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COLLENS v. CITY OF NEW YORK

United States District Court, S.D. New York


June 15, 2004.

ALPHEUS COLLENS, Plaintiff,
v.
THE CITY OF NEW YORK, a municipal corporation, et al., Defendants.

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

MEMORANDUM OPINION AND ORDER

I write to resolve a discovery dispute addressed in correspondence from plaintiff's counsel dated June 2 and June 3, 2004 and in correspondence from defendants' counsel dated June 3, 2004.

This is a civil rights action brought pursuant to 42 U.S.C. ยง 1983. Plaintiff, an African American, alleges, in substance, that on or about February 3, 2003 he watched two police officers stop and frisk an individual in the Bronx. According to plaintiff, the officers told him that it was illegal to watch them conduct the stop and frisk, and plaintiff responded that the officers were incorrect. Plaintiff alleges that he then entered a restaurant and left a short time later. According to plaintiff, upon exiting the restaurant, he was seized by the police officers and issued a summons charging him with disorderly conduct. The disorderly conduct charge was ultimately dismissed. Plaintiff alleges that he was improperly issued the summons in retaliation for the exercise of his constitutional rights and that the issuance of the summons was also racially motivated.

  Currently at issue is defendants' alleged failure to comply with my Order dated April 23, 2004. In that Order, I directed, among other things, that

"Within ten (10) days of the resolution of the parties' dispute concerning the protective order, defendants are directed to produce records concerning disciplinary proceedings commenced against the individual defendants after April 24, 1994, whether or not such proceedings resulted in a finding or adjudication of guilt, misconduct or substantiation. The records to be produced are limited to disciplinary proceedings concerning alleged acts of racial discrimination, alleged acts of retaliation for the exercise of constitutionally protected rights, false statements/false entries, the improper issuance of summonses and any other conduct that is relevant to the individual defendants' veracity."
  According to plaintiff, the parties resolved their differences concerning the protective order on May 12, 2004. Thus, defendants' document production pursuant to my April 23, 2004 Order would have been due on May 26, 2004 or ten (10) business days thereafter. Fed.R.Civ.P. 6(a). According to plaintiff, defendants did not commence their production of documents until May 28, 2004. In addition, plaintiff notes that in their initial production concerning one of the defendants, counsel improperly redacted a notation that the defendant had been charged with "Offensive Lang.-Race." This charge was, however, subsequently disclosed.

  In response, defendants' counsel claims that she was late in making her production because she was on trial in New York State Supreme Court, Bronx County. In addition, defendants' counsel requests that the Court conduct an in camera review of the individual defendants' disciplinary records for relevance.

  At the outset, I note that defendants' failure to comply with my discovery order in a timely manner is, at best, an extremely dangerous practice. First, counsel for the defendants here is the Office of the Corporation Counsel of the City of New York. The fact that an individual assistant corporation counsel may have a trial does not excuse the failure of counsel of record to comply with the discovery order in a timely manner. Second, meeting multiple deadlines simultaneously is an inherent part of the practice of law. Third, the Court of Appeals has repeatedly warned counsel that "discovery orders are meant to be followed. `A party who flouts such orders does so at his peril.'" Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995) quoting Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 73 (2d Cir. 1988). However, in light of the short time span of defendants' default and the fact that this is defendants' "first offense" in this matter, I deny plaintiff's application for sanctions. I am confident that my orders will be complied with in the future.

  Turning to the underlying dispute, it is discouraging that defendants' counsel initially redacted a disciplinary proceeding which was clearly within the scope of my April 23, 2004 Order. She had proffered no explanation for the redaction, and it is difficult to hypothesize why it was redacted. My April 23, 2004 Order set fairly clear lines concerning what was to be produced. It is impossible to understand why defendants' counsel could not comply with my direction.

  Defendants' suggestion that I review the disciplinary proceedings in camera for relevance is not a practical solution. It is well-settled that in camera review of documents by the Court is the exception and not the rule because of the enormous strain it places on the resources of federal trial courts. Germosen v. Cox, 98 Civ. 1294 (BSJ); 1999 WL1021599 at *19 (S.D.N.Y. Nov. 9, 1999). Local 32B-32J, Service Employees International Union v. General Services Administration, 97 Civ. 8509 (LMM), 1998 WL726000 at *11 (S.D.N.Y. 1998). Such review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance. I shall not, therefore, undertake a task more appropriately performed by defendants' counsel. Defendants' counsel is directed to review her document production forthwith to insure that she has complied fully with my April 23, 2004 Order. Doubts are to be resolved in favor of production. To the extent that the individual defendants' privacy interests are implicated by the production, those interests can be protected by designating the documents as "confidential" under the protective order in this matter. Production of documents concerning a particular disciplinary proceeding is, of course, not an admission that such documents or the underlying proceedings are sufficiently relevant to be admissible at trial or that they are, in fact, admissible. No later than ten (10) business days from the date of this Order, defendants' counsel shall confirm in writing to plaintiff's counsel that her document production in response to my April 23, 2004 Order is complete.

  Because this Order disposes of the pending discovery dispute, the conference previously scheduled for June 21, 2004 is cancelled.

  SO ORDERED.

20040615

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