to the
rule in 1993 emphasize that, "[t]he revisions in Rule 26(b)(2)
are intended to provide the court with broader discretion to
impose additional restrictions on the scope and extent of
discovery. . . ." Advisory Committee Notes to 1993 Amendment to
Significantly, the 2000 changes note that the limitations set
forth in Rule 26(b)(2) are meant to apply to all discovery
matters and that the discretion afforded to judges by
Rule 26(b)(2) has not been used "with the vigor that was
contemplated." Advisory Committee Notes to 2000 Amendment to
Rule 26(b)(2); see Thompson v. Dept't of Hous. and Urban Dev.,
199 F.R.D. 168, 171 (D. Md. 2001) (summarizing the various changes to
Rule 26(b)(2) from 1970 to 2000)). Therefore, the Court finds
that the maturation of Rule 26(b)(2) over several decades allows
judges to use the limitations of Rule 26(b)(2) with increasing
frequency and with an eye toward equity. This, undeniably,
includes cost-shifting in discovery.
The Court also notes that, although a party is not usually
excused from bearing the cost of responding to a discovery
request simply because of a financial hardship, see Doe v.
United States, 112 F.R.D. 183, 184 (S.D.N.Y. 1986), Maydak is
not only an indigent litigant, but he has the added burden of
foreign incarceration. Thus, he is apparently unable to withstand
the discovery expenditures that the plaintiff's request commands.
Nor can he travel to western Pennsylvania and personally respond
to the plaintiff's request.
In a case that was filed five years ago, Judge Lindsay
appropriately used her discretion in balancing the needs of
judicial expediency with economic efficiency. It would be an
unwarranted sacrifice of pragmatism to allow this case to be
mired in discovery when pre-trial discovery is near its end.
Maydak's position is unique and Judge Lindsay's Order correctly
facilitates the ultimate disposition of this case. Accordingly,
the Court finds that Judge Lindsay's Order was not "clearly
erroneous or contrary to law."
Accordingly, the plaintiff's motion to set aside Judge
Lindsay's January 27, 2004 Order is DENIED.
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