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Fleming v. City of New York

December 5, 2007


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 and policies within the NYPD 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 for sanctions against the City for failing to provide formatting specifications for computer data produced in this litigation. Fleming argues that 1) the City's pattern of discovery misconduct merits severe sanctions, and 2) the City should be sanctioned for spoliation of evidence. Fleming asks that the City's Answer be stricken, the defense expert witness be prevented from disclosing any information at trial that was withheld from Fleming, and all costs, including attorney's fees for the motion application and any additional analysis needed from Fleming's expert witness be paid by the City. The Court has not received the City's opposition to Fleming's motion. For the following reasons, Fleming's motion for sanctions is GRANTED, in part, and DENIED, in part.


Fleming commenced this action on October 3, 2001. As the result of ongoing discovery disputes, and in accordance with the Court's scheduling order, she filed a motion for sanctions against the City on September 5, 2007. The City did not respond to Fleming's motion. Accordingly, the facts as set out by Fleming's submissions will be taken as true.

The two data systems in dispute in this matter are the Case Analysis and Tracking System ("CATS") and a personal data file maintained by the NYPD ("PERS"). (Declaration of Colleen M. Meenan ¶¶ 9, 10 (" Decl.").) CATS records information on NYPD members charged with serious disciplinary infractions and includes information on the date and nature of the charges filed, whether the officer was found guilty at trial, the referral source, and the penalty, if any. (Decl. ¶ 9.) PERS records information on all officers such as their gender, race, and date of appointment. Id. at ¶ 10.

The City was previously sanctioned because it had withheld data sets from Fleming's expert witnesses, Richard Faust ("Faust") and Dr. Mark Killingsworth ("Killingsworth"). The City's expert witness, Dr. Phillip Bobko ("Bobko"), however, has used the withheld data sets to challenge Faust and Killingsworth's analyses of the NYPD's disciplinary patterns toward minorities. See, e.g., Fleming v. The City of New York, 01Civ. 8885 (CM) (RLE), 2006 U.S. Dist. LEXIS 55733 (S.D.N.Y. Aug. 8, 2006) (ordering sanctions against the City in this same matter because it failed to provide the specified data sets for Fleming).

Currently at issue is the City's failure to comply with Rule 26 discovery requirements. In a previous motion to compel relevant data sets from the City and sanction it for discovery misconduct the Court granted the monetary sanctions. Fleming, 2006 U.S. Dist. LEXIS 55733 at *14. The Court did not order the production of the data set at that time because on June 21, 2006, the City represented that it had provided Fleming with the revised version of the formatting specifications as requested by Fleming and ordered by the Court in February. Fleming has now determined that the City's production did not comply with the Court's earlier order. (Decl. ¶ 18.) Fleming notified the City and the Court about the flawed reports. Id. at 3-5.

The databases are critical to Fleming's case. According to Fleming, the City has failed to provide her with the information Bobko used in formulating his challenges to Faust and Killingsworth. Specifically at issue in this motion is the missing CATS and PERS data. The data produced by the City this year failed to correct the missing "explanatory variables" relied on by Bobko to challenge Faust and Killingsworth's findings. (Decl. ¶ 24.) Additionally, new data produced by the City eliminated variables previously provided in prior versions of CATS. (Id. ¶ 26.) Fleming was told that the "information previously tracked and provided in earlier versions of CATS is no longer maintained in the current CATS system." (Id. ¶ 29.) Fleming asserts that the necessary synthesis of CATS data received from the City over a period of years is made impossible without the help of the City because the prior and current data sets are incongruous. (Id. ¶ 31.)

Data in the PERS data set provided to Fleming lacks information about rank and command history. This information is relevant because the City's expert reports criticized Fleming for using race, and for not taking into account other "explanatory variables," such as command or precinct assignment, which can affect the situations to which the NYPD member has been exposed. (Decl. ¶¶ 35, 36.) Without the rank and command history data in the PERS system, Fleming's expert witnesses cannot respond to Bobko's "explanatory variables" challenge.


A. 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. FED. R. CIV. P. 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. Berisford Metals Corp., ...

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