United States District Court, S.D. New York
June 15, 2004.
ALPHEUS COLLENS, Plaintiff,
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,
This is a civil rights action brought pursuant to
42 U.S.C. § 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
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
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