United States District Court, S.D. New York
June 2, 2005.
RAMON AYALA, EL CARTEL RECORDS, INC., and LOS CANGRIS INC., d/b/a CANGRIS PUBLISHING, Plaintiffs,
TEE VEE TOONS, INC., d/b/a TVT Records, TVT MUSIC, INC., JONATHAN SMITH, ARMANDO PEREZ and DOES 1-2000, Defendants.
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
MEMORANDUM AND ORDER
The District Judge assigned to this case, Judge Barbara S. Jones, has
referred this case to me for general pretrial supervision. This means that I
will make decisions about the discovery phase of the litigation, but not
about the motion for a preliminary injunction and not about motions to
dismiss such as motions pursuant to Rule 12(b) or Rule 56.
I enclose a copy of my Standing Order for Discovery Disputes,
but I make one change in view of Judge Jones's order granting
expedited discovery: Until Judge Jones completes the hearing now
scheduled for June 13, 2005, I hereby modify ¶ 3(a) of my
Standing Order so that the references to "5 business days" are
changed to "one business day." In a true emergency, any attorney
may request me to hold a telephone conference if there is not
time to prepare a single joint letter. Standing Order for Discovery Disputes in Cases Assigned to
Magistrate Judge Douglas F. Eaton
¶ 1. Conference requirement. Rule 37 (a) (2) (A and B),
Fed.R.Civ.P., requires the attorneys to confer in good faith in an
effort to resolve or narrow all discovery disputes before seeking
judicial intervention. "Confer" means to meet, in person or by
telephone, and make a genuine effort to resolve the dispute by
determining, without regard to technical interpretation of the
language of a request, (a) what the requesting party is actually
seeking, (b) what the discovering party is reasonably capable of
producing that is responsive to the request, and (c) what
specific genuine issues, if any, cannot be resolved without
judicial intervention. The exchange of letters between counsel
stating positions "for the record" shall not be deemed compliance
with this requirement, or with Rule 37 (a) (2) (A and B). Failure
to hold a good faith conference is ground for the award of
attorney's fees and other sanctions. 28 U.S.C. § 1927; Apex Oil
Co. v. Belcher Co., 855 F.2d 1009, 1019-20 (2d Cir. 1988).
¶ 2. Depositions.
a. No one may instruct a witness not to answer, except upon grounds of
privilege, or as permitted by Rule 30(d)(1), Fed.R.Civ.P. All other
objections, including objections as to relevance, may be briefly stated on
the record, but the question must be answered.
b. If privilege is asserted, the person claiming privilege must
answer the predicate questions necessary to establish the
applicability of the privilege. See Local Civil Rule 26.2.
c. Disputes relating to privilege or procedure at a deposition,
and applications to terminate or limit a deposition pursuant to
Rule 30(d), may be brought to my attention by telephone
conference (if I am available) without adjourning the deposition.
(NOTE: Telephone conferences are limited to disputes about a
deposition taking place that very day. Any other disputes must
be submitted by joint letter; see below at ¶ 3.) My telephone
number is 212-805-6175. The following procedures apply to such
telephone conferences: (1) All attorneys present at the deposition must participate in
the telephone conference by speakerphone or extension telephone.
(2) Unless otherwise directed by me, the witness shall be out
of the room during the argument of the issues raised.
(3) The reporter must be available to read the verbatim text of
any matters in dispute, and shall record and transcribe the
entire telephone conference as part of the record of the deposition.
(4) The parties' time to seek review pursuant to Rule 72(a),
Fed.R.Civ.P. of any ruling made during a telephone conference
shall commence to run on the date of receipt of the transcript.
¶ 3. All other discovery disputes (including disputes about
a. Local Civil Rule 37.2 speaks of a first request for an
informal conference with the court; however, in discovery
disputes before me (except for disputes about a deposition taking
place that very day), you should not bother to request an
informal conference. Instead, proceed as follows. Following
compliance with ¶ 1, above, counsel must submit a single joint
letter, signed by each counsel of record who is a party to the
dispute, and giving each counsel's telephone number and fax
number. The joint letter should identify each issue which
requires judicial intervention, and state the position of each
party on the first issue before moving on to any second issue.
The joint letter should be faxed to 212-805-6181, provided that
the letter is no longer than 12 pages, and provided that a
manually signed original is thereafter mailed. (I prefer to
be able to review the letter quickly in fax form, even if I may
have to wait for exhibits to arrive by mail.) The mailing should
enclose the manually signed letter, plus any exhibits. The
mailing should also enclose a courtesy copy of the joint letter
(but not a courtesy copy of any exhibits). If you send your
adversary a draft of your portion of a joint letter and he or she
does not send you a responsive portion within 5 business days,
you may send your portion to me (with another copy to your
adversary, and an explanation of the circumstances). You must
wait for the 5 days even if there are fewer than 5 business days
before a discovery deadline.
b. I wish to encourage the parties to change their positions
and to offer compromises. Hence, each side may re-write or delete portions of its draft position. To avoid unreasonable delay, the
parties should confer again and make a genuine effort to produce
a final version of the joint letter that each party is willing to
sign as a fair statement of its final position.
c. The joint letter must be limited to a statement of what
discovery still remains in dispute, and why each party believes
it should or should not be ordered. Citation of case law is
desirable. It is usually unnecessary to recite the procedural
history in detail. It is usually unhelpful to include subjective
matters such as opinions about the motives of your adversary.
d. If interrogatories, document requests, or responses are in
dispute, the joint letter must enclose the text of the specific
items in dispute (and only those items).
e. I will normally decide such disputes on the basis of the
joint letter, with no oral argument. If I want affidavits,
briefs, or a conference, I will inform counsel.
f. Submissions under ¶ 3 shall be deemed to be motions pursuant
to Rule 37 and may provide the basis for me to award expenses and
g. My requirement for a single joint letter applies also to
non-parties. If a party foresees that it may have a discovery
dispute with a non-party, then it shall serve the non-party with
a copy of this Standing Order.
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