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Fleming v. City of New York

August 8, 2006


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge



Rita Fleming ("Fleming"), a former New York City Police Officer, brings this action against the City of New York, (the "City"); former Police Commissioners of the City of New York, Howard Safir and Bernard Kerik; and other current and former employees of the New York City Police Department ("NYPD"), (collectively, "defendants"), alleging that the practices within the NYPD promote policies that violated her constitutional rights under the First, Fifth, and Fourteenth Amendments and her civil rights under 42 U.S.C. §§ 1981 and 1983.

Before the Court is Fleming's motion to compel certain formatting specifications for computer data produced in this litigation, and her motion for sanctions against defendants. For the reasons which follow, Fleming's application for disclosure of the formatting specifications is moot. However, the application for sanctions against the City is GRANTED in the amount of $4,642.50 in costs and fees associated with this discovery request. From that total amount, Fleming's expert, Mr. Faust ("Faust"), will recover $1,100 in expert fees for his time and effort in attempting to analyze the data without the specifications, and Fleming's counsel, Ms. Meenan ("Meenan") will recover $3,542.50 in attorney's fees for her time spent in attempting to obtain the City's compliance.


Fleming commenced this action on October 3, 2001. On July 23, 2002, her counsel served the City with an initial set of interrogatories and requests for production of documents. The Court held an initial conference with the parties on September 24, 2002, and set a discovery deadline of December 6, 2002. Among her discovery demands for various NYPD internal records pertaining to race, gender, disciplinary action, and termination for probationary police officers, document request number 12 forms the basis for this discovery dispute.

Document request number 12 sought the production of a study, also produced in Latino Officers Ass'n, Inc. v. City of New York ("LOA"), 99 Civ. 9568 (LAK), that was conducted by the NYPD and reported by the New York Times on March 14, 1998. Fleming asserted that the data from this study were relevant to her claims and necessary for Faust to complete his analysis and expert report. Nearly four years after Fleming's initial request for this information, the City had failed to produce all the requested data and corresponding formatting specifications necessary to comply with this discovery request.

The City initially challenged the request for the NYPD report as overbroad because the study covers the years 1988 through 1996, and Fleming was employed by the NYPD from 1998 through 2000. Yet, the Court found the report relevant because "the large majority of the decision makers relevant to that report are also relevant to this case," and ordered the City to produce the document. Opinion and Order, December 3, 2002, Docket No. 27. On September 27, 2005, Fleming requested an update to the City's production that included data from March 2000 through September 2000 to cover the period that Fleming was employed by the NYPD.

The City stayed judicial intervention to enforce this discovery request by informing the Court that it would provide Fleming with the requested update. Yet, after months of debating whether the data existed, and if so, whether it could be retrieved in a readable format, the City did not comply with the request. On February 15, 2006, the Court ordered the City to produce the update to the LOA data within forty-eight hours. On March 3, 2006, the City finally produced those records pursuant to a protective order, which was signed on February 22, 2006.*fn1

Fleming contends that the City's March 3rd production could not be analyzed by Faust because it did not include the corresponding formatting specifications, and that counsel contacted the City by letter on March 17, March 22, and April 4, requesting those specifications. On April 14, 2006, after another intervention by the Court, the City responded by producing what it claimed were the revised formatting specifications. Upon examination, Faust found that those specifications did not correspond to the March 3rd data set, and he provided Meenan with a list of discrepancies between the data set and specifications. Meenan forwarded that list, along with a letter requesting the correct specifications, to the City's counsel, Ms. Switzer ("Switzer"), on May 4, 2006, yet received no response from the City. Finally, on June 6, 2006, Fleming requested judicial intervention once again, seeking an order to compel the production of the required formatting specifications and to sanction the City for its delay and failure to comply with discovery. As a result, the Court ordered both sides to appear on June 21, 2006, for a hearing on these issues, and stated that each side would be free to submit whatever supporting evidence and testimony for the record. Counsel were informed that if the issue had not been resolved prior to the hearing, the losing party would be sanctioned and bear the cost of the hearing. The City did not produce another version of the formatting specifications until the day of the hearing.

At the hearing, Fleming argued that, even if the data produced that day fulfilled the Court's order, the dispute had resulted in excess time and costs, to which Faust was prepared to testify. Hearing Transcript ("Tr.") at 2. Although the City initially failed to bring in a witness to testify on the issue of compliance, it countered that an award of costs was not necessary because it had fully complied with discovery by producing the updated LOA data set in February 2006, the formatting specifications for the original LOA data set in April 2006, and a third production--the most recent update to those specifications. Tr. at 5-6. The City also asserted that the specifications the City produced in response to Fleming's current demands correspond to the original LOA data set and therefore should have permitted Faust to analyze the updated data. Tr. at 57. The Court eventually allowed the City to present a witness on the issue of the formatting specifications, and adjourned the hearing for fifteen minutes while counsel contacted their records person.*fn2 Mr. David Folds ("Folds") appeared to testify on behalf of the City.


A. The Scope of Discovery

Discovery is generally limited to any matter, not privileged, which is relevant to the subject matter involved in the pending action or appears reasonably calculated to lead to the discovery of admissible evidence. FRCP 26(b). "Relevancy is broadly construed to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Carey v. ...

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