The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Josephine Caronia ("Plaintiff") commenced this action on July 27, 2005, alleging violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act by Defendants Hustedt Chevrolet, Hustedt Chevrolet, Inc., Hustedt Chevrolet West, Hustedt Chevrolet West, Inc., Hustedt Hyundai, Hustedt Hyundai, Inc. and Charles Chalom (collectively the "Hustedt Defendants").*fn1
On October 3, 2005, Hustedt Defendants filed an answer asserting counterclaims against Plaintiff accusing her of financial misconduct.
Presently before the Court are the objections by Hustedt Defendants to an Order, dated June 20, 2007, by Magistrate Judge Orenstein precluding them from using any documents not produced by June 19, 2007 which are claimed to support the counterclaims alleging financial misconduct by Plaintiff. For the reasons set forth below, the objections are denied except to the extent that Hustedt Defendants shall be given an opportunity to depose Plaintiff on the counterclaim.
Plaintiff was employed as a controller by the Hustedt Defendants from sometime in 1991 through February 8, 2005. Hustedt Defendants accuse Plaintiff of theft dating as far back as 1999. While they steadfastly insist the Plaintiff stole between $800,000.00 and $1,000,000.00, Hustedt Defendant have physical proof allegedly supporting only $145,000.00. Despite discovery demands therefor and an Order by Judge Orenstein, as of November 16, 2006, more than one year after the assertion of their counterclaims, Hustedt Defendant were unable to produce support for any defalcation beyond $145,000.
On November 16, 2006, Judge Orenstein entered two Orders.*fn2 First, Judge Orenstein, having been advised that the Hustedt Defendants had filed allegations of theft against Plaintiff with the Suffolk County District Attorney, severed and stayed discovery on the counterclaim pending action by the District Attorney. Second, Judge Orenstein directed Hustedt Defendants to appear on December 15, 2006 and disclose any proof of financial misconduct in excess of the $145,000.00. At the December 15, 2006 conference, Hustedt Defendants failed to supply any such proof. Thereafter, Judge Orenstein issued at least two more Orders directing Hustedt Defendants to produce any and all proof supporting misconduct above the $145,000. Hustedt Defendants concede that despite Judge Orenstein's "repeated" directions, no proof above the $145,000.00 was produced.
On June 20, 2007, Judge Orenstein entered an Order (1) extending the stay of discovery on Hustedt Defendants' counterclaims; and (2) precluding Hustedt Defendants from using any documents on a hearing, motion or trial further documents, not produced by June 19, 2007 (i.e. documents beyond the $145,000) which are claimed as support of its counterclaims alleging financial misconduct. According to the Order it "is based upon such defendants' failure to produce such documents."
This Court reviews a Magistrate Judge's decision regarding non-dispositive pretrial matters under a "clearly erroneous or contrary to law" standard. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Discovery matters generally are considered non-dispositive of litigation. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). Sanctions imposed pursuant to Rule 37 of the Federal Rules of Civil Procedure for noncompliance with discovery orders are typically within the discretion of the court and reviewed under the "clearly erroneous or contrary to law" standard. See Hoar, 900 F.2d at 55.
An order is "clearly erroneous" only if a reviewing court, considering the entirety of the evidence, "'is left with the definite and firm conviction that a mistake has been committed'"; an order is "contrary to law" when it "'fails to apply or misapplies relevant statutes, case law, or rules of procedure.'" E.E.O.C. v. First Wireless Group, Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004) (quoting Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001)). This standard is "highly deferential," "imposes a heavy burden on the objecting party," and "only permits reversal where the magistrate judge abused his discretion." Mitchell v. Century 21 Rustic Realty, 233 F. Supp. 2d 418, 430 (E.D.N.Y. 2002).
Some discovery sanctions are considered case dispositive requiring de novo review. Hoar, 900 F.2d at 55. See also Amer. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 90-91 (S.D.N.Y. 2002) (noting split on the standard of review for sanctions that affect a party's ability to assert a particular claim or defense). Given that Judge Orenstein's Order precludes the assertion of Hustedt Defendants' counterclaim in excess of $145,000 and given that Hustedt Defendants would be precluded under the doctrine of "claim splitting" from asserting a claim for any ...